Abstract
This article asks whether a “law-as-integrity” approach to human rights adjudication provides a theoretical framework within which to make sense of authoritative regional interpretations of basic human rights for the global community. To focus analysis, I consider U.S. court interpretations of international human rights as an interpretive context. I argue that, with appropriate modification so as to include the world community as a “community of principle” for purposes of human rights adjudication, the law-as-integrity perspective permits disputes surrounding the legality of human rights to revolve around competing interpretive claims backed up by justifying legal theories, rather than as ideological battles external to a juridical philosophy of rights.
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See, e.g., Filartiga v. Pena-Irala, 577 F. Supp. 860 (1984.
See, e.g., Trajano v. Marcos, 878 F.2d 1439 (9th Cir., 1989; unpublished disposition, Text in Westlaw, No. 86-2448, 86-15039.
See, e.g., Wm. Frederick, ‘The Moral Authority of Transnational Corporate Codes’,Journal of Business Ethics 10 (1991): 165–77; T. Donaldson,The Ethics of International Business (1989).
See the ILO's guidelines on equality of opportunity in its ‘Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy’, 15 BN 92-2-101896-2 (1978).
I am currently working on a book which expands the general framework of this article to encompass human rights interpretations from a wide variety of domestic and international institutions, including the European and UN-based tribunals.
27 U.S. (2 Pet.) 253 (1829).
217 P.2d 481 (1950), aff'd, 242 P.2d 617 (1952).
242 P.2d 617 (1952) at 621–222.
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555 F.2d 848 (D.C. Cir. 1976).
502 F.2d 90 (9th Cir., 1974) at 97.
This doctrine was set out in The Paquete Habana, where the Supreme Court declared that customary international law is “part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination”. 175 U.S. 677 (1900) at 700.
See 3 U.N. GAOR 934, U.N. Doc. A/177 (1948).
The Montreal Statement, for example, proclaimed that the Declaration “has over the years become part of customary international law”. Montreal Statement of the Assembly for Human Rights 2 (1968), reprinted in 9 J. Int'l Com. of jurists 94, 95 (1968). In addition, the Proclamation of Teheran asserted that the Declaration “constitutes an obligation for members of the international community”. Declaration of Teheran, Final Act of the International Conference on Human Rights 3, at 4, para. 2, 23 U.N. GAOR, U.N. Doc. A/CONF. 32/41 (1968).
See Filartiga v. Pena-Irala, 630 F.2d at 882.
Memorial of the Government of the United States of America at 71, Case Concerning United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), 1980 I.C J. 3. The memorial refers to articles 7, 9. 12, and 13 of the Declaration, and articles 7, 9, 10, and 12 of the United Nations Covenant on Civil and Political Rights as the universal fundamental human rights which every state must respect. Included within these articles are the right to life. liberty, and security of person; the prohibition of torture and cruel. inhuman or degrading treatment or punishment, the right to be treated with humanity during detention; the right to equality before the law and to nondiscrimination in its application; the prohibition of arbitrary arrest and detention; the right to privacy; and the right to freedom of movement.
See, e.g., Jamnr Prods. Corp. v. Quill, 51 Misc. 2d 501, 509–10, 273 N.Y.S. 2d 348, 356 (Sup. Ct. 1966).
630 F.2d 876 (2d Cit. 1980).
28 U.S.C. 1350. The Alien Tort Act dates back to the original judiciary Act of 1798, and provides that “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”
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20 Id.
Id. at 882.
Cf. a parallel in Dworkin's writing, in the context of cases in statutory construction of domestic law, of what he terms the “speaker's intent” conception. Dworkin cites a number of cases in which a common problem haunts the conversational model of interpretation. In the quest for an empirical discovery of the particular intentions of the authors of a statute (e.g., the Endangered Species Act in Tennessee Valley Authority v. Hill, 437 U.S. 153 (1978)), an impasse is met. Specifically, it is unclear just whose intentions — the overall average, the majority, or a plurality — of those voting for a bill must be consulted. Moreover, if the issue at bar is not covered by the text of the legislative history of the bill, one must ask hypothetically how the “author” (as established by one of the above formulas) would have resolved the issue if he or she had actually thought about it. The requisite empirical information will usually be absent or inconclusive.Law's Empire at 327.
R. Dworkin,Law's Empire at 78.
Id.
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Id.
Id. at 82.
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For a much more sympathetic effort at explaining and summarizing the salient theories of critical legal studies, see J. Boyle, ‘The Politics of Reason: Critical Legal Theory and Local Social Thought’,University of Pennsylvania Law Review 133 (1985): 685–780.
878 F.2d 1439 (9th Cir., 1989; unpublished disposition, Text in Wesdaw, No. 86-2448, 6-15039).
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R. Dworkin,Law's Empire at 211.
Dworkin does not state whether he takes them to be necessary and sufficient conditions.
Dworkin at 199–202.
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See, Dworkin at 201–02. “It is therefore essential to insist that true communities must be bare communities as well. People cannot be made involuntary ‘honorary’ members of a community to which they do not even ‘barely’ belong just because other members are disposed to treat them as such. I would not become a citizen of Fiji if people there decided for some reason to treat me as one of them.”
C. Perelman & Olbrechts-Tyteca,The New Rhetoric at 30.
Id. at 31.
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C. Perelman, ‘Justice and Reason’, in id. at 73.
A. Aarnio,The Rational as Reasonable: A Treatise on Legal Justification, 1987, at
Rawls himself gives the following reconstruction of the original position for purposes of arriving at principles of justice applicable to international contexts: ... [O]ne may extend the interpretation of the original position and think of the parties as representatives of different nations who must choose together the fundamental principles to adjudicate conflicting claims among states. Following out the conception of the initial situation, I assume that these representatives are deprived of various kinds of information. While they know that they represent different nations each living under the normal circumstances of human life, they know nothing about the particular circumstances of their own society, its power and strength in comparison with other nations, nor do they know their place in their own society. Once again the contracting parties, in this case representatives of states, are allowed only enough knowledge to make a rational choice to protect their interests but not so much that the more fortunate among them can take advantage of their special situation. This original position is fair between nations; it nullifies the contingencies and biases of historical fate. Justice between states is determined by the principles that would be chosen in the original position so interpreted.A Theory of justice (1971) at 378.
577 F. Supp. 860 at 863 (1984).
At this point it should be noted that a justifying theory may be roughly equated with the judicial opinion (and its presupposed philosphical underpinnings) that is interpreting the right in question.
Gregg v. Georgia, 428 U.S. 153 (1976.
Aarnio at 225.
Dworkin at 214.
See L. Wittgenstein,On Certainty (G. E. M. Anscombe & G. H. von Wright, eds., 1969) at 34.
For an argument of this sort, see T. Nardin,Law, Morality and the Relations of States (1983, especially 133–48, 158–66.
See generally, R. Dworkin,Taking Rights Seriously (1977, 81–130.
R Dworkin,Law's Empire at 325–54.
This basis for the one-right-answer thesis is challenged by J. L. Mackie. Mackie supposes that a mythical judge Rhadamanthus might formulate an alternative answer to the one Hercules constructs. See J. L. Mackie, ‘The Third Theory of Law’,Philosopliy and Public Affairs 7 (1977): 3–16.
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Jackson, K.T. Global rights and regional jurisprudence. Law Philos 12, 157–192 (1993). https://doi.org/10.1007/BF02346477
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DOI: https://doi.org/10.1007/BF02346477