Human Rights: From Text to Doctrine

The analysis of specific legal cases is characterized by little emphasis on the distinction between interpretation and construction in our legal tradition. Among other things, this is stated in a scholarly article by Kristian Joensen and Jóhan Lamhauge, assistant professors of law at the University of the Faroe Islands.

In political discussions, it is often argued that a certain policy proposal needs to be implemented because human rights demand it.  

But what does that mean? 

In most cases attention is not paid to the fact that normally there is no central authority to interpret human rights instruments, as the interpretive authority is dispersed among all the treaty parties according to the principle of sovereign equality.

Exceptions to this state of affairs is if, as in the case of the European Convention on Human Rights, the parties have consented to give a court authority to adjudicate conflicts between citizens and the respective state parties. In any case, a legal text needs to be elucidated to decide if some potential policy proposal is in accord with “human rights” or not.

The question then becomes, how do you decide concrete cases under these texts?

This process of going from authoritative legal texts to practice can be divided into two stages: interpretation and construction. Interpretation is a process that uncovers the linguistic or semantic meaning of a legal text, whereas construction is the process that uncovers the legal meaning or effect of a text.

Construction is, thus, very essential for explaining the process of going from an authoritative text to a judicial decision. Unfortunately, the interpretation-construction distinction is given little notice in our legal tradition. Analysis of concrete court cases suffers from this.

The article illustrates some of the points regarding this distinction with the recent Faroese case Føroya Reiðarafelag v. Fiskimálaráðið as an example.

Read the article here.

Read the full special edition of Fróðskaparrit on human rights here.