International law, Sixth edition
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International Law MALCOLM N. SHAW
of Human Rights, Ardsley, 1999.
6 See e.g. R. Higgins, ‘Reality and Hope and International Human Rights: A Critique’, 9 Hofstra Law Review, 1981, p. 1485. 7 See M. Cranston, ‘What are Human Rights?’ in Laquer and Rubin, Human Rights Reader, pp. 17, 19. t h e p r o t e c t i o n o f h u m a n r i g h t s 267 was able to provide a powerful method of restraining arbitrary power. 8 Although this approach fell out of favour in the nineteenth century due to the problems of its non-empirical and diffuse methodology, it proved of immense value in the last century in the establishment of human rights within the international community as universal principles. Positivism as a theory emphasised the authority of the state and as such left little place for rights in the legal system other than specific rights emanat- ing from the constitutional structure of that system, 9 while the Marxist doctrine, although based upon the existence of certain immutable histor- ical laws governing the development of society, nevertheless denied the existence of rights outside the framework of the legal order. 10 Modern rights theories cover a wide range of approaches, and this clearly em- phasises the need to come to terms with the requirements of an evolving legal system that cannot be totally comprehended in terms of that system itself. 11 Of particular interest is the work of the policy-oriented movement that seeks to identify, characterise and order a wide variety of rele- vant factors in the process of human rights creation and equipment. Eight interdependent values are noted (viz. demands relating to respect, power, enlightenment, well-being, health, skill, affection and rectitude) and various environmental influences stressed. Human dignity is seen as the key concept in relation to these values and to the ultimate goal of a world community in which a democratic distribution of values is sought. 12 All these theories emphasise the complexity of the nature of the concept of human rights in the context of general legal and political processes, but also the importance and centrality of such notions. The broad issues are similarly raised within the framework of international law. 8 See e.g. Lauterpacht, International Law ; R. Tuck, Natural Rights Theories, Cambridge, 1979; J. Finnis, Natural Law and Natural Rights, Oxford, 1980, and McDougal et al., Human Rights, pp. 68–71. See also Tomuschat, Human Rights, chapter 2, and above, chapter 1. 9 See e.g. D. Lloyd, Introduction to Jurisprudence, 4th edn, London, 1979, chapter 4. See also H. Hart, The Concept of Law, Oxford, 1961; McDougal et al., Human Rights, pp. 73–5, and above, chapters 1 and 2. 10 See e.g. Lloyd, Jurisprudence, chapter 10, and McDougal et al., Human Rights, pp. 76–9. See also below, p. 268. 11 See e.g. J. Rawls, A Theory of Justice, Oxford, 1971; E. Cahn, The Sense of Injustice, Bloom- ington, 1949; R. Nozick, Anarchy, State and Utopia, Oxford, 1974, and Dworkin, Taking Rights Seriously. See also S. Davidson, Human Rights, Buckingham, 1993, chapter 3. 12 See McDougal et al., Human Rights, especially pp. 82–93. |
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