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2 A Social Theory of Human Rights In Chapter 1, I briefly described the historical process whereby subsistence rights (and indeed, nearly all economic, social, and cultural rights) were assigned a secondary status within the Western human rights movement during the Cold War. I discussed the ideology behind separating human rights into two categories—that economic and social rights were inherently positive , expensive, and nonjusticiable in contrast with civil and political rights— and I argued against the essentializing and naturalizing distinction between two sets of rights. The remainder of this book examines the reemergence of subsistence rights in the past decade, their manifestation in NGO practice, and their implications for human rights politics. This chapter provides a theoretical framework for understanding NGO advocacy of subsistence rights by advancing a social theory of human rights, a theory that challenges rationalist , positivist, and legalistic scholarship on rights. Theorists of international relations and international law have had much to say about the emergence of human rights—and other formal and informal norms—and their meaning for international politics. Surprisingly, however, international relations has not engaged in much dialogue with international legal theory, and thus theories on the successes and failures of human rights are not particularly well integrated.1 The disjuncture between international relations and international legal theory has been a result of the dominant paradigms operating in each discipline, which have largely marginalized study of the other. Realism and rational choice theories in international relations argue that actors (almost exclusively states) have a predetermined, static interest in increasing their power or maximizing utility. Norms, laws, and human rights tend to emerge only when they serve the interests of the stron12771 -Freedom from Poverty.indd 17 12771-Freedom from Poverty.indd 17 3/11/10 10:51:58 AM 3/11/10 10:51:58 AM 18 Chapter 2 gest actors. Powerful states comply with norms only when the norm happens to be congruent with their interests, and weak states comply only when they anticipate coercion or have similar interests. In any decision-making situation , an actor will calculate the costs and benefits of the action in terms of maximizing his or her own interests.2 For realists and rationalists, international law—and all normative ideas— are epiphenomenal and merit attention only insofar as they reveal the distribution of interests and power.3 The real motivation for decision making is not the legitimacy of a norm, but the way in which a norm masks or facilitates the expression of more fundamental interests and power relations. As Hans Morgenthau stated: “Governments . . . are always anxious to shake off the restraining influence which international law might have upon their international policies, to use international law instead for the promotion of their national interests, and to evade legal obligations which might be harmful to them. They have used the imprecision of international law as a ready-made tool for furthering their needs.”4 While realism in international relations has tended to minimize the causal role of international law, the historical dominance of positivism in legal theory has equally marginalized the study of international relations and the political, social, cultural, and ideological contention contained therein. Legal positivists define the law in terms of formal texts, institutions, and proceedings that ostensibly separate legal interpretation and enforcement from other nonlegal processes.5 Therefore legal positivists either downgrade international law as too soft (because only “hard” domestic law can be defined as law), or they view political, moral, and cultural contention as largely irrelevant to the national application of law.6 Within a political realist and legal positivist understanding, then, law only matters when states’ interests converge in voluntarily adopting formal legal frameworks, establishing legal institutions, and enforcing the law through coercive measures. The historical Western bias toward civil and political rights, which are ostensibly “hard” law as opposed to economic and social rights, arises from this theoretical understanding of the role of law and the status of human rights as law. Human rights stand at the intersection of international relations and international law, but I argue that a social theory of rights provides a different, and more illuminating, connection between the two disciplines. More recent scholarship in both international relations and international law has expanded our understanding of the emergence of human rights and their influ12771 -Freedom from Poverty.indd 18 12771-Freedom from Poverty.indd 18 3/11/10 10:51:58 AM 3/11/10 10:51:58 AM [3.145.47.253] Project MUSE (2024-04-24...

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