The Sociological Argument in Human Rights Doctrine

Human rights have long been thought of as ‘natural and sacred rights’ from a universalist ‘everywhere and always’ perspective. But relativism arose right from the time of the French Revolution with Burke and Joseph de Maistre contesting this vision of ‘man’ as abstract as opposed to situated. More recently, the sociological approach with the Marxist perspective has set formal rights against real freedoms. Contemporary law has taken all these challenges into account and developed the international corpus of human rights by emphasising effective rights for everyone – ‘without distinction of race, sex, language or religion’ as underscored in Article 1 of the United Nations Charter – rights that are accessible and adaptable to the specific needs of vulnerable groups, including through ‘positive discrimination’. Far from undermining the legal idealism and universality of human rights, the sociological argument enhances it with a permanent dialectic of law and fact.