Interest theory vs Social Practices & Entitlement Theory Flashcards
How does interest theory define Human Rights law?
Human Rights Law can be defined as the interests of human beings being protected by law.
What are the two types of interests?
There are two results which are a consequence of protection of such interests:-
You give rights
You recognise rights
Giving rights happens when there existed nothing before and the law is in the very first place creating the interest which is then accordingly protected by it.
In recognising rights, there already exists certain interests which are through the law now legally recognised.
What are human rights according to the interest theory?
Human Rights refer to certain pre-existing interests which come into existence the moment you’re born as a human.
When laws protect these interests, they are recognised as rights and this recognised framework of pre-existing interests through laws is called Human Rights Law. Therefore, when you protect pre-existing Human Rights through a legal framework, you give rise to Human Rights Law. Eg: UDHR did not give the rights but rather expressly recognised those rights.
Why is HRL called a codification exercise?
Note that Human Rights Law is a codification exercise by State authorities who recognise pre-existing human rights. Therefore, HRL should not be restricted to these codified laws but rather they should be read along with various pre-existing customs, practices and usages. So, HRL can go beyond the black and white letters of law.
What is the relationship between interests and entitlements according to the entitlement theory?
Rights are interests secured by law. Now what do these interests entail? As per this theory, the interests entail having certain entitlements which are legally recognised.
Basically, I have certain entitlements by virtue of being a human being. My interests secure these entitlements. When such an interest is secured through law, HRL is born.
How are social practices relevant to Human Rights and the securing of entitlements?
Social practices have a role to play in determining my entitlements. Such differentiation brings in the concept of cultural relativism, which says that although the threshold for human rights is universal and applicable to all human beings, there are some conditions and customs that are relative to the social practices of a people. Human rights should balance between universal and cultural rights.
Example of how certain cultural practices intersect with International Human Rights norms
Prohibition Apostasy in Islam and middle eastern countries. Article 18 of the UDHR guarantees freedom of thought, conscience and religion, However, in a lot of middle eastern countries, there is a restriction on converting out of Islam. The Author, donelly, opines that where such practices are deeply rooted in Islam, persuasion and certain restrictions on apostasy may be justified, but executing apostates exceeds the permissible variation as it infringes on personal autonomy.
