Week 3 - Saving Human Rights from Human Rights Law

Functional Alignment Theory (FAT) and IHRL

The Functional Alignment Theory of Human Rights The Functional Alignment Theory (FAT) asserts that international human rights law exists primarily to give legal effect to universal moral rights. Alternative philosophical accounts centered on capabilities or welfare generally collapse back into this foundational framework when tested.

Historical Evidence for the FAT in the UDHR The drafting debates surrounding intellectual property in Article 27 of the Universal Declaration of Human Rights demonstrate the historical influence of the FAT. Nations argued over whether these provisions reflected intrinsic moral rights or mere economic incentives, proving that postwar human rights culture viewed legal rights as grounded in underlying morality.


The Distinctive Role of IHRL in Protecting Rights International human rights law is not the sole domain protecting human rights, as fields like trade and the law of armed conflict also serve this function. However, IHRL uniquely focuses on assigning individual legal rights that impose corresponding obligations primarily on state actors.

IHRL integration of Moral Rights

Principled and Pragmatic Limits to Mirroring Moral Rights Human rights law is not required to perfectly mirror background moral rights due to necessary principled and pragmatic constraints. Legal systems must respect private boundaries and avoid enacting rules that prove ineffective or counterproductive in practice.

Justifiable Divergence Between Moral and Legal Rights International human rights law may properly be broader or narrower in scope than underlying moral rights to navigate practical and principled boundaries. Any departure from moral rights remains valid only if it ultimately serves to enforce background morality effectively.

Institutional Benefits of Legalizing Human Rights Transforming moral rights into legal norms provides public clarity, offers authoritative interpretations, and specifies actionable duties across diverse societies. Additionally, legal systems support these rights through formal enforcement mechanisms like reporting, judicial protections, and international sanctions.

Why Humans Rights is not “Elitist”

Skepticism Regarding Human Rights as an Elite Discourse Critics like Michael Ignatieff argue that human rights discourse is an elite construct secondary to ordinary virtues in daily life. However, this critique relies on confusing specialized legal regulations with the everyday moral reasoning of ordinary people.

Everyday Moral Intuitions and Human Rights While ordinary citizens may not reference complex international legal frameworks, they widely hold core moral beliefs about human dignity and equal treatment. Recognizing these fundamental moral convictions shows that human rights concepts are deeply rooted across all social strata.

Two Key Deviations Subverted IHRL

Key Deviations Subverting Modern Human Rights Law International human rights law is being subverted by conflating universal moral obligations with general political interests and by over-relying on judicial mechanisms. Preserving the integrity of human rights requires critically evaluating whether formal legal pathways are effective and legitimate for every social concern.

Why Moral Obligations are significant

Moral Rights and Counterpart Obligations Universal human rights exist only when underlying human interests and dignity justify specific binding obligations toward individuals. Defining rights through their counterpart obligations, rather than through interests alone, is essential to their legal and moral force.

The Categorical Nature of Obligations 1 Moral obligations are categorical because they bind individuals regardless of personal desires, preferences, or motivations. A person cannot evade a duty, such as providing for dependent children, simply by altering their subjective goals.

Resistance of Obligations to Trade-Offs 2 Obligations are robustly resistant to being defeated or traded off against competing practical reasons, yielding only in exceptional emergency situations. This characteristic differs from viewing rights as "trumps" over the common good, which wrongly treats rights as inherently opposed to societal well-being.

The Wrongfulness of Violating Obligations 3 Failing to comply with an obligation without justification constitutes genuine wrongdoing that appropriately warrants blame and guilt. Conversely, simply failing to advance another person's interests or outcompeting them fairly does not constitute a moral wrong.

Perfect Obligations and Directed Duties of Justice 4 Human rights belong to a subset of directed, perfect obligations owed specifically to individual right-holders in virtue of their humanity. Because these duties derive directly from individual dignity and interests, violating them directly wrongs the right-holder and justifies resentment.

How IHRL rights can be unreasonable expanded

Human Rights Inflation and Feasibility Constraints Conflating universal human interests with legal rights causes human rights inflation and erodes the core concept of rights. Transforming underlying values into valid rights requires that associated obligations be feasible, not excessively burdensome, and consistent with other rights.

Socioeconomic Rights and Conceptual Bloating Elevating socioeconomic rights alongside civil and political rights can help counter populist backlash by giving the public a tangible stake in human rights. However, standard interpretations of the right to health suffer from conceptual bloating by failing to distinguish rights from general human interests.

Overexpansive Scope of Normative Content 1 Defining the right to health by the broad interest in health mistakenly subsumes distinct rights like education and non-discrimination into a single unwieldy category. Distinct human rights must instead be defined by the specific subject matter of their associated obligations, such as medical treatment and public health measures.

Unrealistic Obligations and Core Demands 2 Imposing health obligations that exceed state capacity creates unrealistic legal demands and undermines the practical credibility of human rights. When rights become boundless claims on resources, they lose their normative force and breed skepticism toward international human rights law.

Proportionality Doctrine: Why it is flawed

The Proportionality Doctrine and Interest Inflation The proportionality doctrine inflates human rights by equating them with almost any legally cognizable individual interest. By starting with an overbroad definition of rights, this framework reduces fundamental rights to mere interests subject to balancing tests.

Demotion of Rights to Ubiquitous Triggers Treating rights as ubiquitous interests drastically diminishes their normative significance, reducing rights to mere triggers for judicial balancing. This approach strips human rights of their core character as binding obligations that resist being routinely overridden.

Apparent Conflicts and Built-In Exceptions Apparent conflicts between rights and public interests often resolve through built-in legal exceptions, such as lawful imprisonment not violating the right to liberty. Proportionality analysis mistakenly treats these built-in exceptions as justified infringements of rights rather than defined boundaries. Justified Infringements in Emergency Cases Genuine infringements of rights occur only in exceptional circumstances where an obligation is legitimately overridden, leaving moral remainders like duties to apologize or compensate. Unlike lawful exceptions, justified infringements acknowledge that a real right was temporarily breached due to extraordinary necessity. Unjustified Right Violations When a human right obligation is breached without overriding justification, it constitutes a straightforward violation of that right. In such cases, only mitigating factors like ignorance or repentance can excuse the wrongdoer or justify mercy.

Refining Rights Versus Balancing Interests Proportionality analysis fails by treating rights as mere interests to be balanced, creating artificial conflicts and over-inflating infringements. Sound legal theory requires redefining the specific obligations of rights over time rather than routinely trading them off. Public Disaffection and Unfulfilled Entitlements Severing legal rights from moral obligations creates unfulfillable entitlements that inevitably lead to public frustration and cynicism. When expansive promises of rights go systematically unmet, public trust in international human rights law as a whole collapses.

The Technocratic Defense of Proportionality Proponents of proportionality defend it as a practical judicial heuristic for achieving better human rights outcomes, despite its divergence from moral logic. However, this approach oversteps judicial expertise in socioeconomic policy and raises serious concerns about judicial legitimacy.

Proportionality Doctrine in IHRL

A legal framework that assesses whether the limitation of a right is justified by balancing it against competing interests, but often leads to inflation of rights and diminishes their normative significance.

The Vanguard Approrach, why it is flawed

The Vanguard Argument and Rhetorical Overreach Activists often use overblown human rights rhetoric to mobilize political action and hold governments accountable. However, misleading the public with aspirational claims ultimately breeds cynicism and undermines the truth about genuine human rights.

Limits of IHRL and the Spectrum of Morality International human rights law is not a utopian blueprint and does not encompass the entirety of moral or political value. Recognizing that citizenship rights, community obligations, and personal virtues exist alongside human rights preserves the unique significance of rights.

Why Strong Judicialisation is flawed

Distinguishing Legalisation from Judicialisation Legalizing human rights norms within a legal system is distinct from judicializing them through court enforcement. The rigid view that legislatures handle general policy while courts uniquely champion rights against majorities wrongly assumes an inherently antagonistic relationship between rights and the common good.

Strong Justiciability and the South African Model Strong justiciability empowers individuals to demand court orders granting immediate rights entitlements, but this model often overlooks practical institutional limits. The South African Constitutional Court demonstrates a more balanced approach by using the "minimum core" concept to evaluate state reasonableness rather than issuing sweeping judicial reallocations of public budgets.

Judicial Expertise Limits in Complex Policy Judges lack the technical expertise, budgetary oversight, and policy context required to determine the precise content and financial trade-offs of socio-economic rights. Resolving complex resource distribution questions through judicial rulings risks imposing unworkable policy demands on public funds.

Counterproductive Inequality in Strong Justiciability Strong justiciability can inadvertently worsen social inequality when wealthier individuals use superior legal resources to litigate for private claims. In fixed-budget systems like healthcare, judicial orders favoring affluent litigants divert scarce state resources away from the impoverished populations who need them most.

Threats to the Rule of Law via Retrospective Law-Making Assigning courts a strong role in defining abstract human rights forces judges into a law-creating function rather than a law-applying one. Choosing among competing interpretations of open-ended rights turns courts into retrospective policy makers, eroding their perceived neutrality and legitimacy under the rule of law.

Erosion of Democratic Legitimacy and Civic Engagement Judicializing human rights bypasses democratic political contestation, fueling populist criticism that human rights are elite tools used to trump public debate. Depriving citizens of a direct role in shaping human rights weakens public commitment and reduces active social movements to passive legal spectators.

Exacerbated Risks of Supranational Judicialization Supranational and international courts amplify the democratic, competence, and legitimacy deficits of domestic judicialization. Being further removed from local political realities, international bodies risk triggering political backlash by overriding domestic governance without local democratic accountability.

Preserving Human Rights Morality Beyond Legal Overreach Saving human rights requires recognizing that international human rights law is a specific legal technique, not a complete blueprint for human morality. Resisting overreach—such as deploying rights to justify military intervention or strip state immunity—ensures that legal systems serve universal moral duties without displacing broader ethical and democratic ideals.