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Human Rights without Democracy?

Human Rights without Democracy?: Reconciling Freedom with Equality

Gret Haller
Translated by Cynthia Klohr
Copyright Date: 2012
Edition: 1
Published by: Berghahn Books
Pages: 180
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  • Book Info
    Human Rights without Democracy?
    Book Description:

    Do Human Rights truly serve the people? Should citizens themselves decide democratically of what those rights consist? Or is it a decision for experts and the courts? Gret Haller argues that Human Rights must be established democratically. Drawing on the works of political philosophers from John Locke to Immanuel Kant, she explains why, from a philosophical point of view, liberty and equality need not be mutually exclusive. She outlines the history of the concept of Human Rights, shedding light on the historical development of factual rights, and compares how Human Rights are understood in the United States in contrast to Great Britain and Continental Europe, uncovering vast differences. The end of the Cold War presented a challenge to reexamine equality as being constitutive of freedom, yet the West has not seized this opportunity and instead allows so-called experts to define Human Rights based on individual cases. Ultimately, the highest courts revise political decisions and thereby discourage participation in the democratic shaping of political will.

    eISBN: 978-0-85745-787-5
    Subjects: Political Science, Law

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. Preface
    (pp. vii-viii)
    Gret Haller
  4. Part I. The Notion of Human Rights Prior to 1789

    • Chapter 1 The Prehistory and the Context of Human Rights
      (pp. 3-7)

      More than two thousand years ago, ancient thinkers, too, had notions of human rights. Theirs remained philosophical ideals, however, that were practically irrelevant for everyday life. In medieval times, Christian ideas and, later, the rise of citizen freedom in citystates contributed to the historical development of the concept of human rights but without effecting their actual instatement. The most important growth of the idea began in the seventeenth century. And it was not until the late eighteenth century that the idea of human rights came to be articulated more precisely.

      The concept of genuine human rights must be distinguished from...

    • Chapter 2 First Concepts of Human Rights
      (pp. 8-19)

      The idea of the social contract enabled eighteenth-century philosophers to develop the notion of human rights. The following condenses the history of that development, mentioning only those moments of the greatest significance for understanding the concept of human rights. We find such moments particularly in Hobbes, Locke, Rousseau, and Kant.

      It was Thomas Hobbes (1588–1679) who first elaborated the idea that social order is not a matter of divine providence. If only in theory, it is up to freely born individuals to create social order. This reflects a transition from prescribed order to an order of choice.¹

      In a...

    • Chapter 3 Human Rights, Morals, and Law
      (pp. 20-44)

      Kant’s philosophy of law and morals completes our first exploration into the theoretical background of human rights. Other declarations of human rights were also written up in the late the eighteenth century. These followed from the rise of new nations and from transitions of existing nations into new forms of state and government. Theory came to influence political reality and political reality in turn had an impact on theory. Kant, for instance, commented on political events on the one hand, while on the other he gleaned insight particularly from reflecting upon the French Revolution.

      In concluding Part 1, we turn...

  5. Part II. Human Rights from 1789 to 1989

    • [Part II Introduction]
      (pp. 45-46)

      The history of the development of tangible human rights must be distinguished from the historical development of the philosophical concept of human rights. A first major breakthrough for real rights occurred in the late eighteenth century when for the first time human rights became positive law. There were other milestones along the way in the historical development of human rights and some struggles led to codification. As in Part 1, the emphasis in this chapter is on issues that were particularly significant for how human rights came to be treated after the Cold War ended.

      The question is not whether...

    • Chapter 4 From Human Rights to Positive Law
      (pp. 47-61)

      Human rights are universally valid. They hold because we are human, no matter when or where we live.

      Historically speaking, by the late eighteenth century the time had come to codify human rights as positive law, to make them rights to which individuals could put claim, though those rights were not yet affirmable in courts of law. The grounds for this move were taken from natural law. While classical natural law permitted only the right to resist oppression for the purpose of restoring lost order, writers of the Enlightenment felt that modern natural law had “revolutionary thrust.”² With unparalleled fervor,...

    • Chapter 5 Human Rights, the State, and Democracy
      (pp. 62-83)

      The national codification of human rights, which were originally considered universal, made those rights part of the positive law of separate nations. In other words, human rights became civil liberties and fundamental rights. That changed human rights from being a question of the philosophy of law to becoming a question of political philosophy. Later, when human rights were codified internationally, that in turn did not change how human rights are related to nationality; it merely redefined the role of the state with respect to human rights. Once human rights became positive law, the chief violator of those rights came to...

    • Chapter 6 Politics and Law
      (pp. 84-98)

      Politics originally meant the management of pubic affairs in the polis, a city-state of ancient Greece. Every polity, be it a nation, member state of a nation, a community, a national alliance, international organization, or union of nations, needs procedures that build and maintain order. Even countries where former order has deteriorated have some sort of politics at work; often some people take up arms and make a claim to power, install dictatorship and demand recognition from other countries. Politics is the management of public power. There is always public power (though it may be disorganized or imperceptible). Monarchies put...

  6. Part III. The Crisis in Human Rights Since 1989

    • Chapter 7 The Cold War
      (pp. 101-115)

      The years following 1945 initially saw a major breakthrough for basic and human rights, when several nations converted those rights into positive domestic law. Great Britain, however, having no constitution and no catalog of basic rights, remained untouched by that development. It had maintained its tradition of continually extending the birthrights of its countrymen. There was no revolution; change took place in small steps that in the early nineteenth century had just barely prevented an armed uprising.¹ What the labor force wanted was to be more adequately represented in Parliament. That practically doubled the number of eligible voters, although taking...

    • Chapter 8 Moralizing Human Rights
      (pp. 116-127)

      If it is not up to the entitled to decide just what human rights involve and how far they go, someone or something else must make that decision. Reverting to ideas from before the Copernican Revolution in our conception of right would be to ignore the historical moment in the history of the development of thought when mankind began to realize that order is not something prescribed from without, but is something that man himself must devise. Both classical and modern natural right took recourse to moral norms, thereby setting up a prepolitical barrier that legislature was not allowed to...

    • Chapter 9 Natural Right and Imposed Concepts of Man
      (pp. 128-138)

      Disciplining others by imposing our ideas on them is not new. As we have seen by looking at the transition from classic to modern natural law, even then, scholars based their designs on what they believed to be “true human nature,” although we now know that they succumbed to the moral fashions of the time in terms of what “true human nature” is. If that was their intention, they cleverly concealed a good portion of normativity from the eyes of nonscholars. But to claim to know how man “really is” and to use that image as grounds for a system...

  7. Part IV. Outlook

    • Chapter 10 Perspectives for Democratic Legitimacy
      (pp. 141-152)

      Future debate will have to distinguish between the national and the international level. Since human rights have become internationalized, awareness has grown for an unsolvable dilemma: Human rights are universal, but they can only become real and codified within separate, law-governed communities. It does no favor to democratic legitimacy to claim that human rights are purely universal and to ignore the fact that they are always codified only for specific countries; the democratic legitimacy of rights is an outcome of their having been established through democratic negotiation. The reverse will not work either. We cannot reduce human rights entirely to...

    • Chapter 11 Universality and Regionalization
      (pp. 153-166)

      With this perspective of democratic legitimacy for human rights, we can now turn to the two major strategies used to criticize and call them “Western” instruments of economic, political, and cultural power. In the introduction to Part 4, I distinguished between antiimperialistic criticism, on the one hand, and criticism that rejects human rights for reasons of cultural relativism, on the other. Little can be said to counter the first complaint. It is a reaction to modern interventionism of the kind we have witnessed since the end of the Cold War, and as such, it is warranted. Its truth is not...

    • Chapter 12 Repercussions from the Cold War
      (pp. 167-175)

      In reviewing the two decades that have passed since the end of the Cold War we still find repercussions from that conflict. This is not surprising, considering that the beginning of what is now coming to a close started over 150 years ago, when Karl Marx disqualified human rights and law as guarantors of liberty. Once Marx had severed revolution from its late eighteenth-century roots in natural law, the stage was set for the “parties of internationalized civil war” (having divided the legacy into natural law for one and a claim to revolution for the other) to wage a cold...

  8. Bibliography
    (pp. 176-184)
  9. Index
    (pp. 185-190)