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oai:doaj.org/article:e27a8acbef36404f9d46601e0d306d39

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Human rights, political functionalism and legal minimalism in John Rawls and Joseph Raz

Abstract

As traditional human rights theories – normative and substantive theories – set out general criteria for moral values to be normalised, in addition to the grounds for imposing obligations to fulfil them. In recent decades, however, philosophers and theory of law, worried about the overall realism of the human rights enforcement discourse, most of them under the influence of John Rawls’ work, have criticised traditional theories from a functional human rights analysis. Putting more evidence of legal and political practices, political operatives such as Charles Beitz and Joseph Raz argue that there is a lack of logical precision and inconsistency in the excessive proliferation of rights attributed to normative and substantive approaches to theories such as Jeremy Waldron and James Griffin. In this article I will describe the main arguments of political functioning in human rights, emphasising the legal minimalism common to that approach. My aim is to assess the conditions for applying the theory to the problems arising from the lack of coherent theoretical reasoning attributed by the operalists to the most orthodox thinkers. My conclusions show that without further integration between theoretical groups, it remains very difficult to understand correctly the complexity of the challenges of cotidal human rights theory and practice.

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