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Legal doctrine as human rights ‘practice’

Legal doctrine as human rights ‘practice’
Legal doctrine as human rights ‘practice’
‘Practical’ approaches to human rights hold that analysis of legal human rights must attend to the practice(s) of international human rights law and that the nature and justification of international human rights is best determined by attending to their role(s) in international human rights law’s system of normative practices, not analogous moral rights outside it. These core tenets plausibly explain the apparent normativity of international human rights law despite controversies about the status of many ‘rights’ in the ‘International Bill of Rights.’ Yet plausible practicalapproaches require clear and compelling accounts of which practices qualify as human rights practices. Most existing accounts view ‘responses’ to claims made in the name of the international legal community as key to the identification of human rights. Activities by domestic governments and non-governmental actors qualify as relevant practices. While understandable, these ‘responsive’ accounts of practice create more problems than they solve. This work accordingly promotes a
largely-unexplored account on which ‘human rights practices’ are strictly defined by international legal doctrine. This ‘doctrinal’ account of practice is most likely to maintain practical approaches to human rights’ potential benefits without generating an unduly expansive rights register or adopting strong theoretical commitments about the nature of law.
Human Rights, Human Rights Theory, Practical Approach, International Human Rights Law, Legal Philosophy, Charles Beitz, Allen Buchanan
2045-3817
Da Silva, Michael
05ad649f-8409-4012-8edc-88709b1a3182
Da Silva, Michael
05ad649f-8409-4012-8edc-88709b1a3182

Da Silva, Michael (2022) Legal doctrine as human rights ‘practice’. Global Constitutionalism. (doi:10.1017/S2045381722000168).

Record type: Article

Abstract

‘Practical’ approaches to human rights hold that analysis of legal human rights must attend to the practice(s) of international human rights law and that the nature and justification of international human rights is best determined by attending to their role(s) in international human rights law’s system of normative practices, not analogous moral rights outside it. These core tenets plausibly explain the apparent normativity of international human rights law despite controversies about the status of many ‘rights’ in the ‘International Bill of Rights.’ Yet plausible practicalapproaches require clear and compelling accounts of which practices qualify as human rights practices. Most existing accounts view ‘responses’ to claims made in the name of the international legal community as key to the identification of human rights. Activities by domestic governments and non-governmental actors qualify as relevant practices. While understandable, these ‘responsive’ accounts of practice create more problems than they solve. This work accordingly promotes a
largely-unexplored account on which ‘human rights practices’ are strictly defined by international legal doctrine. This ‘doctrinal’ account of practice is most likely to maintain practical approaches to human rights’ potential benefits without generating an unduly expansive rights register or adopting strong theoretical commitments about the nature of law.

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Da Silva GCN AM - Accepted Manuscript
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Accepted/In Press date: 12 May 2022
e-pub ahead of print date: 10 October 2022
Additional Information: © The Author(s), 2022. Published by Cambridge University Press
Keywords: Human Rights, Human Rights Theory, Practical Approach, International Human Rights Law, Legal Philosophy, Charles Beitz, Allen Buchanan

Identifiers

Local EPrints ID: 457398
URI: http://eprints.soton.ac.uk/id/eprint/457398
ISSN: 2045-3817
PURE UUID: 25cbcb78-7f04-4add-a183-01d0bbdabfc3

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Date deposited: 07 Jun 2022 16:36
Last modified: 11 Nov 2022 17:36

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Author: Michael Da Silva

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