DUNCAN KENNEDY
One lets go of the convention that outcomes are the consequences of
THE CRITIQUE OF RIGHTS
 Constitutional rights straddle:
o Rights mediate between factual and value judgments.
 Universal – they derive from needs or values or preferences that
every person shares or ought to share. Everyone does or ought
to agree that they are desirable. They follow from values but are
neither arbitrary nor subjective because they are universal.
 Factoid – the existence of a right presupposes requirements x, y
and z; it is understood to be possible to have a relatively
objective, rational, determinate discussion of how ought to be
instantiated in social or legal rules.
o Rights mediate between legal argument (under a duty of interpretative
fidelity) and legislative argument (appealing to the political values of the
community).
 Legal – it is based on one of the enacted rues of the legal system
 Normative/Political – it is in the form of an assertion about how
an outside right should be translated into law.
o Rights are a key element in the universalization projects of intelligentsias
of all stripes. The project restates the interests of the group as
characteristics of all people. The right here mediates between the
interests of the group and the interests of the whole.
 Once the interests of the group have been assimilated to the
interests of the whole polity by recasting them as rights, the
factoid character of rights allows the group to make its claim as
claims of reason, rather than mere preference.
 Rights occupy an ambiguous status in legal discourse because they can either be
rules or reasons for rule.
o Outside right: something that a person has even if the legal order does
not recognize it or even if exercising it is illegal.
 American courts have argued that the Constitution protects
rights even when it does not explicitly enact them as law.
 Classical Liberal Theory: “Natural Law”  hence the job of the
judiciary was to translate the preexisting natural entity or
concept into particular legal rules by examining its implications
and practice
 There are three kinds of rights argument: strictly outside (existence of a right
requires the govt/person to do or not to do); strictly inside (duty of interpretative
fidelity of judges) and form characteristic of constitutional law (engaged in the
boundary between inside and outside, interpreting an existing outside right that
has already been translated into positive law).
***
 To lose faith in judicial reason means to experience legal argument as “mere
rhetoric”, but neither wrong nor meaningless. One abandons the strategy of denial
of the ideological, or subjective, or political or just random element in legal
reasoning.
“mere” observance of the duty of interpretative infidelity.
o There simply was no proof that was convincing. The combination—the
processes of critique and reconstruction of rational demonstrations,
along with the process of doubt and reaffirmation—had “ended badly”.
o Loss of faith is neither a theory nor the outcome of a theory. It is an event
that may or may not follow critique.
***
 Lawyers reason about inside rights – this practice is important for rights talk
because through it, outside rights are translated into the legal order. This
translation of a crucial part of the Liberal program for a good society. Failure in the
process of translation (loss of faith) would be a failure for Liberal Theory.
J.M. BALKIN
THE HOHFELDIAN APPROACH TO LAW AND SEMIOTICS
 Hohfeld was the first to systematically and self-consciously discuss legal concepts
such as rights, duties, and privileges rhetorically and as a system of mutually self-
defining relations.
 He offers a theory of the arbitrary nature of a right, or more generally, of any
legally protected interest. The nature and extent of a person’s rights are
dependent upon the correlative duties of others. A right does not owe its existence
to its connection to an individual or property but rather it is simply a legal
guarantee that one has the privilege to engage in certain actions and invoke the
power of the state to prevent other persons from engaging in certain other actions.
o The ultimate point of the Hohfeldian analytic was that... rights did not
refer to real entities, but to particular contingent allocations of power
created and enforced by state actors, that divided up the permissible
forms of private power.
 The semiotic character of legal concepts guarantees the formal possibility of such
arguments on each side of the legal issue presented. Hence, yhere is always a fault-
based argument for and against liability, a compensation-based argument for and
against liability, and a rights-based argument for and against liability and so on.
 Semiotic inquiry is designed to demystify the products of culture, and show their
conventional and ideological nature.
 The value of Hohfeld’s basic approach to legal semiotics is threefold:
o It has analytic significance. (systems of differences  important
relationships; contingency and manipulability of legal concepts;
classification and generation of arguments; spotting tensions and
conflicts)
o It allows one to understand legal ideology. (bring ideological
presuppositions by exposing the connections between legal ideas; form
of legal argument people use)
 It is an instrument for progressive change. (serve as a spur to reconstruction and
reform; a therapeutic effect to remake laws and society)
JACK DONNELLY
THE RELATIVE UNIVERSALITY OF HUMAN RIGHTS
 The essay explores several different senses of human rights. It emphasizes that
universal human rights leave considerable space for national, regional, cultural
particularity and other forms of diversity and relativity.
 Conceptual and Substantive Universality
o Conceptual: Human rights are by definition, equal and inalienable.
HOWEVER, it only establishes that if there are any rights, they are held
equally/universally. It does NOT show that there ARE any such rights.
o Substantive
 Historical/Anthropological Universality – Human rights are held to be universal in
the sense that most societies and cultures have practiced human rights throughout
most of their history. However, it confuses VALUES such as justice, fairness, and
humanity need with PRACTICES that aim to realize those values. Rights are a
particular kind of social practice. Human rights are a distinctive way to seek to
realize social values such as justice and human flourishing.
 Functional Universality – The functional universality of human rights depends on
human rights providing attractive remedies for some of the most pressing systemic
threats to human dignity. All must deal with market economies and bureaucratic
states, despite other problems. All need equal and inalienable universal human
rights to protect people from threats in spite of other religious, moral, legal and
political resources.
 International Legal Universality - International legal universality is contingent and
relative. It depends on states deciding to treat the Universal Declaration and the
Covenants as authoritative. But protecting internationally recognized human
rights is increasingly seen as a precondition of full political legitimacy.
 Overlapping Consensus Universality – Human rights can be grounded in a variety
of comprehensive doctrines. The moral equality of all human beings is strongly
endorsed by most leading comprehensive doctrines in all regions of the world. This
convergence, both within and between civilizations, provides the foundation for a
convergence on the rights of the Universal Declaration. In principle, a great variety
of social practices other than human rights might provide the basis for realizing
foundational egalitarian values. In practice, human rights are rapidly becoming the
preferred option, [leading to an overlapping consensus on the Universal
Declaration understood as political conception of justice.]
 The transnational consensus on the UD is largely VOLUNTARY. It arises above all
from the decisions of people, states, and other political actors that human rights
are essential to protecting their visions of a life of dignity. Hence, the focus should
be more on the relative universality of human rights, rather than their relative
universality.
 Ontological Universality – A single transhistorical foundation; however it is
implausible and politically unappealing for the ff reasons:
o Unable to persuade adherents of other religions or philosophies
o All prominent comprehensive doctrines have for large parts of their
history ignored or actively denied human rights.
o Virtually all moral and religious theories through most of their history
have been objectively false or immoral.
 Cultural Relativism – It is a set of doctrines that imbue cultural relativity with
prescriptive force. In discussion of human rights, cultural relativism typically
appears as a substantive normative doctrine that demands respect for cultural
differences. Normative cultural relativism, however, is a deeply problematic moral
theory that offers a poor understanding of the relativity of human rights.
 Human rights are (relatively) universal at the level of the concept (e.g. Art. 3 and 22
of UD). Particular rights concepts, however, have multiple defensible conceptions.
Any particular conception will have many defensible implementations. Functional
and overlapping consensus universality lie primarily at the level of concepts.
Substantial second-order variation, by country, region, culture or other grouping is
completely consistent with legal and overlapping consensus universality.
THOMAS M. FRANCK
ARE HUMAN RIGHTS UNIVERSAL?
 UDHR and the several ensuing legal treaties setting out civil, political, cultural, and
economic rights, as well as the rights of children, women, ethnic groups and
religions, were meant to create a global safety net of rights applicable to all
persons, everywhere.
o States have a sovereign right to be let alone and not be judged by
international human rights standards.  Some cultures perceive the
global human rights canon as a threat to their very identity.
 Arguments against cultural relativism:
o Exceptionalist legitimacy – it appears that oppressive practices defended
by leaders of a culture, far from being pedigreed, are little more than the
current self-interested preferences of a power elite.
o Grounded on developments – the recent developments were caused not
by some inherent cultural factor but by changes occurring, at different
rates everywhere. These changes were driven by scientific developments
capable of affecting equally any society. These changes, wherever they
have occurred, have boosted the capacity for individual autonomy and, in
consequence, fueled the demand for more personal liberty.
o Individual rights contribute to the emergence of affiliations – modern
human rights-based claims to individual autonomy arise primarily not out
of opposition to community, but from the desires of modern persons to
use intellectual and technological innovations to supplement their
continued traditional ties with genetically and geographically based
communities.
 Waiting for globalization of human rights is a flawed approach. Scientific and
technological progress may strengthen the hand of oppression. It is also made
untenable by the reviving militance of cultural exceptionalism. Hence if the fight
against cultural exceptionalism is to be made effective, it needs military and fiscal
resources.