Human rights and subjective rights: affinities in Max Weber and Georg Jellinek

2015 ◽  
pp. 140-159
Author(s):  
Kathrin Groh
Keyword(s):  
Human Rights ◽  
Max Weber ◽  
Subjective Rights

scholarly journals Law, Cosmopolitan Law and the Protection of Human Rights

2008 ◽  
Vol 4 (2) ◽  
pp. 241-264 ◽  
Author(s):  
Sarah Sorial
Keyword(s):  
Human Rights ◽  
Legal Order ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Positive Law ◽  
Protection Of Human Rights ◽  
Rights Discourse ◽  
Cosmopolitan Law ◽  
Human Rights Discourse ◽  
Subjective Rights

In Between Facts and Norms, Habermas articulates a system of rights, including human rights, within the democratic constitutional state. For Habermas, while human rights, like other subjective rights have moral content, they do not structurally belong to a moral system; nor should they be grounded in one. Instead, human rights belong to a positive and coercive legal order upon which individuals can make actionable legal claims. Habermas extends this argument to include international human rights, which are realised within the context of a cosmopolitan legal order. The aim of this paper is to assess the relevance of law as a mechanism for securing human rights protection. I argue that positive law does make a material difference to securing individual human rights and to cultivating and augmenting a general rights culture both nationally and globally. I suggest that Habermas' model of law presents the most viable way of negotiating the tensions that human rights discourse gives rise to: the tensions between morality and law, between legality and politics, and between the national and international contexts of human rights protection.

scholarly journals THE FORMAL AND SUBSTANTIVE CORE OF HUMAN RIGHTS

2019 ◽  
Vol 1 (1) ◽  
pp. 21-59
Author(s):  
Stephan Kirste
Keyword(s):  
Human Rights ◽  
Human Dignity ◽  
The State ◽  
Human Right ◽  
Public Authorities ◽  
Four Dimensions ◽  
The Status ◽  
The Individual ◽  
Subjective Rights ◽  
Object Status

Human dignity is the basis of human rights. From the four dimensions of dignity - the status subjectionis, the status negativus, the status positivus and the status activus - both form and content of human rights can be justified. The form as subjective rights is necessary so that man is treated as a subject and not as a mere object (status subjectionis). In terms of content, human rights protect not only freedom from the state (status negativus), freedom through the state (status positivus), but also the freedom of the individual to participate in the establishment of public authorities (status activus). In addition: human dignity itself is a human right.

scholarly journals IMPRUDENT JURISPRUDENCE? HUMAN RIGHTS AND MORAL CONTINGENCY

2015 ◽  
Vol 30 (3) ◽  
pp. 391-401 ◽  
Author(s):  
Nigel Biggar
Keyword(s):  
Human Rights ◽  
High Risk ◽  
National Security ◽  
Social Cost ◽  
Moral Rights ◽  
Important Distinction ◽  
Political Costs ◽  
Positive Rights ◽  
The Social ◽  
Subjective Rights

AbstractOliver O'Donovan is mistaken to think that subjective rights are irredeemably bound up with Hobbesian individualism, but correct to criticize their abstraction from deliberation about a wider range of moral considerations. As Grotius's thinking shows, the existence of a natural, moral right against physical harm depends on the contingent presence or absence of morally significant circumstances. There is, however, an important distinction between natural moral rights outside a particular, effective legal system and positive rights granted by such a system. Positive rights are less contingent and more stable, because society thinks it prudent to bear the social costs of that stability. Take, for example, the positive right against torture. This is not based simply on the intrinsic evil of what is done to the tortured. It is based partly on the intrinsic evil of the sadistic motive of the torturer. However, this motive obtains only in some cases, not others. Let us distinguish the latter as cases of “aggressive interrogation.” There might be instances of such interrogation that are conscientious and morally justified, all considerations of social cost and risk apart. There is, therefore, no natural moral right against it. Nonetheless, its general legal prohibition under a positive right against torture is justified by the prudential judgment that any possible momentary advantages to national security are outweighed by the high risk of social and institutional corruption and its political costs. That said, extraordinary circumstances might still justify—morally—the rare violation of the positive, legal right.

scholarly journals Conditioning U.S. Security Assistance on Human Rights Practices

1982 ◽  
Vol 76 (2) ◽  
pp. 246-279 ◽  
Author(s):  
Stephen B. Cohen
Keyword(s):  
Human Rights ◽  
Foreign Relations ◽  
Max Weber ◽  
The United States ◽  
Executive Branch ◽  
National Interests ◽  
Department Of State ◽  
Rubber Stamp ◽  
Separated Powers ◽  
Political Decisions

The level of parliament depends on whether it does not merely discuss great issues, but decisively influences them; in other words, its quality depends on whether what happens there matters, or whether parliament is nothing but the unwillingly tolerated rubber stamp of a ruling bureaucracy.Max WeberIn the United States, with its government of separated powers and functions, it is the executive branch, and in particular the Department of State, that bears responsibility for implementing legislation on foreign relations. The success of implementation will depend on political decisions, involving competing national interests, as well as on institutional and personal considerations of the officials concerned. Inevitably, there is a gap between legislation and execution, especially when the Executive is not wholly sympathetic to the law. The gap may even devour legislated policies as the Executive refuses "to take Care that the Laws be faithfully executed," and bureaucratic and personal considerations distort judgments, exploit the generality and uncertainty of language, and lead to abuse of discretion. A notable instance of this problem has been executive implementation of legislation on international human rights.

scholarly journals L'idée de droit naturel à la lumière de la sociologie juridique de Max Weber

2005 ◽  
Vol 29 (1) ◽  
pp. 121-146
Author(s):  
Michel Coutu
Keyword(s):  
Human Rights ◽  
Natural Law ◽  
Max Weber ◽  
Legal Positivism ◽  
Sociology Of Law ◽  
Human Rights Law ◽  
Strong Basis ◽  
Modern Natural ◽  
Recent Trends ◽  
Value Rationality

Max Weber's Sociologyof Law provides, according to the author, a strong basis for understanding and discussing not only modern natural law but also contemporary human rights law. In the first part of this article, Weber's sociological analysis of natural law is briefly outlined, mainly in relation to the opposition between formal and material rationality of law. In the Weberian perspective, the antinomy between formal and material natural rights plays a key role in understanding the decline of natural law, and partly explains the irresistible rise of a purely positivistic conception of law. The second part of the study shows how the idea of natural law is in itself inconsistent with Max Weber's epistemological positions. For the author, the Sociology of Law remains closely connected to these positions, which form the basis of the Weberian methodology of (value-free) scientific research. In conclusion, the author emphasizes the importance of Weberian epistemology for the understanding of natural law and, to a certain extent, of contemporary human rights law. He raises doubts, however, as to whether legal positivism can provide a proper comprehension of recent trends in contemporary human rights law. He then suggests that the positivistic conclusion of the Sociology of Law should be reconsidered in light of the reemergence of value-rationality as a basic principle of democratic legal order.

Part I Theoretical Foundations, Ch.4 Sociology of Human Rights

2013 ◽  
Author(s):  
Turner Bryan S
Keyword(s):  
Human Rights ◽  
Max Weber ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
Citizenship Rights ◽  
The Social ◽  
Political Conditions ◽  
Theoretical Foundations

This article examines the role of sociology in international human rights law. It discusses the relevant views of German sociologist Max Weber and considers the issues of human rights and citizenship rights. It describes the emergence of the sociology of human rights as a consequence of taking globalization seriously and highlights the failure of sociologists to address long-standing philosophical problems surrounding human rights. This article identifies a number of legitimate sociological areas of inquiry which include the social and political conditions that have produced the entitlements or juridical revolutions and the social movements that have fostered human rights developments.

Government, Justice, and Human Rights

1998 ◽  
pp. 110-115
Author(s):  
R. A. Hill
Keyword(s):  
Human Rights ◽  
John Rawls ◽  
Max Weber ◽  
Human Beings ◽  
Robert Nozick ◽  
Essential Characteristic ◽  
Rational Agents ◽  
The Subject ◽  
The Right ◽  
The Relationship

This paper explores the relationship between justice and government, examining views on the subject expressed by traditional political philosophers such as Rousseau and Locke, as well as those expressed by contemporary political theorists such as John Rawls and Robert Nozick. According to Rawls, justice is one of the fundamental concerns of a governing body; Locke and Rousseau agree that government and justice are essentially connected. Nozick and Max Weber, however, claim that the essential characteristic of government is not justice, but power. This paper argues that government, as an institution formed and controlled by human beings, is subject to the moral injunction to treat human beings as entities accorded certain rights, and included among these rights is the right to just treatment. Governments are therefore enjoined to be just because human beings, as rational agents, and therefore persons, are owed the minimal respect due a person, such as the right to freedom and the right to forbearance from harm by others to self and property.

scholarly journals Concerning the genesis of the right to appeal against decisions, actions or omissions of customs authorities

1970 ◽  
pp. 155-159
Author(s):  
Vladyslav Reva
Keyword(s):  
Human Rights ◽  
The State ◽  
Executive Power ◽  
Democratic State ◽  
European Court ◽  
State Apparatus ◽  
The Subject ◽  
Legal Forms ◽  
The Right ◽  
Subjective Rights

The Institute appeals to citizens of unlawful decisions, actions or inaction of executive bodies, in particular, the customs authorities, their officials and officers in Ukraine, is associated with the creation of such a form of protection of citizens ' rights in the sphere of executive power, as Administrative Justice. In the spheres of the public-right in the "non-vicar" to visquisti (shave) the organs of viconavcho vladi, with one side, that physical and legal persons - with the yunsh. The subject of the "rischennya," the d'chi's lack of respect for the sub'kt, yak, the dumque of the "nsho" side of the administrative-right-in-the-dnosins, which will be incharge with the rights of chi buried by the law of the "entersi." The virtin of such conflicts (disputes) is to be found in the regulatory rules of the legal forms. The main mechanisms of the regular-season are the forms of the zahist sub'qictic rights of the legal osib, The Oscar-winning organ in the visonaucho slather, in that case of the mitrich's organs in Ukraine, in the administrative order ( adminstration of the Oscar-gen) that administrative-process (ship's) order. The right to appeal is one of the remedies for other subjective rights, however it has an independent value and also needs protection. To guarantee the protection of the right of a person to appeal shall be legally provided the possibility of the person to protect the right to the competent authorities of the State or officials, in particular, the customs authorities in case of unjustified creation of obstacles to Rights to appeal, restriction or deprivation of this law. The article examines quite topical and controversial issues this is the development process in Ukraine of the right to appeal against decisions, actions or inaction of executive bodies, in particular the customs authorities. The analysis of legislation on this matter and scientific literature allowed: to determine the genesis and the essence of the right to appeal against decisions, actions or inaction of the bodies of executive power, including customs authorities; To conclude that the right to appeal acts as a legal guarantee of human rights. The need to exercise this right arises only when other human rights are violated. Therefore, the democratic State laid duty to provide the maximum possible availability of administrative and legal appeals for individuals and legal entities (creation of the necessary regulatory framework and institutions in the State apparatus , conducting explanatory work among citizens, etc.). Also, the exercise of the right to appeal may be preceded by a person's protection to protect their rights to international bodies and institutions whose jurisdiction is recognized by Ukraine (for example, judicial appeal against decisions, actions or inaction of the subject of powers, if It has not led to satisfaction of violated rights, is a prerequisite for appeal to the European Court of Human Rights). Appeal procedures ensure social control over the state apparatus, and allow the latter to quickly correct their own activities in accordance with the social requests and needs.

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