Human Rights, Peace, and the Relationship of Moral and Legal Rights

Abstract

This paper was presented as a Plenary Lecture at the 28th World Congress of the International Association for the Philosophy of Law and Social Philosophy (IVR), “Peace Based on Human Rights.” University of Lisbon, July 2017. The recognition and protection for human rights varies significantly across countries. Many countries purport to recognize human rights through their constitutions, statutes, or international treaties, but questions arise when the rights protected in practice vary, at least in some commentators’ views, from what the scope of the rights actually are, or should be. For those legal systems where human rights are not supported by conventional positive, one can ask: Can human rights norms be said to be part of the law even where there is no conventional social source? This topic is considered briefly, using the Nuremberg Trials as an example. In general, the connection between general moral standards and human rights complicates the already intricate problems relating to the relationship of conventional law and morality. In connection with that basic question about the relationship of law and morality, the paper ultimately defends a view that is simultaneously simple, naive, and radical (and goes back to H. L. A. Hart): that law is a sui generis form of normativity, a form of normativity of its own, that is not identical with or a subset of morality or any other normative system. Another way of putting the view would be to say that under this approach legal normativity in general, and legal propositions in particular, do not, by their nature, reduce to or equate to propositions of another type, nor do legal propositions, by their nature, purport to be propositions of another type. The paper defends this position against both the common contemporary view (by theorists like Joseph Raz) that law purports to make moral claims, and the recent position (taken by theorists like Mark Greenberg) that law simply is a subset of morality.