The paradox of human rights and three forms for its unfolding

Abstract

AbstractIn this essay, published here for the first time in English, Niklas Luhmann shows how human rights have never been able to justify their existence to society without the use of a paradox. He identifies three general phases (or forms) through which the doctrine of human rights has developed: natural law, the positivization of law, and finally human rights as recognized through their violation and the moral outrage that this elicits. Whenever a grounding of human rights has been found, its persuasiveness could only last for a limited time; with the advent of each new epoch, the paradox has had to be unfolded anew. Our current answer to the paradox – that human rights are justified by the moral outrage that their violations provoke – is the most primitive solution yet, from the standpoint of legal science. Through careful sociological observation of the structural changes that society is undergoing, more satisfactory solutions for the grounding of human rights can be found.