Topic 9
Foundations and Historical Evolution of Human Rights
Philosophical and Legal Lineage of Rights Discourse:
Human rights emerged as an expansion and structural formalization of civil liberties, historically grounded in the rule of law, the doctrine of the separation of powers, and principles of equity.
Formative institutional benchmarks include:
The English Bill of Rights (), which curtailed monarchical prerogative and codified parliamentary supremacy and procedural protections.
The American War of Independence (–) and the subsequent United States Constitution and Bill of Rights, which framed rights around individual liberty and protections against sovereign overreach.
The French Revolution () and the Declaration of the Rights of Man and of the Citizen, which asserted the universality and natural quality of human freedom and equality.
The Universal Declaration of Human Rights (UDHR):
Adopted by the United Nations General Assembly in in the direct aftermath of the atrocities of World War II, the UDHR represents the first comprehensive global codification of fundamental rights to which all human beings are inherently entitled.
The Declaration is structured into distinct articles arranged systematically across foundational, civil, political, economic, and social domains:
Articles – (Foundational Principles): Establish human dignity, liberty, equality, and universal brotherhood without distinction of any kind.
Articles – (Individual Rights): Enumerate fundamental protections, including the right to life, liberty, personal security, freedom from torture or degrading treatment, and procedural rights before the law.
Articles – (Rights of the Individual in Civil and Political Society): Guarantee rights such as freedom of movement, asylum from persecution, nationality, property ownership, and freedom from arbitrary interference with privacy and family.
Articles – (Spiritual, Public, and Political Freedoms): Protect freedoms of thought, conscience, religion, opinion, peaceful assembly, association, and direct or indirect participation in government.
Articles – (Economic, Social, and Cultural Rights): Enshrine rights to social security, work, free choice of employment, just remuneration (including the explicit right to a living wage under Article ), rest, leisure, standard of living adequate for health, education, and cultural participation.
Articles – (Duties and Social Framework): Affirm the entitlement to a social and international order in which rights can be fully realized, the individual’s duties to the community, and prohibitions against using rights to destroy other rights.
Universalism Versus Cultural Relativism:
Universalism serves as the bedrock of the orthodox Western conception of human rights. Under this doctrine, rights are:
Universal: Applicable globally across all jurisdictions and spaces.
Inalienable: Inherent to the human condition and incapable of being legitimately forfeited or surrendered.
Egalitarian: Held equally by all persons regardless of status or origin.
While the rights codified in the UDHR do not exist uniformly across the globe, universalist doctrine maintains that universality is fundamental to their moral conceptualization.
Cultural relativist critiques argue that universalist formulations impose specific, historically contingent Western liberal values under the guise of neutral norms, obscuring distinct cultural, collective, or religious traditions.
Social Movements and the Strategic Deployment of Rights:
Social movements have historically appropriated rights terminology to secure moral resonance and challenge institutionalized violence.
The Abolitionist Movement operated as one of the earliest transnational campaigns to frame its objectives through Enlightenment conceptions of universal liberty and natural freedom.
The movement produced enduring visual and textual iconography, including the prominent medallion image of an enslaved Black woman kneeling in chains under the banner "Am I Not a Woman and a Sister?"
In the post-World War II period, newly independent post-colonial states actively championed the creation and expansion of the UDHR to contest imperial subjugation.
The adoption of the UDHR subsequently provided a crucial rhetorical and legal platform for the United States Civil Rights Movement, demonstrating that rights assertions can empower disenfranchised populations by compelling majoritarian power structures to adhere to their own nominal standards of legitimacy.
The Liberal Paradigm and Structural Critiques of Rights
The Liberal Orthodoxy and the "End of History" Thesis:
The orthodox liberal conception posits continuous, teleological progress toward global rights realization. This narrative presumes that:
Rights automatically expand alongside the diffusion of constitutional liberal democracy and market capitalism.
Sovereign states ratify international covenants, which are subsequently translated into domestic legal protections through civil society advocacy.
Emerging institutional mechanisms—such as Corporate Social Responsibility (CSR) and multi-stakeholder governance shared between governments, corporations, and non-governmental organizations—reconcile market expansion with human welfare.
Francis Fukuyama articulated the theoretical peak of this optimism in his essay The End of History: "What we may be witnessing is not just the end of the Cold War, or the passing of a particular period of postwar history, but the end of history as such: that is, the end point of mankind's ideological evolution and the universalization of Western liberal democracy as the final form of human government." Fukuyama asserted that while material realization remains incomplete, liberalism has triumphed in the realm of ideas and consciousness, establishing the ideal that must govern the material world.
Scholte's Critique of Globalist Liberal Orthodoxy:
Jan Aart Scholte () challenged this teleological vision, arguing that liberal globalists succumb to a naive, euphoric optimism that assumes modernity will inevitably produce a homogenous, egalitarian, and communitarian global society.
In material practice, economic globalization and market deregulation have frequently perpetuated or exacerbated poverty, systemic violence, ecological destruction, social estrangement, and anomie.
Scholte highlighted that liberal orthodoxy suffers from a foundational absence of critical reflexivity, treating market dynamics, electoral mechanisms, macroeconomic growth, national cohesion, and technocratic reason as self-evident, ahistorical virtues of universal validity while leaving oppressive social hierarchies unexamined.
The Implementation Gap and Declaration Fatigue:
A profound divergence exists between formal treaty accession and substantive enforcement. As civil society leader Kumi Naidoo () observed, once sovereign leaders sign international declarations, they frequently abandon or deliberately weaken their commitments.
Across intergovernmental declarations—including G8 summits, the Kyoto Protocol, and UN conferences on gender equality—subsequent material compliance rates rarely exceed .
The geography of globalization remains highly uneven, creating polarized hierarchies of knowledge and economic extraction that actively curb rights rather than expanding them.
The ASEAN Human Rights Declaration (AHRD) and the Politics of Containment:
The regional dynamics of Southeast Asia exemplify the tactical co-optation of rights discourse by authoritarian and illiberal states.
The ASEAN Intergovernmental Commission on Human Rights (AICHR) was inaugurated in October , leading to the formal adoption of the ASEAN Human Rights Declaration (AHRD) at Phnom Penh in .
The AHRD was heavily criticized by regional and international human rights organizations for embedding expansive clawback clauses and textual loopholes.
These provisions subordinate universal protections to discretionary domestic legislation, "national security," public order, and regional notions of "morality."
Rather than advancing popular emancipation, instruments like the AHRD function strategically to manage, defuse, and police organized grassroots human rights mobilization, prompting the question of who mobilizes the rights frame and for what institutional ends.
Critical Legal Studies and the Deconstruction of Rights
The Critical Legal Studies (CLS) Critique:
Originating in the late s and s among progressive legal scholars (including Mark Tushnet, Alan Freeman, Peter Gabel, and Duncan Kennedy), CLS deployed deconstructive methodologies to expose the political foundations of liberal jurisprudence.
CLS contends that formal rights are fundamentally:
Indeterminate: Abstract rights do not dictate concrete legal outcomes; conflicting rights claims can be asserted in any dispute, leaving results to be settled by unacknowledged ideological and power relations.
Contradictory: Rights elevate an atomized individualism that pits individuals against each other, legitimizing market competition over mutual solidarity.
Reified: Rights discourse transforms fluid social relations and political aspirations into frozen, commodified legal categories that alienate human actors from their authentic needs.
Marginally Decisive: Substantive political gains stem from raw collective mobilization, whereas rights victories serve primarily to co-opt radical dissent and legitimize oppressive systems.
Tushnet formulated the radical disutility critique: rights-talk in the contemporary United States does little practical good and is actively harmful because its formal rigidities prevent genuine interpersonal connection, pit negative liberties against social reform, and distract from direct material claims.
The Mythological Framework of CLS: The Celestial City and the Deep Blue Sea:
Patricia J. Williams unpacked the internal ethos of CLS through an allegorical meta-story:
Priests of a Celestial City master Word-Combination locks and ascending tiers of "Word Magic," ultimately becoming gods.
In their divine boredom, they ride celestial steeds around the perimeter of heaven, jumping word-hurdles, playing polo with concepts of the moon and stars, and reaching for a sliver of Refined Understanding called "Super-standing"—the brass ring of their conceptual carousel.
Sated and disillusioned, certain priests abandon the sport, denounce its meaninglessness, don the attire of humble pilgrims, and discover the art of "Undoing Words" (deconstruction).
Journeying half-a-circumference away across a Deep Blue Sea to a realm Beyond the Power of Words, they cast out their anchors (the plumb lines of their reality) and experience godhood anew.
The grounded material reality beneath this intellectual exercise reveals an intense structural disconnect:
Under the Celestial City, dying mortals cry out in agony, battered by the steady rain of sharp hooves descending from the games of the gods.
At the bottom of the Deep Blue Sea, drowning mortals reach desperately toward the drifting anchors dangling from short chains far overhead, mistaking them for intended lifelines.
The Courthouse Hallway and the Reality of Class/Racial Subjection:
The conceptual detachment of CLS stands in stark contrast to the lived realities of poor, Black, and Hispanic litigants in municipal courthouses, such as those in Los Angeles.
In these institutions, courthouse corridors are lined with waiting defendants and their families—almost exclusively poor and minority—confronting state violence and corporate creditors represented by institutional attorneys.
To these litigants, lawyers are not self-indulgent word-magicians; they are sought out as vital protectors against immediate catastrophe.
When CLS dismisses the pursuit of rights as "foolish," "falsely conscious," or "benighted," it invalidates the survival strategies of those who experience subordination as the absolute, violent denial of legal standing.
The Minority Critique: Race, Alchemy, and Rights Reclamation
Differing Governing Narratives of Whites and Blacks:
White CLS scholars and historically oppressed racial minorities operate under fundamentally divergent "governing narratives" (the presiding fictions that organize social reality):
The Elite White Narrative: Social relations and personal agency are conceptualized through the lens of committed self-control, established personal autonomy, and self-possession. Rights are perceived as formal barriers that alienate the self from authentic community and constrain radical fluidity.
The Black Experience: Social relations are shaped by generational, structural, physical, and psychic dispossession. For populations emerging from the status of property, rights assertion represents an essential vehicle for establishing selfhood, claiming visibility, and demanding civic protection.
The Apartment Lease: A Phenomenological Contrast:
A concrete pedagogical anecdote between colleagues Peter Gabel and Patricia J. Williams illuminates this divide when both sought rental housing in New York City:
Gabel’s Transaction: Gabel handed over a deposit of in cash without a lease, without an exchange of keys, and without a written receipt to sublessors he had met for only a few minutes. Because the primary landlord was not to know of the arrangement, the parties sought to eliminate paper "proof." Gabel viewed the handshake and informal "good vibes" as a transcendent manifestation of trust that avoided the alienating, hierarchical formality of standard contract law.
Williams’s Transaction: Williams, having experienced direct racial exclusion where real estate agents in Long Island (Port Washington and Roslyn) refused to show her apartments, deliberately executed a lengthily negotiated, finely printed, detailed lease with friends who owned an apartment building in Brooklyn.
Sociological Meaning of Formality:
For Gabel, an established white male legal academic conscious of his power potential, formal contracts represented emotional distance, commodification, and mistrust.
For Williams, a Black female professional navigating a society quick to dismiss her as unreliable, destitute, angry, or destitute, formal contract language provided an indispensable boundary. It established her as an autonomous, arms-length transactor endowed with legal standing, rather than a vulnerable supplicant subject to arbitrary whim.
Informality in white-over-Black transactions does not signal mutual trust; historically, it reflects paternalistic exploitation, echoing arrangements where landlords demanded cash rents without written leases to facilitate summary eviction. As Williams observed, "stranger-stranger relations are better than stranger-chattel."
The Failure of "Needs" Discourse for Marginalized Communities:
CLS theorists like Mark Tushnet and Alan Freeman advocated abandoning rights discourse in favor of directly asserting material "needs" (e.g., framing homelessness around the direct need for shelter rather than formal housing rights).
This pivot ignores the reality that Black Americans have articulated their human needs for centuries, only to have them rejected or suppressed:
Expressed needs were historically met with anti-literacy laws, housing segregation, and racist tropes framing Black subjects as "lazy" or devoid of higher aspirations.
The expression of Black suffering was repeatedly aestheticized by white culture, transformed into non-threatening artistic spectacles of "the blues," oratory, or religious catharsis, stripped of structural political urgency.
When white reformers voice needs, they are treated as stark statistical evidence; when Black subjects voice the exact same needs, they are dismissed as strident, aggressive, and discordant.
Substituting "needs" for "rights" merely renames the dilemma; "need" becomes another reified term within legal rhetoric without securing structural leverage.
While rights rhetoric may be an illusion of stability, its persona of stability provides marginalized groups with a viable political lever to challenge oppressive systems like segregation.
Genealogy of Chattel Slavery and Austin Miller:
The Black commitment to negative rights—the inviolability of personal boundaries and bodily integrity—is rooted in the trauma of chattel slavery, where the legal order offered zero structured expectations or enforceable reliances:
In , Austin Miller, a -year-old white attorney in Bolivar, Hardeman County, Tennessee, purchased an -year-old enslaved child named Sophie along with her parents as a "matched set" of "family Negroes."
By age , Sophie gave birth to Miller’s child, Mary (Williams’s great-grandmother).
Miller fathered this child to test his sexual potency before marrying a wealthy white widow, subsequently taking Mary from Sophie to serve as an uncompensated household domestic for his legitimate white family.
The American legal regime categorized Sophie and Mary as "personal property" alongside livestock and furniture, denying them legal personality, contractual capacity, or protection from physical and sexual violence.
Black family ties were systematically denied; slave marriages possessed no legal standing, paternity was legally "unknown," and anti-miscegenation statutes maintained the absolute illegitimacy of Black descendants.
Pierson v. Post, the Parol Evidence Rule, and the Logic of Erasure:
Pierson v. Post ()—a foundational property law case regarding whether a hunter acquiring pursuit of a wild fox establishes legal possession over an interloper who kills it—reveals the legal treatment of living entities:
Analyzed from the perspective of the fox, the hunted creature is forever an object to be possessed, never an owner endowed with interests.
Enslaved persons occupied this identical status: when owned, their abuse was left to the whims of a master; when unowned (escaped or free), they were fair game in a violent hunt governed by laws like the Fugitive Slave Act.
The Parol Evidence Rule (formalized in Uniform Commercial Code § ) dictates that written contractual terms upon which the parties agree cannot be contradicted by extrinsic evidence, though they may be explained or supplemented by consistent additional terms.
Functioning as a model of social construction, this rule demonstrates how power structures exclude the voices of subordinated entities as "extrinsic" noise, preventing them from contradicting the dominant legal narrative.
The Historical Alchemy of Rights Reclamation:
Rather than discarding rights as irredeemable capitalist baggage, marginalized communities engaged in an "alchemical" transformation, breathing life into empty legal forms through generational struggle.
The white radical critique resembles King Lear stripping off his robes to discover the "poor, bare, forked animal" within, realizing the burdens of his royal status. Enslaved and dispossessed peoples, however, were cast directly into the wilderness of absolute rightlessness, where identity, language, kinship, and personhood were stripped away.
Bestowing rights elevates human bodies into socially recognized beings endowed with respect, privacy, and community obligations.
In shamanic traditions, unmasking a sorcerer reveals the artificial nature of their power, but destroying the mask eliminates empowerment itself. The transformative task is not to eliminate the mask of rights, but for the marginalized to don it, altering its function from oppression into universal civil protection.
Expanding rights beyond their narrow bourgeois framework entails extending them to all marginalized subjects and the natural world (as proposed by Christopher Stone in Should Trees Have Standing?), moving beyond the transactional exploitation seen in cases like Peevyhouse v. Garland Coal & Mining Co., where corporate obligations to rehabilitate strip-mined land were dismissed as economically inefficient.
International Labour Standards, Gender, and Neoliberal Hegemony
Origins and Architecture of the Core Labour Standards (CLS):
The International Labour Organization (ILO) formalized the Core Labour Standards through the adoption of the Declaration on Fundamental Principles and Rights at Work at the International Labour Conference in , building upon discussions initiated at the World Summit for Social Development in Copenhagen.
The CLS isolates four specific principles, linked to eight core ILO Conventions, as universal human rights:
Freedom of Association and Collective Bargaining: Convention () and Convention ().
Elimination of Forced and Compulsory Labour: Convention () and Convention ().
Abolition of Child Labour: Convention (Minimum Age, ) and Convention (Worst Forms of Child Labour, ).
Elimination of Discrimination in Employment and Occupation: Convention (Equal Remuneration, ) and Convention (Non-Discrimination, ).
Proponents such as former ILO official Nicolas Valticos framed the Declaration as a historic breakthrough that endowed basic labor protections with universal, inalienable moral authority.
The Alston Critique: Pragmatic Depoliticization:
Legal scholar Philip Alston established that the CLS does not represent a coherent philosophical or legal distillation of universal human rights.
The standards were crafted as an expedient political compromise designed to satisfy the United States following the end of the Cold War and the collapse of the debate over a mandatory "social clause" within the World Trade Organization (WTO).
The US sought to insulate itself from criticism regarding its poor ratification record of ILO conventions by shifting the focus toward aspirational, non-binding declarations.
In doing so, the CLS framework decoupled core labor protections from the traditional ILO enforcement mechanism—the formal ratification of detailed conventions into enforceable domestic law—undermining the integrity of broader socioeconomic rights recognized under international law (such as the International Covenant on Economic, Social and Cultural Rights, ICESCR).
Feminist Political Economy Critique of the CLS:
A critical gendered political economy perspective demonstrates that the global capitalist market is fundamentally structured by gender inequality, rather than being a gender-neutral space.
The CLS approach adopts "gender-neutral treaty language" (Kaufman and Lindquist) that leaves systemic gender subordination unaddressed.
Key structural deficiencies include:
Preservation of the Public/Private Dichotomy: The CLS exclusively targets the formal wage-labor economy, leaving the unremunerated private sphere—reproductive labor, domestic maintenance, and home-based subcontracting—invisible and unprotected.
Omission of the Living Wage: The CLS omits any right to fair or living wages, despite its inclusion in Article of the UDHR. This omission was deliberate, ensuring that the standards remain compatible with neoliberal development strategies that attract Foreign Direct Investment (FDI) based on low labor costs.
Bias Toward Male Employment Norms: The CLS assumes a workforce model based on full-time, permanent, unionized wage labor historically dominated by men. It overlooks the informal, precarious, and home-based sectors where female labor is concentrated.
The Institutional Male Bias of Trade Unions: Prioritizing collective bargaining rights ignores the fact that formal trade unions frequently marginalize women, reinforce patriarchal workplace hierarchies, and fail to organize dispersed, flexible workforces.
The Feminization of Flexible Labor:
Global production networks systematically exploit gender inequality to recruit vulnerable female labor into low-value export processing operations (such as textiles, garment manufacturing, electronics, and commercial horticulture).
This dynamic, identified by Guy Standing as the "feminization of flexible labor," relies on the stereotypical social construction of women as a docile, naturally dexterous, and compliant workforce willing to accept low pay, temporary contracts, and hazardous environments without unionizing.
The global economy increasingly relies on informalization, subcontracting, and home-based piecework (documented by organizations like Women Working Worldwide), where female workers bear operational overhead costs while remaining excluded from conventional statutory protections.
Corporate Self-Regulation, Codes of Conduct, and Alternative Frameworks
The Voluntarist Shift and the UN Global Compact:
The CLS paradigm facilitated a transition away from binding state regulation toward private, voluntary corporate governance.
In , United Nations Secretary-General Kofi Annan inaugurated the UN Global Compact at the World Economic Forum in Davos, placing the CLS at the center of corporate social responsibility (CSR).
This framework legitimizes the multinational enterprise as the primary regulatory agent of international labor standards, operating via private corporate codes of conduct.
Critics (including Peter Uvin) argue that this rights language provides corporate actors with moral legitimacy, deflecting calls for legally binding state oversight and allowing voluntary codes to substitute for enforceable protections.
Feminist Empirical Critiques of Corporate Codes of Conduct:
Empirical field studies reveal critical deficiencies in corporate codes of conduct across global supply chains:
Top-Down Imposition: Research by Linda Shaw and Angela Hale shows that codes are implemented in a paternalistic, top-down manner without the participation or informed consent of female workers, who are often entirely unaware of their existence.
Performative Auditing: Monitoring is dominated by commercial accountancy and consulting firms that employ superficial, checklist-based methodologies. Auditors primarily consult management rather than conducting safe, independent interviews with female workers on the production line (Pearson and Seyfang).
Structural Exclusion of Precarious Workers: In their study of South African horticulture, Stephanie Barrientos, Sharon McClenaghan, and Liz Orton demonstrated that codes designed around permanent, full-time employment completely exclude seasonal, temporary, and contracted female workforces who endure the most severe exploitation.
Adverse Impacts on Home-Based Workers: Lucy Brill established that when corporate codes demand centralized, regulated factory conditions, companies frequently cancel contracts with informal female homeworkers. This strips income from extremely impoverished households rather than improving labor conditions.
Feminist Reconceptualizations of Economic Rights:
In response to these critiques, feminist scholarship has explored alternative approaches to economic rights:
The Capabilities Approach: Drawing on Amartya Sen and Martha Nussbaum, scholars such as Diane Elson emphasize cultivating foundational human capabilities (what individuals are genuinely able to do and be) rather than defending abstract formal entitlements.
The Risk of Neoliberal Co-optation: Vivienne Jabri argued that liberal feminist rights strategies risk integration into a hegemonic, market-driven global order, reproducing the structural subordination of the private sphere.
The Universal Social Floor: Development economist Naila Kabeer proposed reorienting labor struggles toward establishing a universal, unconditional "social floor"—a guaranteed minimum income provided by the state to all individuals, encompassing formal, informal, rural, and domestic laborers.
A guaranteed baseline of subsistence decouples the survival of vulnerable female workers from corporate exploitation, providing them with the material security necessary to organize, refuse oppressive working conditions, and substantively contest power hierarchies.
Analytical Summary of Key Theoretical Frameworks
Critical Perspectives on Rights Discourse:
Liberal Universalism: Rights are natural, inalienable, egalitarian moral goods that expand teleologically through constitutional democracy, commercial trade, and institutional socialization.
Critical Legal Studies (CLS): Rights are indeterminate, reified, contradictory fictions that legitimize class subjection, entrench an atomized bourgeois consciousness, and inhibit radical, unmediated human connection.
Minority Jurisprudence / Critical Race Feminism: Rights are historically constructed vehicles of empowerment. While easily co-opted, rights assertion operates as an alchemical mechanism by which rightless bodies construct selfhood, claim civic visibility, and enforce boundary protections against majoritarian intrusion.
Feminist Political Economy: Rights regimes (such as the ILO Core Labour Standards) reflect an institutionalized male bias that privatizes reproductive labor, ignores gendered labor flexibilization, omits living wages, and legitimizes corporate voluntarism to preserve capitalist profitability.
Key Thematic Divergences Across Critical Discourses:
Formality vs. Informality: Progressive white elites favor informal mechanisms to dissolve institutional distance and hierarchy; historically racialized minorities demand formal, binding legal guarantees to protect themselves against systemic prejudice, informal exclusion, and discretionary violence.
Rights vs. Needs: Radical theorists champion shifting the political debate from abstract legal rights to immediate human needs; historically oppressed populations recognize that without enforceable rights claims, stated needs are easily dismissed, aestheticized, or suppressed by sovereign institutions.
Public Protection vs. Private Extraction: Mainstream international labor standards locate human rights exclusively within the formal public sphere of wage labor; feminist frameworks insist that labor justice requires dismantling the public/private dichotomy, regulating the domestic and informal spheres, and guaranteeing unconditional material survival.