The ‘Human’ in Human Rights and the Law

Abstract

Chapter 9 examines what differing conceptions of ‘the human good’ underpinning pre-legal rights imply for such rights’ relation to positive law. Three models are compared: a varied, specific model on which each party’s good might be different from anyone else’s, a shared specific model on which certain things (e.g. education, sustenance, freedom) are good for each and every human, and a generic model on which the good of ‘the generic human’ grounds human rights. Problems for each approach are outlined, as are their differing implications for the relation between pre-legal ‘natural’ human rights and human rights law, criminal law, and other branches of law. A central argument defends the view that the socio-economic rights recognized by human rights law institutionalize pre-legal ‘natural’ rights borne by individuals against other individuals, their state and—most crucially for the author’s argument—humanity at large. The contrary views of Buchanan and O’Neill are criticized.