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Amartya Sen’s Vision for Human Rights—and Why He Needs the Law

  • Kim Lane Scheppele (a1)
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1 Miller, Jon, Hugo Grotius, in Stan. Encyclopedia Phil. (Zalta, Edward N. ed., Summer 2009), available at http://plato.stanford.edu/archives/sum2009/entries/grotius/ [hereinafter, Miller, Grotius].

3 “The law of nature is a dictate of right reason, which points out that an act, according as it is or is not in conformity with rational nature, has in it a quality of moral baseness or moral necessity; and that, in consequence, such an act is either forbidden or enjoined.” Miller, Grotius (quoting Hugo Grotius, Commentary on the Law of Prize and Booty 1.1.10.1 (first published 1868).

4 “[Individual advantage is judged in the capability approach by a person’s capability to do things he or she has reason to value.Sen, Amartya, The Idea of Justice 231 (2009) [hereinafter Sen, Idea].

5 “The reasoning that is sought in analyzing the requirements of justice will incorporate some basic demands of impartiality.” Sen, Idea at 40.

6 In fact, Professor Sen bases an important critique of the work of John Rawls precisely on the point that Rawls is too concerned with procedure and institutions, and therefore fails to notice whether the results in the world are in fact better for the people involved. Sen, Idea at 66-69. Grotius, reflecting the different preoccupations of his time, believed that one could derive the basic rules of normativity from the observation of nature itself. Miller, Grotius.

7 “When we say that so-and-so has the right to such-and-such, we usually mean that he has the means or power to do such and such .... This was Grotius’ view; though subsequently mediated by others, his contribution was essential.” Miller, Grotius.

“By starting from the importance of freedoms as the appropriate human condition on which to concentrate, rather than on utilities (as Bentham did), we get a motivating reason not only for celebrating our own rights and liberties, but also for taking an interest in the significant freedoms of others.” Sen, Amartya, Elements of a Theory of Human Rights, 32 Phil. & Pub. Aff. 315, 328 (2004).

8 “[W]hereas medieval theorists tended to speak of ‘the right,’ Grotius and his successors stressed the powers and entitlements of the person who has rights.” Miller, Grotius.

9 Rights for Grotius could be overridden by a ruler in exceptional circumstances. Miller, Grotius.

10 Id.

11 In The Idea of Justice, Professor Sen devotes much energy to critiquing the work of John Rawls for putting attention to institutional structures and the logic of just rales over direct concern with the lives of disadvantaged people. Sen, Idea, particularly ch. 2.

12 “We need to see global human rights over a much bigger arena, of which legal motivation, actual legislation, and judicial enforcement constitute only one part.” Sen, Grotius Lecture, supra at 3. In arguing this, Professor Sen rejects the association that Bentham made between real law and real rights. Id.

13 Would it be reasonable to claim that if a human right is seen as important, then it must be ideal to legislate it into a precisely specified legal right?

I would argue for resisting this proposal. For some rights, the ideal route may well not be legislation, but something else, such as recognition or agitation, or even public discussion and education, with the hope to change the behaviour of those who contribute to the violation of human rights.

Id. at 6.

14 It is easy to appreciate that if human rights are seen as powerful moral claims—indeed as “moral rights” (to use Hart’s phrase)—then surely we have reason for some catholicity in considering different avenues for promoting these claims. Thus, the ways and means of advancing the ethics of human rights need not be confined to making new laws.

Id. at 5.

15 Id. at 6.

16 Waldron, Jeremy, When Justice Replaces Affection: The Need for Rights, 11 Harv. J. L. Pub. Pol. 625 (1988).

17 Perfect duties, for Kant, are those obligations from which there can be no exceptions. Immanuel Kant, the Groundwork of the Metaphysics of Morals 4:421 (Thomas Kingsmill Abbott trans. 1895) (1785), available at http://evans-experientialism.freewebspace.com/kant_groundwork_metaphysics_morals01.htm.

18 Sen, Grotius Lecture, supra at 6.

19

It is important to emphasize that the recognition of human rights is not an insistence that everyone everywhere rise to help prevent every violation of every human right, no matter where it occurs. It is instead an acknowledgement that if one is in a plausible position to do something effective to prevent the violation of such a right, then one does have an obligation to consider doing just that.

Id. at 6. Sen implies that the law cannot be so subtle as to anticipate every situation that might bear on the imperative to act.

20 See Jeremy Waldron, the Law, ch. 3 (1990) for an account of how it is that state officials may come to have different and denser obligations to act in particular ways than might ordinary citizens.

21 Sen, Idea at 379-84; Amartya Sen, Development as Freedom (1999); Sen, Amartya, Foreword, in Paul Farmer, Pathologies of Power: Health, Human Rights and the War on the Poor xixvii (2003).

22 However, Emily Zackin has shown in a prize-winning dissertation that social rights have had a long history in American state constitutions. Emily Zackin, “Positive Constitutional Rights in the United States” (Princeton University Department of Politics, 2010).

23 Kim Lane Scheppele, Social Rights in Constitutional Courts: Strategies of Articulation and Strategies of Enforcement. Paper given at the Annual Meeting of the Association of American Law Schools (Constitutional Law Section), San Diego, CA, January 2009.

24 Etchichury, Horacio Javier, Argentina: Social Rights, Thorny Country—Judicial Review of Economic Policies Sponsored by the IFIs, 22 Am. U. Int’l L. Rev. 101 (2006); Hoffman, Florian F. & Bentes, Fernando R.N.M., Accountability for Social and Economic Rights in Brazil, in Courting Social Justice: Judicial Enforcement of Social and Economic Rights in the Developing World 10045 (Gauri, Varan & Brinks, Daniel eds., 2008).

25 President of the Republic of S. Afr. v. Modderklip Boerdery (Pts) Ltd. 2005 (8) BCLR 786 (Sup. Ct. App.), reviewed by the Constitutional Court, (CCT20/04) [2005] Zacc 5; 2005 (5) SA 3 (CC); 2005 (8) BCLR 786 (CC).

26 Olga Teffis v. Bombay Mun. Corp., [1985] 2 S.C.R. Supl. 51. The Olga Tellis case has been frequently misunderstood to have required a positive obligation of the state to provide housing directly for all those who were affected. But, as an article by Madhav Khosla shows, the Indian Supreme Court only required the actual resettlement of those who had been enumerated in the local census and given prior promises of housing, while saying only that the government should, rather than must, resettle the rest. Khosla, Madhav, Making Social Rights Conditional: Lessons from India, 8 Int. J. Con. L. 739 (2010).

27 Quint, Peter E., The Constitutional Guarantees of Social Welfare in the Process of German Unification, 47 Am. J. Comp. L. 303 (1999).

28 Scheppele, Kim Lane, A Realpolitik Defense of Social Rights, 82 U. Tex. L. Rev. 1921 (2005); Hungarian Constitutional Court: 43/1995 Ab hat. On Social Security Benefits. Constitutional Judiciary in A New Democracy: the Hungarian Constitutional Court 322-32 (László Sólyom & Georg Brunner eds., 2000).

29 International Covenant on Economic, Social and Cultural Rights art. 11(1)), Dec. 16, 1966, 993 UNTS 3.

30 Gov’t of Republic of S. Afr. v. Grootboom, 2001 (1) SA 46 (CC).

31 Bermudez et al. v. Ministerio de Sanidad y Asistencia Social, Supreme Court of Justice of Venezuela, Case No. 15.789, Decision No. 916 (1999).

32 Gaurav Jain v. Union of India, A.I.R. 1997 S.C. 3021.

33 “For some rights, the ideal route may well not be legislation, but something else, such as recognition or agitation, or even public discussion and education, with the hope to change the behaviour of those who contribute to the violation of human rights.” Sen, Grotius Lecture, supra at.

34

Providing inspiration for legislation is certainly one way in which the ethical force of human rights have been constructively deployed. . . . [however] [t]o acknowledge that a strong connection exists between the ethics of human rights and legislative motivation is not the same thing as taking the relevance of human rights to lie exclusively is their playing an inspirational or justificatory role for actual legislation. It is important to see that the idea of human rights can be—and is—actually used in several other ways as well. It is easy to appreciate that if human rights are seen as powerful moral claims—indeed as “moral rights” (to use Hart’s phrase)—then surely we have reason for some catholicity in considering different avenues for promoting these claims.

Id. at 5.

35 Ken Roth, the current executive director of Human Rights Watch, is a former U.S. federal prosecutor, http://www.hrw.org/en/bios/kenneth-roth. Amnesty International was founded in 1961 by Peter Benenson, a British lawyer. http://nobelprize.org/nobel_prizes/peace/laureates/1977/amnesty-history.html. Human Rights First was formerly called the Lawyer’s Committee for Human Rights, http://www.humanrightsfirst.org/about-us/human-rights-first-charter/.

36

The International Commission of Jurists is dedicated to the primacy, coherence and implementation of international law and principles that advance human rights. What distinguishes the International Commission of Jurists (ICJ) is its impartial, objective and authoritative legal approach to the protection and promotion of human rights through the rule of law. The ICJ provides legal expertise at both the international and national levels to ensure that developments in international law adhere to human rights principles and that international standards are implemented at the national level.

International Commission of Jurists website, http://www.ICJ.org/default.asp?nodeID=430&langage=l&myPage=About_us.

37 But, as Lucien Karpik has pointed out, summarizing the case studies compiled for a book on the role of lawyers in autocratic political systems, lawyers are better at defending some rights more than others: “Attorneys... mobilize themselves only for individual rights. These rights include mainly freedom of speech, of thought, of assembly, security rights, property rights and the right to justice and due process of law. With some exceptions lawyers have not fought outside this universe.” Karpik, Lucien, Political Lawyers, in Fighting for Political Freedom 463, 465 (Halliday, Terence, Karpik, Lucien & Feeley, Malcolm eds., 2007).

38 Lawyers and the Rise of Western Political Liberalism (Terence Halliday & Lucien Karpik eds., 1998); Fighting for Political Freedom (Terence Halliday, Lucien Karpik & Malcolm Feeley eds., 2007); Fates of Political Freedom: the Legal Complex in the British Post-Colony (Terence Halliday, Lucien Karpik & Malcolm Feeley eds., 2011).

39 Rule by Law. The Politics of Courts in Autocratic Regimes (Tom Ginsberg & Tamir Moustafa eds., 2008).

40 Halliday, Terence, Karpik, Lucien & Feeley, Malcolm, The Legal Complex in Struggles for Political Liberalism, in Fighting for Political Freedom 1 (Halliday, Terence, Karpik, Lucien & Feeley, Malcolm eds., 2007).

41 Kovács, Maria, Liberal Professions and Illiberal Politics: Hungary from the Habsburgs to the Holocaust 103, 107 (1994).

42 Id. at 107.

43 Id. at 107-08.

44 Id. at 114-15.

45 Id. at 119-20.

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