Legal Positivism, Constructivism, and International Human Rights Law: The Case of Participatory Development

Abstract

In this article, I offer a theoretical framework for separating moral norms from legal human rights in international human rights law. I argue that the dominant academic paradigm conflates human rights as they exist under international law with the way proponents of this trend want them to be. This article aims to perform two main functions. First, it seeks to use the debate surrounding the right to participatory development to highlight a major mistake in a foundational assumption of mainstream international human rights law scholarship that prematurely accords the label of human right to rights that have not yet achieved this status in customary international law. Second, I show how the World Bank is slowly internalizing the participatory development norm. This internalization illustrates the sociopolitical process that a rights-claim must go through to shift from a transitional right into the realm of customary international law. By analyzing the descriptive and normative elements of international human rights law, I seek to bridge international law scholarship with international relations scholarship through the use of legal positivism and constructivism, thus providing a more accurate depiction of how new generations of potential human rights attempt to gain legal recognition. By doing so, I hope to show how the sociopolitical process of pushing toward the legalization of a moral norm can be a vibrant, robust procedure without making the mistake of improperly and prematurely according legal status to a norm still in the adolescent stage of rights formation under international law.

Keywords: positivism, constructivism, norm internalization, international law, international relations