government was complying with these rights. This is the so-called test of “reasonableness
review”. Under this test, the Court does not simply ask itself, are there homeless people in
South Africa, or are there enough schools in South Africa? Rather the Court addresses
whether the government has a reasonable plan to deal with the situation of homelessness or
lack of school facilities.12.5.3 The Focus on Rights
The focus on general abstract rights that give rise to various sorts of duties is a
noteworthy feature of the human rights discourse. It is noteworthy in opposition to
the detailed codes of duties that permeate the rest of the law. (Think of, for instance,
all the crimes detailed in the penal code.) It is a language that lacks precision. The
recognition of the right to privacy may be reassuring, but at first sight it remains
debatable what privacy entails, against whom this right exists, and so on. If the
focus is on the duty of state officials to abstain from entering into my house without
my consent or judicial authorization, the picture is much clearer.
It should be noted that the initial uncertainty concerning the contents of rights will be
remedied in the course of time through judicial decision making. Because of their lack of
precision, rights depend significantly on judicial decision-making. For this reason, one
could say that even in civil law jurisdictions, human rights law is essentially a judicial area
of law.Value of VaguenessNevertheless, the fact that rights are vague and indeterminate
may also be a benefit, as it means that the duties that are attached to human rights
may adapt to the necessities of the times, as long as they fit within the logic of the
right that generates them. This flexibility also contributes to the aspiration of the
natural law tradition to moralize law. Through vague—and therefore flexible—
rights, judges can avoid rendering an unjust decision just because the statutory law
creates that effect.
The nonlegal dimensions of human rights also seem to justify the emphasis on
rights. Morally, it may be argued that the inherent dignity of the person creates
rights and that these rights come first; duties are a mere consequence of this.
Politically, it is often more expedient to talk about rights than duties, as the
language of rights seems to connect more powerfully with notions of human dignity
than the language of duty.
Moreover, the inherent vagueness of rights makes it easier for parties to reach
agreements about rights that are at first glance vague and uncommitted but that are
later ironed out in more detail by judges (for whom this is compulsory) and other
agents.
Following the American jurist Cass Sunstein (1954-), one can characterize human rights as
incompletely theorized agreements. Politicians of different factions or different countries
can agree that we have certain rights, even if the justifications for such rights or their
concrete implications are unclear. These sorts of agreements may move things forward,
when deeper agreements are unworkable.12 Human Rights 273