Human Rights as 'Regulae Iuris': An Inquiry into the Dialectics of Legality versus Legitimacy

This article discusses the role of human rights as general principles of law
guiding judicial decision-making. After an introduction into the dialectics of legality
versus legitimacy, it focuses on the Courts’ need for public-political constituency that
carries their judgments. It is in that context that the old regulae iuris have always played
their part. Based on the overriding principle of universal human dignity human rights
are conceived as modern rules of justice throwing light upon concrete cases. Although in
terms of sheer legality their impact is rather trivial, a focus on legitimacy evidently
enhances their impact. This is illustrated in regard to human rights in private law. In
conclusion, a shift in emphasis from quasi-legal international procedures in semi-judicial
UN Charter and Treaty bodies lacking any power to enforce their ‘resolutions’ and
‘concluding observations’, to human rights as general principles guiding judicial
decision-making appears to be worth consideration.