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Human rights as demands for communicative action

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  • Gauri, Varun
  • Brinks, Daniel M.
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    Abstract

    A key issue with human rights is how to allocate duties correlative to rights claims. But the philosophical literature, drawing largely on naturalistic or interactional accounts of human rights, develops answers to this question that do not illuminate actual human rights problems. Charles Beitz, in recent work, attempts to develop a conception of human rights more firmly rooted in, and helpful for, current practice. While a move in the right direction, his account does not incorporate the domestic practice of human rights, and as a result remains insufficiently instructive for many human rights challenges. This paper addresses the problem of allocating correlative duties by taking the practices of domestic courts in several countries as a normative benchmark. Upon reviewing how courts in Colombia, India, South Africa, Indonesia, and elsewhere have allocated duties associated with socio-economic rights, the paper finds that courts urge parties to move from an adversarial to an investigative mode, impose requirements that parties argue in good faith, and structure a public forum of communication. The conclusion argues that judicial practice involves requiring respondents to engage in communicative, instead of strategic, action, and explores the implications of this understanding of human rights.

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    Bibliographic Info

    Paper provided by The World Bank in its series Policy Research Working Paper Series with number 5951.

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    Date of creation: 01 Jan 2012
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    Handle: RePEc:wbk:wbrwps:5951

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    Keywords: Human Rights; International Terrorism&Counterterrorism; Parliamentary Government; Gender and Law; Health Law;

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    1. Anna Fruttero & Varun Gauri, 2005. "The Strategic Choices of NGOs: Location Decisions in Rural Bangladesh," Journal of Development Studies, Taylor & Francis Journals, vol. 41(5), pages 759-787.
    2. Gauri, Varun, 2009. "Public interest litigation in India : overreaching or underachieving ?," Policy Research Working Paper Series 5109, The World Bank.
    3. Nazmul Chaudhury & Shantayanan Devarajan, 2006. "Human Development and Service Delivery in Asia," Development Policy Review, Overseas Development Institute, vol. 24(s1), pages s81-97, 08.
    4. Keefer, Philip & Khemani, Stuti, 2003. "Democracy, public expenditures, and the poor," Policy Research Working Paper Series 3164, The World Bank.
    5. Jan, Stephen, 2003. "A perspective on the analysis of credible commitment and myopia in health sector decision making," Health Policy, Elsevier, vol. 63(3), pages 269-278, March.
    6. Philip Keefer, 2005. "Democracy, Public Expenditures, and the Poor: Understanding Political Incentives for Providing Public Services," World Bank Research Observer, World Bank Group, vol. 20(1), pages 1-27.
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