The Spirit of Laws is Not Universal: Alternatives to the Enforcement Paradigm for Human Rights

Emory Legal Studies Research Paper 17-428

Tilburg Law Review, Vol. 21, pp. 255-274

21 Pages Posted: 30 Dec 2016 Last revised: 20 Mar 2017

Date Written: October 1, 2016

Abstract

Drawing on the contested legacy of Montesquieu in The Spirit of the Laws, this essay questions the efficacy of state-centric legality in the enforcement of human rights, and proposes an alternative approach of cultural transformation and political mobilization. The author begins by exploring whether Montesquieu’s thought may have inspired European powers to seek to impose his model of the nation-state and its positive laws through global colonial projects. Second, the author discusses the structural inadequacy of the current treaty-based state-centric enforcement paradigm while highlighting the viability of a universally realistic alternative of cultural transformation and political mobilization for the implementation of consensus-based human rights norms. Third, the author explores his proposed people-centered alternative to the state-centric enforcement model for human rights. This paradigm shift is necessary because the current legalistic approach has totally failed in providing any protection of human rights for the vast majority of humanity around the world.

Suggested Citation

An-Na'im, Abdullahi Ahmed, The Spirit of Laws is Not Universal: Alternatives to the Enforcement Paradigm for Human Rights (October 1, 2016). Emory Legal Studies Research Paper 17-428, Tilburg Law Review, Vol. 21, pp. 255-274, Available at SSRN: https://ssrn.com/abstract=2891347

Abdullahi Ahmed An-Na'im (Contact Author)

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States

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