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11 JEHL 197 (2020)
Moral and Political Conceptions of Human Rights: Implications for Theory and Practice

handle is hein.journals/jeuhisl11 and id is 198 raw text is: 


197


massive reform rests on the firm conviction of the leading consultants (like Alexander Makovsky) to the lawmaker that new general
provisions are the sign and the measure of progress in civil legislation.
   Contributors to both volumes do their best to analyze the dogma of various general rules (its 'physics') and to put their justi-
fication in context (its 'metaphysics'), linking it with the ideal of justice, uniform and prompt application of law, legal certainty
corresponding to social expectations etc. However, the implementation of this ambitious agenda is not without its flaws. One can't
help noticing several biases that limit the reach the presented conclusions:
-  the accent on the historical roots and the present of the general part rather than its prospects in the 21st century (despite the
   subtitle of the second volume);
-  the focus on the general provisions in the legislation and legal doctrine rather than their application in judicial practice (which
   might rarely draw on such abstractions, as the paper of Ulrich Ernst in volume 1 showed for Polish courts);
-  a limited number of jurisdictions that zooms in on Germany and Poland in the second volume (obviously, it precludes comparison
   with other variations of the general part in and beyond Central Europe, as well as its critique from the part of common law lawyers
   who tend to believe that 'general principles do not decide concrete cases' yet acknowledge restatements of private law).
   These limitations are more perceptible in the second volume which finds itself in the shadow of the first one, also by modify-
ing its eventual agenda: to investigate how the contexts (especially politics) defined the variations of the national general parts; to
assess the contribution of other countries; to analyze the practicability of the general part on the level of the European Union; to
work  out a new methodology  of resolving cases through Subsumption in the 21st century. The second volume gives no clear reply
as to the efficiency of the general part of private law in the world which no longer believes in the objectively best legal solutions.
Yet it shows very well the relevant issues and forcefully calls for such studies where dogmatic approach will be supplemented with
functional and contextual studies in a broader comparative perspective.
                                                                                                        Dmitry  Poldnikov*

*  Dmitry Poldnikov, Professor of legal history at the School of general and inter-branch legal disciplines, Faculty of Law, National Research University
   'Higher School of Economics', Moscow, Russia.





                                       Reidar Maliks, Johan Karlsson  Schaffer (eds.)
     Moral and Political Conceptions of Human Rights: Implications for Theory and Practice
                           Cambridge: Cambridge University Press, 2017, 312 pp., ISBN 978-1107153974

   This timely book is a well-researched collection of key discussions in the field of human rights and international legal human rights
(ILHR)  investigating the philosophy of human rights and contributing to the methodology of political and legal theory. The field
of human  rights is an expanding transdisciplinary research vector, bringing together scholars in law, political science, education,
anthropology, history, sociology, and many other disciplines. The Article 1 of the Universal Declaration of Human Rights (the
UDHR) states:  All human  beings are born free and equal in dignity and rights. They are endowed with reason and conscience
and should  act towards one another in a spirit of brotherhood (the UN). The idea of equal status has been crucial throughout
the human  history of constant struggles for their individual rights. First and foremost, human rights movement is a resource for
mobilization and compelling moral principles as well as human rights may give reasons for a call for action; it is interconnected
with the idea of equal status (49). According to Raz, human rights are rights which all people living today have, a feature that is
a precondition of, and a result of, the fact that they set limits to state sovereignty and justify accountability across borders (Raz
2010, 31). John Simmons  argues that [H]uman  rights are those that are inane and that cannot be lost (i.e., that cannot be given
away, forfeited, or taken away) (26). Social contract theories that are essential to the history of law consider human rights as part
of moral norms. Moral rights are pre-institutional, timeless; human rights are not only the rights of others, however.
   This splendid book discusses the recent moral-political divide in human rights approaches and offers an advancement of a philo-
sophical theory of human rights enriching human rights practice and legal theory. This collection has two distinct parts that are set
in the context of the distinction between the political and moral approaches; the Kantian dichotomy is an organizing principle of the
entire book structure. The dual nature of human rights is an impetus for this scholarship. Kant's categorical imperative provided
with the best theoretical tools (127). Kant's notion of freedom opposes the domination of one nation over another and one
individual-over another (151). Howard  Williams notes that: Kant thinks his general moral philosophy can be made accessible to
all reflecting human beings because of the skill in moral thinking already demonstrated in everyday life (147).
   The first part of this book discusses the recent debate on moral and political approaches to international human rights concep-
tions (Kant, Rawls, Griffin, Beitz) and the second part challenges this debate concentrating on the practical sides of these complex
issues. The moral approach to human rights (orthodox, natural law, naturalist, ethical, or humanist) views human rights as universal
moral rights. In contrast, the political approach to human rights gives reason of sovereign state interference in cases of human rights

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