楼主: 郭国汀

The theory of Human Right

 楼主| 发表于 2/7/2018 13:49:00 | 显示全部楼层
One attack on human rights argues they are not universal,[3] either be-
cause no universal values exist (post-modernism)[4] or because human
rights represent western values[5] (cultural relativism).[6] Both these at-
tacks are erroneous.[7]
As in the question whether duties are a-priori a-rights, the question
whether human rights is a universal concept can be posited in terms of a
geographic schism between the industrialised north and the developing
south.[8]Very different challenges to the universality of human rights
arise in each of these regions due to differing economic conditions.
However, neither challenge alone, or in combination, is sufficiently
strong to defeat the theory that there are universally common characteris-
tics of human nature, which in turn, are the foundation of a similarly
universal theory of human rights, which, in turn, engenders a legally
binding practice of human rights.
These challenges are the result of cultural relativism in the north, and
accusations, or fears of accusations, of cultural imperialism[9] by the
south.[10] Not unsurprisingly, the moral relativists[11] are essentially west-
erners.[12] But those who argue there is no moral knowledge ignore the
fact that the prototypic liberals, Aristotle and Locke, do believe in objec-
tive moral knowledge. Neo-liberals (i.e. ultra-capitalists) abuse the term
"liberal." Neo-liberals, such as Posner[13] believe there are no moral val-
ues; there are only market values. This is one of the splits between clas-
sical liberalism and neo-liberalism. Thus post-modernists are mistaken if
they believe that moral relativism somehow advances "left" or "classi-
cal" liberal agendas. Quite the opposite, moral relativism, like "value
neutrality," implicitly affirms the status quo.
The West seems to have a monopoly on moral relativism because of eco-
nomics. Westerners are products of societies of such superabundance
that they can afford the luxury of entertaining ideas[14] such as "all truths
are relative.[15] Of course, if truth were only relative, then no objective
truth could exist. That, however, creates a paradox. A truth statement
that no truth statements exist is itself a truth statement. Relativist argu-
ments, whether as to epistemology, i.e. truth scepticism, or axiology, i.e.
moral relativism, can be seen either as the product of confused[16] reason-
ing,[17] or as a product of a culture[18] so blinded by its own wealth that it
cannot see the starvation and death that are all too common in the third
Because moral relativists often suffer[19] from having never been con-
fronted with genuine moral choices, let alone a genuine moral dilemma,
they threaten the very existence of the rights that generated the abun-
dance that they consume. One might consider this, like most errors, to be
a self-correcting problem. However, due to the economic plight of the
third world, one might question whether self-correction is the best cor-
rection in this case. Further, an accusation that the human rights dis-
course of the west is cultural imperialism[20] is probably not self-
correcting. Because of colonialism, the third world's critique of the first
world's use of human rights as a tool of imperialism may have some
merit. Further, these two challenges could be mutually reinforcing.
Thus, a coherent defense of the universality of human rights is crucial, if
human rights are to serve as a key feature in the post-Westphalian world.
The critique that human rights are merely cultural imperialism is not
entirely without merit. Given the west's history of attempts at "civilis-
ing"[21] the third world - its justification for third world labor exploitation
- the wariness,[22] or skepticisim,[23] of the third world intellectual toward
the conflation of western human rights with universal human rights[24] and
the charge that human rights are a merely a smokescreen for imperialism
is understandable.[25] However, despite historical and economic distor-
tion, a basic fact of humanity is true: all healthy humans are rational and
seek to enjoy the good life in society.[26] Thus, there is a genuinely uni-
versal human archetype. Moreover, that rationality is precisely the foun-
dation of fundamental rights. Humans have rights, as rational beings and
because structures of rights allow that rationality to be deployed practi-
cally, not only in order to survive, but also to attain the good life of
peace, happiness and social discourse.[27]
Again, the supposed theoretical divergence of rights discourse is largely
illusory, in as much as it is a consequence of economic conditions. Were
Europe a victim of Indian imperialism, and Africa overfed and under-
worked, Europe would be expressing fears of cultural imperialism and
India preaching some variety of moral relativism.[28] Rights are, to a cer-
tain extent, defined by a society's level of economic development.[29]
Relatively impoverished pre-industrial or nascent industrial states simply
cannot afford to impose affirmative claims posited by second-generation
rights. However, that does not change the fact that the ultimate founda-
tion and vector of rights is our inherent value as rational social beings.[30]

[1] Guyora Binder, Cultural Relativism And Cultural Imperialism In Human Rights Law, 5 BUFF. HUM. RTS. L. REV. 211, 221 (1999) (describes the universalism/relativism debate).

[2] .  Makau Mutua, Savages, Victims, And Saviors: The Metaphor Of Human Rights 42 HARV. INT'L L.J. 201, 204 (2001) (points out the irony of brutalizing colonial powers pushing for the Nuremberg trials and adopting the UJDHR).

[3] .  For a discussion of the contours (and limits) of the universality/relativism debate in an intercultural comparative context see Yash Ghai, Universalism and Relativism: Human Rights as a Framework for Negotiating Interethnic Claims, 21 CRDOZO L.R. 1095 (2000)

[4] See, e.g., Ztihtti Arslan, Taking Rights Less Seriously: Postmodernism and Human Rights, 5 RES PUBLICA 195

[5] Richard Klein, supra note 86, at 4 (UDHR rooted in western values).

[6] ANTONIO CASSESE, supra note 2, at 52; Sarah Joseph, A Rights Analysis Of The Covenant On Civil And Political Rights, 5 J. INT'L LEGAL STUD. 57, 74-75 (1999) (arguing that the distinction between rights and duties is artificial).

[7] T]he cultural relativist theories of the academy are tautological and overly deterministic because they fail to appreciate the roles of both human agency and institutions in the transformative processes of cultural discourse." Michael C. Davis, supra note 138, at 110.

[8] See, e.g. Dianne Otto, Rethinking The "Universality" Of Human Rights Law, 29 COLUM. HUM. RTS. L. REV. 1 (1997).

[9] .  Makau Mutua, Savages, Victims, And Saviors, supra note 194, at 204-205 (argues that human rights is Eurocentric, though well-meaning, and unknowingly reiterates colonial paradigms).

[10] See, e.g., Jonathan C. Goltzman, Cultural Relativism or Cultural Intrusion? Female Ritual Slavery in Western Africa & the International Covenant on Civil and Political Rights: Ghana as a Case Study, 4 N.ENG. INT'L & COMP. L. ANN. 53, 66 (1998)

[11] For a good explanation of the problems of moral relativism (which, however, fails to recognize the fact that in any formal system axioms are necessary to formal representation and necessarily tautological) see Michael J. Perry, Moral Knowledge, Moral Reasoning, Moral Relativism: A "Naturalist" Perspective, 20 GA. L. REV. 995, 1003-1009 (1986) (proposing a method for valid normative inference using practical reasoning i.e. phronesis but discussing although only obliquely Hume's position on normative inference).

[12] A cogent but extreme reply to moral relativism points out that for liberals like Rawls, Ackerman, and Dworkin there is no moral knowledge. Id. at 995. That view may go too far. Clearly, the prototypic liberals Aristotle and Locke do believe in objective moral knowledge. So, what Perry is identifying is actually the neo-liberal (i.e. ultra-capitalist) abuse of the idea of liberality.

[13] See, e.g., RICHARD POSNER, THE ECONOMICS OF JUSTICE, (Boston: Harvard 1981).

[14] .    The failure of the moral relativists to grasp reality can be shown by a crude reductio: genital mutilation. Who cares to argue for it? There is no absence of literature. See, e.g., Adam Karp, Genitorts In The Global Context: Female Genital Mutilation As Tort Under The Alien Tort Claims Act, The Torture Victim Protection Act, And The Foreign Sovereign Immunities Act, 18 WOMEN'S RTS. L. REP. 315 (1997); Sylvia Wynter "Genital Mutilation" Or "Symbolic Birth?" Female Circumcision, Lost Origins, And The Aculturalism Of Feminist/Western Thought, 47 CASE W. RES. L. REV. 501 (1997); L. Amede Obiora, Bridges And Barricades: Rethinking Polemics And Intransigence In The Campaign Against Female Circumcision, 47 CASE W. RES. L. REV. 275 (1997). A moral relativist cannot oppose genital mutilation (or any other act) since all cultures are (to the relativist) equally valid.

[15] Epistemologically, truth scepticism must be distinguished from post-modernist truth abnegationism. Truth scepticism with roots in Nietzsche merely challenges whether what we are told is "truth" is in fact "true." FRIEDRICH NIETZSCHE, JENSES VON GUT UND BOSE, (1887) available at: . Truth abnegation denies the existence of truth.

[16] Much of the confusion lies in the belief that statements must be either true or false. Aristotle himself noted that some statements, such as prayers, have no truth value.
      Every sentence has meaning, not as being the natural means by which a physical faculty
      is realized, but, as we have said, by convention. Yet every sentence is not a proposition;
      only such are propositions as have in them either truth or falsity. Thus a prayer is a sen-
      tence, but is neither true nor false.
ARISTOTLE, ON INTERPRETATION (c. 350 B.C.) (translated by E. M. Edghill) Section 1, Part IV, para. 2, available at: . Also see Sanford Shieh, Undecidability, Epistemology, and Anti-Realist Intuitionism, 2 NORDIC J. PHILOSOPHICAL LOGIC 55

[17] .    One root of the confusion is the recognition by Kurt G6del that the truth value of some propositions of formal logic cannot be determined by a formal system. KURT GODEL, ON FORMALLY UNDECIDABLE PROPOSITIONS OF PRINCIPIA MATHEMATICA AND RELATED SYSTEMS, (1931)

[18] The best attacks on the universality of human rights focus on the cultural flaws of the north and question its moral legitimacy. E.g., "The human rights movement is marked by a damning metaphor. The grand narrative of human rights contains a subtext that depicts an epochal contest pitting savages, on the one hand, against victims and saviors, on the other." Makau Mutua, supra note 194, at 201. But even the best attacks criticise not the idea of human rights as such, but rather the legitimacy of the north/west to claim to be the fountain of human rights.

[19] .    "According to the naturalist conception, moral knowledge is knowledge of how to live so as to flourish, to achieve well-being." Michael J. Perry, supra note 203, at 997. Those who lack moral knowledge literally suffer from their ignorance, as Aristotle notes.

[20] Surya P. Subedi, Are The Principles Of Human Rights "Western" Ideas? An Analysis Of The Claim Of The "Asian" Concept Of Human Rights From The Perspectives Of Hinduism, 30 CAL. W. INT'L L.J. 45 (1999) (arguing that the idea that human rights is the product of Western Christian civilisation is reiteration of selective nineteenth-century values).

[21] Literally: imposing the civil law. GABE S. VARGES, supra note 82.

[22] Surya P. Subedi, supra note 212, at 46. However once again that is not a dispute as to whether there are human rights but rather what is the content of those rights. As such, it is no argument against the universality of human rights.

[23] For example, Nestld sells powdered milk in the third world erroneously arguing that it will make babies more intelligent than mother's milk. Further powdered milk requires sterilised water - and the water in the third world is often impure. Worse, powdered milk is often diluted leading to malnutrition and even death from starvation. When Nestl6 was criticised for this in print, Nestld sued for defamation, specifically for Verleumdung and Uble Nachrede. Nestld's claim for able Nachrede was upheld. ANTONIO CASSESE, supra note 2, at 138-139.

[24] "[N]ot all human rights principles have their roots in Western civilisation nor are all human rights principles necessarily mere Western principles." Surya P. Subedi, supra note 212, at 45.

[25] Martha Minow, Rights and Cultural Difference, in IDENTITIES, POLITICS AND RIGHTS 355 (Sarat and Kearns eds., 1995) (example of human rights used as tool of domination of First Nations in North America).

[26] ARISTOTLE, POLITICS, Book I Part I1 (translated by Benjamin Jowett) (350 B.C.)

[27] The good life is, of course, defined by Aristotle as the end of life in political society. Id.

[28] In fact, Indian discourses on human rights are well-developed and even represented within western legal scholarship. See, e.g., Prakash Shah, International Human Rights: A Perspective From India, 21 FORDHAM INT'L L.J. 24, 44 (1997).

[29] Yash Ghai, supra note 195 (citing to Chinese legal authority).

[30] Anita Ramasastry, Corporate Complicity: From Nuremberg To Rangoon An Examination Of Forced Labour Cases And Their Impact On The Liability Of Multinational Corporations, 20 BERKELEY J. INT'L L. 91, 153 (2002).

 楼主| 发表于 2/7/2018 14:41:23 | 显示全部楼层
Just as human rights can be seen as universal in their conception and
applicability, so also is the foundation of human rights on the rule of law
not at all unique to white, Christian or western society. This raises the
question of the relationship between the rule of law and human rights.
Human rights, as legal rules, cannot exist without a society based on the
rule of law. The rule of law is a logical precondition to human rights.[2]
However, though the rule of law is a necessary precondition to human
rights, it is not a sufficient condition.[3] It is entirely possible to have a
society founded upon the rule of law, i.e. a formeller Rechtstaat which
does observe basic principles of just laws (e.g. no crime without law, no
retroactive laws), yet which does not acknowledge, or respect, substan-
tive human rights, or even acknowledge the existence of procedural
Consequently, to understand human rights, we must also understand that
human rights are a possible, but not a necessary, consequence of the rule
of law. How, then, does a society, which guarantees and achieves sub-
stantive human rights, emerge from a conception of the rule of law as
merely formal procedures?[4] This question is not only interesting be-
cause the emergence of human right is not inevitable, it is also relevant to
the universality debate. If the rule of law is a uniquely western[5] con-
cept, and the rule of law is a necessary precondition to human rights,
then human rights would be a uniquely western concept. In fact, that is
not the case. Asian societies and aboriginal societies also observed, and
continue to observe, the formal requirements of the rule of law, and, in
some cases, have also achieved the positive goals of guaranteeing the
substantive human rights necessary to obtain the good life.
This is not to say that there are no unique contributions of western
thought to theories of the rule of law. Clearly, separation of powers[6]
and the right[7] to rebel[8] are western inputs to the stock of human
knowledge. However, neither of these is necessary to have a state gov-
erned by laws. But, because there are many western contributions to the
theory of human rights, that concept will never be able to escape from
accusations of cultural imperialism. There are, of course, very good rea-
sons for such an accusation. For example, labor exploitation in the colo-
nial world was justified in the name of the Christian[9] duty to "civilise"
"savages." However, the finalities which human rights serve, namely to
enable the human, as individual and species, to survive, and not only to
survive, but also to lead the good life, explain why those accusations are
ultimately only partly correct. Human rights emerge from the miasma of
post-modern moral relativism[10] precisely where they assert the truly uni-
versal aspects of humanity - namely rationality. All humans, not merely
rich white males, have an essential dignity and beauty as humans because
of the capacity to think. As a consequence of rationality, humans also
have the capacity to acquire and alienate. However, the very rationality
which permits us to acquire, and alienate, is also the foundation of our
essential dignity, explaining why certain of our rights are inherently inal-
ienable. For an alienation of our rights - for example food, shelter, and
respect - destroys the human as human, rendering one at best, dead, and
at worst, an unthinking animal.[11]
While it could be argued (imprudently, for the argument risks accusa-
tions of cultural arrogance) that the rule of law is originally a western
concept - for the institutions of democratic self rule[12] under law were
first developed in the west (ignoring for the moment that Athens was a
slave economy) - the idea of the rule of law is, in fact, not uniquely, nor
inevitably, western. As recently as the Twentieth Century, the west
faced several challenges to the rule of law centering on the question of
genetic inequality in Germany, the United States and South Africa.[13]
Furthermore, several contemporary, non-western societies clearly display
all the aspects of the supposedly western concept of the rule of law.
However, although the rule of law is a necessary, but not sufficient con-
dition of human rights, it is a necessary and sufficient condition of a
market economy.[14] Without guaranties of the finalities of transaction,
and without some social mobility, a complex capitalist economy would
be impossible. While capitalism did originate in the west, it has since
spread globally, proving the rule of law is not a product of either race or
the Christian religion - and thus neither uniquely, nor necessarily, west-
ern. Human rights, however, are a function of economic development.
This, then, is the explanation of how the rule of law ultimately can lead
to human rights: the rule of law creates necessary pre-conditions for eco-
nomic prosperity.[15]As the economy develops, speaking of substantive
rights in a meaningful sense becomes possible. Human rights, thus, are
neither inevitably nor uniquely "western." They are economic functions
which appear to have first, or most clearly, developed in the western
However, while economic development does make it possible to speak of
rights in a meaningful sense, theories that international human rights law
somehow resembles lex mercatoria confuse the possible with the neces-
sary. While possible that economic development can permit the emer-
gence of human rights, it is not necessary. The correlation between eco-
nomic development and human rights is not causal. How, then, have
human rights, in fact, developed with economic progress?

[1] Robin West, supra note 131 (equality the foundation of mutual respect).

[2].   Report of the Joseph R. Crowley Program, One Country, Two Legal Systems?, 23 FORDHAM INT'L L.J. 1, 6 (1999).

[3] Similarly, there is also no necessary connection between democracy and the rule of law. Michel Rosenfeld, The Rule Of Law And The Legitimacy Of Constitutional Democracy, 74 S. CAL. L. REV. 1307, 1308 (2001).

[4] One possible answer is for realist reasons, i.e. Realpolitik considerations. The rule of law, like human rights, can be a tool in a state's diplomatic arsenal and serve its foreign policy goals. Josd Maravall, The Rule of Law as a Political Weapon, Working Paper 2001/160 (2001)

[5] .    One can of course question whether the United States are committed to the rule of law: the United States has deployed military forces in Grenada, Libya, Nicaragua, Panama,
      and Yugoslavia without authorisation from the United Nations Security Council, as re-
      quired by the U.N. Charter. The United States quit UNESCO, failed to pay its U.N. dues
      in a timely manner, withdrew from the jurisdiction of the International Court of Justice,
      and refused to comply with the International Court's orders on at least three occasions...
      the United States has repeatedly executed foreign nationals without according them the
      basic right to consult with their consular representatives.., the United States has failed to
      ratify the International Convenant on Economic, Social and Cultural Rights, the Ameri-
      can Convention on Human Rights, the Convention on the Elimination of All Forms of
      Discrimination Against Women, the Convention on the Rights of the Child, and the Con-
      vention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-
      Personnel Mines... the Bush administration rejected the Kyoto Protocol on global warm-
      ing, the Comprehensive Nuclear Test Ban Treaty, the Biological Weapons Protocol to en-
      force the 1972 Convention on the Prohibition of the Development, Production, and
      Stockpiling of Bacteriological (Biological) and Toxin Weapons, which banned such
      weapons, and the Rome Statute of the International Criminal Court.
Joel R. Paul, Holding Multi-National Corporations Responsible Under International Law, 24 HASTINGS INT'L & COMP. L. Rev. 285, 287-288 (2001).

[6] Charles Montesquieu, De Lesprit des Lois (1758), Livre XI,

[7] "The American and French Revolutions... established the right of the people to rebel against tyranny." Nancy P. Kelly, The Political Offense Exemption To Extradition: Protecting The Right Of Rebellion In An Era Of International Political Violence, 66 OR. L. REV. 405 (1987).

[8]  Though Hobbes and Rousseau consider the social contract irrevocable, this is not Locke's position. JOHN LOCKE, Two TREATISES OF GOVERNMENT, Ch. XIX §22 (1764)

[9] Makau Mutua, What is TWAIL? 94 ASIL PROCEEDINGS 1, 37 (2000).

[10] For good critiques of the flaws and confusion which inherent in post-modem thought due to an erroneous axiology and epistemology see Dennis W. Arrow, Pomobabble: Postmodern New- speak and Constitutional "Meaning"for the Uninitiated, 96 MICH. L. R. 461 (1997); Dennis Arrow, Spaceball (Or, Not Everything that's Left is Postmodem), 54 VAND. L. REV. 2381

[11] Aristotle argues that man outside of political society is rendered beastlike.
     The proof that the state is a creation of nature and prior to the individual is that the indi-
     vidual, when isolated, is not self-sufficing; and therefore he is like a part in relation to the
     whole. But he who is unable to live in society, or who has no need because he is suffi-
     cient for himself, must be either a beast or a god: he is no part of a state.
ARISTOTLE, POLITICS, Book I, Part 11 (ca. 350 b.c.)

[12] .   The universality debate also exists in democratic theory. Surya P. Subedi, supra note 212, at 47.

[13] .   William G. Ross, Attacks On The Warren Court By State Officials: A Case Study Of Why Court-Curbing Movements Fail, 50 BUFF. L. REV. 483, 508 (2002).

[14] Richard L. Abel, Capitalism and the Rule of Law: Precondition or Contradiction? 28 LAW & Soc'y REV. 971,987 (joumal renamed: was 15 LAW & SOCIAL INQUIRY 685) (1990).

[15] "Human Rights ensure international security and prosperity" speech by the Foreign Secretary, Jack Straw, to the United Nations Commission on Human Rights, Geneva, 17 April 2002

 楼主| 发表于 2/7/2018 14:54:12 | 显示全部楼层
The growth of human rights, which has roughly paralleled economic
development, is usually[1]described as having evolved over time in three
successive waves,[2] from easily implemented[3] individual[4] negative
claims, to freedom from the state, to positive collective[5] claims, to enti-
tlements to state resources. At least one scholar has tried to draw a
historical, but philosophically interesting, parallel between first-
generation rights as expressions of liberty, second-generation rights as
expressions of equality, and third-generation rights as expressions of
solidarity.[6] Such a description is almost poetic in its symmetry, and
clearly, the Declaration des Droits de l'Homme of 1789[7] did inspire the
Universal Declaration of Human Rights (UDHR).[8]The analogy is just
that, however, an analogy, no more, no less.
The idea of a triumvirate of rights did not spring, like Athena, fully
formed from the mind of Zeus.[9] It appears to be of rather recent origin.
Louis Sohn traces the concept of three generations of human rights to
Karel Vasak of UNESCO, whom Sohn quotes as the source of the
term.[10] Sohn, quoting Vasak, believes that each generation of rights
complements and completes the other. That, however, ignores the ten-
sion between individual property rights and collective-social rights. One
can argue that the second-generation rights guarantee the substantive
social minima precisely to preserve the first-generation property rights,
namely by maintaining social stability, obviating the need for revolution.
Be that as it may, Sohn points out that Vasak linked the idea of genera-
tional rights to the motto of the French revolution - liberte, egalite, frat-
ernite. Nothing in the writings of Montesquieu[11] or Rousseau,[12] or even
Locke,[13] Hobbes,[14] or Kant,[15] support the theory that human rights
would unfold in successive generations.[16] It seems to be a neologism.[17]
In fact, the tripartite typology of human rights is a historical observation
ex post, not a theoretical framework ex ante. A better typology might
justify the generational split, not on the basis of history or teleology, but
rather on positive international law. First-generation international human
rights appear to be a part of jus cogens.[18] Second-generation rights are
also customary laws, but may be derogated from. Third-generation
rights are aspirational goals. Each generation is binding, but to a differ-
ent degree and concerns different branches of human rights law.
Contemporary rights discourse describes human rights as divided into
three categories. However, that description of rights, and the study of
rights, is only approximate.[19]It ignores certain crosscurrents and ten-
sions between those rights, and also ignores other evolutionary develop-
ments which are not generally identified in rights discourse. Our histori-
cal and theoretical analysis of the theory of rights reveals the apories in
the theory in order to resolve them. In conclusion, despite some prob-
lems, the idea of three generations of human rights is, with qualifications,
a workable, if sometimes only approximate, description of positive law.

[1] But see: Dianne Otto, supra note 200, at 5-6. (Describing human rights as having developed in four generations - Otto's view is distinctly the minority view; Otto also describes the usual typology of first generation and second generation rights but subdivides third generation rights based on whether they arose out of the Soviet Bloc or Non-Aligned Movement.)

[2] Claire Moore Dickerson, supra note 60, at 1441-1442 (describes and refines the three- generation theory of human rights).

[3] John King Gamble, et al., supra note 116, at 36 (argues that first-generation rights are able to be easily and immediately implemented).

[4] But see: Claire Moore Dickerson, supra note 60, at 1444. Dickerson's ignores the indi- vidualist propertarian presumptions of first generation rights practice and claims of rights to collective bargaining which were raised only with the second generation of rights.

[5] John King Gamble, et al., supra note 116, at 36.

[6] .    "The first generation of political and civil rights, embodied in the Universal Declaration and the Covenant on Civil and Political Rights, are freedoms from state intrusion: libertg. The second generation furthers realisation of the first generation by guaranteeing minimum standards, demandable upon the state, of education and health, a liveable wage, decent working conditions, and social insurance for all persons: egalite. Finally, the third generation consists of rights which may be invoked against and demanded of the state. These tights require all the organs of society--individual, state, regional, and international--to cooperate in order for the rights to be realised: fraterniti." Jennifer A. Downs, supra note 69, at 364. I have found no evidence for this assertion in the writings of Diderot, Montesqieu or Rousseau.

[7] Ddclaration des droits de l'Homme et du citoyen, 26 aodt 1789

[8] Die Allgemeine Erklirung der Menschenrechte, Resolution 217 A (I1) vom 10.12.1948

[9] ANONYMOUS, ATHENA (2002) .

[10] Louis B. Sohn, supra note 5, at 61-62.

[11] Charles Montesquieu, L'Esprit des Lois (1758)

[12] JEAN JACQUES ROUSSEAU, supra note 172

[13] JOHN LOCKE, supra note 174.

[14] HOBBES, supra note 20.


[16] I am, of course, open to contradiction and do not claim to have read the entire canon of every western enlightenment thinker. However, it seems unlikely that the enlightenment thinkers foresaw with such clarity the future development of human rights.

[17] Louis B. Sohn, supra note 5, at 61-62.

[18] Id. at 32.

[19] Jennifer A. Downs, supra note 69, at 351 (argues that the generational theory is metaphoric not historic).

 楼主| 发表于 2/7/2018 15:08:50 | 显示全部楼层
The first wave of human rights in modernity is usually identified with the
period of Scottish enlightenment[1] and the age of reason (the nineteenth
century), expressed in the liberal revolutions[2] in America, France, and
Latin America.[3] Rights asserted in these revolutions were essentially
claims of the individual against state interference and to self-government.
That is the first-generation rights (e.g., the freedom to worship, to peace-
ably assemble) were negative restrictions on state power.[4] First-
generation rights also tend to be procedural rights,[5] that is rules which
determine the creation or application of substantive claims to material
goods. Another common characteristic of the first generation of rights is
that, historically, the first generation of human rights tends to see prop-
erty rights as fundamental, individual and even absolute.[6] Later genera-
tions see property as relative, and socially conditioned.[7]First-
generation rights can be summarised, roughly, as negative civil and po-
litical rights - "freedoms from" rather than "rights to."
However, describing first-generation rights as negative protection from
state interference is not entirely accurate. The right to worship as one
chooses, to write or speak one's mind,[8] are not mere restrictions on state
power - they are also assertions of the individual's power. Most restric-
tions of state power imply an exercise of individual power and vice
Rights discourse is inherently problematic because of this dual nature of
rights - every single person's right implies another person's correspond-
ing duty. Rights discourse is inherently problematic because "rights" are
expressed as vague, or ambiguous, platitudes. Rights discourse is also
contested because the interest of the individual and the collective are, at
times, in conflict, and one, or the other, must prevail and because of the
classic duality[9] of "substance" versus "procedure." However, though
the usual account of the historical development of human rights is not
perfectly accurate, and though human rights are inherently problematic,
that does not mean that there is no common concept of an idea that hu-
mans have inherent rights. There is even some agreement as to, at least,
a common core of universally recognized human rights, such as the right
not to be deprived arbitrarily of one's own life.
In sum, despite the historical and methodological limitations, it is possi-
ble to roughly sketch human rights as having passed through three his-
torical stages. However, the usual description must be nuanced, and
qualified, because that sketch is only roughly accurate. A correct under-
standing of history will, in turn, permit us to develop a correct theory.
For theory must itself be a reflection of history, i.e. of material reality, if
it is to be accurate according to materialist epistemology.

[1] R. Randall Kelso, A Post-Conference Reflection On Federalism, Toleration, And Human Rights, 40 S. Tex. L. REV. 811, 826-827 (two historical strands to moral reasoning about universal human rights: the Enlightenment natural law tradition, and the classic and Christian natural law tradition).

[2] .    Id.; see also, Louis B. Sohn, supra note 5, at 33. Kelso seems to ignore contemporary theorists of ius naturale such as Finnis.

[3] Because of this bourgeois influence on the idea of human rights some are sceptical as to whether human rights truly "liberates." This scepticism is understandable. Indeed as such critics of human rights note, rights are not merely a protection of the weak and innocent against the strong and powerful, they are also a vector of state power, and a subtle one at that. See, e.g., Wendy Brown, Rights and Identity in Late Modernity, in IDENTITIES, POLITICS AND RIGHTS 89 (Sarat and Kearns eds., 1995).

[4] U.S. CONST., amend. I (freedom of speech, worship), IV (no unlawful search or seizure),

[5] See e.g., U.S. CONST., amend. V, available at:  and Diclaration des droits de l'Homme et du Citoyen, arts. 7-9.
      « Article 7 - Nul homme ne peut 8tre accuse, arrested ou ddtenu que dans les cas drterminds
      par la loi et selon les formes qu'eUe a prescrites. Ceux qui sollicitent, expedient, exdcu-
      tent ou font exdcuter des ordres arbitraires doivent etre punis ; mais tout citoyen appeld
      ou saisi en vertu de la loi doit obdir A l'instant ; il se rend coupable par la resistance. Arti-
      cle 8 - La loi ne doit dtablir que des peines strictement et dvidemment n cessaires,et nul
      ne peut 8tre puni qu'en vertu d'une loi dtablie et promulgure antrieurement au delit,
      et lgalement appliqude. Article 9 - Tout homme dtant prdsum6 innocent jusqu'A cc qu'il ait
      6td ddclar6 coupable, s'il est jugd indispensable de r'arr~ter, toute rigueur qui ne serait pas
      ndcessaire pour s'assurer de sa personne doit etre sdvirement rdprimde par la loi.

[6] Declaration des Droits de l'Homme et du Citoyen, art. 2, 17, available at U.S. CONST., amend. V

[7] E.g. "not every destruction or injury to property by governmental action has been held to be a 'taking' in the constitutional sense." Armstrong v. United States, 364 U.S. 40, 48 (1960).

[8] E.g., Declaration des Droits de I'Homme et du Citoyen, art. 10 & 11: Article 10 - Nul ne doit 8tre inquidt6 pour ses opinions, m~mes religieuses, pourvu que leur manifestation ne trouble pas l'ordre public 6tabli par la loi. Article 11 - La fibre communication des pensdes et des opinions est un des droits les plus prdcieux de lhomme ; tout citoyen peut donc parler, dcrire, imprimer librement, sauf h rdpondre de labus de cette libertd dans les cas ddterminds par la loi. available at: . Clearly, these are restrictions of the state's power - but they are often also affirmations of the individual's power.

[9] .    Paul W. Kahn, American Hegemony And International Law Speaking Law To Power: Popular Sovereignty, Human Rights, And The New International Order, 1 CHI. J. INT'L L. 1, 5 (2000) (points out the collapse of dualism and that sovereignty rather than a solution to the problems of peace and justice is a problem).

 楼主| 发表于 2/7/2018 15:25:23 | 显示全部楼层
The second generation of rights arose during the industrial revolution and
was contemporaneous with the political revolutions[1] of circa 1848-
1870.[2]Human rights were then seen, increasingly, as no longer merely
negative rights to freedom from state interference, but rather as affirma-
tive, substantive[3]social claims to state resources.[4] Second-generation
rights were seen as the consequence of dialectical class struggle[5] and
thus, to some extent, as collective rights.[6]  Second-generation rights
discourse tends, unlike first-generation rights analysis, to see property
claims as social and relative.
On this point, there is some tension[7] between the first and second gen-
eration of rights. For example, the social welfare and social insurance
schemes[8] of industrial states[9] and social democracies[10] are second-
generation rights - but those rights infringe on the property rights guar-
anteed by first-generation rights. However, while that is the case, the
second-generation rights also appease the dispossessed and, as such, tend
to increase social stability. Thus, second-generation rights function ulti-
mately to maintain property rights.
Not only is there surface tension between the first and second generation
of rights on the issue of property rights, the usual evolutionary genera-
tional understanding of human rights is incomplete. Are the rights of
women a first-generation procedural right, a second-generation substan-
tive right, or a third-generation collective right? Historically, claims to
women's rights only began to be made around 1880, which would place
them in the second generation. But those claims were to procedural
rights, such as the right to vote, or freedoms from state restrictions on
employment and property ownership. So theoretically, at least, the early
women's rights were first-generation rights - but historically they were
only recognized just after the rise of the second generation of human
rights circa 1880. Thus, proponents of the generational theory should
explicitly declare their description of three generations of rights as either
theoretical (the author's position), or historical, in order to avoid misun-
derstanding and to clarify the points where history and theory diverge.
This is not the only example of historical contradiction within the idea of
human rights. What about the rights of non-whites? Emancipation of
black persons occurred in the mid-nineteenth century, circa 1860.[11] This
was another claim to freedom from state power - the right not to be prop-
erty, the right to vote, the right to speak. Racial inequality was de facto,
and sometimes de jure, well into the twentieth century in the U.S.[12] and
even (with resistance) into the 1980s in South Africa.[13]The historical
description of three generations of human rights must thus acknowledge
two major incongruencies: the delay in recognizing womens' rights, and
the denial, at least until relatively recently, of the human rights of non-
These instances of historical inconsistencies demonstrate the limits of the
idea of a "first" wave of procedural negative rights and a "second" gen-
eration substantive affirmative claims. With these qualifications, the
usual historical account of the evolution of human rights can help us to
understand why the revolutions of 1776[14] and 1789 wrought different
changes than those of 1917[15] and 1949. These tools of understanding
can be used to indicate whether the discussion concerns the three-
generations theory as an abstract description, where it is roughly accurate
(with qualification), or as a historical description, where it is only loosely

[1] Louis B. Sohn, supra note 5, at 33.

[2] Claire Moore Dickerson, supra note 60, at 1444-1445 (describes three-generation rights theory).

[3] E.g., Verfassung der DDR, Artikel 25 ,,(1) Jeder Burger der Deutschen Demokratischen Republik hat das gleiche Recht auf Bildung. Die Bildungsstatten stehen jedermann offen. Das einheitliche sozialistische Bildungssystem gewihrleistet jedem BUrger eine kontinuierliche sozial- istische Erziehung. Bildung  und  Weiterbildung."  

[4] E.g. Landesverfassung der Freien Hansestadt Bremen Artikel 14: ,Jeder Bewohner der Freien Hansestadt Bremen hat Anspruch auf eine angemessene Wohnung. Es ist Aufgabe des Staates und der Gemeinden, die Verwirklichung dieses Anspruches zu fordern."      

[5] Praambel, Verfassung der DDR, 6 April 1968: ,,In Fortsetzung der revolutionahren Traditionen der deutschen Arbeiterklasse und gestiitzt auf die Befreiung vom Faschismus hat das Volk der Deutschen Demokratischen Republik in Ubereinstimiung mit den Prozessen der geschichtlichen Entwicklung unserer Epoche sein Recht auf sozial-okonomische, staatliche und nationale Selbstbes- timmung verwirklicht und gestaltet die entwickelte sozialistische Gesellschaft."

[6] .    Landesverfassung der Freien Hansestadt Bremen, vom 21 Oktober 1947 (Brem.GBI. S.
251). ,,Erschiittert von der Vemichtung, die die autoritdre Regierung der Nationalsozialisten unter MiBachtung der persdnlichen Freiheit und der Wtirde des Menschen in der jahrhundertealten Freien Hansestadt Bremen verursacht hat, sind die Burger dieses Landes willens, eine Ordnung des gesell-schaftlichen Lebens zu schaffen, in der die soziale Gerechtigkeit, die Menschlichkeit und der Friede gepflegt werden, in der der wirtschaftlich Schwache vor Ausbeutung geschUtzt und allen Arbeitswilligen ein menschenwiirdiges Dasein gesichert wird." Prdambel, Landesverfassung Bremen, available at: . A comparison of the preamble of the Bremer constitution and the preamble of the East German constitution reveals several interesting equivalences, parallels and divergences.

[7] Jennifer A. Downs, supra note 69, at 360-361 (argues, in my opinion, unconvincingly that first and second generation rights live in symbiosis and are not, in fact, in conflict).

[8] E.g., RUSSIAN Constitution OF 1936, art. 120 (right to pensions for the elderly)

[9] Usually social insurance in the liberal democracies is a part of administrative law. Some- times however it does enter into constitutional law. E.g., art. 41 Bundesverfassung Schweiz:J Bund und Kantone setzen sich in Erganzung zu personlicher Verantwortung und privater Initiative daftir ein, dass: a. jede Person an der sozialen Sicherheit teilhat; ..." available at: . Cf., CONSTITUTION FRANCAISE, art. 1

[10] Constitution FRANCAISE, 4 Octobre 1958, Article premier v La France est une Rdpublique indivisible, laique, ddmocratique et sociale. Elle assure I'6galit6 devant la loi de tous les citoyens sans distinction d'origine, de race ou de religion. Elle respecte toutes les croyances. >

[11] E.g., The Emancipation Proclamation (1863)

[12] Plessy v. Ferguson, 163 U.S. 537 (1896) (segregated railways not unconstitutional, later
overruled) available at: Cumming v. Board of Ed. of Richmond County, 175 U.S. 528 (1899) (segregated education not unconstitutional, later overruled)

[13] For a listing of the principle apartheid legislation and history see BBC, The Story of Africa: Southern Africa (2003)

[14] For a discussion of the role of revolution in international law (and as expression of the right of national self determination) see Theodor Schweisfurth, The Role of Political Revolution in the Theory of International Law, in Macdonald & Johnston, supra note 39, at 913.

[15] Louis B. Sohn, supra note 5, at 33.

 楼主| 发表于 2/7/2018 15:40:09 | 显示全部楼层
The third generation of human rights[1] arose in the post-war world. The
recognition of third-generation rights is sometimes linked to the recogni-
tion of the limited international legal personality.[2] Third-generation
rights are seen as essentially collective.[3] They seek to dynamically[4]
complement the rights of the first and second generation.[5] That attempt,
however, is somewhat doomed from inception, because of the inherent
tension between the individual/propertarian basis of first-generation
rights and the collective/social basis of second-generation rights. Despite
that fact, third-generation rights are said to include the right to peace,[6]
the right to security,[7] the right to democracy, and the right to environ-
mentally sustainable,[8]economic development.[9]
Is there anything in the third-generation rights making them inherently
collective? If so, does that inherent factor mean that individuals should
not have a cause of action? And, if individuals have a claim for third-
generation rights, is not that claim substantive? It is this author's opinion
that, while these rights are necessarily collective - peace, democracy,
and development are not individual phenomena - the enforcement of
these rights could be placed in the hands of individuals, and linked to
substantive material goods. In fact, however, the positive force of third-
generation collective rights is contestable, particularly since the fall of
the Soviet system. Third-generation rights are usually seen as hortatory
goals which guide and direct the development of the law.
Because there is some tension between first and second generation of
rights and a lack of dialogue between third-generation rights and earlier
conceptions of rights,[10] and because of historical inexactitude, the usual
typology of the three generations of human rights is inaccurate, but not
so inaccurate that it must be rejected. Instead, the theory must, like most
theories, be qualified and adapted to conform to reality. It is only where
reality so fails to conform to a model's descriptions and predictions, that
legal science, like any other science, must reject the old model and for-
mulate a new one. That is not the case of the historical account of the
evolution of human rights through three stages. However, the West-
phalian theory of the state as absolute hermetic sovereign no longer cor-
responds to material reality. Modifying that model is probably impossi-
ble due to fundamental changes in technology. Further, even if the the-
ory could be modified, modification may actually be undesirable if the
Westphalian model of the state led the world to two global wars.
The traditional analysis above, that sees human rights as evolving in
three successive waves, is only partially complete. It is true, very
roughly, that conceptions of human rights have evolved from individual
rights to collective claims. It is also true, theoretically, that the rights of
the individual can be distinguished from freedoms from state interference
and rights to state resources. However, the three-generation analysis
ignores certain crosscurrents and tensions between those rights and other
evolutionary developments not generally identified in rights discourse.
As such, it can only be used, with these qualifications, as a tool to de-
scribe contemporary reality.

[1] Jennifer A. Downs, supra note 69, at 362 (citing Karel Vasak, Legal Adviser to the United Nations Educational, Scientific, and Cultural Organisation (UNESCO) and former director of the UNESCO Division of Human Rights and Peace, as the first to use the term 'third generation human rights').

[2] Comment, Developments In The Law - International Environmental Law: V. Institutional Arrangements 104 HARV. L. REV. 1580, 1600 (1991) (notes that individuals have limited rights and duties under international human rights law).

[3] Claire Moore Dickerson, supra note 60, at 1445-1446 (describes third generation rights as collective solidarity rights).

[4] Jennifer A. Downs, supra note 69, at 363 (third generation of rights a consequence of a dynamic view of human rights).

[5] Id. at 358 (describes generational theory of rights).

[6] Declaration on the Right of Peoples to Peace, G.A. res. 39/11, annex, 39 U.N. GAOR Supp. (No. 51) at 22, U.N. Doc. A/39/51 (1984)

[7] .   J. Oloka-Onyango, Human Rights And Sustainable Development In Contemporary Africa: A New Dawn, Or Retreating Horizons? 6 BUFF. HUM. RTS. L. REV. 39, 43 (2000).

[8] African Charter on Human and Peoples' Rights June, 26, 1981, O.A.U. Doc. CAB/LEG/67/3/Rev. 5, arts. 19-24 (entered into force Oct. 21, 1986), reprinted in 21 I.L.M. 58 (1982).

[9] 1986 Declaration on the Right to Development. Adopted by General Assembly resolution 41/128 of 4 December 1986, available at: . Also see, e.g., Isabella D. Bunn, The Right To Development: Implications For International Economic Law, 15 AM. U. INT'L L. REV. 1425, 1426 (2000) (arguing for "the emergence of the right to development.").

[10] The U.S. generally opposes the idea of a third generation of human rights in international law. But see Barbara Stark, Economic Rights In The United States And International Human Rights Law: Toward An "Entirely New Strategy" 44 HASTINGS L.J. 79, 130 (1992) suggesting that third generation rights in the U.S. are protected at the state level rather than the federal level. That view ignores that those claims are generally not defended as inalienable rights but rather are stated to be conditional entitlements accorded to individuals by the state as an act of largesse. A conditional entitlement must be distinguished from an inalienable right.

 楼主| 发表于 2/7/2018 16:11:16 | 显示全部楼层
1.   Individual and Collective Rights
The typical description of human rights is somewhat problematic, and
requires a shift of focus for better understanding. The generational per-
spective focuses on the content of the right, i.e. the character of the right.
However, it ignores who holds the right. Instead of asking: "What right
is held?" ask: "Who holds the right?" A different view emerges when
the question is "who holds the right?" Having this different view is im-
portant because future rights discourse will probably be characterized by
a struggle between western/universalist market rights (e.g., the WTO)
and local, collective, and possibly, fundamentalist conceptions of collec-
tive rights.[1]
Just as the contents of rights have evolved with historical development,
conceptions of who is entitled to claim a right have also evolved. The
conception of who is entitled to claim a right has evolved from an under-
standing of the holder of legal rights, as the individual, white, male,
adult citizen, to the holder of rights as including non-whites,[2] women,
and ultimately, non-citizens, children,[3] and finally, collectives. This
progress in the ability to hold a right is basically ignored in the tradi-
tional generational view, which focuses on what right is held, rather than
on who holds the right. This must be pointed out, however, in order to
escape from the hierarchical, and patriarchical,[4] origins of human rights
seen in Aristotle's thought,[5] leading to unjust inequalities.[6]
The idea of women's rights, and rights against racial discrimination, do
not harmonize well with the generational perspective of rights. Neither
women's rights, nor the rights of non-white persons, are claims to enti-
tlement, but both women and non-whites were ignored by the individual-
ist first-generation rights theory. Perhaps, this is because these rights,
though enjoyed by individuals, are derived from collectives - and first-
generation rights are essentially individualistic. In any event, women
were emancipated relatively late in history - in many cases only in the
last century, and in some cases, women are not emancipated, most obvi-
ously in the Islamic world,[7] but elsewhere as well. Islamic scholars[8]
would point out that the right of a woman to seek divorce was first rec-
ognized by Islam, as was racial equality. Islamic feminists would also
argue that human rights include the right to be treated with dignity and
respect, and dress codes enforce that respect, and, further, equality of
rights does not mean equal roles. This author views the historical argu-
ment as more persuasive. Islam clearly assigns specific roles based on
gender. However, the "liberation" of women in the west should be ques-
tioned, as this "liberation" serves the interests of consumerism and capi-
talism. In the west women are free to be commoditized. Women in the
west may well have traded the kitchen for the office, yet they still are
expected to maintain the kitchen.[9]
One must also recognize that apartheid was the norm, at least until the
1950s[10] - well after the beginning of the second-generational social
rights to substantive goods. It is also worth noting that the rights of sex-
ual dissidents, such as homosexuals,[11] transvestites, and transgendered
persons remain essentially ignored throughout the world.[12] Some
group's rights remain unprotected.
Because the usual generational perspective focuses on the content of the
right, rather than who holds the right, it ignores the fact that rights dis-
course is either a reflection of, or reflected in, political theory. But if the
second and third generations of rights are to be implemented, they re-
quire an interventionist government - exactly the type of government
that first-generation rights sought to protect against, even avoid. Though
this contradiction is implicit in the generational perspective on rights, it
is generally not explicitly stated. Negative "freedoms from" are obvi-
ously incompatible with unlimited government. However, positive
"claims to" are often incompatible with the idea of limited government.
So, the tension between different generations of rights also reflects a
contradiction between forms of government, which in turn depend on
economic development. This author posits the substantive content of
rights can only be understood within the economic context in which they
are deployed.
2.    Property Rights
Another tension between first and second generation of rights, often ig-
nored by the usual generational perspective, concerns property rights.
While property rights played a central theoretical role in first-generation
rights discourse, as both the means and end of the good life,[13] and
though, at least since the fall of the Soviet Union, the practical impor-
tance of property rights has increased, their theoretical role has de-
creased. Today, it is nearly universally admitted that reasonable restric-
tions on property rights are permissible.[14] In terms of economic devel-
opment there is no reason for it. Perhaps, the field of human rights is
dominated by altruists, just as the field of commercial law is dominated
by practical businesslike persons? If there is legal interpretative flexibil-
ity in the future resolution of the dialectic between rights as economic,
negative limitations on government versus rights as positive expressions
of local and indigenous sovereignty, it may be found here.
Theoretically, the first generation of human rights was shaped by liberal-
ism, exemplified in the writings of Rousseau,[15] Locke,[16] and Kant,[17]
though rooted much more deeply in the thought of Aristotle.[18] The sec-
ond and third generations of rights were in contrast influenced by
Marx,[19] Engels,[20] Lenin,[21] and Mao.[22] This raises an implicit question:
what is the future of rights discourse now that the Soviet Union has col-
Many theorists, particularly American theorists, regard the end of the
U.S. S.R. as resulting in a net gain for human rights.[23] This is, however,
not exactly the case. First, Marxist human rights theory assigns survival
rights, such as food and shelter, a higher value than property rights or the
right to worship. So, at least from that perspective, gaining the right to
worship freely and losing the right to a job would be seen as a net loss.
Furthermore, the economic situation in Russia and the C.I.S. clearly has
deteriorated severely in the last 10 years[24] with a resulting increase in
crime and decline in human rights.[25] Similar regression has also oc-
curred in South Africa. Formally, human rights are better protected there
because of the legal equality, at least in theory, of blacks and whites.
However, formal equality is not the same as substantive equality. For-
mal improvement in post-Apartheid South Africa is belied, just as in
Russia,[26] by the rise in crime.[27] The situations in Myanmar, Yugosla-
via,[28] and Nigeria,[29] and Chechnya also belie the idea that, with the end
of Soviet imperialism, human rights have improved - although perhaps a
net human rights improvement can be seen, however, in South America.
What conclusions can be drawn from these facts?

[1] See, e.g., Alan Greenspan, The Embrace of Free Markets, Remarks at the Woodrow Wilson Award Dinner of the Woodrow Wilson International Center for Scholars, New York, New York, June 10, 1997.

[2]See, e.g. U.S. CONST., amend. XIV.

[3] Thus, radical critiques of human rights as a vector of power are not without foundation. See, e.g., Martha Minow, Rights and Cultural Difference, in Sarat and Kearns, supra note 139, at 355.

[4] See,  e.g.,, ARISTOTLE, POLITICs, Book   I,  pt.  XIII

[5] Aristotle even recognizes that his arguments for natural slavery and the natural inequality of men and women are flawed, and tries to meet the objections. Id. at Book L, pt. VL

[6] Aristotle clearly believed that some people were inherently destined for slavery. Id., Book I, pt. V.

[7] But see, Joelle Entelis, International Human Rights: Islam's Friend Or Foe? 20 FORDHAM INT'L L.J. 1251 (1997). Arguing that Algeria is an Example of the Compatibility of International Human Rights law and Islamic law regarding women.

[8] E.g., RIFFAT HASSAN, RELIGIOUS HUMAN RIGHTS IN GLOBAL PERSPECIVE: RELIGIOUS PERSPECIVES 361-86 (John Witte, Jr. and Johan D. van der Vyver eds., Martinus Nijhoff Publishers 1996)

[9] For a discussion of Islamic human rights law and international human rights law see, Bharathi Anandhi Venkatraman, Islamic States And The United Nations Convention On The Elimination Of All Forms Of Discrimination Against Women: Are The Shari'a And The Convention Compatible? 44 AM. U. L. Rev. 1949, 1951 (1995).

[10] Population Registration Act 30 of 1950; Group Areas Act 41 of 1950; Separate Representation of Voters Act 45 of 1951 (Union of South Africa).

[11] But see, Lawrence v. Texas, 539 U.S. 558 (2003); Dudgeon v. U.K., 45 Eur. Ct. H.R. (1981).

[12] See, e.g., James D. Wilets, International Human Rights Law And Sexual Orientation, 18 HASTINGS INT'L & COMP. L. Rev. I (1994).

[13] ARISTOTLE, NICOMACHEAN Ethics, Book I, § 2 (translated by W.D. Ross) (350 b.c.),

[14] This is true even in the United States. See, e.g., U.S. v. Locke, 471 U.S. 84 (1985).



[17] Epistemologically, Kant's  Kritik  der  reinen  Vernunft  (1787) (available  at: ) is the more important work, though in intemational law  Kant is better known   for Zum  ewigen  Frieden (1795) (available at: ). His metaphysics and idealism led him to be rejected because only material facts are capable of scientific proof not opinions or subjective states of mind.

[18] "Liberal" is a much abused term, particularly by "neo" "liberals." To understand the origin and true meaning of the concept of liberality (and by consequence that "neo-liberal" thought is in fact illiberal) see ARISTOTLE, NICHOMACHEAN ETHICS, Book IV Ch. 1, supra note 303

[19] Karl Marx, Kapital L  MEW    23, 189f.309, 183, 789  (1867)

[20] Friedrich Engels, Anti-Diihring, MEW,  20,   95-99  (1887)  

[21] V.I. LENIN, The State and Revolution, in 25 COLLECTED WORKS, 381-492 (1918)

[22] MAO TSE-TUNG, On Policy (1940), in 2 SELECTED WORKS OF MAO TSE-TUNG, 441-49 (Foreign Languages Press, Peking 1965)

[23] For an expos6 and critique of the conventional wisdom see, Scott D. Syfert, Capitalism Or Corruption? Corporate Structure, Western Investment And Commercial Crime In The Russian Federation, 18 N.Y.L. SCH. J. INT'L & COMP. L. 357 (1999).

[24] Shannan C. Krasnokutski, Human Rights In Transition: The Success And Failure Of Polish And Russian Criminal Justice Reform, 33 CASE W. RES. J. INT'L L. 13 (2001).

[25] . Louise Shelley, Post-Soviet Organised Crime And The Rule Of Law, 28 J. MARSHALL L. REV. 827 (1995) ("[o]rganised crime in Russia today is so serious that it threatens human rights, the rule of law, democracy, and free markets").

[26] Id

[27] Adrien Katherine Wing, The South African Transition To Democratic Rule: Lessons For International And Comparative Law, 94 AM. SOCY INT'L L. PROc. 254, 259 (2000).

[28] Christopher C. Joyner, Enforcing Human Rights Standards In The Former Yugoslavia: The Case For An International War Crimes Tribunal, 22 DENV. J. INT'L L. & POLtY 235, 251 (1994).

[29] Sakak Mahmud, The Failed Transition to Civilian Rule in Nigeria: Implications for Democracy and Human Rights, 40 AER. TODAY 87 (1993); Okechukwu Oko, Subverting The Scourge Of Corruption In Nigeria: A Reform Prospectus, 34 N.Y.U. J. INT'L L. & POL. 397 (2002).

 楼主| 发表于 2/7/2018 16:20:07 | 显示全部楼层
In this author's opinion, rights can only be understood in their economic
context because rights are ultimately claims to material goods, or deter-
mine procedures by which material goods are assigned. Rights can only
be scientifically understood when seen as arising out of material condi-
tions because science requires empirical verification of its propositions.
The fact that the conceptualisation of rights has evolved with economic
progress corroborative evidence of the theory that rights can only be un-
derstood from a materialist perspective.
As to the future, the resurgence of property[1] and market rights such as
capital mobility[2] and the free movement of labor and goods in the post-
Soviet world[3] may be merely a temporary trend. A trend that will con-
tinue only until the third world objections to capitalism reorganize, pos-
sibly centered around local cultural icons, such as religious fundamental-
ism, e.g. Islamic nationalism,[4] liberation theology,[5] or some other mix
of ancient and modem local resistance to a global economic order.[6] On
the other hand, it is also possible that the rise of market rights since
1989[7] could be signalling the return to an understanding of rights in the
first-generational sense, mere limits on the state's power, or right to con-
strain the market ("freedoms from"), rather than positive claims to sub-
stantive resources ("rights to").
Whether the future of rights will continue to follow market trends, or
reject the market as ultimate judge of right, will depend on whether the
third world industrializes and escapes the grip of poverty. If it does, then
a conception of rights as reflections of, or even springing from, markets
and which, in either case, operate to limit government, will permit the
west to escape the charge of cultural imperialism or moral relativism, and
may dominate the discourse of rights for the next few decades. Alterna-
tively, if the third world spirals further into debt and recessions, as seems
to be the case contemporarily in Argentina[8] and Venezuela,[9] then we
may consider the possibility either of a rejection in to of human rights
discourse or, more likely, the formulation of cultural particularisms and
an exceptionalist view of rights such as indicated above. The author
considers the second the more likely outcome, but both are in fact, possi-
The usual tri-partite generational perspective on human rights is only
partially complete. This is because that classification ignores both the
economic foundation[10] of human rights, and their social expansion to
cover not only white, male, adult citizens, but also women, persons of
color, and even children. The classical typology is incomplete, but does
help us understand rights discourse, although only partially. We have
tried to expand briefly upon that theory, since it is roughly accurate his-
torically speaking, and since science contents itself with improving exist-
ing theories and only rejects a previous theory when a new theory can
better explain observed phenomena.

[1] See, e.g., Loizidou v. Turkey (Merits) (ECHR 40/1993/435/514) (1996).

[2] Alfred C. Aman, supra note 42, at 781 (pointing out global capital mobility). It must be remembered that prior to 1970 international capital mobility was the exception, not the rule.

[3] Jost Delbruck argues that major changes have occurred in international relations and inter- national law since 1989 - but that these changes actually affirm sovereignty. Supra note 32, at 705. However, Delbruck himself acknowledges both the disintegration of states such as the U.S.S.R. into smaller states and more importantly the rise of transnational institutions of governance. Id. at 706. The devolution of the sovereign power to other sovereigns cannot be seen as an affirmation of sovereignty but is evidence of its transformation. Further the transnational institutions of global governance clearly affirm the fact that sovereignty has been not only transformed by devolution but also transferred by so many derogations that to speak of a rule of absolute sovereignty is meaningless and to speak of literally dozens of exceptions to a principle of qualified sovereignty is awkward. It would be better theoretically to reconceptualize sovereignty rather than to deny empirical reality in order to affirm outdated dogma. Id. at 705-706.

[4] For an interesting discussion of the convergence of local tribalism and globalisation see BENJAMIN R. BARBER, JIHAD VS. MCWORLD (Times Books, 1995).

[5] See, e.g., Mark Engler, Toward the "Rights of the Poor": Human Rights in Liberation Theology, JOURNAL OF RIGHTS AND ETHICS, JRE 28.3: 337-63 (2000).

[6] As mentioned elsewhere the world is developing institutions and processes of global governance under law. Ulrich K. Preuss, supra note 113, at 305-306. International institutions such as the European Union and the W.T.O. and the U.N. are in fact replacing so many functions of the state that, in concert with devolution and privatization, we can meaningfully speak of a shift of state power from the nation state to regional global and local institutions of governance.

[7] Some predict that claims that Western ideals are universal will increase because of the end of the cold war. See Dianne Otto, supra note 200.

[8] .   THE ECONOMIST, The Death Of Peronism? Nov. 14, 2002.

[9] THE ECONOMIST, When Push Comes To Shove, Dec. 5, 2002.

[10] T. S. Twibell, Ethiopian Constitutional Law: The Structure Of The Ethiopian Government And The New Constitution's Ability To Overcome Ethiopia's Problems, 21 LOY. L.A. INT'L & COMP. L.J. 399 (1999).

 楼主| 发表于 2/9/2018 18:12:45 | 显示全部楼层
本帖最后由 郭国汀 于 2/9/2018 18:55 编辑

As Alexander Hamilton recognized in 1775, "the sacred
rights of mankind... are written, as with a sunbeam, in the whole
volume of human nature ... and can never be erased or obscured by
           mortal power."[1]

Alexander Hamilton stated in 1775 that he
was "convinced that the whole human race is entitled to" such rights,
   the sacred rights of mankind are not to be rummaged for among old
   parchments or musty records. They are written, as with a sunbeam, in
   the whole volume of human nature, by the hand of divinity itself, and
   can never be erased or obscured by mortal power.

[1] A. HAMILTON, THE FARMER REFUTED (N.Y. 1775), quoted in B. WRIGHT, AMERICAN INTERPRETATIONS OF NATURAL LAW 90-91 (1931).quoted at 10 Mich. J. Int'l L. 543 (1989)  p. 543* Professor of Law, University of Houston.

 楼主| 发表于 2/9/2018 18:34:29 | 显示全部楼层
William Molyneux
at the end of the 1600s that the Irish should be "governed only by such
laws to which they give their own consent," and that to govern other-
            wise would be against "the common rights of mankind."[1]


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