Human Rights as Demands for Communicative Action

Gauri, Varun ; Brinks, Daniel M.

关键词: ACADEMIC FREEDOM;    ACCESS TO INFORMATION;    ADMINISTRATIVE LAW;    APARTHEID;    BASIC HUMAN RIGHTS;   

DOI  :  10.1596/1813-9450-5951
RP-ID  :  WPS5951

学科分类：社会科学、人文和艺术（综合）

来源: World Bank Open Knowledge Repository

【 摘 要 】

A key issue with human rights is how toallocate duties correlative to rights claims. But thephilosophical literature, drawing largely on naturalistic orinteractional accounts of human rights, develops answers tothis question that do not illuminate actual human rightsproblems. Charles Beitz, in recent work, attempts to developa conception of human rights more firmly rooted in, andhelpful for, current practice. While a move in the rightdirection, his account does not incorporate the domesticpractice of human rights, and as a result remainsinsufficiently instructive for many human rights challenges.This paper addresses the problem of allocating correlativeduties by taking the practices of domestic courts in severalcountries as a normative benchmark. Upon reviewing howcourts in Colombia, India, South Africa, Indonesia, andelsewhere have allocated duties associated withsocio-economic rights, the paper finds that courts urgeparties to move from an adversarial to an investigativemode, impose requirements that parties argue in good faith,and structure a public forum of communication. Theconclusion argues that judicial practice involves requiringrespondents to engage in communicative, instead ofstrategic, action, and explores the implications of thisunderstanding of human rights.