Session 3: Law and Social Justice
15th January 2016: 13.30-15.00
This session addresses some major debates about law, governance and social justice. In particular we will critically reflect on the role of human rights law and practice in giving effect to the core principles associated with social justice: liberty, equality and dignity.
As background to our discussion, please read this brief account of the formal origins of human rights law. In class we consider how human rights are operationalized at national level by a range of actors.
The international human rights regime, overseen by the United Nations (UN), can be regarded as a global social justice contract entered into by the countries of the world. Indeed its bedrock document, the Universal Declaration of Human Rights (UDHR) (1948) proclaims, “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”. Human rights, as enshrined in UDHR and subsequent covenants, provide an internationally agreed set of principles and standards that governments undertake to secure for all people. The emergence of this regime is regarded as a major breakthrough in the recognition of the equal moral worth of all individuals (Singh 2004) and on paper the range of human rights is impressive encompassing people’s ability to live with dignity in various spheres (civil, political, economic, social and cultural).
Commentators argue that the capacity of international human rights law (IHRL) to promote social justice is, however, hampered by several factors. First IHRL is state-centric: the nation state is the principal violator and protector of human rights under the UN system. Upon ratifying an international treaty a state agrees to secure the rights it contains to everyone within its territory; a state undertakes only limited obligations to people outside its borders (known as extra-territorial human rights obligations). State-centrism also means that ‘private’ actors like corporations and transnational bodies are not directly bound by international human rights standards.
Second, UN-level monitoring and accountability systems are weak; in accordance with the principle of subsidiarity, implementation and enforcement of IHRL norms should occur at national level. The extent to which states realize their obligations is largely supervised through self-reporting mechanisms overseen by various UN bodies. As Mertus (2009: 80-81) concludes “[t]reaty reporting and monitoring processes are often neither efficient nor effective. The national reporting mechanisms (requiring States Parties to report on their implementation of obligations) frequently receive reports that are inaccurate, incomplete, late, or not submitted at all. Even when adequate reports are received, under-resourced treaty-monitoring bodies may be forced into hasty and superficial reviews of reports”. An Australian proposal for the creation of an International Court of Human Rights was rejected in the formative years of the UN. In recent years there have been attempts to revive a debate about the need for such an institution (e.g. Nowak 2007). Given the significant weaknesses of the current human rights regime, advocates of the Court see it as a potential mechanism for securing the enforcement of IHRL. Such a mechanism is attached to the European Convention on Human Rights, a human rights instrument that protects civil and political rights at regional level. We will explore the question of national-level systems for the protection of human rights further in class.
A third perceived flaw in IHRL concerns the actual substance of human rights guarantees. For many commentators the duties placed on states are too minimal and so will do little to tackle deep inequalities (e.g. Salomon 2011). When IHRL standards are translated into national law and practice, it is argued that rights aimed at alleviating poverty (e.g. the right to an adequate standard of living set out under Article 11 of the International Covenant on Economic, Social and Cultural Rights) are inadequately protected in particular. We will discuss the apparent divide between civil-political and economic-social rights in the seminar.
Please reflect on: (1) what you understand by the term ‘human rights’, and (2) how human rights standards should be formulated, applied and enforced at national level. You should be prepared to discuss your ideas at the beginning of the session (there is no need to write anything).
Some general readings on human rights and social justice are set out below; an extensive list of recommended readings will be supplied to you individually should you choose to undertake the assignment on this topic.
Baker, John (2005) ‘Equality and Human Rights’ In: C. van den Anker and R. Smith (eds.). The Essential Guide to Human Rights (London: Hodder & Stoughton Educational). http://hdl.handle.net/10197/2461
Bingham, Thomas (2007) ‘The Rule of Law’, Cambridge Law Journal 66 (1), 67-85.
Butterworth, J. and Burton, J. (2013) ‘Equality, human rights and the public service spending cuts: do UK welfare cuts violate the equal right to social security?’, Equal Rights Review 11, 26-45: http://www.equalrightstrust.org/ertdocumentbank/Jonathan%20Butterworth%20and%20Jamie%20Burton%20ERR11.pdf
Chomsky, Noam (2012) ‘Social Justice is the Will of the People’, Seattle Journal for Social Justice 3(2) 471-495.
Dorling, Daniel (2010) Injustice: Why Social Inequality Persists (Bristol: Policy Press), Chapters 1 and 2.
Edgeworth, Brendan (2012) ‘From Plato to NATO: Law and Social Justice in Historical Context’, UNSW Law Journal 35(2), 417-448.
Gordon, Robert W. (1998) ‘Some Critical Theories of Law and Their Critics’ in D. Kairys (ed.) The Politics of Law: A Progressive Critique, 3rd edition (New York: Basic Books), 641-61.
Johnston, David (2011) A Brief History of Justice (Chichester: Wiley-Blackwell), 7-14.
Kinley, David (2009) Civilising Globalisation: Human Rights and the Global Economy (Cambridge: Cambridge University Press), Chapter 1.
Mertus, Julie (2009) The United Nations and human rights: A guide for a new era, 2nd edition (Abingdon; New York: Routledge).
Nowak, Manfred (2007) ‘The Need for a World Court of Human Rights’, Human Rights Law Review 7(1), 251-259.
Ohnesorge, John K.M. (2007) ‘The Rule of Law’, Annual Review of Law and Social Science 3, 99–114.
Quinn, Gerard (2004) ‘Critical Legal Studies’ in T. Murphy (ed.) Western Jurisprudence (DubIin: Thomson Roundhall), 308-323.
Salomon, Margot (2011) ‘Why Should it Matter that Others Have More? – Poverty, Inequality and the Potential of International Human Rights Law’, Review of International Studies 37, 2137–2155.
Salomon, Margot (2015) ‘Of Austerity, Human Rights and International Institutions’, European Law Journal 21(4), 521-545.
Sheppard, C. (2015) ‘“Bread and Roses”: Economic Justice and Constitutional Rights’, Onati Socio Legal Series 5(1) 225-245: http://opo.iisj.net/index.php/osls/article/view/439.
Singh, Rabinder (2004) ‘Equality: the neglected virtue’, European Human Rights Law Review 2004(2), 14
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