Human Rights

• Author: Heinz Klug
• Pages: 291-306

The Handbook of Law and Society, First Edition. Edited by Austin Sarat and Patricia Ewick.

© 2015 John Wiley & Sons, Inc. Published 2015 by John Wiley & Sons, Inc.

Introduction

Ever since the adoption of the Universal Declaration of Human Rights by the United

Nations General Assembly in 1948 the language of human rights has expanded

exponentially and dispersed across the globe. This has led to the nearly universal

embrace of the idea of human rights by government and non‐government entities

alike. As Sally Merry notes, “since the 1980s, human rights concepts have gained

increasing international credibility and support … [and] have become the major

global approach to social justice” (2006: 2). Today the “language of human rights, if

not human rights themselves, is nearly universal” (Sarat and Kearns 2002: 2), even if

there is no settled understanding of human rights. However, as Sarat and Kearns

point out, “appeals to human rights as a way of understanding and regulating the

behavior of nations towards their people are as prevalent today as they have ever

been” (ibid.: 4). As a result the discourse of human rights now subsumes an ever‐

increasing range of issues from individual claims and abuses to global economic

development, from international norms to the framing of national constitutions and

the practice of local government officials. Yet in this era, even as the discourse of

human rights provides a promise of greater respect for human dignity in all its man-

ifestations it has also marginalized “alternative visions of social justice” (Merry 2006:

4) and other emancipatory discourses (Santos 2014).

As this “culture” of human rights has grown, so has the uncertainty and contested

nature of its meaning, scope and legal authority. From debates over universalism and

cultural relativism to the growing claims of social and economic rights, debates over

human rights have been shaped by the Cold War, decolonization, the war on terror

and the bureaucratic formulations of the Millennium Development Goals of the

Human Rights

Heinz Klug

19

292 Heinz Klug

United Nations, as well as by struggles of nations, communities and individuals around

the globe. Beginning in a moral claim for universal rights, human rights are increas-

ingly incorporated into law, from national constitutions to international criminal law,

yet the gap between these lofty goals and the realities of abuse – from conflict zones to

broader conditions of economic depravation – provides a stark reminder of the limits

of both the discourse and law of human rights. As Daphna Golan noted in her work

on human rights NGOs defending Palestinian rights in the Occupied Territories, the

NGOs “clearly represent the potential of universal human rights discourse in their

effective and credible use of that international language … [y]et they confront a dete-

riorating situation” (Golan and Orr 2012: 782). Today we all face a world in which the

globalization of human rights seems to coexist with an increasingly bifurcated world,

one in which the enjoyment of rights increases for some while violence and the degra-

dation of human dignity have come to dominate the lives of many others.

As the discourse on human rights is challenged, by the intervention of “southern

voices” (Twining 2009) on the one hand and by counter‐hegemonic social movements

(Santos and Rodríguez‐Garavito 2005) on the other, the practice of human rights has

come under increasingly close scrutiny. While the relationship between the discourse

and practice of human rights may be explored through a number of different research

strategies employed by scholars across disciplines, one classic approach, “gap studies,”

comes directly out of the law and society tradition. While the issue of a gap between

human rights principles and practice has long been a concern among human rights

activists and scholars, Lisa Hajjar goes beyond the traditional bemoaning of the real-

ities of international law and the fate of human rights. Instead, she traces how the

negotiation and implementation of particular human rights agreements – from the

Genocide Convention to the Torture Convention – reflect the tension between the

pressures to adopt these norms and concern among elites that these commitments

not be extended to apply to their own domestic or international human rights

violations (Hajjar 2004: 596). Nevertheless, she argues, the creation of this legal and

normative field, and the failure to uphold these commitments, stimulated the emer-

gence of a global human rights movement which today fulfills “a panoptic function of

international surveillance by documenting and protesting violations” (ibid.: 597). By

combining a traditional law and society approach to the empirically located “gap

problem” with a post‐realist conception of rights and legal consciousness, Hajjar

demonstrates how “pluralization and fragmentation” (Sarat 2004: 8) in the field of law

and society offer new methods and insights into the relationship between law and

human rights. The effect is to demonstrate how, despite obvious legal limitations and

failures, human rights have transformed the global order.

The Paradoxes of Human Rights

The Universal Declaration of Human Rights remains the paradigmatic representa-

tion of international human rights – a comprehensive list of rights, held up as the

standard of civilized behavior. At the same time the International Bill of Human