'Barking up the Wrong Tree? Systems Theory and the "Social Positivization" of Human Rights'

The paradox of human rights is that they are usually only evidenced by their violation. The problem can generally be said to be ‘political’, as it is hard to establish anything as ‘universal’ in a world divided into independent nation states. Of course, as long as law remains anchored in the state, it is also a ‘legal’ problem too. But systems theorists have pointed to an alternative in the “social positivization” of human rights, a way in which rights find positivization through their actualisation in the decision-making and self-governance of the many special areas of society that now exist at the global level beyond the state. This paper examines the theory proposed in this respect by Gunter Teubner. It considers what is involved in Teubner’s concept of the social positivization of human rights, before exploring the problems it faces in relation to the role of the state and the difficulties of positivizing such highly generalised norms through such special social systems. The purpose, though, is not simply to rehash existing critiques of the concept, but to point out how the issues faced by this attempt to properly address the problem of human rights are a reflection of a general methodological development of systems theoretical approaches to law in recent years, whereby the focus has shifted excessively to “coding” as the self-referential communication of social systems. It is argued that, whatever meaning they have in transnational regimes, human rights are important to meaning and communication at a most general social level. The chapter will conclude by arguing that further insights into the problem of universal human rights, and the solutions that have emerged in response to it, are better gained by adopting a more functional perspective that focuses on human rights in world society as the general social system.