FINAL ESSAY 1

Human Rights Implications of the Kyle Rittenhouse Case

Sophia George

University of Wisconsin-Madison

Legal Studies 450

Instructor Tinashe Hofisi

December 17, 2021

The Kyle Rittenhouse case is monumental; the verdict will have subsequent, and long-

term effects not only on our courts system, but on United States society as a whole. The

Rittenhouse case has greatly changed the United States notion of human rights and reasonable

limitations. After this case, it has become clear just how ineffective the court system is at

defending basic human rights. This case also illustrated the power of reasonable limitations and

its effect on the U.S. judicial process. The Rittenhouse verdict highlights the complexity faced by

courts in resolving polycentric cases. It is evident that the current court system is not fully

equipped to handle cases such as this one. The court system, all the way down to the state level,

has notes of corruption, racism, and inequality. All of these characteristics are an imminent threat

to the United States judicial system and democracy altogether.

It is unfair to say that individuals expect too much from the judicial system and courts.

The United States and the Constitution were created by the Founding Fathers with the ability to

adapt and change along with society and time. Courts are much more than democratic and

deliberative institutions because society is no longer single minded and unanimous. Every

individual within American society varies by ethnicity, religion, sexual orientation, political

opinion, etc. Courts and the judicial process should not be cookie cutter and straightforward

because U.S. society is not either. This is where the courts run into the issue of not protecting

everybody fairly. The judicial system is simply failing to tackle injustice and inequality.

Our current system has total capability to combat these issues but lacks all capacity. In

other words, courts have the power to fight injustice and inequality within the United States but

refuse to evolve. As exemplified in the Rittenhouse case, the court system continues to be biased.

Unfortunately, the current court system and judiciary process continues to fail United States
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society by propelling injustice, inequality, systematic racism, and institutionalized

discrimination.

The first complexity faced by courts and highlighted throughout the Rittenhouse case is

the tension between the adaptionist/nominalist view and the traditional/essentialist view. The

tension between these two types of constitutionalism was not only on full display but revealed

how contradictory and ineffective the current court system is. The adaptionist/nominalist view

describes the judicial system as having adaptive capacity and is considered to follow the thick

version of constitutionalism. The traditionalist/essentialist view, on the other hand, specifies a

limited government and therefore limited courts system. This view also follows the thin version

of constitutionalism and believes that the current system must follow what is written (Grossman,

1984). The Rittenhouse case demonstrates the traditionalist/essentialist view; the verdict of this

case is an example of the courts limited power and capacity to only follow what is written.

However, an adaptionist/nominalist view would have been more appropriate for a complex case

similar to one. Public opinion would argue that the Rittenhouse verdict directly perpetuates

systemic racism and institutionalized discrimination within the courts system because it was

unwilling to be adaptive; this is where tension begins to arise.

A case of this nature and complexity must be analyzed from multiple perspectives. The

human rights schools of thought, for example, are useful for breaking down the Rittenhouse case

because this case demonstrates the court's inability to defend basic human rights. The first human

rights school of thought that is demonstrated in this case is the deliberative school. The

deliberative school views human rights as political values that liberal societies choose to adopt;

human rights are universal, which takes time to achieve, and agreed upon by society (Hofisi,

11/16/2021). The Rittenhouse case goes against the deliberative school of thought because the
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verdict demonstrates how human rights are not universal nor agreed upon by society. The verdict

of this case has created chaos within society because people felt like justice was not properly

served.

The second human rights school of thought that is demonstrated in this case is the protest

school. The protest school generally distrusts human rights law and believes that these laws must

be fought for. According to Marie-Benedicte Dembour, “human rights articulate rightful claims

made by or on behalf of the poor, the unprivileged, and the oppressed” (Dembour, 2010). The

protest school is illustrated within the Rittenhouse case because it signifies the need for human

rights to be fought for; human rights are not universal nor given. These schools are helpful in

understanding this case because there were several human rights violations. For example, the

right to justice and equality for the victims was misconstrued. The case set precedence for

systematic oppression and inequality within the U.S. courts system. The human rights schools of

thought are directly linked to many elements of international law and their schools of thought.

Elements of international law schools of thought are also found within the Rittenhouse

case. The Rittenhouse case exemplify international natural law as well as international legal

realism. International natural law is fixed and universal; this concept is linked to the deliberative

school but is in direct conflict with the protest school. The Rittenhouse case goes against

international natural law and the deliberative school because human rights are not treated as

universal. The case has shown an immediate need for change in regards protecting the

universality of human rights. Even though international natural law believes laws and rights are

fixed it would not be the most appropriate solution for a case of this magnitude.

In continuation, international legal realism describes actor preferences. According to

Murphy, “decision-makers are strongly influenced by their own policy preferences and seek to
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understand the use of such preferences in the development and application of international law”

(Murphy, 2006). The Rittenhouse case is a direct example of “decision-makers” focusing on

their own political agenda rather than the social justice issue at hand. These instances of

international law related to the deliberate and protest schools of thought.

The current standing system is by no means an appropriate forum for addressing broader

questions of inequality and social justice within United States society. It is evident that there

needs to be a change in the current system in order to better serve the ends of justice. According

to Kirchschlager, there is a direct link between democracy and human rights and “human rights

can be legitimated by democratic processes, in addition [to] a moral justification which goes

beyond the boundaries of national democratic systems” (Kirchschläger, 2014). The Rittenhouse

case therefore not only challenges the protection of human rights but all of democracy as well. It

is vital that solutions are implemented in order to not only protect human rights but United States

democracy as well.

One possible solution to this problem is combating institutionalized discrimination and

putting an end to systematic racism by changing the jury selection process. In order to have a fair

and impartial trial, the jury must be diverse and unbiased. This can be ensured by purposefully

diversifying the jury pool. The Rittenhouse case failed to include a diverse group of jurors; the

majority of jurors were White. Another possible solution is to ensure more checks and balances

within judge appointments. It is important to ensure judges are unbiased and free from political

coercion.

The Rittenhouse case has become a historical moment for the United States court system

and for society as a whole. The process in which this case unfolded as well as the verdict has

illustrated several defects within the current system; it is evident that there needs to be a change
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to the current system in order to properly handle complex polycentric cases of this nature. First,

the case highlighted the United States changed notion on human rights and reasonable

limitations. The courts are not incapable of dealing with issues of human rights and injustice

because it is plagued with corruption and inequality; the Rittenhouse case exemplified systematic

racism. In order to combat this issue, the courts system must evolve along with society.

The current system has the capability but lacks total capacity. The deliberative and

protest schools of thought along with the traditionalist/essentialist view vs the

adaptionist/nominalist view help explain These contradictory points of view has provided great

insight as to why the courts are unfit to deal with polycentric cases such as the one of Kyle

Rittenhouse.
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References

Dembour, M.B. (2010). What are Human Rights: Four Schools of Thought. Human Rights
Quarterly, 32(1), 1-20.

Grossman, J. (1984). Judicial Legitimacy and the Role of Courts: Shapiro’s Courts. American

Bar Foundation Research Journal, 9(1), 214-222.

Hofisi, T. (2021, November). Part 3: Human Rights. Week 13 Lecture. Lecture conducted at the
University of Wisconsin-Madison.

Kirchschlaeger, P. G. (2014). The Relation between Democracy and Human Rights. Globalistics
and Globalization Studies, 112-125.

Murphy, S. D. (2006). Principles of International Law. George Washington University, 2(1),