The title of this post is from Sesame Street, a longstanding US TV series designed around a fictional inner-city street. On Sesame Street, residents—both muppet (Kermit the frog, Elmo, and the like) and human—use songs, games and hijinks, all with the aim of helping pre-schoolers to learn. ‘One of These Things’ is a Sesame Street song; it’s at the heart of the show’s classification game, which encourages pre-schoolers to sort groups of items into ‘alike’ and ‘different’. The game and its companion song were first used in the first episode of the first season, and they became a regular segment in many subsequent seasons.
Neither Sesame Street nor ‘One of These Things’ forms part of my professional relationship or my friendship with Elina. If memory serves, neither has ever come up (though Elina’s capacious knowledge and comedic edge would work wonders with them). Put differently, I’m using ‘One of These Things’ simply as a way-in to talking about classification.
Lawyers like me and Elina are at home with classification. In law, classification is quotidian, even if it isn’t always just or apt. Here I want to explore one particular classification that has been giving me grief. It’s a trio: specifically, it’s ‘law, ethics and rights’. I’m confident this trio would resonate with Elina. I say this based not just on her teaching and research as a human rights law professor, but also her contributions as both a vice president of the 100-university Global Campus of Human Rights and a national director within the Global Campus’ largest master’s programme, the European master’s in human rights and democratisation. In these latter roles, in which good governance is a core driver, Elina has shown time and again that she sees the importance of law, ethics and rights—she sees what each element brings to the whole and the ways in which each element interacts with its counterparts to support good governance.
‘Law, ethics and rights’ resonates with me too. I find it conveys two essentials: first, there is a relationship between law, ethics and rights; and second, although rights take legal form, we must not confine rights, or our inquiries into them, to that form.
But the popular trio ‘law, ethics and rights’ also makes me uneasy. I continue to use it—in classrooms, in ethics- and other committee rooms, and elsewhere too—but it niggles. I attribute this to what I’ve called a ricochet effect. Essentially, when we bundle law, ethics and rights, we’re doing something that’s necessary but risky. The risk, above all, is to international human rights law and, in what follows, I explain why.
International human rights law has a dual nature: it is both legal and ethical. As Gráinne de Búrca has explained, human rights are the closest thing we have to a shared ethical discourse and, because states have signed up to obligations under international instruments, international human rights law (however imperfect it can be) is one form of that discourse. Crucially, international human rights law, in turn, is brought to life through iterative engagement between diverse actors at different levels, at least some of whom are motivated by goals such as justice, equality and dignity. The risk, however, is that the dual ethical-legal nature of international human rights law does not fit within the trio ‘law, ethics and rights’. Put differently, when we invoke ‘law, ethics and rights’, where does international human rights law fit?
The risk is that it is denuded; that it feels vapid. Or, more to the point, that it’s off-stage with no obvious way in. International human rights law has weak enforcement mechanisms so it’s not law-like enough to be ‘law’ in our trio of ‘law, ethics and rights’. Equally, it has normative ambiguity so it’s not conventional ethics. It’s also not covered by ‘rights’ given that, in the trio, ‘rights’ are linked to but also separated out from both law and ethics.
Returning to Sesame Street, we could say that ‘one of these things is not like the others’; one of these things—international human rights law—just doesn’t seem to belong when we invoke the undeniably appealing and important trio of ‘law, ethics and rights’. The question is: what do we do about that? I think we need to do something, not least because the world is mired in crisis, including around the rule of law.
Perhaps inspiration can be found in 1881 in Oliver Wendell Holmes’ insistence, that ‘the life of the law has not been logic: it has been experience’. If law has a life, presumably so too does a phrase like ‘law, ethics and rights’. Going forward, we need to lean into that. We need to track the contexts—from classrooms to courtrooms and committee rooms—in which ‘law, ethics and rights’ is being invoked and we need to explain and embed international human rights law in those contexts.
