Home » Articles » Separation Anxiety? Rethinking the Role of Morality in International Human Rights Lawmaking

Separation Anxiety? Rethinking the Role of Morality in International Human Rights Lawmaking

PDF · Vijay M. Padmanabhan · May-30-2014 · 47 VAND. J. TRANSNAT'L L. 569 (2014)

The conventional accounts of international law do a poor job accounting for human rights. International legal positivists generally argue that there is a strict separation of law and morality, with no role for moral obligation in the validation of law. But human rights practice reveals many situations in which it appears that morality is validating legal obligation.  Process theorists recognize an intrinsic role for the values underlying international law in understanding its commands. But they embrace a vision of law as dialogue that fails to protect the right to self-determination that is a core value of human rights.

This Article argues that inclusive positivism provides the best model to understand international human rights law.  Unlike process theory, inclusive positivism accepts that law is a discrete object identified through application of validation criteria. This model allows states to retain control over the content of their legal obligations. Unlike conventional international legal positivism, inclusive positivism acknowledges that moral obligation plays a role in the validation of human rights law consistent with the practice of human rights actors.

This Article suggests hypotheses as to how the commonly accepted rules that define human rights law can be modified to account for the role moral obligation plays in human rights practice.

Image Source (Public Domain)




Leave a Reply

ExpressO Top 10 Law Review

ANNOUNCEMENTS

The Vanderbilt Journal of Transnational Law is proud to celebrate 50 years. Read about the Journal’s history here.

Connect with the Vanderbilt Journal of Transnational Law on LinkedIn.

The Journal is pleased to listed as the #6 International Law Journal by the 2017 Washington and Lee Law Journal Rankings.

The Journal is pleased to announce the 2017-2018 Board of Editors: here

The Journal is very excited about the success of our February 2017 Symposium, “Sovereign Conduct on the Margins of the Law.” Read more about our February 2017 Symposium here

Please join us in congratulating the Vanderbilt Journal of Transnational Law 2017-2018 Write-On Competition Winners.

Video is available from the Vanderbilt Journal of Transnational Law’s 2015-2016 SymposiumThis is Not a Drill: Confronting Legal Issues in the Wake of International Disasters. Watch here.

Explore Other Vanderbilt Law Resources