1. Theories of Human Rights
Dr Darren O’Byrne

2. Human Rights and the Disciplines
Human rights can be looked at through different disciplinary approaches (e.g. law, politics/IR, philosophy, sociology)
Within each discipline, we study human rights using the theories and perspectives that define that discipline
For example, in politics, we turn to theories of international relations, i.e. theories designed to answer the question: “What should the state’s relationship be to other states?”
Existing theories (of the role of the state in the international arena) include realism, liberalism, Marxism etc

3. Human Rights and the Disciplines
Similarly, in sociology, we are concerned with the meaning of human rights within a particular social context, and so we are drawn to theories that address the question: “What is society, and how is it constituted?”
Existing such theories (i.e. theories of society) include functionalism, conflict theory, Marxism, structuralism etc

4. Human Rights and the Disciplines
Also, in law, there is a core theoretical question: “What is the source of legal authority?”
Here, we turn to legal theories (i.e. theories of legal authority), which may include positivism, naturalism, realism etc
BUT none of the above are theories of human rights – they are not designed for that purpose! So, if we are studying human rights across these disciplines, seeking a common narrative, we need to identify theories that address a different question: “What do we mean by human rights?”

5. Theories of Human Rights
The problem here is that the term ‘human rights’ comes to mean something different in each discipline, depending on its disciplinary focus – making the study of human rights across the disciplines impossible
Theories of human rights would invert this emphasis: rather than treating human rights as secondary to other factors, they would consider those factors in relation to a common understanding of human rights
The question: What are human rights, and what is their purpose?

6. Theories of Human Rights
In any discipline, ‘theories’ are distinguished by their competing responses to core questions, so, in respect of human rights:
What are rights, i.e. are they properties of individuals, communities or social structures? (liberal-communitarian- sociological debate) {Etymology}
To whom do they apply? (universalist-relativist-contested debate) {Ontology}
Where do they come from, i.e. what is the source of their legitimacy? (essentialist-constructivist debate) {Epistemology}
What is their purpose? (conservative-radical debate) {Ideology}
How do we research them? (positivist-interpretive-critical debate) {Methodology}

7. Dunne and Wheeler’s Four Perspectives …

8. 1. Legal Positivism
What are they? They are legal commands and protections for individuals (liberal)
To whom do they apply? To all people who are subjects of the law (relativist)
Where does their authority derive from? From positive law (i.e. acts, conventions etc.) (constructivist)
What is their purpose? To protect citizens from injustice and uphold the authority of the law (conservative)
How do we research them? Through legal research methods (positivist)

9. Legal Positivism – selected reading
Bentham, Jeremy (2010; original 1864) Book of Fallacies Charleston: BiblioBazaar
Hart, H. L. A. (1955) ‘Are There any Natural Rights?’ in Philosophical Review 64

10. 2. Liberal Natural Rights
What are they? They are inherent properties of the individual, e.g. freedom of speech, movement, belief (liberal)
To whom do they apply? To all people (universalist)
Where does their authority derive from? From pre-social human nature (essentialist)
What is their purpose? To protect individual freedoms from tyranny (radical)
How do we research them? Through comparative analysis (positivist)

11. Liberal Natural Rights – selected reading
Finnis, John (1980) Natural Rights and Natural Law Oxford: Clarendon Press
Locke, John (1988; original 1690) Two Treatises of Government Cambridge: Cambridge University Press
Mill, John Stuart (1985; original 1859) On Liberty Harmondsworth: Penguin
Paine, Thomas (1984; original 1791) Rights of Man Harmondsworth: Penguin

12. 3. Traditional Communitarianism
What are they? Various articulations of norms and values (communitarian)
To whom do they apply? In each case, to members of particular communities (relativist)
Where does their authority derive from? From specific cultural contexts, from custom and tradition (essentialist)
What is their purpose? To promote community cohesion (conservative)
How do we research them? Through engaged research in community settings, e.g. ethnography (interpretive)

13. Traditional Communitarianism – selected reading
Dumont, Louis (1966) Homo Hierarchicus London: Paladin
Etzioni, Amitai (1993) The Spirit of Community: Rights, Responsibilities and the Communitarian Agenda New York: Crown Publishers
Etzioni, Amitai (1994) Rights and the Common Good: The Communitarian Perspective New York: Cengage Learning
Glendon, Mary Ann (1991) Rights Talk: The Impoverishment of Political Discourse New York: Free Press
MacIntyre, Alisdair (1981) After Virtue Notre Dame: Notre Dame University Press
Sandel, Michael (1982) Liberalism and the Limits of Justice Cambridge: Cambridge University Press
Taylor, Charles (1992) The Ethics of Authenticity Cambridge, Mass: Harvard University Press
Taylor, Charles (1996) ‘A World Consensus on Human Rights?’ in Dissent Summer, 15-21
Walzer, Michael (1983) Spheres of Justice New York: Basic Books

14. 4. Pragmatic Cosmopolitanism
What are they? They are ethical commands, demands about how individuals ought to live (liberal)
To whom do they apply? To all people (universalist)
Where does their authority derive from? From human sociality, from living in a world of others (constructivist)
What is their purpose? To promote universally applicable standards of justice (radical)
How do we research them? Through critical legal research methods (critical)

15. Pragmatic Cosmopolitanism – selected reading
Arendt, Hannah (1951) The Origins of Totalitarianism New York: Harcourt Brace
Bobbio, Norberto (1996) The Age of Rights Cambridge: Polity Press
Cassese, Antonio (1990) Human Rights in a Changing World Cambridge: Polity
Donnelly, Jack (1998) International Human Rights Boulder, Co.: Westview
Donnelly, Jack (1999) ‘The Social Construction of International Human Rights’ in Tim Dunne and Nicholas J. Wheeler (eds) Human Rights in Global Politics Cambridge: Cambridge University Press
Falk, Richard (1981) Human Rights and State Sovereignty New York: Holmes & Meier
Falk, Richard (2000) Human Rights Horizons London: Routledge
Habermas, Jurgen (2001) The Postnational Constellation: Political Essays Cambridge: Polity Press
Held, David (1995) Democracy and the Global Order Cambridge: Polity Press
Kant, Immanuel (1964) Groundwork of the Metaphysics of Morals New York: Harper & Row
Kelsen, Hans (1944) Peace Through Law Chapel Hill: University of North Carolina Press
Kelsen, Hans (1950) The Law of the United Nations New York: Frederick A. Praeger
Kymlicka, Will (1996) ‘The Good, the Bad, and the Intolerable: Minority Group Rights’ in Dissent Summer, 22-30
Parekh, Bhikhu (1999) ‘Non-Ethnocentric Universalism’ in Tim Dunne and Nicholas J. Wheeler (eds) Human Rights in Global Politics Cambridge: Cambridge University Press
Rawls, John (1972) A Theory of Justice Oxford: Oxford University Press
Rawls, John (1993) ‘The Law of Peoples’ in Stephen Shute and Susan Hurley (eds) On Human Rights New York: Basic Books
Teson, Fernando (1985) ‘International Human Rights and Cultural Relativism’ in Virginia Journal of International Law 25, 4,

16. 5. Marxism
What are they? They are articulations of basic human needs in society, e.g. food, shelter, work (or they should be – as Marx pointed out in On the Jewish Question, the language of human rights has been hijacked to mean something else) (sociological)
To whom do they apply? In theory, to all people, but in practice, they are enjoyed only by the powerful (contested)
Where does their authority derive from? From reality, from material conditions of existence (constructivist) and from ‘species being’ (essentialist)
What is their purpose? To improve conditions of life and protect people from exploitation (radical)
How do we research them? Through dialectical methodology (critical)

17. Marxism – selected reading
Barta, Tony (1987) ‘Relations of Genocide: Land and Lives in the Colonization of Australia’ in I. Wallimann and M. Dobkowski (eds) Genocide and the Modern Age New York: Greenwood
Brass, Tom (1999) The Political Economy of Unfree Labour Cambridge: Cambridge University Press
Cohen, G. A. (1995) Self-Ownership, Freedom and Equality Cambridge: Cambridge University Press
Cromwell Cox, Oliver (1948) Caste, Class and Race New York: Doubleday
Genovese, Eugene (1965) The Political Economy of Slavery New York: Vintage
Marx, Karl (1978; original 1844) ‘On the Jewish Question’ in Robert Tucker (ed.) The Marx-Engels Reader New York: Norton & Co.
Ste Croix, Geoffrey (1981) The Class Struggle in the Ancient Greek World London: Duckworth
Sartre, Jean-Paul (1968) On Genocide Boston: Beacon Press
Sklair, Leslie (2002) Globalization: Capitalism and Its Alternatives Oxford: Oxford University Press

18. 6. National Functionalism
What are they? Protections for citizens that serve as indicators of social progress and modernization (sociological)
To whom do they apply? To citizens of the particular state-society, although exclusions may apply (relativist)
Where does their authority derive from? From the functional logic of social evolution (essentialist)
What is their purpose? To provide greater social cohesion and demonstrate the superiority of ‘advanced’ liberal-democratic societies (conservative)
How do we research them? Through policy analysis and statistical research (positivist)

19. National Functionalism – selected reading
Dadrian, Vahakn (1974-5) ‘The Structural- Functional Components of Genocide’ in Victimology IV
Marshall, T. H. (1950) Citizenship and Social Class Cambridge: Cambridge University Press
Marshall, T. H. (1973) Class, Citizenship and Social Development Westport, CN: Greenwood Press

20. 7. Libertarian Conservatism
What are they? They are individual freedoms from the state, e.g. freedom to speak, believe, own, consume, and make demands (liberal)
To whom do they apply? To all people in theory, but they have to be earned and achieved (marketplace of opportunity) (contested)
Where does their authority derive from? From principles of just entitlement that define all forms of exchange in market society (constructivist)
What is their purpose? To empower the consumer and satisfy the basic rules of market society (conservative)
How do we research them? Through application of economic research methods (positivist)

21. Libertarian Conservatism – selected reading
Cranston, Maurice (1954) Freedom: A New Analysis London: Longman
Cranston, Maurice (1962) Human Rights Today London: Ampersand
Cranston, Maurice (1967) ‘Human Rights, Real and Supposed’ in D. D. Raphael (ed.) Political Theory and the Rights of Man Bloomington: Indiana University Press
Cranston, Maurice (1973) What are Human Rights? London: Bodley Head
Nozick, Robert (1974) Anarchy, State and Utopia Oxford: Basil Blackwell
Steiner, Hillel (1994) An Essay on Rights Oxford: Blackwell

22. 8. Feminism
What are they? They are political constructs (sociological)
To whom do they apply? In theory, all people, but in practice, to men (contested)
Where does their authority derive from? In practice, from the gendered discourse of the public sphere (constructivist)
What is their purpose? In theory, to challenge the exclusion of women from the political category of ‘human’ (radical)
How do we research them? Through feminist- standpoint research methods (critical / interpretive)

23. Feminism – selected reading
Ashworth, Georgina (1999) ‘The Silencing of Women’ in Tim Dunne and Nicholas J. Wheeler (eds) Human Rights in Global Politics Cambridge: Cambridge University Press
Binion, Gayle (1995) ‘Human Rights: A Feminist Perspective’ in Human Rights Quarterly 17,
Canning, Victoria (2010) ‘Who’s Human? Developing Sociological Understandings of the Rights of Women Raped in Conflict’ in International Journal of Human Rights 14, 6,
MacKinnon, Catherine (1993) ‘Crimes of War, Crimes of Peace’ in Stephen Shute and Susan Hurley (eds) On Human Rights New York: Basic Books
Merry, Sally E. (2005) Human Rights and Gender Violence Chicago: University of Chicago Press
Peterson, V. Spike and Parisi, Laura (1998) ‘Are Women Human? It’s Not an Academic Question’ in Tony Evans (ed.) Human Rights Fifty Years On: A Reappraisal Manchester: Manchester University Press
Rao, Arati (1993) ‘Right in the Home: Feminist Theoretical Perspectives on International Human Rights’ in National Law School Journal 1, 62-81
Thomas, Dorothy and Beasley, Michele (1993) ‘Domestic Violence as a Human Rights Issue’ in Human Rights Quarterly 15, 36-43
Wollstonecraft, Mary (2004; original 1792) A Vindication of the Rights of Woman Harmondsworth: Penguin

24. 9. Neo-Foundationalism
What are they? They are safeguards against threats to human existence (sociological)
To whom do they apply? To all people (universalist)
Where does their authority derive from? From the universal frailty of the human condition (essentialist)
What is their purpose? To provide security in increasingly risky conditions (radical)
How do we research them? Through conceptual engagement and risk analysis (interpretive)

25. Neo-Foundationalism – selected reading
Elkins, Stanley (1959) Slavery Chicago: Chicago University Press
Mooney, Annabelle (2014) Human Rights and the Body: Hidden in Plain Sight Aldershot: Ashgate
Turner, Bryan S. (1993) ‘Outline of a Theory of Human Rights’ in Sociology 27
Turner, Bryan S. (1995) ‘Rights and Communities: Prolegomenon to a Sociology of Rights’ in Australian and New Zealand Journal of Sociology 31, 2
Turner, Bryan S. (1997) ‘A Neo-Hobbesian Theory of Human Rights: A Reply to Malcolm Waters’ in Sociology 31, 3
Turner, Bryan S. (2006) Vulnerability and Human Rights University Park, Penn: Pennsylvania State University Press

26. 10. Social Constructionism
What are they? They are a ‘language’ that helps us articulate our desires (sociological)
To whom do they apply? To all people (universalist), although the language takes different forms depending on context
Where does their authority derive from? From specific historical struggles (constructivist)
What is their purpose? To provide a language to oppose oppression and discrimination (radical)
How do we research them? Through conceptual engagement or ethnography (interpretive / critical)

27. Social Constructionism – selected reading
Bauman, Zygmunt (1989) Modernity and the Holocaust Cambridge: Polity Press
Bryce-Laporte, R. S. (1971) ‘Slaves as Inmates, Slaves as Men: A Sociological Discussion of Elkins’ Thesis’ in A. J. Lane (ed.) The Debate Over Slavery Chicago: University of Illinois Press
Cohen, Stan (2001) States of Denial Cambridge: Polity Press
Douzinas, Costas (2000) The End of Human Rights Oxford: Hart
Douzinas, Costas (2007) Human Rights and Empire: The Political Philosophy of Cosmopolitanism New York: Routledge-Cavendish
Fredrickson, G. and Lasch, Christopher (1971) ‘Resistance to Slavery’ in A. J. Lane (ed.) The Debate Over Slavery Chicago: University of Illinois Press
Gaete, Roland (1991) ‘Postmodernism and Human Rights: Some Insidious Questions’ in Law and Critique, 2, 2,
Lyotard, Jean-Francois (1993) ‘The Other’s Rights’ in Stephen Shute and Susan Hurley (eds) On Human Rights New York: Basic Books
Melvin, Jennifer (2010) ‘Reconstructing Rwanda: Balancing Human Rights and the Promotion of National Reconciliation’ in International Journal of Human Rights 14, 6,
Miller, Hannah (2010) ‘From “Rights-Based” to “Rights-Framed” Approaches: A Social Constructionist View of Human Rights Practice’ in International Journal of Human Rights 14, 6,
O’Byrne, Darren J. (2012) ‘On the Sociology of Human Rights: Theorizing the Language-structure of Rights’ in Sociology 46, 5,
O’Byrne, Darren J. (2015) Human Rights in a Globalizing World London: Palgrave
Short, Damien (2007) ‘The Social Construction of “Native Title” Land Rights in Australia’ in Current Sociology 55
Stammers, Neil (1999) ‘Social Movements and the Social Construction of Human Rights’ in Human Rights Quarterly 21
Waters, Malcolm (1995) ‘Globalization and the Social Construction of Human Rights’ in Australian and New Zealand Journal of Sociology 31, 2
Waters, Malcolm (1996) ‘Human Rights and the Universalisation of Interests: Towards a Social Constructionist Approach’ in Sociology 30, 3
Wendt, Alexander (1999) Social Theory of International Politics New York: Cambridge University Press
Wilson, Richard Ashby (2006) ‘Anthropology and Human Rights in a New Key: The Social Life of Human Rights’ in American Anthropologist 108
Woodiwiss, Anthony (2005) Human Rights London: Routledge

28. 11. Communitarian Pragmatism
What are they? They are convenient fictions, articulations of a specific sense of what is ‘right’ (communitarian)
To whom do they apply? To whoever they need to apply to (relativist)
Where does their authority derive from? From the practical need to find solutions to certain problems (constructivist)
What is their purpose? To provide moral legitimacy for such solutions (conservative)
How do we research them? Through interpretation of actors’ motives (interpretive)

29. Communitarian Pragmatism – selected reading
Brown, Chris (1999) ‘Universal Human Rights: A Critique’ in Tim Dunne and Nicholas J. Wheeler (eds) Human Rights in Global Politics Cambridge: Cambridge University Press
Bufacchi, Vittorio (2008) ‘The Truth About Rights’ in Journal of Human Rights 7, 4,
Ignatieff, Michael (2001) Human Rights as Politics and Idolatry Princeton: Princeton University Press
Rorty, Richard (1993) ‘Human Rights, Rationality and Sentimentality’ in Stephen Shute and Susan Hurley (eds) On Human Rights New York: Basic Books

30. 12. Islamism
What are they? They are neither legal nor social constructs but commands from God necessary for building the ‘good society’ (e.g. security, food, clothing, housing, education), and thus clearly distinct from the rights of the state or the rights of the individual (e.g. liberty which is a social construct) (communitarian)
To whom do they apply? To all people (universalist)
Where does their authority derive from? From God, via the core concept of human dignity which is at the heart of Islamic teachings (essentialist)
What is their purpose? To lay the foundations for the good society (conservative)
How do we research them? Through legal and theological textual analysis (interpretive)

31. Islamism – selected reading
An-Naim, Abdullah Ahmed (1990) Toward an Islamic Reformation: Civil Liberties, Human Rights and International Law Syracuse: Syracuse University Press
Berween, M. (2002) ‘The Fundamental Human Rights: An Islamic Perspective’ in International Journal of Human Rights 6, 1, 61-79
Kabir, Humayun (1949) ‘Human Rights: The Islamic Tradition and the Problems of the World Today’ in UNESCO (ed.) Human Rights: Comments and Interpretations New York: Columbia University Press
Kadivar, Mohsen (2009) ‘Human Rights and Intellectual Islam’ in Kari Vogt, Lena Larsen and Christian Moe (eds) New Directions in Islamic Thought: Exploring Reform and Muslim Tradition London: I. B. Tauris
Kamali, Muhammad Hashim (2002) The Dignity of Man: An Islamic Perspective Cambridge: Islamic Texts Society
Mohammed, Khaleel (2004) ‘A Muslim Perspective on Human Rights’ in Society 41, 2, 29-35
Nyazee, Imran Ahjan (1994) Theories of Islamic Law: The Methodology of Ijtihad Islamabad: International Institute of Islamic Thought
Nyazee, Imran Ahjan (2003) ‘Islamic Law and Human Rights’ in Islamabad Law Review 1, 1 & 2
Nyazee, Imran Ahjan (2011) Shari’ah Bill of Rights Islamabad: Federal Law House

32. In conclusion …
These twelve perspectives are ‘ideal-types’ constructed by me to help you better understand the contested nature of human rights
This is not an authoritative or exclusive list – can you imagine others?
Try placing a random selection of the twelve in conversation with one another, to see how they might approach a particular challenge
Don’t panic! It’s not supposed to be simple, and it wouldn’t be as much fun if it was!