The Spirit of Laws is Not Universal: Alternatives to the Enforcement Paradigm for Human Rights

• Main Author: Abdullahi Ahmed An-Na’im
• Format: Article
• Language: English
• Published: Ubiquity Press 2016-10-01
• Series: Tilburg Law Review
• Online Access: https://tilburglawreview.com/articles/109

Drawing on the contested legacy of Montesquieu in 'The Spirit of the Laws', this essay questions the efficacy of state-centric legality in the enforcement of human rights, and proposes an alternative approach of cultural transformation and political mobilization. The author begins by exploring whether Montesquieu’s thought may have inspired European powers to seek to impose his model of the nation-state and its positive laws through global colonial projects. Second, the author discusses the structural inadequacy of the current treaty-based state-centric enforcement paradigm while highlighting the viability of a universally realistic alternative of cultural transformation and political mobilization for the implementation of consensus-based human rights norms. Third, the author explores his proposed people-centered alternative to the state-centric enforcement model for human rights. This paradigm shift is necessary because the current legalistic approach has totally failed in providing any protection of human rights for the vast majority of humanity around the world.