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On the Positioning, Contents, and Methodology of Human Rights Law Study
May 11,2018   By:CSHRS

On the Positioning, Contents, and Methodology of Human Rights Law Study


YU Wenhao*

 
Abstract: The ideal model of human rights law studies shall be one that is open and comprehensive. On the basis of normative legal studies, it shall pay more attention to and respond to political, eco- nomic, and social development in a wide range of human rights issues. These studies should attempt to find practical solutions to concrete problems. Human rights law should be a relatively independent legal discipline, and it should be a problem-oriented object of study. Re- garding the research methodologies, human rights law could encom- pass all aspects of legal studies, and go beyond legal them to some extent to encompass the influence of other disciplines.

Keywords: human rights  human rights law  object of study research methodologies  interdisciplinary studies

Ⅰ.  Research Status of Human Rights Law


In law studies, human rights law is not yet a mature discipline. On the one hand, it is because human rights law has not become a major topic or theoretical approach in academic research. For example, there were merely eight theses in the China Na- tional Knowledge Infrastructure database (CNKI) under the keywords “human rights law study” in November 2017, while the number of returns for keywords such as “constitutional law study” is 975, for “civil law study” 412, for “economic law study” 544, and for “international law study” are 147 respectively. When the word “study” is removed, the search returns 230 theses under the keyword “human rights law” and the numbers for constitutional law is 12,905, civil law is 5,247, economic law 7,659, and international law 2,898, which demonstrates a quite obvious disparity. On the other hand, some people think that it is not necessary to establish a specialized academic discipline for the academic study of human rights law because of the mixed nature of human rights in law. They are worried that establishing such a discipline would re- strict the academic activities to a designated area and even fall into the trap of “moun- tain-stronghold mentality”.

If we accept that a discipline should provoke discussion on relatively fixed object of study with a certain stable research paradigm, it is reasonable to consider the study of human rights law as a specialized branch of law study. In fact, it is based on the mixed or integrated nature of human rights law that the field can break through the barrier of the traditional study of law in terms of discipline to form a problem-oriented new research paradigm and become a field of possible innovation. However, it is not necessary to wrestle with the term. We need to be down-to-earth and achieve convinc- ing academic results.
 
Nevertheless, the outcome is not optimistic. The academic research related to hu- man rights issues seems to have encountered a bottleneck in recent years. The number of theses under the keyword “human rights” in the journal section of CNKI was over 500 a year from 2004 to 2009, between 400 to500 a year from 2010 to 2014, and be- tween 300 to 400 a year from 2015 to 2016. The same trend is reflected in the number of theses under the same keyword in the law studies section of CNKI. Figure 1 is the statistics of the search results.
 
Although it doesn’t cover all theses on human rights and some theses don’t show the term “human rights” in the title, the statistics can still support our understanding to a certain extent. After the Constitution of China included the article relevant to human rights, there has been a gradual decline in the attention paid to the study of human rights in law and as an academic topic it seems to have faded. Does it mean that the topic of human rights law is no longer important? In social science focusing on the study of human rights issues, the study of law plays a vital role because the law is irre- placeable in the protection of human rights. If less attention is paid to human rights in the law studies, research on human rights will face a great challenge.

But the quantity of research achievements is merely one aspect of academic re- search, the quality of research achievements should be of greater concern. In this re- gard, some scholars have pointed out years ago that “the law study relevant to human rights...attaches undue importance to the basic theories, pays little attention to specific human rights, and neglects the importance of international human rights  standards” and “many achievements of human rights research are satisfied with or overstress the use of secondhand materials...while firsthand materials generally lack of attention”.1 It seems that such situation hasn’t been improved much.
 
In my view, the study of human rights law study is a science, but one full of ide- alism. It should neither follow the traditional path of law studies nor fall into the awk- ward situation of taking a path of its own. The objective of studying human rights law should be the interpretation and transformation of reality in an academic way to shape a more equitable and just life, cultivate people with sound personalities, build inclu- sive societies and rational countries. An ideal model for the study of human rights law is one that is open and comprehensive. On the basis of normative legal studies, the study of human rights law should pay more attention to and respond to a wide range of human rights issues pertaining to political, economic, and social development. These studies should attempt to solve practical problems. To reach the ideal state, we should seriously discuss what human rights are, what their objectives are, and how to achieve them.

Ⅱ.   Human Rights Law as the Basis for the Study of Human Rights


The study of human rights law is the study of human rights in law, and aimed at providing academic and systematic interpretation of human rights in the law.

A.    Connotation of human rights law

Literally, human rights law combines “human rights” with the “law”. On the one hand, that combination means that human rights evolve from the advocacy of val- ues to institutional guarantees and from metaphysical, philosophical and speculative concepts to physical practice with the rule of law as the main guarantee. On the other hand, it signifies that the formulation and implementation of the law should absorb the spiritual concept and principle of human rights and reflect the value orientation to re- spect and protect human rights. In other words, human rights law is the product of the legalization of human rights and the absorption of human rights into the law. Human rights law is the substantial and continuous integration of human rights and the law. As a result, it is by no means the process of covering the issue of human rights with the appearance of the law or to mechanically add some sentences relevant to human rights into legal provisions.

The concept of human rights was born after human society entered the era with the law as the basic governance method. As the concentrated demonstration of institu- tionalized human rights, human rights law is a special form. In terms of the form, hu- man rights law is reflected in a variety of laws and regulations. The “laws” in human rights law include both domestic laws and international laws relevant to the protection of human rights. In terms of the effectiveness and its demonstration, any laws relevant to the protection of human rights, covering the constitutions, laws, regulations, rules, and regulatory documents and international laws including charters, declarations, conventions, treaties, and customary international rules, can be a part of human rights law. For a country, human rights law refers to the system of legal regulations for the protection of human rights under the constitution.
 
In terms of its way of realization, human rights law confirms and adjusts human rights with legislation and implementation of laws. As a “great term”, the concept of human rights is a pursuit of value initially. When entering the domain of legal regula- tions, the integration of concepts results in human rights law. Through the form of le- gal regulations, the institutionalization of human rights transforms them from natural obligatory rights into statutory rights. One major difference between a human rights law and other human rights topics is that the former, with inherent regulation and sta- bility, is guaranteed and implemented by the state.

In terms of the objects of regulation, human rights laws adjust the relationship between rights and power. Through constraint on the exercising of power and the stan- dardization of power operation, it guarantees the realization of rights. The social rela- tion adjusted by human rights law can be described as legal relation of human rights. The common subjects of the legal relation of human rights include the country and natural person. The subjects of the legal relation of human rights should have a certain degree of autonomy as well as the corresponding capacity for rights and conduct. The content of the legal relation of human rights include specific human rights. The car- riers of different power represented by country are “oppressive”, while the atomized individual strength is weak and scattered. Human rights law constrains the powerful and protects the weaker from oppression through promoting the continuous realization and demand for rights.

It should be pointed out that human rights law takes mainly public power as its object to be on guard and the subject of obligations. Tort between individuals is gener- ally beyond its range, yet it is possible that human rights laws are used for the adjust- ment of individual relations. Taking labor rights issue for example, although both big companies and workers are civil subjects, the former are obviously in a more advan- tageous position and the actual position of the two is not equal. For another example, some torts could violate the very essence of human rights, so it should not only be guaranteed by civil law but also adjusted by human rights law. Meanwhile, it should be noted that a nation and collective could also be the subject of human rights protec- tion in some cases of international political order. Therefore, we should both avoid considering others rights as human rights to generalize and vulgarize human rights law and treat the norms and adjustment range of human rights law rationally.

B.    Characteristics of human rights law

We can choose to recognize the characteristics of human rights law from different perspectives and levels. Focusing on the inherent regularity of human rights laws, we can look at it from an internal and external perspective. Internal perspective refers to the internal composition of human rights law. External perspective refers to the rela- tionship between human rights law and other domains of human rights research.

1.   Internal perspective of human rights law

Internally, the characteristics of human rights law can be revealed at three levels, namely “human”, “rights”, and “law”.
 
The first level is “human”. Human rights laws respect and guarantee the sub- jectivity of the human to the highest degree. It is the fundamental mission of human rights laws to confirm, respect, and realize the value of humanity. Human rights are enjoyed and should be enjoyed by everyone. Human rights laws are the institutional norm relevant to how human and human society recognizes, treats, respects, and sup- port humans. The “human” in human rights laws is initially and primarily humans in the natural sense. With the development of the times, the connotations of “human” have gradually expanded. Special forms of natural persons, such as fetuses, as well as fictional forms of human including legal persons, nations, and collective have also gradually gained subject position in relation to laws on human rights. However, “hu- man” protected by human rights law should be the individual in a relatively weaker position regardless of the development trend.

The second level is “rights”. Human rights laws constrain power and protect rights which are two sides of the same coin. Human rights law sets the boundary and rule for the exercising of power which is accompanied by corresponding responsibil- ity. Power should serve rights. In this regard, some scholars have proposed that “hu- man rights law sets the public power for human rights protection. It is reflected in the construction of three basic rational relationships, including power/power (which can be further divided into the relationship among legislative, administrative, and judicial power; the relationship between national power and social power, and so on), power/ rights, and rights/rights. Among them, the asymmetrical power/rights relationship is the core for the protection of human rights and the other two relationships are around it”.2 As for rights, the rights and freedom protected by human rights law are extensive and specific which constitute the content of human rights legal relations. The scope of rights and freedom in human rights law is open. Obligatory rights at the moral level could be transformed into legal rights through legislation procedure to gain actual protection in practice and become actual rights. Of course, rights and freedoms are not absolute and their boundaries are determined by the constitution and laws.

The third level is “law”. Human rights law is a system of binding legal regula- tions. Human rights law is a special legal sector with normative attribute of law. From the perspective of the legal system, human rights law reflects specific regulation of human rights. Under the guidance of the human rights protection principle in the con- stitution as the highest standard, human rights law integrates the legal regulations rel- evant to human rights protection of different legal sectors to form its own regulatory system. It is relatively independent from criminal law, administrative law, procedural law, social law, and other legal sectors, yet it could hardly be separated from them. Some countries and international organizations have even produced specialized legal documents on human rights, like the Human Rights Act 1998 of the UK, the Canadian Charter of Rights and Freedoms, the European Convention on Human Rights, and the various human rights conventions of the United Nations. The implementation of human rights law is mainly realized by legislation, law enforcement, judicial adminis- tration, and abiding by the law. The key is the understanding and application of legal regulations relevant to human rights. This is of phenomenal difference from human rights philosophy and other human rights domains without legal regulation elements.

2.  External perspective of human rights law

Externally, the characteristics of human rights law are revealed on four levels, namely value, practice, integration, and specialization.

Firstly, human rights law is established on the basis of human rights value, so it contains the color of moral evaluation. As the bottom line of moral criteria, law re- flects people’s moral emotion. It is the bottom line of morality. Human rights law is the legal form of human rights. It standardizes the generally accepted human rights criteria in society and serves as the minimum requirement for human rights and hu- manitarianism. Once the value of human rights enters the legal regulations for hu- man rights, it is given normative force to guide, evaluate, and coerce the behavior of people and social relations. The value basis of human rights law is stable and open. The stability is reflected by persistent respect for and support to the human, while the openness is reflected in the continuous improvement of moral standards and the en- richment of contents relevant to human rights with the development of the times. We can say that the objective of almost all human rights movements in human history  is to form a new and general consensus on human rights and expand the scope of pro- tection of human rights law. The development process of human rights law is the con- tinuous gathering of moral consensus to promote the transformation of human rights from obligatory rights to legal rights and to reflect actual rights. In this sense, the val- ue basis of human rights law should be open and general. In response to the demand for participation and public governance, it objects to narrow conservatism, insularity, and isolationism.

Second, human rights law takes human rights practice as the regulatory domain and contains the color of functionalism. Different from human rights philosophy which plays particular emphasis on the elucidation of concepts, human rights law pays more attention to the design and operation of a system for the realization of human rights concepts. All human rights concepts should eventually be realized. As the legal regulations system taking human rights protection as the objective, human rights  law is the most important carrier for the realization of human rights. The continuous de- velopment of human rights law demonstrates the constant acceptance and practice of human rights concepts. Amartya Sen pointed out in his elaboration on the relationship between freedom and development that “development itself can be considered as the process to expand the general freedom of the human” and “the expansion of each free- dom definitely contributes to development.”3 It reveals the mutual promotion between freedom and development. It can be concluded that the more developed it is the more freedom it provides and vice versa. It is hard to tell which one points at practicality, nor can we say which one is at a higher value level. Human rights law with the  color of functionalism is the same. The expansion of human rights practice should be con- firmed and protected in regulations by human rights law. Meanwhile, the development of human rights law requires the continuous production of value consensus and practi- cal basis in human rights practice.
 
Third, human rights law is a comprehensive legal sector and covers almost all de- partments of law. The comprehensiveness of human rights law is directly relevant to the process of its generation and the structure of legal sectors. Judging from its forma- tion and development history, human rights appeared relatively late. In the legal sys- tem of a country, no matter whether there is a single human rights code, human rights are basic values that should be realized by different departments of law. The principle and standard are reflected in almost all departments of law, especially in laws relevant to personal freedom, life, education, labor, and social security like criminal procedure law, criminal law, and so on. We can say that human rights law is a comprehensive system of legal regulations infiltrating into different departments of law, so it has the structure of mixed laws. The comprehensiveness ensures the relative independence of human rights law as an individual law sector. Judging from the theoretical basis of human rights law, although law should be the most important theoretical resource, hu- man rights also involve philosophy, politics, ethics, history, sociology, and economics. This makes human rights law theory especially complex.

Fourth, human rights law takes human rights as the core of a system of regula- tions, so it is especially pertinent. Human rights law is a relatively independent legal sector. It is relevant to different levels of law vertically and the legal regulations of multiple departments horizontally. Nevertheless, all regulatory sources of human rights law take human rights as the core concept despite their complexity and diversi- ty. In the system of regulations, a country’s constitution, as the guarantee of people’s rights, plays the dominant role. The provisions relevant to human rights and basic rights in a constitution constitute the most important fundamental regulations of hu- man rights law in a country. The provisions relevant to human rights in different laws under the constitution constitute the main structure of a system of human rights law. The system of human rights law should be harmonious internally. Different sources of regulations should support each other to provide guidance for specific human rights. Once there is conflict, a country’s constitution is the fundamental basis for making a judgment. In understanding and application of human rights law, the function of se- mantic and systematic interpretation should be brought into full play.

Ⅲ.  Disciplinary Orientation of Human Rights Law Study


Based on the above discussion of the connotations and characteristics of human rights law, human rights law can be seen to be a relatively independent legal  subject. It should not only pay attention to the principles of human rights law, but also empha- size the construction of a human rights legal system, meanwhile, it should pay close attention to the issue of domestic human rights law without ignoring the development of international human rights law. The study of human rights law has both theoreti- cal and institutional characteristics. It has to not only analyze the principle of human rights from the legal principle, but also analyze its legal expression from the  perspective of positive law.4 The independence of human rights law study is relative, which is subject to the composition and form of its discipline.

A.    The study of human rights law is a developmental subject responding to the governance of a state and society

In China, the emergence of human rights law studies has been motivated by the joint promotion of human rights theory and the theory of the rule of law. The issue of human rights has become a hot theoretical issue in China since 1980s, especially since 1990s. The study of human rights in China has roughly gone through three periods: the initial centralization and criticism of Western human rights concepts, the explora- tion of the universality and particularity and possible direction for the development of human rights under the background of civilization differences, and the stage of high- lighting the promotion of national human rights standards and the construction and re- alization of a human rights system. The study of human rights law in this process has continued to grow and is gradually maturing. In 2004, the acceptance of human rights in China’s Constitution, with the expression “the State respects and safeguards human rights” has better promoted the study of human rights law in China. The study of hu- man rights law has gradually become relevant and useful by constantly condensing the content and improving the level, independence and identity of the subject, with the aim of improving the ability to respond to reality.

B.    Human rights law is a compound subject with overlapping characteristics

Human rights law, intersecting with all other branches of law, is built on the basis of the norms of human rights. This makes the study of human rights law tightly linked to every law department. The topics of human rights law can be discussed from its re- spective academic discourse and research methods whether that be constitutional law, administrative law, civil law, criminal law, procedural law, social law, environmental law or international law. At the same time, the study of human rights law has to absorb the research achievements of other humanities and social sciences such as philoso- phy, politics, ethics, history, sociology, economics, and so on as well. For example, studying the relationship between the economic growth mode and human freedom, system design and social governance cost can provide fertile ground for the  studying of human rights law. Based on institutional concern for human beings, studying hu- man rights law has to focus on medical research, life sciences, and even computer sci- ence. For instance, research into artificial intelligence aims to simulate human thought processes and learning behavior through algorithms, so that smart machines can be competent to do some complex tasks that human intelligence is usually required to perform. This is a challenge to our understanding of “people”. It demands that the ba- sic logic of these sciences be fully understood in the study of human rights law.

C.    Human rights law is an innovative subject requiring independent categories and methods
 
The study of human rights law requires an independent and systematic concept category and research method. Human rights are the core of the governing system of human rights law, and also the core category of the study of human rights law. Under these circumstances, general human rights, specific human rights, the rights of special groups and the system for guaranteeing human rights have enriched the concept cat- egory system of the study of human rights law. Human rights law studies are also de- veloping their own research methodology. In addition to the traditional legal analysis methods, such as normative analysis and positive analysis, the study of human rights law pays special attention to interdisciplinary research. The study of human rights law is thus forming an independent category and methodology, which is the foundation and prerequisite for its growing into an accepted independent discipline. It should be noted that the establishment of a discipline does not depend on whether there is a spe- cial law or a fixed legal operation department. It remains open to diverse knowledge and methods.

Ⅳ.  Objects of the Study of Human Rights Law


A.    Dichotomy of objects

A mature subject should have relatively stable objects and methods of study. What should be the focus for the study of human rights law in China? Of course, the answer is human rights law. However, such an answer does not account for the differ- ence in studying human rights law and studying other aspects of law. In fact, the ques- tion is answered in the active development process of human rights law studies.

A hierarchy of research objects comes into play where the researcher is included in the criteria for recognition of human rights law. This is put forward on the basis of Max Weber’s political sociology theory. It prefers to divide the integrated issue of human rights law into fragmented problems that can be understood and coped with by different disciplines of law to provide separate interpretations and solutions. This mode of recognition based on objects of study shows such features of hierarchy gov- ernance as clear rankings, fixed fields, and organized and instrumental research meth- ods. Different law study disciplines should merely deconstruct and reconstruct human rights law issue according to their own professional discourse and research paradigm.

Problem-oriented research objects take the specific problems facing the research- er as the criteria for recognition of human rights law. It is a new criterion for confir- mation of research objects of human rights law. Problem-oriented research prefers to solve a specific problem with the knowledge and methods of multiple disciplines by providing compound theoretical solutions. Problem-oriented research disapproves of mechanically applying the research paradigm of a law department into the new human rights law or considering human rights issues as an issue of a traditional law depart- ment. It is undeniable that the development of human rights law cannot be separated from the joint efforts of different disciplines including legal philosophy, constitutional law, procedural law, and international law, but the development of human rights law studies should not rely on these subjects. After all, the perspective and scope of the study of human rights issues by different disciplines vary. Relying on other disciplines is neither conductive to discovery of the intrinsic value of human rights law nor help- ful in better coping with emerging issues in human rights law.

B.    Hierarchy research objects

To recognize the research objects of the study of human rights law from the hi- erarchy perspective should focus on a clear division of disciplines and the work of researchers. The study of human rights law covers general human rights principles, specific human rights, international human rights law, and others parts. Such division is a comparatively general plan. For example, “the study of human rights...is a disci- pline focusing on the study of basic theories, fundamental contents, and domestic and international institutional guarantee for human rights.”5 Taking another example, “‘hu- man rights law’ is a normative theory focusing on the relationship among international human rights law, specific human rights, and human rights theories. Although the research on human rights theory is important, the research on specific human rights from the normative level and international human rights standards becomes the unique feature of the discipline of ‘human rights law study’. Therefore, the research   objects of ‘human rights law study’ include international human rights standards, specific hu- man rights, and human rights theories.”6

1.  Research on principle problems of human rights law philosophy

Human rights law philosophy is the philosophical foundation for the study of human rights law which can provide values and principles to guide the study of hu- man rights law. Human rights law philosophy involves such issues relevant to the basic attribute of human rights principles as the morality, concept, nature, content, form, value targets, development mode, and protection methods. Meanwhile, it also covers the philosophy of rights or legal philosophy issues as the concept, subject, and contents of human rights law as well as human rights law behavior. “The research on basic theories of human rights means to figure out some fundamental issues of human rights concepts. In other words, it tries to solve the ‘why of human rights’ in a legal context.”7 The exploration into these fundamental issues constitutes the theoretical sources for solving specific issues of human rights law.

2.  Research on the rules for domestic human rights law

Starting from the standpoint of the study of human rights law, the research on specific human rights is actually the research into the rules for human rights law, in particularly, the rules for domestic human rights law. It is because specific human rights should be reflected in operable rules within a legal system with clear content of rights and obligations. The research into the rules of domestic human rights  law should pay attention to the principles of human rights law and international human rights law.

3. Research on the rules for international human rights law and their transformation

From the perspective of the development trend of human rights law studies in dif- ferent countries, the initial momentum for the shift from human rights philosophy to the study of human rights law comes basically from international human rights prac- tice. Currently, the rules of international human rights law are still promoting human rights practice in countries. Globally, the Universal Declaration of Human Rights, the various UN conventions on human rights, and regional human rights conventions con- stitute the major structure of international human rights law, which sets a good exam- ple for the construction and development of the domestic system of human rights law. In many countries, international human rights law is directly binding. In this sense, some scholars think that “the human rights laws in different countries seldom consti- tute pure domestic legal regulations and they are to a certain degree combinations of domestic and international legal regulations”.8 The study of human rights law in China should also attach full importance to the rules of international human rights law and its transformation and application domestically. It is also an important way for China to participate in global governance.

C.    Problem-oriented research objects

The study of human rights law is a practical discipline, so it should respond to reality and specific problems in practice. In this sense, human rights law studies are open. Any concepts, moralities, and institutions relevant to human dignity and free- dom that can be covered by legal regulations may be included into the research do- main of human rights law. Practical problems are generally complicated, so we should approach them with different perspectives. For example, when the issue of the human rights obligations of transnational corporations is discussed, the study of human rights law should incorporate corporation law, international law, constitutional law, and so- ciology, and international politics.

Another example is relationship between human rights and science and technol- ogy, which has been an important issue in human rights law for a long time. Science and technology is also a multi-disciplinary product. When it is combined with human rights, it further expands the horizons for the study of human rights law. As for spe- cific human rights, “the development of science and technology is of comparatively great influence on such fields of human rights as the right to life, privacy, freedom of expression, international protection of human rights, and the right to enjoy science and technology.”9 No matter which specific human rights is chosen for a comparative- ly sufficient response, we should mobilize the knowledge of a variety of department laws. It can be concluded that there will be less and less human rights issues that  can be solved successfully by simply a single law department and it will be more and more difficult for us to satisfy the needs of human rights practice with the theoretical resources of a single law department.
 
The problem-oriented study of human rights law is a new phase for the devel- opment of human rights law. We can say that the research on human rights law is a process to summarize problems and provide multi-disciplinary solutions. This places higher requirements on researchers.

Ⅴ. Research Methodologies for the Study of Human Rights Law Study


The study of human rights law has a basic scientific nature. The most important point is that scientific research methodologies can be employed in the study of human rights law. We should adopt a scientific attitude in our research and form a research system suitable for the study of human rights law study during the study process.

A.    Need for interdisciplinary research in the study of human rights law

Over a long period, research on human rights law in the field of Chinese law is spontaneous and dispersive. “Philosophy of law and nomology study the nature of human rights; international jurisprudence studies the international human rights law norms; while various department laws study the specific rights protection of their corresponding fields.”10 Whereas, if consummation and self-consistence cannot be achieved within the discipline, how can it communicate and compete with other disci- plines? One important difference between studies on human rights law and other law studies is that it is the product of integration of multiple disciplines. On the other hand, human rights law also focuses on the research resources of social science beyond the scope of other law studies. Some researchers have commented on this point: “Many scholars of human rights law study have regarded international law as the golden rule, focusing on the research on legal provisions and cases, and neglected the influences of extra-legal elements and soft laws towards human rights policies and activities. These rigid ideas and research patterns have led research on human rights to a bottleneck.”11 This should remind us that the solution to human rights problems should not only be bounded on the level of law norms, but also should strive for multiple factors in hu- man rights practice through words.

Research on human rights law needs to integrate human rights theories and various law disciplines, whether those be constitutional law, criminal law, civil law, or other disciplines, the consistency of their concerns provide the premise for the uniformity of human rights law studies. As regulated disciplines, they have common research methods that serve as a solid foundation for their integration. Second human rights theories are related to our understanding of what it means to be “human” and the relations among people, and it should be treated as a political, social and ethical concept besides a legal one. Therefore, studies into human rights law should include other social sciences, even some natural sciences. Take disability issues in human rights law as an example, “‘disability’ does not have a clear definition and it can refer to physical, mental or psychological disabilities, as well as the influences of the phys- ical environment and social attitudes. In reality, it has different presentations and per- sonal experience and deserves consideration from historical, economic, social, cultural and other possible perspectives.”12 The functions of other social sciences come from their supply of background information, thought patterns, evidences and explanations for the study of human rights law.
 
In general, the goal of interdisciplinary research in the academic study of human rights law is to link all the law disciplines as much as possible to absorb the beneficial results of other disciplines within human rights law. It is not easy to achieve interdis- ciplinary research. The openness of human rights law studies calls for the different ex- planations of laws and regulations concerning human rights in different aspects of law, and it is hard to conclude a well-defined and unified system. For instance, the main body, regulatory object, and adjustment methods of human rights law are all complex and based to various degrees on the issue of “the State should respect and safeguard human rights.” In order to overcome this problem of human rights law studies easily inclining to be a mixed bag of various fields, a conscious awareness that human rights law is essentially interdisciplinary research must be set up to coordinate the relations between theoretical research and strategic research, and form an organic unified group of research methodologies on this basis.

B.    Basic research methodologies in human rights law study

The study of human rights law is a discipline concerning norms in nature. Yet it cannot be separated from the basic research methodologies of law studies. The basic concern of law studies lie in the “judgment” on violations of legal system, not the explanation of why people should abide by or violate laws. For this target, value analysis, normative analysis, social empirical analysis and comparative analysis are emphasized in all the specific research methods in human rights research.

1.   Value analysis

The value analysis method is the concrete presentation of legal values in the study of human rights law. Value analysis has a long history in the study of  tradition- al natural law. It proposes the basic question of what law should be. The adoption of value analysis in the study of human rights law requires the analysis and evaluation of human rights legal norms. Based on the value origin of human rights norms, the research into human rights law naturally questions the legitimacy of values in the sys- tem.

Value analysis is an important research method in the traditional study of  human rights. After the establishment and perfection of human rights law norms, the impor- tance of value analysis will moderately decrease. More attention will be placed on the integration and suitability of human rights in the legal norms, and arbitrary or endless recursive value analysis should be avoided. For example, textbooks on human rights law in Europe which has advanced research and education on human rights law have the features of “emphasizing system and cases while neglecting theories”, “teach the skills and methods of dealing with human-rights-related cases, and help the learners to form reasonable judgments.”14 There can be no doubt that the moderate retreat of val- ue analysis does not equate to a complete disappearance, and the judgment of human rights still needs the guidance of value-oriented thinking patterns.

2.  Normative analysis

Normative analysis is one of the most important research methods for the study of human rights law, as well as the main research method of the legal attributes repre- senting the study of human rights law. The key point of normative analysis lies in the study of the validity of norms of the analytical method and avoids over-indulgence in values. It is a main research method in Normlogischer Positivismus, which is a logical empirical analysis method based on norms with a focus on the logical description and evaluation of the validity of norms.

At present, the study of human rights law has developed into a multi-layer, multi- field comprehensive system integrating foreign and domestic legal norms, public and private legal norms, substantial and procedural legal norms, as well as comprehensive and specialized legal norms. The norms of different types of human rights laws should be blended together, and the norms of human rights laws should be endowed with consistency and openness. Normative analysis starts from specific human rights legal norms, and analyzes the connotations, interrelations and applied techniques of the specific human rights principles. Normative analysis targets the practical application of the legal norms, looks for a solution to problems through the scientific logic of the legal norms of a system, and emphasizes the application of hermeneutic methods. It always keeps a moderate distance to value issues unless necessary.

In recent years, the Chinese law circle has developed awareness of normative analysis in the general research on issues of rights, and unintentionally established the study of rights interpretation. This suits the nature of human rights norms without any disdain of other methods. Some scholars believe that “German dogmatics has stronger and stronger influence on Chinese study field of rights under the efforts of scholars with a German education background. It of course helps a lot in the establishment of standpoint in the study of rights and the accumulated functions to rights knowledge, but does its repulsion and intolerance to other research patterns really work? This is doubtful.”15 In fact, normative analysis does not repulse other research patterns includ- ing value analysis and social empirical analysis. The basic standpoint of   normative analysis should be based on norms, respect norms and return to norms.

3.   Social empirical analysis

Social empirical analysis emphasizes the retreat of value elements as well. On this point, it has commonality with normative analysis, for both of them are branch- es of Legal Positivism. The difference is that social empirical analysis is a research method of Empirical Positivism which focuses on the factual analysis of legal norms. Because of the strong desire of practice rooted in human rights law, human rights law is always affected deeply by the historical traditions of a country, as well as being bounded by the current political economical social development patterns and phases of the country. There is no place for a self-centered, self-sufficient, and completely enclosed human rights law. Therefore, research on human rights law cannot be broken from the reality and just focus on the norms, and it should be put into the whole back- ground of the country and political economical society to earn real vitality through the understanding and explanation of legal facts.

Applying normative analysis in the research of human rights law requires us to learn from the beneficial experience of social science. For instance, qualitative anal- ysis and quantitative analysis can be adopted in the study of human rights law. The former study the nature, characteristics, developing and changing principles of the research targets, and the latter analyzes various indicators and their values through sta- tistical data and mathematical modeling. Qualitative analysis and quantitative analysis can provide objective and credible proof for the practical situation of human rights law. It’s no doubt that all the analysis methods including qualitative analysis and quantitative analysis cannot be separated from human rights norms, or these methods would go beyond the scope of human rights law study and belong instead to the study of human rights study in other fields such as statistics and sociology.

4.   Comparative analysis

Strictly speaking, comparative analysis is not a parallel research method to the above methods, but it has a special position in the law studies. In the study of human rights law, comparative analysis can be employed in the following aspects. The first is regional comparative analysis, such as the comparison between international and national environments, among regions, and among specific foreign and domestic ar- eas. The second is historical comparative analysis, that is, the comparisons between different historical periods. The third is the comparative analysis of individual cases, which refers to the comparison of feasible techniques of human rights law in relation to a specific case.

Comparative analysis has a special significance for the study of human rights law. Especially in China, the theory of human rights and the theoretical resources for the study of human rights law always come from historical and international experience. Comparative analysis has thus provided a necessary reference for the steady devel- opment for the study of human rights law in China, and it has helped spread China’s human rights law studies in the international academic discourse on human rights.
 

Ⅵ. Conclusion


The realization of an ideal model for the study of human rights law ultimately de- pends on the realization degree of human rights. On the one hand, the idealized human rights have a large coverage, such as realizing a harmonious world, common pros- perity, the equality of people, and the justified sharing of developing achievements. On the other hand, idealized human rights are as simple as ensuring the freedom and comprehensive development of each individual. The realization of human rights is a process of development and perfection of the human rights situation. Within the con- stitutional framework of “respecting and safeguarding human rights,” we should spare no effort in seeking to overcome the bounds of the system during their realization pro- cess. Continuous improvement of human rights situation is not only a constituent part of state and social governance, but also necessary for a free market as well as for the vitality and creativity of society. In order to achieve this goal, practical down-to-earth efforts are needed. Therefore, there is a large space for the development of the  study of human rights law to meet the requirements for the development of the socialist le- gal system with Chinese characteristics.

(Translated by HU Liang)
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