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Human Rights: Between Realism and Idealism. By Christian Tomuschat. Oxford, New York: Oxford University Press, 2003. Pp. xlvi, 333. Index. $72, £50, cloth; $39.95, £25, paper.
In Human Rights: Between Realism and Idealism Christian Tomuschat fulfills his title's promise. His account of the place of human rights in domestic legal systems and the international legal order is lucid and thorough, and it offers few concessions either to cynically inclined realists or to starry-eyed idealists. As a result, his book will be frustrating in equal measure to both groups. Realists of varying stripes will object to Tomuschat's lack of attention to issues of process and power, whereas idealists may lament his disciplined insistence on traditional rules of legal construction and his reluctance to embrace as fully justiciable many second- and third-generation rights. Nonetheless, Tomuschat, a professor at Berlin's Humboldt University, has written a book that will be of great use to readers of any jurisprudential bent. Human Rights offers an erudite and admirably well-organized overview of the network of formal legal rules and institutions that support human rights.
"Human rights is a concept easily used not only by lawyers but also by politicians and, more generally, the public at large" (p. 1), Tomuschat notes in his introduction. He plants his own flag at the outset, defining law as "the instrument by which a modern society regulates the processes of interaction among its members, the expectation being that its normative claims be translated into actual practice. Propositions confined to a mere existence 'on the books' would not qualify as legal rules" (p. 1). Here, a realist might immediately observe that much of what we think of as human rights law is both unenforced and virtually unenforceable. But as Tomuschat notes, "the road from Utopia . . . to legal positivism" (p. 3) consists of three steps, all worthy of study. The first step involves consensus on normatively compelling "rights" worthy of being embedded in a legal order; the second involves a juridical commitment to those rights through their codification in treaties and other instruments; and the third involves the development of effective enforcement mechanisms.
To a significant extent, the international community has completed the first two steps. There is widespread global agreement on the nature of fundamental...