Abstract
Drawing on the contested legacy of Montesquieu in The Spirit of the Laws, this essay questions the efficacy of state-centric legality in the enforcement of human rights, and proposes an alternative approach of cultural transformation and political mobilization. The author begins by exploring whether Montesquieu’s thought may have inspired European powers to seek to impose his model of the nation-state and its positive laws through global colonial projects. Second, the author discusses the structural inadequacy of the current treaty-based state-centric enforcement paradigm while highlighting the viability of a universally realistic alternative of cultural transformation and political mobilization for the implementation of consensus-based human rights norms. Third, the author explores his proposed people-centered alternative to the state-centric enforcement model for human rights. This paradigm shift is necessary because the current legalistic approach has totally failed in providing any protection of human rights for the vast majority of humanity around the world.
Highlights
The Subject is Human RightsThe essential quality of the universality of human rights may be explained in terms of what I call the three “Cs”, namely, the concept, content and context of via free accessAn-Na’im these rights
Drawing on the contested legacy of Montesquieu in The Spirit of the Laws, this essay questions the efficacy of state-centric legality in the enforcement of human rights, and proposes an alternative approach of cultural transformation and political mobilization
The author discusses the structural inadequacy of the current treaty-based state-centric enforcement paradigm while highlighting the viability of a universally realistic alternative of cultural transformation and political mobilization for the implementation of consensus-based human rights norms
Summary
The essential quality of the universality of human rights may be explained in terms of what I call the three “Cs”, namely, the concept, content and context of. My point of departure is that Montesquieu’s ideas probably contributed to inspiring or reinforcing among European/North American nation-states a self-understanding of being authorized to impose a state-centric, coercive and bureaucratic model of formalistic legality on a global scale In my view, this state-centric emphasis on formalistic legality is counter-productive for the fulfillment of the universality of human rights as a concept, the realization of inclusive global consensus on the content of these rights and their practical achievements in every context around the world. It is the neocolonial application of the imperial fiat of state-centric legality to the protection of human rights that I intend to challenge in this lecture To address these concerns, I will begin by exploring the question whether Montesquieu’s political and legal thought may have inspired European powers to seek to impose his models of the nation-state and its positive laws through global colonial projects. An-Na’im recent attempt to deal with individual persons as subjects of international law, is doomed to failure, in my view, due to the limitations of state-centric legality among other problems.[5]
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