The term human rights is frequently used as if it were self-explanatory. It is tempting and not uncommon to view ‘human rights’ as something intrinsically good. Human rights are often labelled (somewhat mockingly) as the new religion, a label which illustrates the elevated status they appear to enjoy. On closer inspection, it becomes evident that the term human rights is used freely and sometimes loosely by members of different disciplines and the public at large, meaning different things – both positive and negative – to different people depending on the context and the purpose for which it is used. It is therefore important to clarify the meaning(s) of the term by tracing its genealogy and examining its use in various contexts.
This undertaking cannot be confined to charting the development of international human rights law. Equating human rights with rights recognised in international treaties and/or other legal sources may in practice suffice when addressing particular human rights issues. Beyond this, it amounts to taking a purely positivist position that provides little guidance in response to a crucial question. Can a claim that something be recognised as a human right, for example the right to same-sex marriage, be justified, even if it is currently not explicitly recognised in law?