Defining the Human Right Against Cruel Punishment
- Author(s):
- Craig Lerner
- Posted:
- 1-2025
- Legal Studies #:
- 25-03
- Availability:
- Full text (most recent) on SSRN
ABSTRACT:
Over the past decade, there have been mounting criticisms of human rights both as an ideology and as a banner for a crusade. Many political conservatives have lambasted the human rights movement as partisan, and some observers have expressed doubts about rights-based activism altogether. Although scholars and lawyers have been roused to a defense, the human rights movement is plainly in the throes of a crisis of self-confidence. This Article argues that some of the most acute challenges to the human rights movement arise from overconfidence and parochialism on the part of human rights advocates. It is today commonplace to make "rights" claims that are unmoored from the philosophical progenitors of the modern liberal tradition. The extravagance of those claims inspires doubts about the viability of human rights as a universal criterion to judge political actors throughout the world, given the vast differences in wealth and culture.
The Article sketches a possible road map to recasting human rights in a way that might garner broader support. It begins by distinguishing between those rights that have a counterpart in American constitutional law and those that do not. The latter rights, which have an aspirational character, are the ones that most often excite criticism. Yet even the more modest rights, which have a counterpart in American constitutional documents, have proven difficult to operationalize as universal human rights. One difficulty is that the rights embodied in American constitutional law are rooted in a history and tradition that span several centuries and channel the scope of those rights. Can human rights, even cast simply as limits on state power, be removed from a particular tradition?
The Article explores this question in the context of the human right to be free from cruel punishment. This right is codified in the U.S. Constitution's Eighth Amendment and the Fifth Article of the Universal Declaration of Human Rights. It captures an intuition that human beings possess an intrinsic dignity that state actors, when inflicting judicial punishment, cannot violate. But even here, where the moral claim is compelling, it proves difficult to define cruelty in a way that does not draw upon a particular tradition. The Article concludes with the suggestion that the human rights movement should be more cautious in its demands of other nations and more tolerant of practices that have been rejected in Western Europe. If the human rights movement allowed for greater experimentation and was less dismissive of approaches that depart from those common in Western Europe today, it might revive as a salutary force.