Institutional and Residual Conceptions of Human Rights

The legal profession has a longstanding history of promoting and protecting human rights. Many rights are now enshrined in both domestic and international laws. Even the most cursory look at the history of the civil rights movement in the US or workers ’ rights in Australia will show the importance of legal frameworks and legal actions in the development of protections for human rights. It is important to have laws to protect the rights of people, to prevent violations occurring, to compensate people who have had their rights violated and to bring the perpetrators of those violations to justice. However, there is an increasing awareness of the limitations of purely legal frameworks for understanding human rights. These include: • the damage that the legal system can inflict on the most vulnerable; (e.g. rape victims having their morality, sexual history and personal dress questioned in court, the retraumatisation of members of the Stolen Generation or asylum seekers having their experiences minimised or denied entirely when seeking compensation or protection through the law; • the adversarial nature of the legal system, when human rights require dialogue and a search for consensus; • the privileging of those rights that are readily justiciable and the corresponding devaluing of other rights not as readily protected or realised through the law. • the expense of running a lawsuit, which puts legal redress beyond the reach of most people, therefore denyin