The Authority of Human Rights
Bibliographic Data
| ID | 10855291 |
|---|---|
| Authors | Evan Fox-Decent (0000-0002-4762-8394, McGill University, corresponding author) |
| Year | 2017 |
| Volume | 67 |
| Issue | 4 |
| Pages | 596-622 |
| Publication date | 2017-10-01 |
| Open Access | No |
| Type | ARTICLE |
| Venue | University of Toronto Law Journal (JOURNAL) |
| Journal identifiers | ISSN: 0042-0220 • E-ISSN: 1710-1174 |
| Publisher | University of Toronto Press Inc. (UTPress) (PUBLISHER) |
| DOI | 10.3138/utlj.67.6 |
| OpenAlex | W2591591668 |
| Language | EN |
| Citations received | 1 |
| References cited | 15 |
Original and magisterial, Patrick Macklem’s The Sovereignty of Human Rights departs radically from the moral and political conceptions of international human rights law (IHRL) that dominate the literature. Rather than grounding human rights on features of our shared humanity (the moral, orthodox conception) or on their role in global politics (the political conception), Macklem claims that the point and purpose of IHRL is to mitigate the adverse effects produced by the structure and operation of international law itself and, in particular, the adverse effects of its distribution of sovereignty to some entities – states – and not others. In this article, I suggest that Macklem’s mitigation theory succeeds admirably in explaining various international human rights that moral and political theories are hard-pressed to explain, such as collective rights and labour rights. The great virtue of his theory is that it recognizes the potent abuses international law’s distribution of sovereignty makes possible and then calls on IHRL to serve a remedial and legitimating function from within international law itself. Macklem, however, subscribes to a positivist legal theory that is closer to John Austin’s command theory than it is to HLA Hart’s or Joseph Raz’s positivism. As a consequence, Macklem struggles to account for the authority of IHRL. I suggest a friendly amendment that would let Macklem’s theory account for IHRL’s authority. The way forward is through the development of a relational conception of IHRL. This conception trades on a criterion of legitimacy according to which IHRL’s authority is constituted by its capacity to empower legal institutions to speak in the name of, or on behalf of, whomever is subject to them
Human rights · International human rights law · Law and economics · Legitimacy · Political science · Politics · Principle of legality · Sociology · Sovereignty · Global Peace and Security Dynamics · International Law and Human Rights · Law · Political Philosophy and Ethics
You, The People
The Constitution of Law
Globalization and Sovereignty
Force and Freedom
The morality of law
Anarchy, State, and Utopia
Philosophy and Public Affairs
The Right to Justification
Justification and Legitimacy
Torture, Power, and Law
Ethics in the Public DomainEssays in the Morality of Law and Politics
The Morality of Freedom
The Pure Theory of Law
| Citations per year | 0.11 |
|---|---|
| Citation span | 2017 - 2017 (1) |
| Highly cited | No |