Yale Law School’s Seminar in Private Law: Disputing Ends and Means in the Field of Human Rights

Post by Sadie Blanchard, Research Fellow Yale Law School

Last week in Yale Law School’s Seminar in Private Law, Iain Levine, Deputy Executive Director at Human Rights Watch, and Sam Moyn, Professor at Harvard Law School, began a discussion of practical and theoretical perspectives on the legitimation of human rights. A preliminary point might help to orient readers, who would not be alone if they wondered what human rights have to do with private law or with the Seminar’s theme of how dispute resolution processes that exist outside of established legal or political structures can generate authority. Most nations, after all, have agreed to several multilateral human rights treaties negotiated within the United Nations. Human rights are monitored and enforced by international tribunals and other bodies created and controlled by states through the United Nations and other political assemblies of states. The international human rights regime seems to be precisely a political and legal structure designed and built by states.

Nonetheless, relevant questions remain. For example, how did this state of affairs come to be? The history of the global ascent of human rights is short. What is the content of human rights, and how should they be protected? What do they imply for sovereignty and public authority? Those issues remain contested not only within the state-centric human rights architecture but also outside of it. Such questions make human rights an appropriate object of study by those who wish to better understand conflict resolution outside of established structures.

Sam Moyn opened his remarks by raising these very questions. Why, he asked, in a seminar in private law, are we discussing human rights? Human rights are public law. A classic worry about them is that they are unable to reach private arrangements and actions. Human rights courts do not fit the description of “dispute resolution beyond the state.” Moyn turned, therefore, to human rights conceived as a transnational social movement in which domestic activists ally with international actors. Thus conceived, he said, human rights can achieve consequences that challenge sovereigns, though they rarely abrogate sovereignty.

Moyn then discussed disputes within the field of human rights activism, responding to several assigned writings (linked to here) by human rights experts and practitioners, which discuss tensions between elite activists and local actors in the global South, as well as disagreements about the goals and methods of the movement. Where there are mismatches between the activities favored by international elites and local actors, Moyn said, the resource advantages of international elites enable them to steer the agenda. Human rights achieved dominance partly through their framing as a non-political assertion of norms, but grassroots movements might want to cross political boundaries rather than only naming and shaming human rights violators. He concluded that the human rights movement should not try to be all encompassing but should leave space for other political movements.

Iain Levine described the different views about the current state of the human rights movement, which he contends would more accurately be called the human rights ecosystem, given its diversity of goals and tactics. Elites and grassroots should, he said, be thought of not as opposed to one another but as engaged in a dialogue from which common aims and interests can be identified. Many people claim human rights have never been stronger and more influential, including in their geographic scope and breadth of issue coverage. On the other hand, there is strong pushback against human rights, and recent events demonstrate their limits. There have been crackdowns on civil society not only in China and Russia but also in many other countries, including those that used to profess to be liberal democracies such as Hungary and Turkey. In disputes between nations or between states and non-state actors, reports of an opponent’s human rights violations are often used as a weapon, while reports of one’s own breaches are disavowed as propaganda. The idea of a responsibility to protect has lost credibility because of the experience in Iraq and Libya. The needed responses to the refugee crisis in Europe go beyond established legal obligations; they involve moral obligations. Levine affirmed that the approach of the largest international human rights organizations is to work within existing political structures to make them incrementally more humane and rights respecting rather than trying to overthrow the system.

Daniel Markovits observed that human rights as currently practiced embodies an anti-thuggery principle as opposed to a perfectionist ideal of human flourishing more often observed in domestic political contests. He wondered whether this has to do with differences in legitimacy. Domestically, the means are settled—you win the election—so the debate is about ends. Internationally, legitimacy is always an issue, so the debate must be largely about means. One way to legitimate human rights is to advance a narrow conception of them. It appears that a thin program of human rights has put into place organizations and networks whose members have ambitions beyond the thin program—to pursue, for example, a more equal distribution of resources, or to pressure states to accept more refugees. But their warrant might be unsuited to sustaining those ambitions.

Levine said that the rightness of the standards advanced serves a legitimating function. However, expertise limits the scope of issues that Human Rights Watch, for example, will address. It avoids stepping beyond its expertise and thereby jeopardizing its credibility.

A participant responded to Moyn’s paper, an intellectual history that criticizes the human rights movement as having scaled back liberal ambitions. In Moyn’s view, the human rights movement narrowed the liberal agenda to protecting a basic core of civil and political rights believed to improve the human condition. The earlier liberal tradition, he argues, sought to construct social freedom through an ambitious political program. The participant observed a disconnect between Moyn’s critique and the experience of Levine and others fighting for human rights every day. He argued that the human rights structure and human rights advocates are working in real time in concrete situations to improve people’s lives. Is it true, he asked, that the ambition of preserving order and preventing torture is too low, when we are not even close to achieving it? Even accepting Moyn’s critique entirely, he said, human rights advocates could and should do nothing differently than what they are doing now, so perhaps Moyn’s critique is purely academic.

Moyn agreed that under present conditions the human rights movement was probably doing all it could. The consequence of that recognition, he said, should be to de-romanticize human rights and acknowledge the need for an alternative movement, such as one centered on global development, to address an unjust hierarchy.

Another participant pointed out that there is a global development movement, or perhaps several such movements but questioned whether it was entirely distinct from human rights. He contended that the main achievement of human rights has been not their legalization but the advancement of a certain view of human social ordering. Even a thick conception of human rights that encompasses social and economic rights focuses on defining a minimum. Human rights cannot achieve an equal distribution of resources, but the project helps lead to a more equitable distribution. For example, the discussion about responding to climate change recognizes differentiated responsibilities among wealthier and poorer states, and that constrains what rich countries can demand of poor ones.

Students highlighted the lack of clarity of the language used. One noted that the words “human rights” had been used to refer to a body of law, various overlapping but non-identical sets of ideas about the promotion of human flourishing, and multiple social movements that were not perfectly aligned in their purposes or methods. Another student distinguished two ways in which human rights could be criticized as too narrow. The first concerns which entitlements are human rights: we could fail to recognize human rights that actually exist. The second concerns the most effective way to promote the rights that are agreed to be human rights. Moyn said that claims that have to be empirically tested are beyond the scope of his work. That exclusion would seem to rule out arguments from the second category. He posited one view about the development of human rights: that a certain set of liberal ideas gave rise both to global northern welfare states and the Universal Declaration of Human Rights, but later the list of rights was stripped down in response to the events of the twentieth century. But to Moyn, early liberalism did not make rights central, so the normative inquiry is not “what are the correct rights?” This view is elaborated further in his paper, which argues that a liberalism truer to its pre-World War II roots might sideline individual rights to advance social freedom.

The discussion brought to light various disputes about human rights that are played out both within and beyond established political and legal structures. The conversation also struck themes that arose in earlier sessions of the Seminar. Can the “human rights ecosystem” be considered a social field, defined as a recognized area of social life having a common meaning system and populated by people who interact more frequently with each other with other social actors? In an earlier session, international arbitration was described as having begun as one professional interest among many of certain elites sharing common values. The area later developed into a social field of specialist professionals openly pursuing competing values. That transformation was driven largely by a perceived need to promote external legitimacy by opening and professionalizing the field. Has the human rights ecosystem followed a similar pattern of development? The question arose in an earlier session whether good outcomes can generate legitimacy. Can the human rights project point to its successes in improving human lives to legitimate itself? What would such an approach to legitimation imply for the scope of its claim to authority?

This week, Oona Hathaway and Scott Shapiro will discuss their work on outcasting as a method of law enforcement, and Leif Wenar will discuss his new book Blood Oil: Tyrants, Violence, and the Rules that Run the World.


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