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Basis for a Critique of International Human Rights and Constitutional Law: Foundations, Speech Acts and Analytic Limitations

By Luis H Llanos Gil

Abstract

Human Rights Law (HRL) and Constitutional Law (CL) are often considered inefficacious, vague and general. These are types of law that frequently involve contradictory rulings or the production of new jurisprudence. While two parties can offer equally valid arguments, what explains this seemingly contradictory character of these areas of law? This thesis seeks to reveal the most salient issues that can make HRL and CL inefficacious, by looking at their linguistic and philosophical foundations. As HRL and CL are often founded in declarations and proclamations, philosophy of language, particularly the theory of speech acts, offer possible ways of understanding their internal operation. First, I provide historical background on how HRL and CL found their object and gained validity. Secondly, I present an overview of the foundations of natural law and positive law, and then a critique presenting the necessary elements of an epistemologically comprehensive account of legal interpretation. This critique starts with the foundational elements of natural law and then looks at positive law, philosophy of language, logical positivism, and the limits of analytic philosophy, ending with ways to qualify moral and value claims as a necessary element for their proper operation

Topics: Epistemology of Law, Intentionality, Formalism, Judicial Discretion, Semantic Sting, Open Texture, Substantive Justice, Aim of Law, Legal Positivism, Grundnorm, Agency, Applied Ethics, Applied Linguistics, Civil Rights and Discrimination, Comparative and Foreign Law, Conflict of Laws, Constitutional Law, Epistemology, Ethics and Political Philosophy, First Amendment, Fourteenth Amendment, Human Rights Law, Inequality and Stratification, International Humanitarian Law, International Law, International Relations, Law and Philosophy, Law and Politics, Legal Theory, Natural Law, Philosophy of Language, Public Law and Legal Theory, Race and Ethnicity, Rule of Law, Second Amendment, Semantics and Pragmatics
Publisher: CUNY Academic Works
Year: 2019
OAI identifier: oai:academicworks.cuny.edu:gc_etds-4445
Provided by: City University of New York
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