THE END OF HUMAN RIGHTS CRITICAL LEGAL HOUG E URN OF E CENURY
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Hart Publishing Oxford and Portland, Portland, Oregon published in North America (US and Canada) by Hart Publishing c/o International Secialized Book Sevices 804 NE Hassalo Street Portland, Oregon 97213-3644 97213-3644 USA Distributed in the Neterlands Belgium and Luxembourg by Intersentia Churchillaan 108 B2900 Schoten Antweren Belgium
©
Costas Douzinas 2000
Costas Douzinas has asserted his right under the Coyright Designs and Patents Act 1988 to be identied as the author o this work Hart Publishing Ltd is a secialist legal ubliser based in Oxford England. To order futher coies of this book or to request a list o othe ublications lease write to: Hart Publishing Ltd, Salte's Boatyard, Folly Bridge Abingdon Road Oxford OX1 4LB Telehone +44 (0)18652433 or Fax +44 (0)186 794882 e-mail mail@hartubco uk British Library Cataloguing in Pubication Data Data Aaiable ISB 901362914 (cloth) SBN I 8430001 (aerback)
Tyeset by Hoe Serices (Abingdon) Ltd Printed in Great Britain on acidfree aer by Biddles Ltd wBiddles wBiddles cok
Contents
Preface
VI
PART I THE GENEALOGY OF HUMAN RI GHTS I. The Triump ump h o f Human Rights I 2 A Brief ie f History sto ry of Natura turall Law I: T he Class lassiical cal Be B e gin ginnings ings 23 3 · A Brief ie f History sto ry o f Natura turall La L aw II : II : From rom Natural ural Law to Natura turall Righ ights 47 4 · Natura turall Right ight in Ho b be s and Lo cke 69 lu tion 5 · Revo luti onss and and D e clarat aratiions on s : The Righ ights of Me n , Citizens and a Few Others 8 5 6 The Triump h o f Humanit anit: : F rom 1 7 8 9 t o 1 9 8 9 and from ro m Natura turall to t o Human Rights ghts 1 09
PART PART II THE PHILO SOPHY OF HUMAN HUMAN RIGHT S 7 · The Class assical ical Critiq rit ique uess of Righ Rights ts:: Burke and Marx 8 Sub jectu jectum m and and Sub Sub ectus ectus:: The F ree and and Subj Subj ected S ubject ubject 9 · Law's Subj ubj ects : Righ ights and L e gal Huma umanism nism 1 0 . H e gel's gel's Law: aw : igts gts and and Recognition io n II Psyc Psycho hoan anal alys ysis is B ecom co mes the Law: Rights and and Desire si re 1 2. The Ima Imaginar inary y D oma omain and and the the Futu Future re o f U top ia ia 1 3 · The Human Rights of the Other 1 4 · Th End of Human Rights Bibliography Index
1 47 1 83 229 263 29 7 319 343 371 37 1 38 1 39 7
Hart Publishing Oxford and Portland, Portland, Oregon published in North America (US and Canada) by Hart Publishing c/o International Secialized Book Sevices 804 NE Hassalo Street Portland, Oregon 97213-3644 97213-3644 USA Distributed in the Neterlands Belgium and Luxembourg by Intersentia Churchillaan 108 B2900 Schoten Antweren Belgium
©
Costas Douzinas 2000
Costas Douzinas has asserted his right under the Coyright Designs and Patents Act 1988 to be identied as the author o this work Hart Publishing Ltd is a secialist legal ubliser based in Oxford England. To order futher coies of this book or to request a list o othe ublications lease write to: Hart Publishing Ltd, Salte's Boatyard, Folly Bridge Abingdon Road Oxford OX1 4LB Telehone +44 (0)18652433 or Fax +44 (0)186 794882 e-mail mail@hartubco uk British Library Cataloguing in Pubication Data Data Aaiable ISB 901362914 (cloth) SBN I 8430001 (aerback)
Tyeset by Hoe Serices (Abingdon) Ltd Printed in Great Britain on acidfree aer by Biddles Ltd wBiddles wBiddles cok
Contents
Preface
VI
PART I THE GENEALOGY OF HUMAN RI GHTS I. The Triump ump h o f Human Rights I 2 A Brief ie f History sto ry of Natura turall Law I: T he Class lassiical cal Be B e gin ginnings ings 23 3 · A Brief ie f History sto ry o f Natura turall La L aw II : II : From rom Natural ural Law to Natura turall Righ ights 47 4 · Natura turall Right ight in Ho b be s and Lo cke 69 lu tion 5 · Revo luti onss and and D e clarat aratiions on s : The Righ ights of Me n , Citizens and a Few Others 8 5 6 The Triump h o f Humanit anit: : F rom 1 7 8 9 t o 1 9 8 9 and from ro m Natura turall to t o Human Rights ghts 1 09
PART PART II THE PHILO SOPHY OF HUMAN HUMAN RIGHT S 7 · The Class assical ical Critiq rit ique uess of Righ Rights ts:: Burke and Marx 8 Sub jectu jectum m and and Sub Sub ectus ectus:: The F ree and and Subj Subj ected S ubject ubject 9 · Law's Subj ubj ects : Righ ights and L e gal Huma umanism nism 1 0 . H e gel's gel's Law: aw : igts gts and and Recognition io n II Psyc Psycho hoan anal alys ysis is B ecom co mes the Law: Rights and and Desire si re 1 2. The Ima Imaginar inary y D oma omain and and the the Futu Future re o f U top ia ia 1 3 · The Human Rights of the Other 1 4 · Th End of Human Rights Bibliography Index
1 47 1 83 229 263 29 7 319 343 371 37 1 38 1 39 7
Prace This is he nal par of a rilogy ha Ronnie Warringon and myself planned in he lae s The rs wo voumes Postmodern Jurisprudene and Justie Misarried were published in and and conribued o he creaion of a disinc riish criical legal movemen and o he urn of legal scholarship owards ehical concerns This nal nal volume of he rilog complees he inellecual jo urney Ronnie and I sared wih he aim of reconsrucing legal he ory for for a new world of culural culural pluralism, inellecual openness and ehical awareness Fae ordained ha I would no have he privilege of discussing ideas, dispuing argumens and wriing his book wih Ronnie The End f Human Rights is dedicaed o him When I sared my career, my hen Head of Deparmen old me ha if I persised wih my heoreical ineress, my academic fuure would be limied A few years laer, an aricle of Ronnie and myself was rejeced by a learned law journal because i used words like deconsrucion' and logocenrism', which could no be found in he OED How hings have now changed Our aricle was evenu ally published and wen n o be ranslaed in ve languages, a raher unique achievemen in law The word deconsrucion' appears commonly in law exbooks and arices An ineres in he ory is a posiive advanage for young scholars applying for academic poss Legal educaion has been experiencing recenly somehing of a Renaissance, which has pu i back where i belongs, a he hear of he academy The Criial Legal Sudies movemen was pivoal in his developmen u I should add ha for me he greaes achievemen of criical lawyers is ha hey each, research and wrie under he guiding principle principle ha a law wihou jus ice is a body wihou soul and a legal educaion ha eaches rules wihou spiri is inelecually inelecually bar ren and morally bankrup This book, a criique of legal humanism inspired by a love of humaniy, belongs o ha cimae I aims o offer an advanced exbook of legal heory and human righs for he melancholic lawyer a he end of he mos arocious cenury in he
PREFACE
PREFACE
forun o b involvd in h sablishmn I had h amazing good forun and phnomnal succss of h irkbck Law School in h arly 990S 990 S This succss would no hav bn possibl wihou h xra ordinary ord inary group of commid acadmics and imaginaiv scholars, my formr and currn collagus , who mad irkbck h bs lil lil law schoo l in riain I ow many inllcual inllcual dbs o all of hm hm and in paricular o Pr Goodrich and Nicola Lacy, my prdcssors as Hads of h irkbck irkbck Law Schoo l Pr's hisorical snsiiviy, snsiiviy, ry imaginaion and acrbic sns of humour hav conribud o h wriing of his book and h widr criical lgal projc in many ways, many conscious and acknowldgd, ohrs unconscious and opaqu Nicola's gracious wisdom and frindly advic in rlaion o his and many ohr proj proj cs has bn invaluabl invaluabl Criical lgal sudis would no hav bn such an inunial movmn wihou hos wo charismaic frinds Many collagus colla gus and frinds frinds hav conribud conribu d o h wriing of his book ovr h las wo yars I canno mnion hm al u I hav gra plasur in hanking som rinds, whos conribuions ar clos o h surfac of h x I should lik o hank in paricular Alxandra akalaki, akalaki, ill owring, Julia Chryssosali, Lindsay Lindsay Farmr, Pr Fizparick, Rolando Ga, Adam Gary, Shaun McVigh, Ls Moran, Tim Murphy and Adam Tomkins Th sudns of h Human Righs cours a h irkbck Law School hav conribud o his bo ok hrough boh hir hug nhusiasm and and commimn o human righs righs and hir suspi cions owards all grandios grandios sam ns by h powrful Ovr h yars, I larnd mor from hm han hy possibly larn from m Rsarch for his book was graly faciliad by various grans and fllowships irkbck Collg gav m a long sabbaical lav afr h complion of h sablishmn of h Law School Par of rsarch was carrid ou a h Europan Univrsiy Insiu, Flornc and a h Univrsiis of Princon and h Cardozo Law School, Nw York, whr I hld various fllowships in 99 and 998 Yioa Cravariou was a gra hlp and inspiraion a Flornc, Jann Sc hrodr and David Carlson wr imporan sourcs of di caion in Nw York, whil Kosis D ouzinas and Nancy Rauch pro vidd h mos wondrful hospialiy and animad discussions in Nw York Naasja Smiljanic and Maria Kyriakou wr invaluabl rarch assisans a various poins of h projc My daughr Phadra suffrd sriously in h summrs of 998 and 999 whn
usoci abl and irriabl companion Nicos and Anna Tsigonia pro and challngd vdd npraon challngd idas Finally, Finally, my dps hanks hanks go o Joanna ourk who, hroughou hr annus mirabilis of 999 kp bing a rsourcful and olran company and aloghr fabulous Dry ry s, Par Par s s August us t
I 9 99
PART I
THE GENELOGY OF HUMN RIGHTS
The Triump Triump h ofHuman Rights A new ideal has riumphed on he world sage human righs I unies lef and righ, he pulpi and he sae, he miniser and he rebel, he developing world and he liberals of Hampsead and Manhaan Human rigs have become he principle of liberaion from oppression and dominaion, he rallying cry of he homeless and he disposse ssed, he poliical programme of revoluionaries revoluionaries and dis sidens u heir appeal is no conned o he wreched wreched of he he earh lernaive lifesyles, greedy consumers of goods and culure, he pleasureseekers and playboys of he Wesern world, he owner of Harrods, he former former managing managing direcor of Guinness Pc as well as he former King of Greece have all glossed heir claims in he language of human righs righs Human righs are he fae of posmoderniy, pos moderniy, he energy energy of our s ocieie s, he fullmen fullmen o f he Enlighenmen promise of emancipaion and selfrealisa selfrealisaion ion We have been blessed or co n demned o gh he wiligh bales of he millennium of Wesern dominance and he opening skirmishes of he new period under he dual banners of humaniy and righ Human righs are rumpeed as he nobles creaion of our philosophy and jurisprudence and as he bes pro of of he universal aspiraions aspiraions of our moderniy, moderniy, which had o awai our posmodern global culure for is jusly deserved acknowl edgemen Human righs were iniially linked wih specic class ineress and were he ideological and poliical weapons in he gh of he rising bourgeoisie agains despoic poliical power and saic social organi saion u heir onological presupposii ons, he principles of human equaliy and freedom, and heir poliical corollary, he claim ha poliical power mus be subje subje ced o he demands of reason and law, have now bec ome par o f he saple ideo logy of mos conemporary regimes and heir parialiy has been ranscended The collapse of
Fyd v
v
K (994) EHRR 9 nd K 1997) 2 EHRR 242 Th Fm
THE TRUMPH OF HUMAN RHTS
THE TRUMPH OF HUMAN RHTS
communism and the elimination elimination of apartheid marked marked the end o f the the last two world movements which challenged beral democracy Human rights have have won the ideol ogical battles of moderniy moderniy Their universal application and full riumph appears to be a matter of time and of adjustment between the spirit of the age and a few recalcitrant regimes Its victory is none other that the completion of the the promise of the Enlightenment, of emancipation through reason Human rights are the ideolo after the end, the defeat of ideologies, or to adopt a voguish term the ideology at the end of history" history" And yet many doubts persi st The record of human rights rights viola tions since their ringing declarations at the end of the eighteenth century is quite appalling It is an undeniable fact" writes Gabriel Marcel that human life has never been as universally treated as a vile and perishable commodity as during our own era" If the twentieth century is the epoch of human rights, rights, their triumph is, to say the least, something of a paradox Our age has witnessed more violations of their principles than any of the previous and less enlightened" epochs The twentieth century is the century of massacre, geocide, ethnic cleansing, the age of the Holoc aust At no p oint in human his tory has there been a greater gap between the poor and the rich in the Western world and between the north and the south globally No degree deg ree of progress progres s allows one to ign ore that never before before in absolute gures, have so many men, women, and children ben sub jugated, starved, or exterminated on earth" 4 No wonder then why the grandiose statements of concern by governments and inter national organisations are often treated with popular derision and scepticism ut should our experience of the huge gap between the theory and practice of human rights rights make us doubt their principle and question the promise of emancipation through reason and law when it seems to be close to its nal victory
Two preliminary points are in order The rst concerns the con cept of critique Critique today usually takes the form of the critique of ideology", of an external attack on the provenance, premises or internal coherence of its target ut its original Kantian aim was to explore the philosophical presuppositions, the necessary and suf cient conditions of existence" of a particular discourse or practice This is th e ype of critique this book aims to exercise rst before before turn rights What his ing to the critique of ideology or criticism o f human rights torical rajectory links classical natural law with human rights Which historical circumstances l ed to the emergence of natural and later human rights What are the philosophical premises of the discourse of rights What is today the nature, function and action of human rights, rights, according to liberalism and and its many philosophical critics critics Are human rights a form of politics Are they the postmodern answer to the exhaustion of the grand grand theories and grandiose political utopias of modernity Our aim is not o deny the predominantly liberal prove nance and the many achievements of the tradition of rights Whatever the reservations of communitarians, feminists or cultural relativists, relativists, rights have have bec ome a majo majo r compo nent of our philosoph ical landscape, of our political environment and our imagin imaginary ary aspi rations and their signicance cannot be easily dismissed ut while political liberalism was he progenitor of rights, its philosophy has been less successful in explaining their nature The liberal jurispru dence of rights has been extremely voluminous but little has been added to the cano nical texts of Hobbes and Kant D espite the politi cal triumph of rights, its jurisprudence has disappointedly veered between the celebratory and legitimatory and the repetitive ad banal Take the problem of human nature and of the subject, a central concern of this book, which could also be described as a long essay on the (legal) subj subj ect The human nature nature assumed by liberal liberal philoso phy is preoral According to Immanuel Kant, the transcendental self, self, the precon dition of action and ground of meaning meaning and value, is a creature of absolute moral duty and lacks any earthly attributes The assumption of the autonomous and selfdisciplining subj ect is shared by moral philosophy and jurisprudence, but has been turned in neo Kantianism, from a trascendental presupposition into a heuristic device (Rawls) or a constructive assumption that appears to offer the best description of legal practice (Dworkin) As a result, we are left with the notion of the human subj subj ect as a sovereign agent of choice ,
Despite the enoous aount of books on huan ihts, the uispudence of ihts is doinated by neoKantian libeals Thee ae a w notable exceptions. Rolando Gaetes Hun Rghts nd the Lts of of Ctcl Reon (deshot, Datouth, 993) is a poweful expession of the doubts about huan ihts deaoue and the liitations of easons eancipato ability ability Fo a leal and histoical pespective, the ost faoin citicis o huan ihts is the sal classic by Michel Villey, Dt et les dots de l hoe (Pais, P., 983) Bead Boueois, Phlosophe et do de lhoe de Knt M (Pais, P. F , 990) is the best citical intoduction to the classical philosophy of huan ihts n a oe political vein, the ecent collection Hun Rghts Fy e On edited by Tony Evans (Mancheste, Mancheste Univesity Pess, 998) exploes soe of the ost wide spead concens about the state of inteational huan hts law. 3 Gabiel Macel, Cetve Fdelty, 94 R Rosthal tans), New ok: Faa, Stauss, 964
3
HE RIUMH O HUMAN HUMAN R IHS
HE RIUMH O HUMAN RIHS
his aims and purposes by acs of will, as opposed, say, o acs of cog niion".5 This aomocenric approach may offer a premium o liberal poliics and law bu i is cogniively lied and morally impover ished. Our sraegy differs. We will examine from liberal and non liberal perspecives he mai n building blocks o f he c oncep of human human righs he human, he subjec, he legal person, freedom and righ among ohers urke, Hegel, Marx, Heidegger, Sarre, psychoana lyical, deconsrucive, semioic and ehical approaches will be used, rs, o deepen our undersanding of righs and hen o criicise aspecs of heir operaion. No grand synhesis can arise from such a cornucopia o f philosophical hough and no much co mmon ground exiss beween Hegel and Heidegger or Sarre and Lacan. And ye despie he absence of a nal and deniive heory of righs a num ber of common hemes emerge, one o f which is precisely ha here can be no general heory of human righs. The hope is ha by fol fol lowing he philosophical criics of liberalism, Kan's original deni ion of criique" can be revived and our undersanding of human righs righs re scued from from he boredom of analyic analyical al com monsense and is evacuaion of poliical vision and moral purpose. This is a exbook for he criical mind and he ery hear Human righs can be examined from from wo relaed bu relaively relaively dis inc main perspecives, a subjecive and an insiuional. irs, hey help consiue he (legal) subjec as boh free and subjecedo law. u human righs are also a powerful discourse and pracice in domesic and inernaional inernaional law. Our approach is predominanly predominanly he oreical bu i will ofen ofen be complemened by hisorical narraive and poliical and legal commenaries on he conemporary record of human righs. To be sure, criicisms based on he widespread viola ions of human righs are no easily reconcilable wih philosophical criique Philosophy explores he essence or he meaning of a heme or concep, i consrucs indissoluble disincions and seeks solid grounds,6 while empirical evidence is soiled wih he impuriies of coningency, he pe culiaiies of conex and he idiosyncrasies of he observer. On he oher, empiricis, hand, human righs were from heir incepion he poliical experience of freedom, he expression of he bale o free individuals from exernal consrain and allow heir selfrealis selfrealisaion aion In his sense , hey do no depend on absrac conceps
and grounds For c oninenal philosophy, freedom freedom is , as Marx mem orably pu i, he insigh ino necessi" for AngloAmerican civil liberarians, freedom is resisance agains necessiy The heory of civil liberies has moved happily along a lied specrum ranging from opimisic raionalism o unhinking unhinking empiricism. I may be, ha he poshisorical" characer of human righs should be sough in his paradox of h riumph of heir spiri which has been drowned in universal universal disbelief abou heir pracic e u, secondly, have we arrived a he end of hisory? Over wo cenuries ago, Kan's Critiqus he early manifesos of he Enlighenmen, launched philosophical moderniy hrough reason's invesigaion of is o wn operaion From ha poin , Wesern self undersanding undersanding has been dominaed by he idea of hisorical progress hrough reason Emancipaion means for for he moderns he progressive abandonmen of myh and prej prej udice in all areas of lif lifee and heir replacemen by reason In erms of poliical organisaion, liberaion means he subj subj ecion of power o he reason of law. Kan's schema was excessively meaphysical and laboriously avoided direc con fronaion wih he pahological" empirical realiy or wih acive poliics. u Hegel's announcemen ha he raional and he real coincide idenied idenied reason wih world hisory and esablished a srong link beween philosophy, hisory and poliics. Hegel himself vacil laed beween his early belief ha Napoleon personied he world spiri on horseback and his laer idenicaion of he he e nd of hisory hisory in he Prussian Sae. And while he Hegelian sysem remained ercely meaphysical, i was used, mos noably by Marx, o esablish a (dialecical) link beween conceps an absrac deerminaions ad evens in he world wih he purpose of no jus inerpreing bu changing i. Hegelianism can easily muae ino a kind of inellecual inellecual jo urnal ism: he philosophical equivalen of a broadshee column in which he requiremens o f reason are declared eiher o have been fullled fullled hisorically (as in righwing Hegelians and more recenly he mus ings of Fukuyama) or o be sill missing (as in messianic versions of Marxism). In boh, he conic beween reason and myh, he wo opposing principles of he Enlighenmen, Enlighenmen, will come o an end when human righs, he principle of reason, becomes he realised myh of
Gaete, op op . c, supa n, . Fo a eneal dscusson o the elatonshp between contnental and AnloAecan phlosophy n elaton to the concept of feedo, see JeanLuc Nancy The Experene
7 See Fancs Fukuyaa, The End Hsto n d the Lst Mn (London, Penun, 99) and Deda's ctcal coents n Spect M opct, supa n The Gean debate s evewed n Lutz Nethae, Pothsto Hs Hto H to Coe to n End (London, Veso,
6
TH TRUPH O HUAN HUAN RGHT S
po smodern socieies. Myhs of course belong o paricular comm niies, radiions and hisories heir operaion validaes hrough repeiion and memory, a genealogical principle of legiimaion and he narraive of belonging. Reason and human righs, on he oher hand, are universal, hey are supposed o ranscend ranscend ge ographical ographical and hisorical differences If myh ges is legiimaory poenial from so ries o f origin, r easons legiimaion is found in he prom ise o f progress expounded in philosophies ofhisory of hisory A forward forward direcion is deec ed in hisory which inexorably leads o human emancipaion If myh looks o beginnings, he narraive of reason and human righs looks o teloi and ends. In posmoderniy, he idea of hisory as a single unied process which moves owards he aim of human liberaion is no longer cred ible, and he discourse of righs righs has los is earlier co herence and uni versalism9 The widespread popular cynicism abou he claims of governmens and inernaional organisaions abou human righs was shared shared by some of he he greaes greaes pliical and legal philosophers of he he wenieh cenury. Niezsche's melancholic diagnosis ha we have enered he wiligh of reason, Adorno and Horkheimer's despair in he Dialecti < the Enlightenment 10 and Foucaul's saemen ha modern ma n" was a mere drawing drawing on he sands of he ocean of his ory abou o be swep away, appear more realisic han Fuuyama's riumphalism The Frankfur sages argued ha he conic bween logos and mythos could no lead o he promised land of freedom, because insrumenal reason, one face of he reason of moderniy, had urned ino is desrucive myh The dialecic no longer repre sens he voyage of homecoming of he spiri. Reason's inexorable march and is aemp o paci he hree modern forms of conic, conic wihin self, self, conic wih ohers and conic wih naure, led o psychological manipulaion and he Gulags, o poliical oaliari anism and Auschwiz, nally nally o he nuclear nuclear bomb and ecolo gical ca asrophe. As a new ragedy unfolds unfolds daily in eas and wes, in Kosovo and Eas Timor, in Turkey and Iraq, i looks as if mourning more han celebraions becomes he end of he millennium. millennium. Unforunaely poliical philosophy has abandoned is classical vocaion of exploring he he heory and hisory o f he goo d so ciey and 8 Gianni Vattio, e End ofModety (Cabride, Cabride Universit Press 9) pss; The Trent Socety (Cabride Polit 99) Chapter Costas Douzinas and Ronnie arrinton with Shaun McVeih, Postodern ursrudene e lw oftet n the tets lw (London, Routlede, 99) Chapters and ·
TH TR UPH O HUAN HUAN RGH TS
has gradually deerioraed ino behavioural poliical science and he docrinaire jurisprudence of righs. On he side of pracice, i is arguable ha Home Secrearies should come from he ranks of ex prisoners priso ners or refugees, Social Securiy Secrearies should have some experience of homelessness and life on he dole, and ha Finance Minisers Miniser s should shou ld have suffered suffered he inf i nfamy amy of bankrupcy. Despie Des pie he consisen privileging of experience over heory, his is unlikely o n. Ofcial hinking and acion on human righs has been happen. happe enruse in he hands o f riumphalis column wriers, wriers, bored diplo mas and rich inernaional lawyers in N ew York and Geneva, people whose experience of human righs violaions is conned o being served a bad bole of wine. In he process, human righs have been urned from a discourse of rebellion and dissen ino ha of sae legiimacy. A his ime of uncerainy and confusion beween riumph and disaser, we should ake sock of he radiion of human righs u can we doub he principle o f human righs righs and quesion he promise of emancipaion emancipaion o f humaniy hrough hrough reason and law, when i seems o be close o is nal vicory I should be added immediaely ha he claim ha power relaions can be ranslaed fully in he language of law and righs was never fully fully credible and is now no w more hreadbare hread bare han ever We are always caugh in relaions of force and answer o he demands ofpower of power which , as Fo ucaul argued forcef forcefully ully,, are boh carried ou and disguised in legal forms. Rec n miliary conics and nancial upheavals have shown ha relaions of force and poliica pol iical,l, class and naional sruggles have acquired an even more pervasive imporance in our globalised world, while demo cracy and he rule rule f law are increasingly used o ensure ha economic and echnological forces are subjeced o no oher end from ha of heir coninuous expansion expansion . Indeed , one o f he reasons ha gives normaive normaive jurispru dence he unrealiy, abou which law sudens so ofen complain, is is oal neglec of he role of law in susaining relaions of power and i descen ino unineresing exegesis and apologia for legal ech nque. A he ime of heir birh, human righs, following he radical ra diion of naural law, were a ranscenden ground of criique agains he oppressive and commonsensical. In he s oo, in Poland, Czechoslovakia, Eas Germany, Romania, Russia and elsewhere, he erm human righs" acquired again, for a brief momen, he onal iy of dissen, rebellion and reform reform associa ed wih Thomas Thomas Paine, he
8
TH TRIUMPH OF HUMAN R IGHTS
THE TRIUMPH OF HUMN RI GHTS
Soon, howr, h popular rdniion of human righs was blankd ou by diplomas, po liicians and inrnaional lawyrs m ing in Vinna, B ijing and ohr human righs jambors o rclaim h discours from h srs for rais, connions and xprs. Th nrgy rlasd hrough h collaps of communism was bold up again by h nw gornmns and h nw maas in h Eas which look h sam as h gornmns and maas of h Ws. Agains his background, i is highly opical o ask whhr h sa of human righs is h ouco m of inrinsic rais or whhr i is a coningn dlopmn which will b orcom as h fw rogu rgims around h world com o accp h principls of ciilisd lif To b sur, such nquiris ar ofn rad wih incrduliy, if no ourigh hosiliy; for many, o qusion human righs is o sid wih h inhuman, h anihuman and h il Bu if human righs ha b com h ralisd myh of posmodrn so ci is, hir hisor dmands ha w rassss hir promis away from h slfsaisd arroganc of sas and libral apologiss and amp o discor poliical sragis and moral principls ha do no dpnd xclusily o n h unirsaliy of h law, h archaolog of myh or h imprialism of rason.
h idni of is auhor diffr widly, changing from h purposi cosmos o God, rason, human naur and indiidual slfinrs. Th muaion of naural law ino naural righs in h snnh cnury is haild as h rs icory of modrn rason or h mdial wichs and Lock and Bnham, h English conribuors o h dba, ar acknowldgd as h arly prcursors of human righs. Lock is h modrn rialisr of h moribund radiion, whil Bnam is h dnii dbunkr of any rmaining non sns on sils". Th pod hisory of naural law nds wih h inro ducion of h Unirsal Dclaraion of Human Righs in 1948 which urnd nauralisic no nsns" ino hardnosd posii righs. For h rs im in hisory, hos unwrin, unalrabl, rnal, Godgin or raional cions can sop b ing mbarrassd Thy ha bn fully rcognisd and lgislad and njoy h digniy of law, albi of a somwha sof kind. God may ha did, according o Niszch, bu a las w ha inrnaional law Mor rcnly, a nw jurisprudnc of righs, h xplici purpos of which is o mi iga h moral pory of lgal posiiism, has quily acknowldgd h naural law as par of is gnalog. 13 Lik all simplid hisory, his sandard prsnaion of naural law has som lmns of ruh, bu suffrs also from a numbr of crip pling philosophical and hisorical dfcs s orall prspci is ha of oluionary progrssiism prsn is always and ncs sarily suprior or h pas, hisory is h forward march of all conquring rason, which rass misaks and combas h prjudi cs of inllcual posiions and poliical momns. Th hisory of na ural law is a pical xampl of Whig hisoriography, in which ry ida or po ch is inxorably moing owards h prsn. n his r sion, h inrnaional rcogniion of human righs marks h nd of h ignoran pas whil raining and ralising, a h sam im, is ponial for indiidual frdom and qualiy. Thr is an obious mpirical difculy wih his approach mor human righs iolaions ha bn commid in his righsobsssd cnury han a any ohr poin in hisory. Bu i is h philosop hical qusion of hisori cism ha concrns us hr. Th problm wih hisoricism can b sad simply if al hisorical momn is rlnlssly progrssi and all hough inscapably hisorical, in ha i can only aris or acquir alidiy if i bcoms
***
Th radiion of naural law was xhausd wll bfor our cnury, alhough i has rcnly njoyd somhing of a rial. Conmporary j urisprudnc xamins naural law as par of h his or of idas, as an inllcual momn and poliical do crin ha cam o a dsrd nd in Enlighnmn's assaul on myh, rligion and prjudic. Sandard xbooks sar h xaminaion of naural law wih Anigon's unwrin laws" and mo o h Soics for whom naural law mbodid h lmnary principls of jusi c which ar apparn, hy blid, o h y of rason' alon" . 1 1 Cicro nrs briy hr is a ru law, righ rason, in accordanc wih naur i is unalrabl and rnal" H is accompanid, in camo apparancs, by Aquinas, Groius and Blackson, whos samn ha naural law is binding all or h glob; no human laws ha any alidiy if conrar o i" is xplaind in a rahr mbar rassd fashion 1 2 For all hs wrirs, h righ and h naural ar unid in som unclar fashion, alhough h dniion of naur and Mauice Canstn t un Right (Lndn, Bdley Head, 97) - . H McCubey, The Developent ofNtulit Legl Theory (Lndn C Hel 97) is a d exaple f this whistletu style f uispudence
9
Anthny Lisska, Aqun � Theory Ntul w (Oxfd Claendn, 99) Chaptes and ffe a cpehensive eview f the ecet et u f natualis in leal and plit
0
H RUMPH OF HUMA RGHS
gnrally accpd a a paricular hisorical priod, no idals or san dards xis ousid h hisorical procss and no principl can udg hisory and is rror According o h poliical philosophr Lo Srauss, hisoricism argus ha a human hough is hisorical and hnc unabl o grasp anyhing rnal" 14 Srauss has argud forc fully ha, poliical philosophy sinc Macchiavli, has suffrd from an xrm hisoricism, in which h idal has bn consisnly and prilously idnid wih h ral and has los is criical purchas Hisoricism is xmplid by h Hglian claim ha h ral and h raional co incid and, in urisprudnc, by h ris of posiivism For h classical lgal radiion, naur was a quasiobciv san dard agains which law and convnion culd b criicisd Bu h cogniiv and normaiv posiivisaion o f modrniy has xplld his orical ranscndnc or xrioriy Th caslss dmand ha all ra diion, ordr or rul b in acco rd wih human frdom has ld o h oal dmysicaion no us of h myhical and rligious aspcs of h word, bu of all amps o udg hisory from a nonimmann posiio n n law, his rnd is apparn in a numbr of dvlopmns which undrmind and vnually dsroyd h prmodrn lgal cosmo s h abandonmn of subsaniv concps ofusic and hir rplacmn wih procduralis and formal ons; h idnicaion of law wih ruls posid by h sa and h dsrucion of h odr radiion ac cording o which law (dikaion or is wha las o a us oucom in h rlaions amongs ciizns; h rplacmn of h ida of a righ according o naur by naural and human righs which, as aribus of h subc, ar individual and subciv and can hardly sablish a srong communiy A sociy basd on righs dos no rcognis duis; i acknowldgs only rsponsibiliis aris ing from h rciprocal naur of righs in h form of limis on righs for h procion of h righs o f ohrs f h valu of human hough is rlaiv o is conx and al is doomd o pass wih hisorical progrss, human righs oo ar infcd wih ransinc and canno b procd from chang Only hos righs adopd by law (domsic or inrnaional hav bn inroducd ino h hisory of h poliical insiuion and can b usd, for as long as hy las, o dfnd individuals Th lgalism of righs gos hand in hand wih h volunarism of posiivism and bcoms a vry rsricd procion agains h alldvouring sa 14 Leo Stauss, Ntul w nd istoy (Chicao, Univesit o Chicao Pess, I9) Chaptes and and at
H RUMPH OF HUMAN RGHS
lgislaiv and adminisraiv powr Claims abou h xisnc of nonlgislad righs ar nonsns upon sils" and cions lik h blif in wichs and unicorns "16 As a rsul, far from h hisori cal having o b u dgd by h criria of righs and of h law, his ory isl as w know, b coms h ribunal of h wold' , and righ islf mus b hough of as basd on is insrion in hisorici" 7 Th sympom of h disas is homoop ahicaly dclard o also b is cur bu, ik may lss rspcabl hrapis, i lads o an vn grar alady Whn naur is no longr h sandard of righ, all individual dsirs can b urnd ino righs From a sub civ prspciv, righs in posmodrniy hav bcom prdicaions or xnsions of sl an labora collcion of masks h sub c placs on h fac undr h impraiv o b auhnic, o b hrslf" , o foow hr chosn vr sion of idniy Righs ar h lgal rcogniion of individual will Popl acquir hir concr naur, hir humaniy and subciv iy by having righs From h lgal poin of viw, h gnral agr mn ha a dsir or inrs i s c onsiuiv of humaniy" sufcs for h craion of a nw righ n his way, is and ough ar colapsd, righs ar rduc d o h facs and agrmns xprssd in lgislaion or, in a mor criical vin, o h discipinary prioriis of powr and dominaion As Srauss pus i sarky, criicising h rplacmn of ranscndn naural righ by h socialy immann gnral wi, if h ulima cririon ofusic bcoms h gnral wil, i h wil of a fr sociy, cannibalism is as us as is opposi Evry insiu ion haowd by a folkmind has o b rgardd as sacrd" 9 Lgal humanism by uniing righ and fac on h rrain of human naur has undoubdly conribud o h ris of lgal posiivism and hisoricism Hisoricism is h indispnsabl companion of individu alism and, h fascinaion wih hisory, h paradoxical rsul of our obsssion wih h prsn W ar inrsd in hisory, bcaus w wan o undrsand and conrol our ag and bcaus w bliv ha hisory can mak humaniy ransparn o is slfrcion Hisory is an inadqua anido for hos philosophis of sspicion which dclard h human niud and opaqunss Today, i is 1 Jeemy Bentham, Anil Fll inJ aldon (ed) Nonsee pon Stilts (London, Methuen, 97) 17 Luc Fey and ain Renaut, Fom the Rh Mn to the Repblin Ide (F Philip tans) (Chicao, Univesity o Chicao Pess, 99) 1 See, Villey, opcit, supa n , Chaptes and pim 1 Leo Stauss, t is Politil Philosophy (Chicao, Univesity o Chicao Pess, 9 9)
2
THE TRIUPH OF HUN RIGHTS
THE TR IUPH OF HUN RIGHTS
impossib no o b hisoricis no o b ha ryhing hap pns and is aidad in hisor; i is amos impossib no o bi ha righ is c oa wih ga righs Ths objcio ns ha d o h rcn proifraion of horis which ry o rscu h ram of righs from h raiism of hisoricism by prsning hm as h immann srucur of Wsrn sociis h inscapab dmands of mora rason or boh.2 0 Y a hory o f human righs which pac s a rus in gornmns inrnaiona insiuions judgs and ohr cn rs of pubic or pria powr incuding h inchoa aus of a soci ds hir raison d 'tre which was prci sy o dfnd pop from hos insiuions and powrs. Bu is a srong hory of righs possib in our highy hisoricisd word? Th caim ha human righs ar unirsa ranscuura and absou is counrinuii and unrab o accusaions of cuura impriaism; o n h ohr hand h assrion ha hy ar h craions of Europan cuur whi hisoricay accura dpris hm of any ranscndn au. From h prspci of a odrniy on can b nihr a unirsais nor a cuura raiis. Hr w rach h gras poiica and hica probm of our ra if h criiqu of rason has dsroyd h bif in h inxorab march of progrss if h criiqu of idoog has swp away mos rmnans o f maphysica crdui dos h nc ssary suria of ranscndnc dpnd on h nonconincing absouisaio of h ibra conc p of righs hrough is immunisaion from hisor? Or ar w condmnd o rna cynicism in h fac of impria uni rsas and murdrous paricuars? Sordijk has argud ha h dominan idoog of posmodrni is cynici sm an "enlghtenedalse consciousness. is ha modrnisd unhappy consciousnss on which nighnmn has abourd boh succssfuy and in ain. . . Woff and misrab a h sam im his consciousnss no ongr fs affcd by any criiqu of idoogy; is fasnss is arady rxiy buffrd".2 1 Th gap bwn h riumph of human righs id oog and h disasr of hir pracic is h bs xprssion of posmodrn cynicism h combinaion of nighnmn wih rsignaion and apahy and wih a srong fing of poiica impass and xisnia causrophobia of an xissnss in h mids of h mos mobi soci. Th ony rcommndaion offrd by a criic of human righs is o adop ironica disanc owards hos who ask us o ak
righs sriousy and o accp h coningncy uncrain and painfu rsponsibii" for forms of cii if and ciiisaion ha wi nuay prish".22 rony of ours is on of h mos pon wapons of h cynicism and sfsring nihiism of powr and powrhodrs and can hardy b usd on is own as a poiica pro gramm of rsisanc o cynicism. Bu can hr b an hics ha rspcs h puraism of aus and communiis? Can w discor in hisory a nonabsou concpion of h go od ha coud b us d as a quasranscndn princip of criiqu? Th as par of his book bgins his m os difcu and prssing of asks of sking in hisory a sandpoin criica of hisoricism. Th maning of hisory and of hisorica drminaion frams a sco nd and subsidiary qusion . Wha is h ink if any bwn h cassica radiion of naura aw and h modrn radiion of naura and human righs?23 Th Frnch Dcaraion of Righs sard a rnd by procaiming hs righs as naura inainab and sacrd" . was foowd by h Amrican Dcaraion of ndpndnc according o which a mn ar crad qua [and] ar ndowd by hir Craor wih unainab Righs" a samn rpad rbaim by Aric of h 948 Unirsa D caraion of Human Righs. Th s rahr xrm samns prsn naura and human righs as a dirc coninuaion of h cassica aw radiion. Thy ha rcid wid suppor from ibra phiosophrs. John Finnis caims ha righs ar xrapoaions from princips aways inhrn in h naura aw radiion" .24 Aan Gwirh bis ha a human bings by iru of hir humaniy rc ognis in hmss and ohrs righs o fr dom and wbing H go s o n o argu ha righs xis n if hy do no rc i car or xpici rco gniion or ucidaion" .2 Jack Do nny argus ha whi human righs wr conc id in h s nnh and ighnh cnuris hy njoy a unirsa characr
See Chapter 9 below
3
Gaete, ct upra n , 7 3 Black, "On connectin natural riht with natual law, Pn y Drch 99, 9 Fred Miler ha recently arued that Aritotle theoy of utice ha an iplicit doctrine of natual riht, in F Miler, Ntu Jut nd ght n Attl Plt (Oxford Univerity Pre, 99 ) . Brian Tieey ha alo arued that a natural riht theory could be forulated in Aritotelian lanuae but it wa no Tieey clai that natural iht theo rie developed, rt in the early Middle Ae well before the enerally accepted opinion that they hail fro the eventeenth centuy Brian Tieey, Th d Nturl ght (Atlanta Geoia, Scholar Pre, 997) Chapter and See Chapter , and 4 below 4 John Finni, Nturl Lw nd Nturl gh (Oxford, Clarendon, I9) pm. Alan Gewirth, n nd Mlty (Univerit of Chicao Pre, I97) 99; and Humn
L
THE TRIUMPH
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HUMAN RIGHTS
TH TRIUMPH
OF
HUMAN RIGHTS
5
ha maks hm appcabl o all sociis.26 Fo Michal P nally h ida ofhuman ighs is inliminably ligious " and indis solubly linkd wih Caholic and scholasic sions of naual law.2 Lo Sauss Michl Villy and Alasdai Macn dny h con ncion. Fo h noAisolians h poliical philosophs of h snnh cnu cad a adically nw moal and poliical dis cous basd on indiidual ighs which dsoyd h classical adi ion of naual law. Naual ighs a c aions of modniy and hi oigins a succssily placd in h aly Middl Ags (Tiny h founh cnuy (Villy o h snnh (MacPhso n Macny Shapio and py much yon ls.28 Again h philosoph cdid wih h cucial sp in h ansfomaion fom naual law o naual ighs ais fom William of Ockham o Goius Hobbs o Lock. Bhind his piodisaion and accdia ion lis h famous qual bwn h ancins and modns". Sauss Villy and Macn bli ha h passag fom h ancins o h modns was caasophic. Fo Macny naual o human ighs a cions" innions of modn indiidualism and should b discadd.29 Knnh Minogu Mauic Canson and John Finnis on h oh hand s his adical chang as a ncssa sag in h po css of human mancipaion . Thoughou his book i will b agud ha phaps boh h laiism of hisoicism and h ahisoical unisalism o libal hoiss fo whom al sociis and culus ha bn o mus b sub cd o h disciplin of ighs a wong. Hisoicism dos no accp ha hisoy ca n b udg d fo h ighs fanaics hisoy nds in h unisal accpanc of human ighs which un poliical conic ino chnical liigaion. Fo fom h hop of an scndnc of h psn has bn bannd whil fo h la an scndnc sill suis in h ouposs of mpi in h fom of h aspiaion o achi a Wsnp indiidualis consum sociy. To dfnd h ida of anscndnc wihou abandoning h disci plin o f hisoy w nd o xamin h ogin and a coy of naual law.
Fom his pspci h nx fou chaps off a gnalog of human ighs in h fom of an alnai hisoy of naual law fo which h pomis of human digni and social usic has no bn m and can n b fully alisd. Ou main guids will b h con sai poliical philosoph Lo Sauss h Caholic lgal philoso ph and hisoian Michl Villy and h Maxis philosoph Ens Bloch. Naual law psns a consan in h hisoy of idas namly suggl fo human digniy in fdom agains h infamis dgadaions and humiliaions isid on popl by sab lishd pows insiuions ad laws. Th poliical philosophs Luc Fy and Alain Rnau ha accusd Sauss and Villy of xm animodnism and ha claimd ha hi wok amouns o a call fo a un o a pmodn Aisolian unis.3 Th ida of a un o h ancins is maninglss and canno b impud bli o ou auhos. n any cas h pmis bhind ou bif hisoy is nih h supioiy of h pas no h iniably po gssi psn bu h pomis of h fuu. Young Max wo ha h ask of philosophy is o achi a humanisd nau and a naualisd humaniy". This is also h unfullld ponial of naual law and uman ighs which o us Ens Bloch's ocai phas xpsss h fowadpssing noydmind nau of human bing" .3 1 T lling of hisoy of naual law is o follow Bloch's impuls and as ou of h adiion is ofn con cald concn o h unnishd pson of h fuu fo whom us ic mas. Naual igh was win ou of modn law bcaus of is ciical ponial. s adiion unis ciics and dissidns mo han any oh philosophy o poliical pogam. Naual law is oo impoan o la o ho logians and hisoians of idas and h na a in h s pa aims o scu fom h adiion hos l mns ofn suppss d in h ofcial" hiso is which link naual law and conmpoay human ighs suggls Th subsani and mhodologcal saks a high is h a plac fo anscndnc in a disnchand wold? Wha yp of ighs and by xnsion of social bond can a ciical aiud adop af h xhausion of h ga modn naais of libaion?
26 Jack Dnnell, niveal Hman Rh in e and Praice (haca Cell Unieri Pre I99) ; Lui Henkin, e Age Righ (New rk Clubia Unieri Pre I99) nducin and Chaper 2 Michael Perr e dea Hman Righ (New rk Ord Unieri Pre I99) Chaper I 28 See belw Chaper and 4
***
Th iumph of human ighs was dclad af h collaps of com munism. Paadoxically how his coincidd wih h dah of 3 Fer and Renau p ci. upra n 7 , Chaper I 3 1 E Blch Natral w and Hman Dignity (Denni J Schid ran) (Cabde
6
THE TRIUMPH
OF
HUMAN RIGHTS
man" as h sorign cnr of h world announcd, i n h sn is and arly s, by social hory and philosophy n ha priod, h highly inunial hough of Marx, Nizsch and Frud and hir followrs, h gra philosophrs of suspicion" according o Paul Ricour, succssfully challngd h assumpions of libral humanism, h philosophy of h progrssi ralisaion of h whol man' hroughou hisory" 2 Humanism xplors wha is righ according o human naur, in is naural digni or scinic obcii and urns man" ino h nd of hisorical oluion, h sandard of righ rason and h principl o f poliical and social insi uions According o humanism, humani has wo uniqu charac risics i can drmin is own dsiny and, scondly, i is fully conscious of islf, ransparn o islf hrough slfobsraion and rcion Boh prmiss wr sriously undrmind by h gra criics of modrniy Marx dbunkd h blif, always a lil suspc o Europan ars, ha irrspci of social and conomic back ground, popl can acquir richs and conrol hir dsiny hrough h opraions of h mark Nizsch and his discipls Hidggr and Foucaul, dsroyd h claim ha h nlighnmn alus of rigorous mhod, bourgois slfrlianc and Chrisian pi could lad o ndlss progrss, harmonis humaniy and is nironmn and mak knowldg a unirsal human good Finally, h psycho analysis of Frud and his pigons faally undrmind h if ha w ha masr and conrol or our sls f anyhing, h slf is spli" and lacking, h craion o f forcs and inuncs byond our conrol and n comprhnsion From h social and conomic nironmn o h srucurs o f languag and c ommunicaion o h unconscio us, our cnur has rdis cord fa in h form of ni ud and opaqunss dsiny has bn rinrprd as so cial dr minaion or indiidual ncssi and, indiidual frdom has bn placd in a prmann sa of sig, hrand no so mu ch by dic aors of lf or righ bu by lmns and forcs which ihr ha a consiui rol i n h craion o f indiiduals or lurk in h rcsss of slf, making hmsls known whn rason slps, in drams, oks and linguisic slips Opaqu wih rgard o islf, and nding islf hrown ino a world foundd on o hr principls, h sub c hough by arly modrn philosophy o b h foundaion boh of islf and o fraliy was shard Wih i wr undrind h al
THE TRIUMPH
OF
HUMAN RIGHTS
7
us o f humanism slffoundaion, consci ousnss , masr, fr will, auonomy "3 Bu h announcmn of h dah of man" has bn accompa nid by h mos proracd campaign o rclaim h indiidual, as h riumphan cnr of our posmodrn world and o dclar fr dom, in h form o f auonomy or slfdrminaion, as h organis ing idal of our lgal and poliical sysms W ha sn his in h ndlssly proclaimd rurn of (o h subc, in h imporanc of idniy and idnirlad poliics, in h rurn of morali o p ol iics and of humanism o law n libral urisprudnc, h rurn o h subc is i dn, on h righ, in h rcn dominaion of righs horis and, on h lf, in h moralism of poliical co rrcnss Whil philosophy and social hor insis on h social consrucion of slf and on h rol of srucur, sysm and languag in h organ isaion of h world, h dsir o rurn o a prisin condiion of slood and o rinsa is frdom and propriy, dconsrucd and dmysid by h philosophis of suspicion, rurnd dramai caly o law Bu can h sorign subc of righs b squard wih h dc onsrucion o f sub cii? This is no an idl qusio n Righs wr h rs public acknowl dgmn of h sor igny o f h subc and inuncd srongly h modrn maphysics of sub cii" 4 Th anihumanis" philosophrs did no discuss human righs a ra lngh, wih a fw xcpions 3 On h ohr hand, from Adorno o Arnd and from Lyoard o Li nas, h y all commnd on h way in which human ism can b urnd ino h inhuman, is dram of a raionally man cipad sociy ransformd ino h nighmar of oaliarian adminisraion or buraucraic chnocracy Foucaul, Lyoard and Drrida bcam rpadly inold wih poliical and human righs Alan Renaut Th Er o h ndvdl A Conron o Hsor o Sjcvy (M B DeBevo se and F Phlp tans. ) (Pnceton N Pnceton Unvest Pess 997) xxv 4 See Chaptes 7 and 5 Mchel Fouca ult s the ost obvous He was equaly ctcal of the phlosophy of sub ectvty and of the leal and contactual pesentat on of powe Foucault aued that the the o of ht dsused dscplna pactces and donaton and hoped to show how ht s n a eneal way the nstuent of ths donaton whch scacely needs sayn but also to show the extent to whch and the fos on whch ht tansts and bns nto play not elatons of soveenty but of donaton My eneal poect has been n essence to evese the ode of analyss followed by the ente dscouse of ht to nve t to show how foce elatons have been natualsed n the nae ofht Mc hel Foucault "Two Lectues Lectue Two 4 anua 97 n Powr/Knowldg Godon ed Sope tans) New ok Pantheon 9 , 9 On the othe hand Foucaul t oe than any a phlosophe was closely and contnuously nvolved wth dvese hts stu
THE TRIUMPH OF HUMAN RIGHS
THE TRIUMPH OF HUMAN RIGHTS
and of human communiis wihin i, an ordr ha ga h ciizn his plac, im and digniy, modrni mancipas h human pr son, urns him from ciizn o indiidual and sablishs him a h cnr of social and poliical organisaion and acii. Th ciizn coms of ag whn h is rlasd from radiional bonds and com mimns o ac as an indiidual, who follows his dsirs and applis his will o h naural and social world. This rlas of human will and is nhronmn as h organising principl of h world had a numbr of imporan poliical implicaions. Unconsraind frdom can dsroy isl Frd will mus b rsraind by laws and sanc ions, h only limis i undrsands. Ths ar no inrinsic or in gral o i bu mpirical and xrnal. Frdom and c orcion , law and iolnc ar born in h sam ac. was h gra achimn of Hobbs, h rs and probably h bs horis of libralism and modrn naural righs, o ralis ha whn human naur bcoms sorign and unfrd, i nds as is counrpoin a public powr which shars in all pariculars h characrisics of h undiidd and singular fr will of h indiidual and liraliss his maphori cal unlimid powr. Th sorigny of unshackd will nds is prfc complmn and mirror imag in h sorigny of h sa. Th Liahan is h mirror imag and h prfc, all oo pr fc parnr of mancipad man. Th road from classical naural law o conmporary human righs is hrfor markd by wo analyically indpndn bu hisorically linkd dlopmns. Th rs ransfrrd h sandard of righ from naur o hisory and nually o humani or ciilisaion This procss can b calld h posiiisaion of naur. s rrs sid is h incompl lgalisaion of poliics which mad posii law h rrain of boh powr and is criiqu Th scond rnd, closly linkd wih h rs, was h lgalisaion o f dsir an was mad h cnr of h world, his fr will bcam h principl of social organ isaion, his inni and unsoppabl dsir was gin public rcogi ion. This win procss drmind h rajcory which linkd hisorically bu sparad poliically h classical discours of naur and h co nmporary pracic of human righs. Bu human righs ar also h wapon of rsisanc o sa omniponc and an imporan anido o h inhrn abiliy of sorign powr o nga h auonomy of h indiiduals in whos nam i cam ino xisnc. Human righs ar inrnally ssurd hy ar us d as h dfnc of h indiidual agains a sa powr buil i n h imag of an indiid
which boh mos hir hisory and maks hir ralisaion impossi bl Human Righs ha only paradoxs o offr" hir nrgy coms from hir aporic naur4 0
20
2
4 The hrase mes rm a letter Olyme de Gues the authr the I79 Delaratin the Rihts man and Citizen Janne tt i n Only ade O Fenc Femn and e R fMan (Cambde Mass Haard Uniersit Pess I99) at 4, uses the er essin t des ribe the sit in wmen in relutina Frane Our int is me eneral: the whle eld human rihs is haratesed by arades and arias.
2 A Bri History Natural Law: The Classical Beginnings Dspi wars, gnocids, holocass, h r mor arocios and imaginai ways opprssion and xploiaion discor, hmaniy sil blis ha a sa o indiidal and social grac xiss, n whn, paricary whn, h wosh par o man is a is wors This qs or h s s ociy has b n associ ad rom cassical ims wi h na ra aw, h nwrin aws" o Anigon Nara aw is a nooriosy opnndd concp and is ndr sanding is clodd i n hisorica and moral ncrainy Acc ording o Erik Wol, hr ha bn som snn manings o h word naturle and n o jus and hir prmaions lad o som 2 d iniions o nara law 1 B whar is dirn manings, nara aw was or many cnris h capia ciy o h proinc o risprdnc and poiica phiosophy s inking was proondy hrmnical, i andd o nds and prposs, manings and al s, ir and dy Today nar and aw, concps inxricably winnd or mos o h Wsrn radiion, ha bn radicaly spa rad and assignd o dirn n opposing ds Cassica nar has bn rpacd by a maningss nara word which has bn drapd wih h digniy" o ob ciiy and h sbbornnss o acs s sdy by h nara scincs noys a sas and giimacy which ds h so cia scinc s, philosophy or risprdnc Nar is, howr, has bn rdcd o inr mar, h nrsponsi arg or hman inrnion and conro Th modrn aws o nar ar nirsa, immab and rnal, a s o rgariis or o rpad parns Th aw o graiy or h scond law o hrmodynacs ar oowd in pracic , in h sns ha on canno choos o disoby hm Thy ar hr, br acs, riab or asiabl ogica absracions driing rom common obsraions of nara phnomna f naral aw is o h sam
A BRIEF HISTORY OF NATURAL LAW:
I THE CLASSICAL BEGINNINGS
ordr, is norms would b so mhing lik an indpndn logical and moral nsmbl, a s of norms ha boh is and ough o b obyd by popl . Naural law would b an objci ordr of ruls or norms somhing lik h naural laws of modrn scinc . Is applicaion, h obsrabl parn of phnomna ha can b subsumd undr h concp of law, would link xrnal naur, s ocial and poliical insi uions and h innr lif o f indiiduals. Did h Grks , who rs inroducd h ida ino h unirs of poliical philosophy and jurisprudnc, undrsand naural law as an immuabl s of ruls? Wha is h maning o f naural law for h phi losophical imaginaion of h Grks and h jurisic craiiy o f h Romans?
im marks h bginning of bings and imposs a b o r culpabiliy on popl , hings and insiuions. Hisory (h ordinanc of im is h ld in which h rparaion o r rsiuion of h originary injus ic will b ampd and will fail as rhing will rurn o f ncs siy o is original injusic. Bu whil injusics wr clarly fl, in Homric ims , h dlopmn o f a hory of jusic h ad o wai h discory of naur. Archaic rc did no disinguish bwn law and connion or righ nd cusom. Cusom is a srong cmn, i binds familis and communiis rmly bu i can also numb. Wihou xrnal san dards, h dlopmn of a criical approach owards radiional auhoriy is impossibl, h gin gos unchallngd and h slas say in lin, a iw xprssd by Hraclios, who said ha jusi c and injusic ar manmad and God dos no car abou ihr. o Srauss has argud ha o riginally, h auhoriy par xcllnc or h roo of all auhori is h ancsral. Through h di scory of naur, h claim of h ancsral is uprood; philosophy appals from h ancsral o h good, o ha which is good inrinsically, o ha which is good by naur". Grk philosophy, naur and h ida of h jus wr bo rn oghr in an ac of rsisanc agains radiional auhoriy and is injusic s. This dlopmn is apparn in h his ory of h word dike h ky Grk rm for a clusr of concps and words connoing h righful, lawful or jus In archaic Grk, dike man h primordial ordr, h way of h world includd nomoi and thesmoi, cusoms and orms of conduc which, according o Parmnids, wr binding on boh gods and morals. Nomos h word lar usd for law, originally had h sam maning as ethos s
2
NATURE AND JUSTCE N CLASSCAL GREECE
Grk philosophy offrs a connin saring poin for xploring h gnalog of human righ. Th suriing philosophical fragmns of h Prsocraics , h arlis philosophrs, ar full of rfrncs o jus ic, injusic and righ. Hraclios blid ha hings rgardd as opposis ar in fac uni and canno xis wihou hir conrary. Thr is no upward pah wihou h downward (fr. , hr would b no ha if hr wr no c old (fr. 3 9 ) jusic would b unknown wr i no for injusic (fr. And in his mos famous fragmn, Hraclios lls us ha war is unirsal and jusic is srif". Bu if jusic is srif, is cssaion would man h nd of h world. Th olds xan x of Wsrn philosophy is a fragmn by Anaximandr onjusic, which has bcom h subjc of an impor an philosophical and philological dba culminaing in a famous ssay by Hid ggr. 3 Th fragmn rads bu whr hings ha hir origin, hr oo hir passing away occurs according o ncs siy; for hy ar judgd and mak rparaion (didonai diken) o on anohr for hir injusic (adikia) according o h ordinanc of im".4 An archaic, original injusic, an adikia ha coms bfor 2 Hayek believes that Heraleitos is the eaiest philosopher to ephasise the pria harater o inustie However this is inaurate as the Anaiander raent is earlier F A Hayek, Law Leglaon Lbey Vol (London, Routlede and Kean Paul, I97) I, n9 and see J Buet, Eay Geek loopy (4th ed, London, A C Blak, I9) I Martin Heideer, "The Anaiander Fraent in Ealy Geek nkng (D F Crell and F Capuzzi trans) (New ork: Harper and Row, I97) 4 This is our translation and ephasises the leal and oral aspets o the raent Heideers essay disusses the various (is)translations o the raent Nietzshe in his
25
(Chiao, Renery, 9) translates it thus: "hene thins have their oriin, they ust also pass away aordin to ne essity; or they ust pay the penalt and be uded or their inus tie aor din to the ordinane o tie . The lassial translation o Fgmen eocac by Diels states that "but where thins have their oriin, there too their passin away ous aordin to neessity; or they pay reopense and penalt to one another or their rek lessness, aordin to rly established tie quoted in Heideer, op it, supra n , 4 Finally M Robinson, An Inoducon o Ealy Geek loopy(Boston, Houhton Miin, I9) 4 translates it as ollows: "nto those thins ro whih eistin thins have thei oin into bein, their passin away too, takes plae aordin to what ust be; or they ake reparation to one another o their inustie aordin to the ordinane o tie Leo Strauss, Naual Law and Hoy (Chiao, Universit o Chiao Press, I9) 9 For Heideer dke is "not ustie but the oveowerin struture o Bein; it eeres and shines in its peranent presene as py and is athered toether in its olletedness as logo Costas Douzinas and Ronnie arinton, Jue Maed (Edinburh, Edinburh Universit Press, I994) . Heideer disusses dke p and nomo in Martin Heideer,
29
A BRIE HISORY O NAURAL LW
HE CLASSICAL BEGINNINGS
ad omo i thei vaios meaigs, it opeed the whole basis of classical civilisatio ad istittioal existece to adical qestioig ad iovatio ad gave ise to political philosophy ad jisp dece Tig ate ito om o ito the stadad of ight was the geatest ealy step of civilisatio bt also a cig tick agaist piests ad les 14 To this day, whe kowledge ad easo ae sbjected to athoity they ae called theolog o legal leaig bt they caot be the philosophy pactised by the Geeks 1 Classical atal ight was adically atihistoicist, o to s e a tem aachoistically, it had somethig objective abot it Bt as the adical split betwee the sbject ad object, a maistay of modeit, had ot occ ed yet, the ight easo evealed i ate had oe of its mode chaacteistics Ulike objective statemets, atal ight was eithe static, o cetai, o did it mio a iet ate To destad its meaig, we eed to backet o cotempoa assmptios abot ate ad clte ad place it withi the teleo logical c osmos of atiqit Classical otolog believed that the cosmos, the ivese ad eveythig i it, aimate o iaimate, has a ppose, telo o ed The Geek cosmos iclded the phyi of beigs, the etho of social moes, the omo of cstoms ad laws ad, most impotatly, the logo o atioal fodatio of all that exists, which foded the cosmos as a closed bt hamoios ad odeed ivese Etitis wee aaged i a hieachical way, each holdig its iqe ad diffee tial place withi the oveall scheme accodig to its pope degee of pefectio, at the top the icoptible impodeable lmios sphees, at the bottom, the heavy, opaqe mateial bodies 1 6 The ed of a beig detemied its place i the whole ad was idetical with its ate The ate of each is his ppose wote istotle ad qias, i his Commetay o itotle Phyi epeated that
ate acts fo a ed 1 The ate of a thig o beig is, st, its efciet case, its eeeia o potetial fo pefectio, secodly, its developig essece ad, ally, its ed o aim, the ppose towads which it moves, its actalised potetial whe it mates ad becomes a pefect s pecime of its kid 1 The ed o telo is a stat e of existece at which dispositio o potecy eaches fllmet o pefectio The ate of the aco, fo example, is to b ecome a mate oak tee, the ppose of the vie to podce sweettastig gapes Similaly, the pose of a hma is to achieve his potetial, to pass fom the ascet to his flly developed state a child's ed is to become a vi tos adlt, a capete's to podce excellet tables, a cobble's the pefect sadals istotle's cocept of ate was theefoe ich ad complex both the e fciet ad al case , the gem peset at bith ad the aim beigs ted to ealise atally Bt if the ate of a thig o beig is its state of fllmet o pe fectio ad evey stage i life is a statio fom its tasiet pesece to its atal ed, beig caot be distigished fom beco mig ad essece fom existec e Nate itsel like the iet matte of mod e sciece, epesets the piciple of motio i a pposefl cos mos, i which acos , lambs ad ifats ca oly be destood as a developig ode of meaigfl ad ftelookig iteelatios Fo istotle, phyi was motio, a soce o case of beig moved ad of beig at est i that to which it belos pimaily i vite o f itself 9 Bei g was always o the way, i a j oey that will eve ed, becase pefectio was always a step too fa, a state always still to come Obsevig the ate of the cosm os ad of thigs ad beigs i it ivolves imptig o them aims pposes ad eds politically, i the poli always i co jcti o with othe thigs ad beigs These teloi ae ot abitay they ae detemied by the dispositioal chaacte istics of each beig, by its ode of eeds ad wats which, by poit ig to its atal costittio, ceates a stog moal dty to stive ad achieve it The good of a etity is the completio of the move towads its ed, the evedefeed tasitio fom potecy to actal ity beig's ate coespods to its specic opeatio o wok a
28
The Fenh poliial philoophe Fey and Renau have aued ha Sau i an exee aniodei who advoae he eu o laial ulue They have oally ied howeve he iial inen o Sau' analyi Thi i neeay o hei auen, aodin o whih, Sau' nauali i a ahe eile auhoaiani and anno be e ued o Aioelian ooloy Lu Fe and Alain Renau, Fm e Rg Man e Republcan Idea (Fanklin Philip an) (Chiao, Univeiy o Chiao Pe, 99) 4 Fo a epone o hei peulia Heideean libeali, ee B ead Boueoi, lpe e d de l mme (Pa, PF, 99) Sau, op i, upa n , 9 1 Blandine BaeKeel, Le D de lmme e e d nauel (Pai, P F , 99) 4 hould be ephaied hee ha hi ooloy i ininially linked wih he inealia ian naue o laial naual h and oi o ieie . Fo Aole, lavey wa naual and
An aoun o Aiole' eleolo i ound in Alan Gohhel "Aiole Conep ion o Final Caualiy, Revew Meapy 4, 97 F o Aquina' Aioeliani, ee Anhony Lika, Au na Te fNaual Law (Oxod, Claendon, 99) Chape 4· 8 Aiole, Meapy (D Book an ) (Oxod, Claendon, 994 44, Ia7; l (H Rakha an ) (Cabde Ma, Loeb, 99) , , a
A B R I E H I S O R Y O N A R A L L AW
I. HE CLASSICAL BEGINNINGS
beig is good if it does its p ope wok well, if it follows its atue Its pefectio costitutes its well beig o e zein ad offes pecise guidace i ethical ad pactical mattes I this sese, the good life is life accodig to atue ad o sepaatio betwee is ad ought exists The atual teleolog of the aciets, thei puposeful atue, could thus become the basis of a stog ethics of vitue ad value Right accodig to atue is what cotibutes to the beigs pefec tio, what keeps it movig towads its ed; wog o ujust is what violetly emoves it fom its place , disupts its atual te ctoy ad pevets it fom beig what it is " 20 Natual ight is theefoe both tascedet to eality, a ideal" , ad ca be codetly discoveed though obsevatio ad easoig, although this does ot make it objective" i the mode sese The idea of a eteal iet atue is totally alie to ealy atual law Withi this boad famewok, the vaious schools of classical phi losophy iteeted atue diffeetly Fo the Sophists, physs was the essece of thigs which was ot saced o solem, but simply what edues though chage ad emais costat behid divesit Thei philosophical successos, the Cyics ad the Hedoists, associ ated atue with the simplicity o f aimality ad the idulgece o fpi vate pleasues The Cyics fought taditio ad atice i its may foms ad attacked all istitutioal ivetio, fom luxuious livig to pope, family ad the polis The Hedoists taught peasue; agaist the doglife of Dio gees, istippus led a life of luxuy ad peached that atual is what cotibutes to happiess, the oly ci teio fo judgig the value of istitutios Depedig o whethe the chaacte of iate atue was meat to suffe o ejoy, fugality ad pleasue became the twi aims of atual law To this day, the Cyics ad the Hedoists ae the foefathes of may evolutioa movemets, although peachig the uivesal ght to pleasue wit out hypocisy is moe dageous, fo the ic ad poweful, ad hade to full tha the message of meage fugality of the Cyics2 May times i the histo of atual law, a iitially evolutioay idea was coopted by the established powes, tamed ad domest cated Epicuus tued the hedoist pleasues of the esh with thei evolutioay potetial ito the pivate ad taquil ejoymet of the philosophe ad made a life i cotemplatio the peequisite of huma digit His isistece o the pivacy of the udistubed delights of the mid led him to doubt the saced oigi of the polis;
he taught, istead, that cities wee established though a cotact of fee ad equal idividuals who eteed it to potect thei secuity The pupose of the polis ad the basis of obligatios that cay the foce of atual law is utility; the aim of the law is to pevet mutual ijuy ad ham But despite the idividualistic chaacte of Epicueaism, its suspicio of public po wes ad its citique of i jus tice, atue ad its pleasues emaied totay pivate ad had o immediate effect o the social ogaisatio which was sustaied by slaves wth o obvious stake i the ealm of happiess The al ad most damatic mutatio i the ealy elatioship betwee physs ad noos was itoduced by the Stoics The Stoics emaied faithful to the supeioity of a pivate life o f taquillity ad eectio They peached ad pactised aaraxia o impetubability, the supeme duty of selfcotol ove passios ad iatioality But while fo Epicuus, happiess accodig to atue led to a life of dig ity, the Stoics made wellbeig te outcome of a life digied by the pide of beig huma The digied peso was so meoe whos e head was held high the peso who held himself upight, who fom the outset elated to atual ight pide that was uive sally fomal set a allecompassig attitude of kiship o the autoomous idividual" 22 The Sop hists had set physs agaist noos; the Stoics expaded noos ito the ecessay bod of the uivese ad idetied the two The ew atual law was uivesal ad eve divie, its saced chaacte commued a sublime pathos to its fol lowes This passio agaist passios tasgessed class divides fo the st time ad uited slave (Epictetus ad empeo (acus uelius The Stoics kept efeig to a golde age, goveed by uwitte laws whose cotet was the iate equality ad uity of all i a atioal empie of love extemely athopocetic, yet diviely sublime, atue goveed by ecessity was held ove posi tive soci et ad became the sole citeio of valid law" 23 While the Stoics wee ot paticulaly iteested ijuispudece, ad thei quietism allowed them to accept both democacy ad moachy, they made a lastig cotibutio to legal thought Thei uivesal humaity, based o the atiol essece of ma ad equal ights fo the whole huma ace , was a damatic depatue fom the Geek wold o f fee ad slaves o Hellees ad babaias The cotact with the aciet pophets of Isael, who wee the st to lay claim to a aalogous positio, was a sigula evet full of
30
2 Fey and Renaut, opcit, supa n 14, 34
22 ibid,
3
A B R I E F H I T O R O F N A T U R A W
THE CAICA BEGINNING
jus tic 5 Th So catic qust fo tu justic i s a futatio of ijustic though aso Socats stats by dismissig covtioal thois which pst justic as givig popl thi du, tllig th tuth ad payig o's dbts o ally doig good to fids ad ham to mis H th tus to th mai challg Th cyical viw of th Sophist Thasymachus, that what passs fo ustic'' is th xpssio of th itsts of th uls, th walthy ad th stog ad, as a sult, th tuly ightous ma always loss o ut 6 It is i th itst of th vi tuous, accodigly, to act ujustly ad pomot his ow pot sic ijustic givs mo stgth, fdom ad masty tha th mis om ustic'' Th challg ofThasymachus gos to th hat of th atioalist dialctic H chids Socats to stop playig to th gally by futig oths It's asi to ask qustios tha to asw thm Giv us a asw yousl ad tll us what you thik justic is" But whil Socats shows that th positio of Thasy machus is logically cotadictoy ad moally utabl, h ds th xchag by admittig that h dos ot kow th maig ofjustic H holds to th bli howv, that j ustic is go od ad ijustic vil ad that j ustic is always mo advatagous tha ijustic Raso commads that it is btt to suff a ijus tic tha to commit o But Socats soo admittd that whil philosophy is committd to th ul of aso, asoig alo caot pov th supiity of justic H was th st to udstad o of th gat coudums of moal philosophy, amly that moal kowldg d os ot cs saily ad automatically lad to moal actio s Ovid put it lat, video meliora proboque deeriora sequor (I kow th good ad appov of it, but I follow vil To psuad his audic, thfo, So cats supplmts his agumt with a umb of oatioal claims ightousss should b pactisd bcaus it bigs happiss, a agumt which is both clos to Thasymachus' dtstd utilitaia ism ad is accptabl oly to thos alady ightous lthough h dismisss th thoy ofjustic as tibutio, h aats th ligious myths of Radamathus ad E with thi thats of divi tibutio fo vil dds i th aftlif Fially, h admits that whil philosophy,
th pactic of wisdom ad kowldg, is th bst tach of co scic ad th city, th xtal authoity of pats ad lgislatos may b th oly alistic souc availabl fo tachig vitu to th may Th philosophical Rpublic is a pogamm fo th bst polity, a quasicostitutio fo th cit that pactics justic It must b costuctd by th philosoph who, i usig aso, clais ad pomots th quimts of huma xcllc accodig to atu But th ocatic qust also pays atttio to th xigcis ad co tigcis of th histoical situatio No polity ca suviv o acqui lgitimacy, if it dos ot ackowldg th impotac ad tak accout of th ulightd" opiios of its citizs, thi co vtios ad customs Th succss o f th Rpublic, th applicatio of atual ight to politics i oth wods , dpds o th uctai ad always fagil accptac of th philosoph's dsig by his fllow citizs ad o a lag masu of chac 9 It is a utopia, it dos ot xist i th pst, ad its alisatio i th futu caot b guaatd Natual ight vald i aso is th cssay p coditio o f th just po lity, but it is ot sufcit It must b adjustd to pactical ad political cicumstacs ad cosidatios, it must stai its atioalism ad tailo its tuth to th opiios ad mo tios of th may Th oth stikig chaactistic o f th dialogu is that dspit th may atioal ad oatioal agumts cavassd, Socats offs o ditio ofjusti c ustic is st placd by aso, lat by th ida of th good, which is pstd as its substac ad ultimat valu But whil th good of th idividual ad of th polis povid th cssay citia fo choosig btw comptig couss of actio, th good itslf is ot accssibl to aso Similaly with jus tic Socats afmd patdly that justic ad th good xist ad a th highst valu But vy attmpt to d o dscib thm was soo abadod as th dialogu cicld aoud justic ad th good without solutio Th cl osst w com to th maig ofjus tic is wh Socats compas th costitutios of th idal city ad of th soul Thy both follow th picipl of doig o' s ow ad pop task" suum agere Th ight costitutio lads to a balacd latioship btw th th classs f citizs i th city ad th th pats of th soul i ma Th pfctio of th pats ad thi hamoious ad popotioat latioship maks th city just ad
3
5 Hayek, opc. , supra n , Vol , The ophst Callcles n Ga had arued, n a protoNezschean anner, ha en are dvded by naure nto the sron and the weak and ha law and conventon are he cre atons of nfeors who use the talk of usce o dra ther superors to her own low level Plato, Gia ( Halon trans) (London, Penu n, 9) 7 Plao, Republic (D Lee rans . ) (London, Penun, 974) c
35
A B R I H I T O R Y O N A T U R A L L AW :
T H C A I C A L B G I N N I N G
the citize vituous But suum agere is a totally fomal piciple ad ca scacely detee what is to c out as pope ad as due to each But this oly sustaied attempt to descibe the chaacteistics of jus tice was soo abadoed whe Socates ackowledged that the compaiso of state ad soul may ot be appopiate 30 This edless ad icoclusive ciclig aoud justic e ad the good leads evetually to the ecogitio that the good may be epekeina ousias, beyod Beig ad essece at the othe side of kowledge ad easo s Plato admitted i his seveth Epistle we ca eve fully kow the good fo it does ot admit of vebal expessio like othe baches of kowledge" ustice too the political expes sio of the good caot be discoveed i laws ad i witte teatises as it has o es sece o its essec e lies beyod immediate life i the city i the sky" But while it caot be atioaly deed justice exists ad eveals itself to philosophes ad lawgives i mysteiously divie ways The quest fo justice exemplies the paadox of easo fo mulated by Socates i the most exteme mae easoig leads to ueaso Faith sufaces thee times ad i thee foms faith i othe woldly justice faith i authoity ad faith i evelatio" Behid the meadeig dialogues lies S ocates' ultimate agumet fo justic e his sacice o the alta of a ju stice that caot be deed o it s supe ioity pove atioally but which must be acted upo ee at the geatest of costs Socates' death is the stogest agumet abut the iheet ijustic e o f the law fte his sac ice the bu de of poof lies with those who believe i law's justice The Repubic is the st attempt to aise j ustice ito a uivesal eth ical idea totally idepedet of its histoical cotext People must leave the cave o piso of empiical existece ad ete the ideal wold of foms befoe they ca gasp the opeatio of the good ad ofjustice What is most emakable i the dialogue howeve is its uswevig attack o all covetioal ad taditioal views The tuth about jus tice may ot be accessible at all i which case we have a obligatio to emai silet i these mattes It may be that the oly cotibutio philosophy ca make is to deouce the may
ijus tices to e fute the falsehoods of the com mo ses e ad to make it udestad the atual pupose of the pois. t the ed Socates seems to accept that as o atioal agumet ca coclusively justi his theoy ofjus tice he must offe his ow sacice as ultimate poof ad the gavest offece agaist easo I doi g so his agumets ad his actio ae joied i a paadoxical fomulatio which may be called the aporia o justi: to be just meas to act justly to be com mitted to a fame of mid ad follow a couse of actio that must be accepte befoe coclusive atioal justicatio 4 The classical theoy ofjustice ca be desc ibed theefoe as a eth ical ad political doctie which aims to big about though debate pesuasio ad political actio the best polity o egime" i which huma pefectio ad vitue i associatio with othes ca be achieved I ts methodolo gical tools ae the obse vatio of atue ad atioal agumet But it would be misleadig to say that this egime is give" o foud" i atue Natual ight offes a alteative to histoical detemiism ad to covetioal ad authoitative opi io B ecause justice is by deitio citical of what exists philosophy adopts atue as the souce of its pesciptios ad claims a atual objectivity" fo its ight But this ideal is ot give by Go d evela tio o eve a immutable atual ode It is a costuctio of thought ad its actualisatio is deeply political Fom aximade to S ocates ealy philosophy claimed that me eed ad have a sese of ijustice They uceasigly build legal ad moal systems to achieve justi ce but justic e is ot fully of this wo ld The ightful idi vidual ad social ode stive to tasced the ifamies of peset but justice is accessible to huma thought i a limited way ad its eali satio is vey difcult eve impobable s Stauss put it the best egime which is acc odig to atue was pehaps eve actual; thee is o easo to assume that it is actual at peset; ad it may eve become actual i a wod the best egime is a utopia' ".35 ustice is thus caught i a uceasig movemet betwee kowledge ad passio easo ad actio this wold ad the ext atioalism ad metaphysics
Republc, n 7 supra, 4 1 Plao, Episle V in aedu and Eptle VI and V, Hailon rans) (London, Penuin, I97) 4 I For a ull discussion ohe Plaonic search or he eanin ousice and he ood and his adission o deea, see Hans Kelsen, The Meaorphoses o he dea o Jusice in P Sayre, Intepetatn f Mdern Legal lp e (New ork, Oxord Universiy Press) I947 2 Anes Heler, BeyndJutce (Oxord, Blackwell, I97) 7
4 The apoia o reason andusice is even sroner in he Jewish radiion To be us, he Jew us obey he law, wihou any reason or usicaion For Buber, Jews ac in order o undersand while Levinas denounces wha he cas he wesern epaion o epaion he Greek deand o subordinae eve ac o knowlede and o overcoe he puiy and innocence o he ac Eanuel Levinas, Nne Talmudc Readng (Blooinon, ndiana Universi Press, 99)
36
37
38
A B R I E F H I S T O R Y O F N A T U R A L L AW :
III.
A R I S T O T L E A ND L E G A L J U S T I C E
Aristotle's Nicomachean Ethics and, in particular, its chapter on Justice are foundational texts for Western law36 The discipline of law stricto sensu was enunciated in the Ethi and ju ridical activit was presen ted, for the rst time, as relatively autonomous from morals or politics According to the legal historian Michel Villey, very little can or has been added to legal theor or to the idea ofjustice presented there37 Aristotle starts by distinguishing between general and particular jus tice. Justice belongs to the virtues, n ot as one of them but as the total ity of virtue General ju stice is the moral dispositio n which renders men apt to do just things, and which causes them to act justly and to wish what is just" It has two characteristics: rst, it is identied with the whole o f virtue as exerci sed in the polis and, secondly, it is addressed to the good of others" allotrion agathon 38 But gen eral jus tice is muc h more than the morality ofthe moderns Aristotle's dikaios aner, the just man, has all the virtues and exercises them for the good of the others and the city In this se nse, general justice resembles the Platonic denition without the strong metaphysical element It has elements ofpolitical and s ocial morality and it is related to the law but is wider than either As the la w overs many aspects of human exis tence , the just and the lawful may coincide T he unj ust" man s rst a law-breaker, secondly, he who takes more than his due But Aristotle adds, in an early corrective to legalism, that law-breaking is unj ust, only if the law is rightly enacted" 39 The prime example of an unjus t law is that which d oes not foster the other-regarding good But it is particular or legal justice which opens a wholly new way of loo king at legal relations To understand its strange to modern ears nature, we sho uld start by examining the end and nature of law Justice today is a principle or ideal towards which societies aspire, the (absent) soul of the body of laws For Aristotle , howeve r, this dis tincton between law and justice did not exist The word used to express this intimately connected cluster of ethical, legal and political concepts was dikaion. The dikaion means the right or just state of 3 6 For a discussion of Astote's ethics s ee W ER. Hardie, Aritotle� Ethial Teo (Oxford, Oxford University Press, 1 980), ] Urmson, Aritotle Ethics (Oxford, Backwell, 1988). 37 Miche Vlley, L droit et le droit de l'homme (Pas, PUE , 1 983) Chapter 4. 3 8 Aristote, Nimaean Ethic (].A.K. Thomson trans ) (London, Penguin, 1976) Bk V, 1 129b30-11 30a18.
I
THE CLASS ICAL BEGI NNINGS
39
affairs in a particular situation or conict, according to the nature of that case Particular justice exists in cities; when its demands are con tested by two parties , it requires the intervention of a third disinter ested person, the dikastes or judge. His judgment is the dikaion, the lawful and the just solution The dikaion is therefore the object of ju dicial decisio n-making, the action of the jus t man and the end of law It is a state of affairs in the w orld, a distribution o f things o r the just share decided by the judge and, as the object ofjustice, the aim of humn acts and the ou tcome ofjudicial considertion As juridical art, the dikaion aims at the right proportion between things or an external relation to be established between persons on the basis of things" 40 The rightful judgment distributes prop ortionately things to peop le , gives the m their fair or ju st share according to the pattern of right relationships The jurist is not concerned with upholding indi vidual entitlements or rights but with observing the cosmic and civic order, from which he derives guidance The way of things and of the world teaches the ju dge patterns of propo rtionate distributions, which he must respect and promote The idea of proportion is cru cial; it brings justice close to the aesthetic beauty immanent in the harmony of the world The dikaion should not be confused with moralit or general jus tice and it does n ot result from the applicatio n of moral precepts or legal rules Greek cities had moral rules and Antigone's unwritten laws fall into that categor, but these were clearly distinguished from legal justice The idea of law as commandment or rule accompanied by sanctions originated in Jewish and later Christian concepts of law and was not of great importance in classical Greece4 1 Particular ju tice, the art of the judge, was not about moralit, utility or truth but about the sharing of external goo ds, of benets , burden s and rewards It was concerned with distribution and retribution and constituted the proper object of the juridical art The task of the judge was pre cisely to reach the right outcome in the sharing of external goods Plato to o wrote that the aim of the juridical art (dikastike) is to discover the dikaion and not to study the laws, which are only sup plementary to this task; an unjust law is not law propely speaking, because the role of the jurist is to nd the just solution 42 The judge, 40 Raph Mcnerny, "Natura Law and Natura Rights in Aquina on Human Ation (Washington, D , Cathoic University of Ameca Press, 1 992) 2 17 41 Miche Viley, "DikaionToah in Seize ai de Philoophie du Droit (Pas, Daoz, 1969)
A RIEF HISTORY OF NATURAL LAW:
THE CLASSICAL EGINNINGS
like ll citizes, must seek th e good d the judicil voctio is jus tice ristotles descripti o of the judicil rt is detiled d prcticl d follows the method of turl right just distributio ivolves two elemets reco gitio of stte of ffirs, of equitble propor tio subsistig mogst thigs, d distributio of the disputed thigs ccordig to this rrgemet First, observtio; for clssicl philos ophy, the source of turl lw ws the turl orgistio of the cosmo s The just outcome is lredy iscribed i the ture of thigs d reltioships, i the cosmic order of iterrelted purposes d eds d wits its recogitio d prooucemet by the judge The cosmos d everythig i it, icludig the poli re prt o f ui versl hrmoy, the vrious prts d costituets re properly bl ced The city does ot ej oy perfect j ustice, of course B ut fmilies, socil groups d cities, which hve come ito beig spoteously d, grdully developed their politicl reltios, vlues d costitu tios, re pregurtios of the perfect order They c serve s m od els bec use the ho pe o f the perfectly jus t city presupposes th t we c extrct the ide ofjustice from its existig imperfect pproximtios Observig relity is the rst step to the discovry of the just solutio
Furthermore, dig the just so lutio ws discursive prctice d politicl ct It ivolved the lered choice of the judge who co siders ll te circumstces of the cse d the prticulr coditios persistig t the time44 The jurist discovers the dikaion by usig the rt of lw its key priciple is audem alteram partem there re lwys t lest two coictig prties who must be herd d tht mkes the style of rgumet rhetoricl d the method dilecticl The dilec tic ws itegrl prt of clssicl thought; util the Reissce, it ws the mi sch olrly method i theolo, philosophy d lw The dilecticlly just solutio is ot deduce d from geerl rule, or is it the outcome of logicl exercise but the pplictio of kowledge bout the ture of thigs It will be discovered i relity, through cosidertio of rgumets, exmples d observtio of the rel tioship mogst the prties The j udge cosiders the pledigs of the prties d compres their coictig d cotrdictig opiios s prtil expressios of relit By puttig terms d rgumets to debte, judges rrive t their decisios dilecticlly ot the oly or truthful opiio but the best i the circumstce s The l igredi et ws politicl i decisiomkig, the legisltor or judge supple mets the o bservtio of ture, the dilecticl c ofrottio d the rtiol jus tictio with ct of will which cot be fully theo rised Dilectics is lwys provisiol, ope to ew rgumets, expe rieces d cocers Legl judgmet, coducted i the relms of prxi d tene rther th sciece, epiteme is lwys ccompied by degree of ucertity, which is brought to ed by the deci sio The dikaion is therefore ct of judicil will which, strtig from combitio of turl observtio d rgumettive co frottio, dds precise meig d determitio (the puish met for such tort is the scrice of two gots d brigs the iss ue to close I Rom civil lw, the method becme explicitly csuisticl, it strted d ished with the cse t hd The csuists styed close to the fcts of the cse from which the y extrcted the solutio (ex acto ju oritur) They explored existig opiios reltig to the cse, they loo ked t doctril uthorities, t opi ios of juriscosults d t vilble rules Exmples from the pst, ujust outcome s, hypotheti cls d cses previously cosidered, were used to illumite the preset situtio The uthorities were ot treted s true or bidig, they d persusive oly power The judge iterveed by
0
The judge acts like a botanist or anthropologist: he observes the coectios d reltios mogst his fellow citizes, the wy i which they arrange their affairs, in particular the way in wic they distribute benets and burdens. But the just decision is always provi siol d experimetl, trsiet d dymic i the sme wy tht human nature is always on the move, between the actual and the po tetil d cotiuously djusts to chges, ew circumstces d cotigecies. Fidig the dikaion is the im of the clssicl jurist but that is never fully and nally achieved; it remains always a step away, full justice is deferred, not yet here and never fully done In this sense, se ekig the just ivolves the observtio ofthe exterl world s well s futurl or trscedet elemet If we u derstd the word lw s syoymous to formulted rule, there is o turl lw" writes Villey4 Nturl right is methodologicl priciple tht helps i the discovery of the just solution, not in our conscience or some strict set of rules, but in the external world of human relations. The natural law is an unwritten law, its content is never fully known; it has noth ing to do with the idea of a positive rule or commandment prevalent
i mo derity
"One cannot know in advance the c ontent of positive usice; it depends on he fee
BRE HSTORY O NTURL LW
THE CLSSCL BEGNNNGS
cofotig the cotadictoy claims of the paties claiig wods ad tems puttig the litigats i diect cofotatio This poly phoic pocedue i which litigats ad authoities witesses ad pecedets opiios easos ad agumets the sic ad the uc" ae bought ito dialogue is the gist o f the dialectic ad the way though which ju emeged d as social shaes wee pat of the wide cosc ode a just distibutio was politically ad ethically ight but also a beautiful expessio of the wide cosmic hamoy Fially istotle's theoy ofjustice caot be udestood outside its iticate coectio with phronei o pactical wisdom Fo istotle vitue is the geometical mea betwee excess ad lac o defect The moal aget is the pudet ma o phronimo who acquies his moal sese ad discimatio i the couse of a life full of expeiece His pactical judgmet is always situated i the co cete cicumstaces of the case at had istotle agued that equity epieikeia is the ec ticatio of legal justi ce nomo i so fa as the law is defective Laws ae geeal but the aw mateial of huma behav iou" is such that it is ofte impossible to p oouce i geeal tems Thus justice ad equity coicide ad both ae good but] equity is supeio"45 s people ad life have a iegula shape" the law should be lie the leade Lesbia ule: ust as this ule is ot gid but is adapted to the shape of the stoe s o the o diace is famed to t the cicumstaces" 46 Thee is o model o bluepit to gude the judge his tue vocati o is ofte to decide the just without citeia o ules The vaiety of cicumstaces ad the uique situatio i each case meas that to achieve equit the judge must decde fom case to case without esot to stct citeia To be just the judge must develop ad e tue the at of evaluatig the coictig foces elatios ad claims The mea s o cetal i istotelia ethics ca ot be deed outside each specic situatio ustice is the wo of the just but whethe the judge is just o ot caot be judged pio to his judgmet Paticula justic e as t he at of evaluatio calculatio ad distibutio caot be theoetically specied outside of ts co text This is why Leo Stauss moe iteested i the political tha legal aspect of jus tice foud istotle less impotat tha Plato Stauss believed that the istotelia emphasis o cicumstace ad situatio tued justic e ad atual ight ito co cete judgmets ad actios ad tued them away fom geeal schemes ad theoies But Stauss
too ageed that fo bo th Plato ad stotle atual law had a chage able chaacte ad ecogised the vaabilit of the demads of jus tice47 Thee is a uivesally valid hiechy of eds but thee ae o uivesally valid ules of actio" Stauss c ocluded While the hieachy of eds is sufciet fo passig judgmet o the level of the obility of idividuals ad goups ad of actios ad istitutios it is isufciet fo guidig ou actios" 4 Geeal justice the whole of itue" which demads the good of the othe" emais a elusi always defeed ho zo agaist which legal judgmet ad political pla must be pecaiously coducted It may be that Lyotad's vedict that it is impossible t o poduce a leaed discous e upo what j ustice is " appl ies equally to classic ad mode effots to ceate a theoy ofjustic e 49 The esevatios of Stauss emai impo tat oetheless The oly thematic teatmet of atual ght which is cetaily by istotle ad which cetaily expesses istotle's ow view coves baely oe page of the Nicomachea Ethics" 0 istotle is a the oist of justi ce ad despite Villey's attempts to ideti the two atual ight ad justice follow diffeet ad ofte coictig paths Thei ivetio i classical Geece at aoud the same time helped thei cofusio but thei late taj ectoy sepaated them I omal times justice emais a vitue impose d fom above Eve i its istotelia pudet ad equitable vesio justice uses a umbe of elemets which distace it fom atual ight Fist legal justice athe tha challegig existig hieachies pesupposes a atual ad istitutoal equilbium which acts as the empical ad logical bacgoud of popotioal judgmets Sec odly istotelia judges ae pudet patiachs The golde age of Stoics o the othe had had o authoity o judge ad Themis the goddess of custom had o use of scales fo weighg people ad thigs ustice was ce tal fo those who ty to devse the best most acceptable fom of execisig powe ot fo philosophes coceed with dsset ad oppostio to established customs o laws s Bloch agued Plato
2
4 Aitotle Ethi opci up n V x 7b4
3
47 Stu opcit up n 3I 7 48 ibid 49 Lyod tte tht " m cloet to Atotle ino he econie nd he doe o explicitly in the Rhetori well in he Niomahean Ethi tht jude wothy of the nme h no te model to uide hi judment nd tht he tue ntue of he jude i to po nounce judment nd theeoe peciption ju o without cite JenFnoi Lyotd ndJenLoup Thbud Gaming Glodzich tn) (Mnchete Mnchete niveity Pe 9)
A BRIEF HISTORY OF NATURAL LAW
I THE CLASSICAL BEINNINS
ad rstotl mad ou t ofjustc that whch Stocsm vr mad out of atur, amly, th gus of domato". 5 For Plato, j ustc rgulats th soul as much as th ct, t has a dscplg fucto t coordats ad subjugats th facults of th prso ad surs that ach ctz carrs out hs alottd duts ad rsposblts. Dspt ts utopa lmt, Platoc justc rmad phlosoph cally aloo f ad poltcally authortara. rstotls pragmatc poltcs mad hm lss authortara, but jus tc as a lgal vrtu was scarcly lkly to sd th slavs marchg to th agora ofths. Stoc atural law, wth ts phlosophcal qutsm, dd ot do that thr; t lad howvr a possbl foudato for futur rbllo. I th hrarchcal rstotla cosmos, classs ad popl wr assgd thr xact valu ad c osmc sgcac by thr at ural stat but, at th sam tm, thy wr costrad to that stat alo. Idvdual justc ad th just ma had a dpdt plac rstotl , but hs actos dd ot rfr to ttos, motos ad passos . It was rathr a xtral qualt whch co uld b dcdd , as Vlly put t, objctvly. udcal mpartalty was ts modl, alog sd th stuatd ad xbl obj ctvt of atur. Both wr cs sary for dcdg what th ctzs shar was. Vry lttl th stadards o f law, vrtu or valu c ould chag udr such a c ocpt of justc . Thy rma th masur of domat rlatos whch, justc, wth ts mathmatcal apttud, could calculat ad wgh xactly. From th prspctv o f radcal atural rght, justc was ot a crtqu but a crtcal apolog of postv law. Thr s cos drabl dstac btw ths patrarchal co cpto o fjustc ad th phyi that phlosophr ad rbl st prcsly agast th assgmts ad dstrbutos of law. W ca coclud that th dscovry of atur ad th mthod of atural rght was th rbllo of phlosophy agast th wght of custom ad of th past. Natural rght clamd th truth of atur agast commo ss ad th dgty of argumt ad dalctc agast th baalty ad opprsso of rcvd opo. But as th atur of th classcal tlologcal world was a dyamc cocpt, vr shd or prfctd but always o th mov , atural rght, th outcom of th obsrvato of atur ad of th dalctcal co frotato of opos, was also provsoal ad chagabl accord g to w cotgcs. s th dctat of obsrvd atur, atural rght was quasobjctv; as th outcom of dalctcs, t was dply
trprtatv ad poltcal. Both objctv ad costructd, atural rght bcam a o hstorcst but dply hstorcal ad cultural sta dard for judgg th world. Wh ths mthod s appld to th polt, justc s show to hav two aspcts, a poltcal ad a lgal. Poltcal j ustc xplors th ovr all orgasato o f th pois ad trs to mag th prfct costtu to, th most bautful ad harmoous arragmt of th socal bod. But justc or th just s also th d, both th am ad out com , o lgal acto . ustc as a dal, s vr fully of ths world; t forms th ho rzo agast whch currt practcs ar ju dgd ad foud lackg. Th just as th out com o f th jurdcal procs s s bo th prst ad futurlookg. Th cocpt of justc s thrfor splt a dal or gral justc whch promss a futur prfcto ad judgs ralty ts am ad, a lgal or partcular justc whch uphols ad rdrsss proportoal qualty th vryday dalgs of ctzs, but also rprod ucs th xstg balac btw fr ct zs ad slavs, m ad wom, Grks ad barbaras. Lgal jus tc could also fac both ways, ts provsoal judgmts rachd agast th horzo of a purposful ordr ad a prfct justc always dfrrd to th futur. But ths wll hav to wat. Th Grks wr dbtd to phlosophrs, tragdas ad dssdts, rathr tha to judgs, for upholdg atural rght agast th justc from abov. Thy rma to ths day a powrful ls that hlps s through th hazy ar of opprssv ad uqustog rcvd opo to a truth whch s both futurlookg ad tmly. Occasoally, w d a rmot satllt ord r to gt th bst v w of our ow arth.
5
3 A Bri History Natural Law II. From Natural Law to Natural Rhts 1
T H E S T O C S A N D N A TU R A L R G H T
The Romas adopted the Gee appoach t o justc e ad Roma law developed to the most advaced acet legal system The Lat wods fo justce ad law deve fom the same oot the sematc eld s the same Gee ad Lat (dikaio ad u fo ght/law dikaioye ad utitia fo justce The Roma u le the Gee dikaio ws both the lawful ad the just the am of the just each dspute was to seve j ustce by amg at the just soluto u id quod utum et ad u obectum utitiae) 2 The st les of the D gest state that utitia et cota ad perpetua vo luta u uum cuique tribuedi ad that law deves fom justce et a utem a utitia appelatum u d whe the Dgest says that u et ar boi et aeui o that the object of justce s hoete vivere alterum o laedere uum cuique tribuere4 t fol lows the stotela c ocepto of patcula justc e Fo the Roma j ust as fo the Gee the u was ot a collecto ofules but the j ust ad ghtful out come of a dspute The Dgest says that ou pope cvl law s ot wtte but cossts solely of the tepetatos of the justs" The opos of the juscosults stated beg wtte ad evetually acqued a pesuasve foce fo 1 Se legal hian eve he eylgy u r he Lain juum an jubeo rer Thi pible aciain ha been e nk ju wih legal piivi jubere e n ean canen in Lain The eanic el he Greek dikaion wih i link beween an lawl inence he Lain an le a iilar ink. See Michel Viley droit et e dro de homme (Pa PUF. I9) 9, 4 2 Tha Aqina Summa eoogae ae 7 1 et 1 Ulpian Intitute 4 The ll paage i }utitia et ontan etperpetua vountau uum uique tribuendi: uri praeepta unt hae hone te vivere aterum non aedere uum uique tribuere uripudentia et div inarum atque huma norum rerum notitia uti atque injuti ientia iget Ulpan Aut t propriumu vie quo d ine ripto in o a prudentium inteprtatione onit t iget
A BR EF HS TOR OF NATURAL LAW
FROM NATURAL LAW TO NATURAL RHTS
later cases but the metho d remained dialectical and casuistical.
diffes bo th fom a moal code ad fom a system of positive laws eg latig codct. istotela cocepts oflegal jstice svived ad thived i Rome whee the Stoic ideas of atal law simplied ad tasfomed by Ciceo wee also applied fo the st time. s the Geek citystates stated dissolvig st i the Macedoia ad late i the Roma Empies the idea of a law commo to all impeial sbjects of a u getium stated to take hold The St oics had stayed away fom diect political ivolvemet bt the moality of ivesal hmaity which they esposed ad based o oms deivig fom atioal hma ate cold be sed eqally well to estai the iatioal passios of idividals ad ethic ad local atioalisms i favo of a ew cosmopolitaism The Stoic Chyssips fo example descibed i vesal hmaity as a atio while fo Posid ois the wold was the commowealth of gods ad me Bt it was Ciceo a eclectic Stoic ad a pagmatic lawye ad politicia who ted the atioal ivesality of Stoicism ito the legal ideology of Rome Ciceo atioalised Roma law ad claimed that may o f its ce tal teets cold be taced back to ivesal atioal oms I the pocess the Stoic commo otios thogh which me patook of ivesal easo ad became awae of its dictates we e psycholo gised. The ortho logo o ight easo of the Geeks which ited atal ecessity with the laws of easo was ted ito the recta ratio of good ses e thogh of cose as a co mmo sese that has become the speme soce of law . Whe the Roma jists spoke of u aturale o sed ate to explai o qali legal cocepts thei tems had less of a istotelia tit ad moe of a pactical impot Fo atal was to them ot oly what followed fom physical qalities of me ad thigs bt also what withi the famewok of that
8
"Stating fom the stdy ofj st and njst deteminations jisp dence ises to geneal knowledge and comes to fomlate 'deni tios' les' vedicts' opiios of the jiscoslts"6 The jus civile is a collectio ofjst decisios ad jispdetial les of the po cedal decees of the magistates ad late of the d ecees ofj ists of the impeial cot ad has little afity with cotempoay systems of law, except with the commo law befoe the assalt of the Eopea codiig spiit The Digest states clealy that "the le descibes a eality biey. The jus does ot deive fom the le bt the jus that exists ceates the le The jus desigates the jst shae of each citize i his elatioship with othes. The jura ae ot idi vidal ights bt eal etities i the wold "objective elatios amogst citizes. They ae ofte thigs ad especially icopoeals bt they iclde also istittios sch as the maiage pateity o tade. Gais lists amogst the jura "the jus of bildig ho ses highe ad obstctig the light of eighboig hoses o ot doig so becase it obstcts thei light; the jus of steams ad gttes that is of a eighbo takig a steam o gtte oveo w thogh his yad o hous e".8 Cutting through the contemporary distinction between rights and duties, the jura refer also to citizens' civic duties and bur dens. The duty to serve in the army, for example, is a jus and, the brutal execution of a parricide is also called the murderer's jus. But pedomiatly jus is the jst otcome of distibtio the calclatio of the just proportion amongst external things shared by the citizens It is also the end of the just act or ju dgment, the aim of the art of law (id ad quod terminatus actus ustititae) For the classcal lawyers, 'ur are plainly not rights in the modern sense" 9 As Michel Villey has argued, in Ulpian's denition ofjustice a s suu m jus cuique tribuere, the us refers not to an individual right but to the ju st share or due determined within an established structure o f relationships and varying with each person 's status and role.1 0 Like the Greek dikaion therefore, the jus .
Villey p ci pra n. 7
"Regula e st quae rem quae est breviter enarrant.Jus non a regula sum atur sed ajure, quod est,
regula at igt 7 al 8 e Institutes ofGai (F De Zalea e . Oxr 94) 9 Richar ck Natul Righ Theorie (Cabge Cabrige Univeriy re 979) 9 0 Michel Villey "Le Origine e la nin ri becive in Leons d'histoire de la philosophie du drit (a Dallz 9) 7 Formation de la Pee Juridque Moderne (ari Mnchrien 9 ha been arge ha he cncep he Ran an eay glar cle inivial gh i n us b domnium wih i iplicain prpery
9
ck ibi 9. Michel Viley repne wa ha while dominium ean aery ve wr r hing i wa n a legal cnrc b a prelegal realiy rerice by law Fr Viley he whle rce langage in Re wa bil a n cncep ieren r r in which he cncep he bec an becive righ ha n place See droit et les droits de lhomme pci pra n I 744 ck agree ha he "claical Ran i n have a he ab legal relainhip in which he ern nin a becive righ playe any par ibi a I He ier r Villey hwever wh believe ha becive righ were ince aer he ninali revlin in he 4h cen an arge ha he r glar cape he cncep us an dominium in he h cen an cre ae he rigin a hery righ. Fr an exhaive review he eba e ee Brian ierney e Idea ofNatul Rgh (Alana Schlar re 997) Chaper Qe in Ern Blch Natural w and Human ignity (D Schi ran) (Cabge Ma M re 9) 4 .
A BIEF HISTO OF NATUAL LAW
II FOM NATUAL LAW TO NATUAL IGHT S
sstm, smd to squa wth th omal ad asoabl od of huma tsts ad, fo ths aso, o t d of futh v dc"3 Stll, th Roma u cotud to sg a st of objctv latos th wold ad, lk Gk law, dd ot hav a coc pt of dvdual ghts d whl stotl ad uvsal lgalt ma hav pagmatcall cocd d fo a bf pod , though th ds of th Roma Emp, th soo dvgd aga stotla justc mad ts last gad appaac th wtgs of Thomas quas ad th gaduall dscdd to postvsm Th atual ght tadto, o th oth had, ucd b Stocsm ad Chstat, movd towads a commadtho oflaw ad a subj ctbasd ttato ofght ad ppad th mod cocpto of huma ghts Lt us xam clos som of th ma lmts of Stoc thought whch, msdgstd ad clctcall vsd b Cco , xt d such mms uc o lat poltcal ad lgal thought 4 Th Stoc tachg adcall chagd both th classcal mthod of agug about th atuall ght ad th cott of atu, th souc of law Natu bcam th s ouc of a dt st of uls ad oms, of a lgal cod, ad stoppd bg a wa of agug agast sttutoal cstallsatos ad commo opos Th Stocs w th st pagas to blv that atual law was th xpsso of a dv aso whch pvadd th wold ad mad huma law o of ts aspcts Cco 's famous quotato fom th Rpublc s woth quotg at lgth:
N xt, th co cpt o f atu Th stotla atu was a o matv cocpt whch combd th ssc of a thg wth ts pottal fo gowth ad pfcto, th fct ad al d of th cosmos ad of all bgs ad thgs Stoc atu was much mo sta tc Its omatv chaact was tad but bcam a ompst ad dtmg spt (neuma) th logo o aso foud as s dlg vthg Ths ompott logo uts ma ad wod humas, t acts lk th atst's 6 t bgts ad sculpts th bod ad ms t coh b assmblg ts compots (logo per matiko). But t also commads th whol wod, th sam wa that th mpo co mmads hs mp D ogs Latus wot that atu s th foc whch costas th wold a stabl foc whch dvs fom tslf, po ducs th smal asos ad cotas what cos fom t" Natu was thfo otologsd ad sp tualsd t bcam th catv spt o lf pcpl whch, ts pu stat, s God whl ma sds th soul Th soul, Cco's vi innata s a tal foc whch uts huma wth dv logo ad maks thm dsc th law f atu, whch th a boud to obsv Natura nitium uri sad Cco9 Th law, huma sttutos, uls ad all woldl od pocd fom a sgl souc, all powful atu, th sol fn legum et uri ad logo dscloss thm to ma Natu commads, t s a moal pcpt whch ods m to ob th sovg logo whch uls hsto Natual ght bcam a matt of tospcto ad vlato ath tha of atoal c o tmplato ad dalctcal cofotato ad ld to a abstact moal t of pcpts whch atcpatd Kat s a sult, two possblts w op d I th st, atu, wth ts pcpls of huma dgt ad socal qualt, was tad as a catgo of socal ad lgal opposto ad as th cott of ght Th s cod ad domat, howv, quatd atual wth postv law ad th al wth th atoal ad atcpatd Hgl It pvlgd th passv ad pvat moalt of th happ soul d sacto d xstg sttutos, socal hachs ad qualts wth th mpmatu of aso ad atu hyi whch had statd ts ca opposto to nomo cam all to b dtd wth t
50
h tr law is th law o rason in aordan with natr known to al nhangabl and imprishabl it shold all mn to thir dtis by its p rpts and dtr thm rom wrongdoing with its pro hibitions o rtail this law is nholy to amnd it illiit to rpal it impossibl; nor an w b dispnsd rom it by th ordr ithr o snat or o poplar assmbly; nor nd w look or anyon to lari or intrprt it; nor will it b on law in om and a dirnt on in thns nor othrwis tomorrow than it is today; bt on and th sam law trnal and nhangabl wil bind al popl and all ags and God its dsignr pondr and natr will b th sol and nivrsal rlr and govrnor o all things
Ths Go dgv, tal ad absolut atual law had lttl to d o wth th atual ght o f th Sophsts o of Plato ad stotl 13 E Ley "Naral Law in Ran Thgh 949 Studa et oumenta Htorae et Jurs a 7 1 4 Michel Villey Htore de a Phoophe du ro t Pari (4h e 97 4
6 17 18 19
5
Cice e natura deorum (R W Walh ran (Oxr Clarenn 997 7 ibi 9 Digene Laei V 4 qe in Viley pra n 4, 440 Cicer e nventone H M Hbbel ran (Lnn Heineann 949
52
A BRIEF HISTORY OF NATRA AW
Ho\ co uld o d th co tt of ths atual la? Th ght a so o recta ratio pocds om th God of logo ad ts co mmads a placd th coscc, though th commo otos" mtod abov Th logos has b scbd o th soul ad th paamout dut s to follow ts commads Th sag dos ot d to obsv atu o th cty but oly to lst to hs voc Stocsm bcam a l go wth aso ts god ad law, ad wth atual ght clos to th pvat moalty of cosc c tha to th classcal lgal mthod Th Stoc cocpts of atu ad law had mo c ommo wth Chstat tha wth stotl ad ld d ctly to th mod da of huma atu Lt us summas som Stoc ovatos whch pavd th way to th lgal humasm of th mods Th law o log dvs fom xtal but fom huma atu, ma's aso Ma s clbatd as a atoal bg ad s gv a p t posto abov th st of atu, agast stotla physcs, whch th foc of atu hamosd ad hachsd humas ad amals 1 s a sult, whl atu ad aso w tally closly coctd, aso vtually cam to plac atu as th pcpal souc of law Fo llowg ts commads s to follow ou atu But aso s also atod ad ot vyo had qual accss to t th sust gud to ts commads s th aso of sags (ratio meque api eti)22 Thus, th da that th lgslato o judg s th muthpc of th spt o aso oflaw td th hstocal stag Fly, aw ad th just sd th collcto of lgal ad moal uls dscovd by th huma spt Th dikaio of th Gs ad th u of th Romas bcam dtd wth a st of laws lege ad bcam a sys tm of atoal uls, dscovd by th aso of th sags acqus Dda has calld th domat tadto of Wst mtaphyscs , logoc tc" 4 I th Stocs, w d th st xps so of a phlosophcal ad dologcal costucto w hav calld logoomoctsm" 5 It dts th logo as aso wth th aw 21 Cicero pvie a rher iilariy: preging Groi Penoran he 7h cen ry narali h e a wih han nare in orer o eplai n he nare o ocie y an law n e Legiu L an in e Oii (MT Grin an E M Akin ran) (Cabrige Cabrige Univeriy Pre I99I) L V I I Cice give a legally relevan i o han rai an inclinaion which incle aa Hobbe elpreervaion ec 22 e Legiu 4. 2 Cicero clai in e Legiu ha he niveral reaon an he rle he age coe ro Jpie ( 4) 24 Jacqe Derria O Gmmatoogy (G Spivak ran ) (Baliore The John Hopk in Univeriy Pre974) 2 Coa Dozina an Ronnie Warringon wih Shan McVeigh Potmodern
II
F R O M N A T U R A AW T O N AT R A R I G H T S
53
ad psts atoal ul as th foudato ad spt of commuty Bg s quatd wth psc, wth what s pst coscous ss, ad wth th pmacy of logo as omo Idd, bg s pst law ad ths mmac gvs atoal law a otologcal p mc Ratoalsm, th cult of th lgslato ad of uls assoc atd wth lgal po stvsm, th clbato of dvdual ghts whch dv fom huma atu, thy all appa fo th st tm togth lat Stoc thought ad Cco But law's otologcal dmso also pomots das o f huma dgty ad socal qualty Th law as aso that bgts th wold pushs towads a, admttdly abstact, fatt of all humad I ths latt asp ct, Stoc atual law mas o of th most h oouabl chapts th hstoy of das ad s ld wth th lat tho s of atual ad huma ghts But th ma foc movg th law towads a thoy of atual ghts was ts gadual chstasato Jwsh c osmolog dd ot pos sss a clusv ad puposv co cpt of th cosmos Fo th wsh lgo, th uvs s th cato of God It dsplays hs ompo tc ad psc pcsly though hs absc ad, as suc h, t ca ot acqu th autachc omatv wght of th G phyi Smlaly, Chstaty clamd that th wold had b catd ex ihilo though th f act of God Natu, th vto of G phlosophcal magato, was tud to th cato of a all powful bg Th cosmos was ducd to th atual uvs th atual ds gv to all thgs ad bgs w tud to th povdtal posto th pla of salvato, ad tlology bcam schatology Natu tad a lmtd oly omatv chaact xpssg tm what fom all tty sds God" ad co mg ad complmtg dv law 6 Th sds of Chsta atual law could b foud phaps St Paul's statmt, spd by Stoc tachgs, that God has placd a atual law ou hats (Rom 5 ) Ths was th bgg of th da that coscc s th ul of God gad th hat ft th vctoy of Chstaty, th u bcam ttwd wth moaty ad too th fom of a st of commadmts o uls, th paadg matcally wsh typ of lgalty Ev tually, th Chsta Fa ths , commtg o th Bbl, statd usg th tm to ma dv commad ad, atual law to sg th Dcalogu Gata's Decretum publshd th twlfth ctuy, statd that th atual law s cotad th Gospls ad s atcdt both pot of tm
A BRIEF HISTORY OF NATURAL LAW
I I F R O M N A T U R A L L AW T O N A T U R A L R I G H T S
ad pot of rak to all thgs Fo r whatever has bee adopted as custom or prescrbed wrtg f cotrary to atural law s to held ull ad vod Thus both ec clesastcal ad secular statutes f they are show to be cotrar to atural law are to be altogether rejected7 Ths usage was adopted by the medeval caosts ad ally the fourteeth cetury u came to mea dvdual power or subjectve rght A crucal lk the chrstasato of law must be sought Auguste' s theory ofjustce whch combed s ome o f the character stc dfcultes of Plato's metaphyscs ad Arstotle's ratoalsm Arstotle beleved that a secularsed verso of dike the order of the world stll exsted ad just laws ad costtutos were part of t Hs detcato of law wth justce was therefore a way of stregthe g the authort of law whle retag the dyamc character of justce accordg to ature Auguste o the other had equated the two order to uderme the authort of law of the st paga Roma Empre He deed justce lke Arstotle as tribuere uum cuique But whle for Arstotle a ma's due was determed by the etho of hs poli ad the judgmets of the practcally prudet for the Chrsta bshop ma's due was to serve God The vrtue of justce was deed as ordo amori the love of order by attrbutg to each hs proper degree of dgt justce leads me to a deal stat whch the soul s subj ected to God ad the bod y to the soul h ths order s abset ma law ad state are ujust ustce s therefore the love of the hghest good or God
me are ether t o b e cosdered or spoke of as rghts 9 Auguste's deucato of the justce of the paga state ad ts law was a cosequec e of hs deep pessmsm about the huma co dto The orgal s ad the fall made t mpossble for secular law ad justce to redeem people from evl We ca ever kow fuly God' s wshes ad just ce wll always rema a promse that caot be fullled ths lfe ustce s a dve attrbute whch d oes ot belo g to ths world Ideed our falle ature s so gorat that we caot fully uerstad eve fellow humas Chrsta prces ad judges despte good tetos caot expect therefore to uderstad people well eough to pass correct judgmets Secular justce s a msomer ad a poor approxmato for the justce of God ad whle ecessary ts success wll always be lmted As udth Shklar puts t
5
55
jsti fails on two gronds ognitiv and pratial and th ralm of injs ti is rval d to b so tnsiv that it is qit byond th rs of vn fftiv politial law and ordr n th gstinian vision injst i mbras m or than thos soial ills that jsti might allvi at. t is th sm of or moral failrs as sinfl pop whih from th otst dooms s to bing njst
Ujust law s o law ad a ujust state s o state Wthout justce states become great robberes here there s o true justce there ca be o law For what s doe by law s justly doe ad what s uustly doe caot be doe by law For the ujust vetos of
But whle justc es are deo uced the earthly cty s called the civi ta diaboli. Its laws come to exstece ad are caled just out of ecesst The fucto of states ad laws s o coerce me restra ther cupidita or te desre ad keep the peace these ctes of the devl The state has o trsc legtmacy therefore ad eve the most successful atos are certa to decle ad fall Its lmted utl ty s to meet teral ad exteral volece wth volece Agast the classcal tradto Auguste argued that ot oy does the removal ofjustce ot lead to the breakg up of a state but fact there ever has bee a state that was mataed by justce"3 The few predested to be saved wll stay the civita terrea as peregrii, terat foregers utl they j o the realm of true justce the ct of God after ths lfe uguste gave relgous expresso to the stregths ad dfcul tes of classcal theores ofjustce He agreed wth Plato that we ca ether fully kow or acheve justce ths world But whle all attempts are boud to fal we must cotue the doomed quest
27 etum D . , , 9 . e Civitate ei (MD ods, Smith and G Wilson trans ) (E dinburgh, 7) k V,
29 ibid. , k XX, Ch 3 Judith Shkar, e Fa < Injtie (New Haven, Yae Universi Press, 99) 1 Dino igongiari, "The Politica deas o St Augustine, i n St Augustine, e Politial
Whr thn is th jsti of th man wh n h dsrts th tr Go d and yilds himslf to impr dmons (as th romans do)? . s h who kps ba k a pi of grond from th prhasr and givs it to a man who has no rig ht to it njs t whil h who k ps bak himsf from th God who mad him and srvs wikd spirits is jst? Hn whn a man dos not srv God what jsti an w asrib to him . . nd if thr is no jsti in sh an individal rtainly thr an b non in a ommnity omposd of sh prsons
throgh laws ad istittios which wil ever achieve what they promise With ristotle, gstie accepted that jstice is uum cuique Bt the love of God replaced the o itically sitated love of jstice ad jdgmets los t teir exi ility The be ame b th moe certai, i a attempt to mtate God s absolte stce , ad mp ble sice the gap betwee Go d ad hmaity is bridgeable stice , idetied with God's love, does ot belog to this world ijstice becomes the coditio of hmaity d yet, gstie's iward tr to the self i his Coio his emphasis o the js tice of a sov ereig legislator ad o the co ercive role of state power pregre the jrisprdece of moderity t the same time, his city of God re deed the idea of topia for a Christia adiece, as a place of blemished wellbeig The Stoics had placed their topia i a mythical past, while the city of God belogs to a kow bt pre determied ad certai ftre gstie has bee called a prophetic topia , the chief sorce of that ideal of a wod order which is hatig the mids of so may today bt also a Macchiavelia 3 If we bracket his Christia metaphysics, he is the rst political philosopher who both accepted ad legitimised the might of the state ad proposed a higher jstice which state law a gratly violates gstie's Christia peregries were asked ot to cotrast the two bt to tolerate eve the worst, ad if ee be, the most atrocios form of polity Bt the jxtapositio bewee heave ad earth ad their sharp separatio had created the codi tios for their evetal compariso ad combiatio s the two world metaphysics was gradally weakeed, the tim e came whe the priciples o f heave were made to jsti rst ad to codem later the ifamies of earth
.
T H E R E LA T V E N A T U R A L L A W O T H O M A S A Q U N A S
The classical theory of dikaioju srvived i part i the work of Thomas qias Ulpia had dee d jrisprdece as the sea rch for jst soltios carried ot throgh the kowledge of thigs4 ad qias' theory of right faithflly foowed this deitio 5 M ichel 2 Etienne Gison quote in "ntrouction to The Poltal Wrtngs op cit, supra n ]
V
II FRO M NTURL LW TO N'
BRIEF HISTORY OF NTURL L:
56
e Cvtate e op cit, supra n . , XV , 2 4 et The First Article in Summa� chapter on Justice states categoricaly that the object o
Villey has forcefly arged that, despit qias remaied a ristotelia i l qias' spe cic cotribtio to jrispr chapter o Law of the Summa Theologia examied chapter o stice The si geeral jstic e ad qias' ju tum are st
HTS
9
[hat whih is orrt in th works o dirt rrn to th agnt [whih prt is onstittd by a rrn to th othr or that in or works what rsponds to t � _ dmands o a rtain qality aequalitatem is what is alld right us tum.36
The strog lik remais whe we move from geeral to particlar jstice The varios ristotelia meaigs of dikaioju are retaied ju is the lawfl ad the jst, j stice, as a jridical activity, is the art throgh which the jst becomes kow ad which teds towards establishig a jst state of affairs s the object of jstice, ju is agai a legal qality iheret i a exteral etity, a objective state o f affairs rather tha a sbje ctive right, for which qias has o word or co cept The ju as jst otcome is a arragemet of thigs amogst people that respects, promotes or establishes the proportio or eqal ity iheret i them, ad these prope r relatios are observable i the exteral world Re juta id q uodjutum et wites qias ad, iam rem jutam the js t thig itsel I all these respects, qias followed the teachigs of the Philosopher, whom he edlessly qoted Bt his most importat ad ovel cotribtio to jrisprdece was the forfold distictio betwee eteral, atral, divie ad hma law with its religios overtoes, fod i the Summa chapter o Lex Here the law has oe o f the certaities ad hesitatios associated with ristotle ad the classics Natral law is deite, certai ad simple No dobt is expressed abot its harmoy with civil society ad the immtable character of its fdametal propositios, formlated by God the lawgiver i the Secod Table of the decaloge 3 These priciples of divie law sffer o exceptio i the abstract ad, their iversal proposition ST , Q 57 Saint Thomas Aquinas, On Law Moralty and Polt (W aumgah an R Regan es) (nianapolis, Hackett, 9) 7 . See generaly, Anthony Lisska, Aqun Theo Natul Law (Oxor, Clarenon, 99) 6 ibi ibi.,
6
through laws ad istitutios which will ever achieve what they promise With ristotle, ugustie accepted that justice is uum cuique But the love of God replaced the o itically situated love of justice ad judgmets lost their exibility They became both more certai, i a attempt to imitate God's absolute justice, ad impossi ble sice the gap betwee G od ad humaiy is ubridgeable ustice , idetied with God's love, does ot belog to this wod ijustice becomes the coditio of humaity d yet, ugustie's iward tur to the self i his Cofeio his emphasis o the jus tice of a sov ereig legislator ad o the coercive role of state power pregure the jurisprudece of moderity t the same time, his city of God re deed the idea of utopia for a Christia audiece, as a place of ublemished wellbeig The Stoics had placed their utopia i a mythical past, while the city of God belogs to a ukow but pre determied ad certai future ugustie has bee called a prophetic utopi a", the c hief source of that ideal of a wold order which is hautig the mids of so may today" but also a acchiavelia"3 If we bracket his Christia metphysics, he is the rst political philosopher who both accepted ad legitimised the might of the state ad propo sed a higher justice which state law a gratly violates ugustie's Christia peregries were asked ot to cotrast the two but to tolerate eve the worst, ad if ee be, the most atrocio us form of polity" 33 B ut the juxtapositio etee heave ad earth ad their sharp separatio had created the codi tios for their evetual compariso ad combiatio s the two wold metaphysics was gradually weakeed, the time came whe the priciples o f heave were made to justi rst ad to codem later the ifamies of earth
T H E R E L A T V E N A T U R A L L A W O T H O M A S A Q U N A S
The classical theory of dikaiou survived i part i the work of Thomas quias Ulpia had deed jurisprudece a s the search for just solutios carried out through the kowledge of thigs34 ad quias' theory of right faithfully followed this deitio35 Michel
V
3 2
II
A B I E H I S O O N A U A L L AW
Etienne Gilson quoted in "Introduction to The Political Wrtings, op ci , supra n 3 1 ,
33 e Civtate ei opct. supra n , XV, 34 et 10 3 The Frst Artcle n Summa chapter on Justce states categocaly that the object o
7
O M N A U A L LA W O N A U A L I G H S
Villey has forcefully argued that, despite the Christia iuece, quias remaied a ristotelia i may resp cts Villey ds quias' specic cotibutio to juisprudece ot te ofte ted chapter o Law of the Summa Theologiae but i the less frequetly examied chapter o ustice The similarities betwee istotle's geeral justi ce ad quias' utum are strikig
[hat whic is corrct in th works o jstic in addition to th dirct rrnc to th agnt [which prtains to a th othr virts is constittd by a rrnc to th othr prson t is th cas thr or that in or works what rsponds to th othr according to th dmands o a crtain qaity aequalitatem is what is cad right us tum.6
The strog lik remais whe we move from geeral to particular justi ce The various ristotelia meaigs of dikaio u are retaied u is the lawful ad the just, j ustice, as a juridical activity, is the art through which the just becomes kow ad which teds towards establishig a just state o f affairs s the obj ect ofjustic e, u is agai a legal quality iheret i a exteral etity, a obj ective state o f affairs rather tha a subjective right, for which quias has o word or co cept The u as just outcome is a arragemet of thigs amogst people that respects, promotes or establishes the proportio or equal ity iheret i them, ad these prop er relatios are observable i the exteral wod Re uta id qu od utum et wries quias ad, iam rem utam the just thig itsel3 I all these respects, quias followed the teachigs of the Philosopher", whom he edlessly quoted But his most importat ad ovel cotributio to j urisprudece was the fourfold distictio betwee eteral, atural, divie ad huma law with its religious overtoes, foud i the Summa chapter o Lex. Here the law has oe o f the ucertaities ad hesitatios associated with ristotle ad the classics Natural law is deite, certai ad simple No doubt is expressed about its harmoy with civil society ad the immutable character of its fudametal propositios", formulated by God the lawgiver i the S ecod Table of the decalogue " 3 These piciples of divie law suffer o excepti o i the abstract ad, their uiversal proposton ST , 5 Sant Thomas Aqunas, On Law Moaity and oiti (W aumgah and R Regan eds) (ndanapols, Hackett, 1988) 13 See generally, Anthony Lsska, Aquinas Theoy Natua Law (Oxord, Clarendon, 1996). 3 bd 37 bd 1 3 8 .
61
A BRIEF HISTORY OF NATURAL LAW
I I , F R O M N A T U R A L L AW T O N A T U R A L R I G H T S
commual popety ad abudace uled the Stoic edeic age, but fo the Chistia Fathe atual law became, afte the fall, the law of etibutio, accompaied ecessaily by couts, puishmets ad the authoity of the swod Thus, the Chuch abadoed the Stoic po si tios o atioal feedom ad huma digity ad i this way the wost embarramet of atual law, amely, oppessio was fouded upo atual law itself as somethig that had bee elativised". 46 It was haded dow fom above, it was based o iequality ad domi atio ad udepied ad pomoted social diffeetiatio Distibutive justice gives to each that which coespods to his degee of mpotace (ricipalita) withi the commuty". 4 This hieachical j ustice b ecomes the foudatio of a uj ust ule It was epeseted thoughout medieval Euope i the fom of Jutitia a sevee woma whose scales weigh each peso's dues, whose swod decapitates the eemies of ode ad Chuch ad whose blidfolded eyes, added i the late Middle ges, symbolise the impatiality ofjus tice 4 s Bloch pithily obseved, this is ot a categoy that thought, justably dissatised, could coside ts ow". 49 Thomas was the last thike the istotelia legal taditio o fu aturale ad the mo st pomiet of the ew eligious atualism (lex atule) Histoias will ague about the elative pomiece ofu o lex ad of the legal o eligiousmoal aspects of his wok. But as a diect esult of his teachigs, the ew legislative powes of Chuch ad state wee legitimised ad, atual law teachig was absobed by theology. The eligous edeitio of atual law pofoudly udemied the political ad pudetial chaacte of the classical d oc ties ofjustic e ad the citical emphasis of atual law The ideal city of the futue, which fo the Geeks ad Romas would be built though atioal cotemplatio ad political actio , was eplaced by the oegotiable othewoldly city of God God, the lawgive, ifuses his commads with absolute cetaity; atual law is o loge coceed with the costuctio of the ideal moal ad political ode ad the just l egal solutio, but with the itepetatio ad co matio of God's law fte quias, justic e lagely abadoed its citical potetial fo juispudece With its pathos vacated ad its ole as pimodial stadad goe, it tued ito a cold vtue". The
wod suvives but its supemacy i atual law disappeas, ad above all, the udeiable momet of codescesio ad acquiescece, iheet i the seveity that the wod cofes upo itself, disap peas"50 Rousse au deed it as the love o f ma deved om the love of oeself" 5 ad i this fomulatio, as socialj ustice, it migated fom law to ecoomi cs ad socialism Feedo m ad equality, ot jus tice, will be the allyig cies of mode atual law
60
4 lch, pcit , supra n I I 47 Summa Theologae, 2, Q , nd Article ( -7) 8 MartinJay, "Must Justice be lind, in Cstas Duzinas and Lynda Nead, Law and he
THE NVENTON O THE NDVDUAL
Thee i s oe al ad cucial aspect i the geealogy of huma ights, without which we caot udestad the juispudece of modeity. This is te pocess though which the classical ad medieval taditio of obje ctive u tued ito that of subje ctive ights ad the soveeig idividual was bo. oh Fiis has agued that the tasitio fom quias' u deed as that which is ut i a give ituatio" to that of Suaez as somethig beecial a power which a pero ha" was a wateshed " 52 It edeed the c ocept o f ight as a powe" o libety" possessed by a idividual, a quality that chaacteises his beig The detailed histoical steps leadig to this wateshed have bee examied by Richad Tuck ad Michel Villey ad moe ecetly by Bia Tieey53 ad thee is o eed to epeat them hee. The emaide of this Chapte will sigpost oly the mai statios i this impotat tasitio The bith of mode ma ad of idividual ights passes though the theolog of Catholic scholasticism, which discoveed the pici ples o f atual law i the way God ceated huma beigs The esse tial atue of ma was ceated by God ad all mai elemets of atual law ca b e deduced fom the moalit of the commadmets Moal ad politcal obligatios deive fom evealed tuth ad, as a esult, Chistia love ad the carita of povidece eplaced the quest fo the bes t polity. The st adical step i this diectio was take by the Facisca omialists Dus Scotus ad William of Ockham They wee the st to ague, i the fouteeth cetuy, agaist the domiat eoPlatoic views, that the idividual fom s ot a sig 5 ibid 4 5 Jean Jacques Russeau, Emile or on Educaion (A lm trans. ) (Lndn, Penguin, 99) V 52 Jhn Finnis, Naural Law and Naural Rh (Oxrd, Clarendn, 9) 7
A B R I E F H I S T O R Y O F N A T UR A L L AW :
I I . F R O M N A T U R A L L A W TO N A T U R A L R I G H T S
and purposes of the classics or the animistic soul of the medievals and stoo d without meaning value or spirit, a frightening and hostile forc e. The right, no longer objectively given in nature or the command ment of God's will, folows human reason and becomes subjective and rational. The naturally right bec omes individual rights. The theo logical inuence was still evident in the work of all great philosophers of the seventeenth century Omnia sub ratione Dei was their ralying cry, a slogan destined to a transient but aimportant existence. It destroyed the medieval world view but it soon suc cumbed to its own humanistic tendencies and led to the death of God. Descartes explicitly linked new physics and theolog, Hobbes and Locke organised their civil state under the auspices of God. Al great philosophers wrote a nd of political theolog and believed that God underwrote their systematic efforts. A laicised deism replaced Christ with the God of Reason and eventually with an become God. But in a different sense the great Enlightenment writ ers, Descartes, Hobbes, Locke and Rousseau, despite their differing conc eptions of natural right and social contract, represented the rebellion of reason against the theocratic organisation of authority. The modern natural rights tradition, which turned violently against ancient cosmolog and ontolog and redened the source of right, was a reaction to the co optation of natural law by religion ad the accompanying loss ofj uridical exibili, political latitude and iag inative utopianism which characterised the classical tradition. The secular theolog of natural rights placed the abstract concept of man at the centre of the Universe and transferred to him the adoration offered by the medievals to God. The forward looking and pruden tial aspects of the theory of the best polit" were undermined but, at the same time, the openness of classical natural law became a potential horizon of individual i dentity and right. Medieval constitutional theories and utopias had been organised around the ideas of the fall and the divine legislator. But the early modern undermining of the secular power of theolog, meant that the relative natural law, which regul ated humanity in a state o f sin, could no longer be used to justi oppressive social and political regimes. The grace of divine authority and the aura of its earthly rep resentative could not captivate the soul of the people and, in its place , modern natural law attempted to rec onstruct the c onstitution using reason alone. Epicurean ideas, according to which the polis was the outcome of an original contract, and the Stoic belief that the law
renewed importance. But this was the natural law of modern mer chants and not of ancient sages; it attributed contemporary legal and social arrangements to a primordial assembly and a freelyentered contract. The idea of an original contract was accompanied by the device of a state of nature in which men lived before entering society or the state. Against the ancients, for whom nature was a standard of critique transcending empirical reality, the nature of Rousseau, Hobbes and Locke was an attempt to discover the common elements of human ity, the lowest common denominator behind the differing individual, social and national characteristics and idiosyncrasies. This quest for the permanent, universal and eternal, had to deduct from empirical people whatever historical, local or contingent factors had added to their nature" . The natural man or noble savage was not a primitive forefather of the patrons of Parisian salons or of London merchants but had similarities with them. As species representative, man qua man, he was an articial construct of reason, a naked human being endowed only with logic, strong survival instincts and a sense of morality. According to John Rawls, who famously repeated the men tal experiment, natural man toils and contracts behind a veil ofigno rance" .60 The ction drew its power from the importance contract had acquired in early capitalism. It was only in an emerging market society that all important institutional and personal questions could be addressed through the putative agreements of rational individuals. But despite assurances to the contrar, the man of nature was not totally naked: his natural" instincts and drives differed widely from one natural lawyer to the next. For some, natural man was competi tive and aggressive, for others peaceful and industrious, for others both. Eternal nature seemed to follow current social priorities and political concerns and to be quite close to the preoccupations, hopes and fears of the contemporaries of the theorist. The ctional contract became a device for philosophical specula tions about the nature of the social bond and political obligation, the model constitution and the rights of empirical men in London and Paris. Abstraction, the removal of concrete characteristics, was seen as logicay necessary. The philosophical construct was asked to act as a refutation of both feudal society and absolutist government, throug the operation of a revolutionary and previously unheard of termination clause which authorised the people to overthrow their
64
60
65
John Raws A Theor cJustie (Oxford University Press, 1 972) The veil conceal s all
A BEF STOY OF NATUAL LAW:
, FOM NATUAL LAW TO NATUAL HT S
government i n case of nonperformance of its contractual obliga tions ; and as the blueprint for the constitutional arrangement still to come. In this second function, the c ontractual device introduced the rtionalism of the Enlightenment into the co nstitution Legal norms and social relations were shamelessly deduced from axiomatic nor mative propositions (original evil and desire for sec urity, original goodness and sociability, individual freedom and the n eed to restrict
tic of ea acques R ousseau the Frec h. No p olitical philosophy or versio of atural law was worthy of the ame, if it was ot grouded o uiversal priciples or did ot aim at uiversal eds The grat discoveries, the marvellous ivetios ad the triumph of the mer catile ad urba ecoomies, aided by the levellig exchagevalue of moey, c ombied to icrease the cachet of the uiversal. But the discourse of the uiversal soo b ecame the compaio of capitalism ad the upholder of the maret, the place where, accordig to Marx, huma rigs ad Betham reig supreme The ratioalism of atural law too, havig cosiged the classical co ceptio of politics ad the search for the best polity" to the history of ideas, became the legit imatory discourse of utilitaria govermets ad as used agaist the emergig so cialist ad reform movemets. sideeffect of this ram pat ratioalism was the itellectual impoverishmet of jurispru dece: the violece at the heart of law ad of public ad pivate power, which had helped reorgaise the world accordig to the ew political ad ecoomic orthodoxies, was writte out of the texts of law, which became obsessed with ormative questios, with the meaig of rights, sovereigty or represetatio Much o f the ure alistic ratioalism which still bedevils jurisprudece hails from this golde age of atural law This idealism ot oly totay obfuscates law's role i the world, it also distorts ou r uderstadig of legal operatios because:
it, etc.)
The various sc hools of modern or rational natural law, despite their differeces, shared a umber of characteristics.6 1 First, they all believed that social life ad the state are the result of free idividual activity We ca detect here the heavy iuec e of legal metality It is deeply pleasig to a lawyer, steeped i the doc trie of cotract, to believe that legal forms ad free agreemets lie at the basis of society. Social cotract theories adopted the cotract doctrie of costruc tive kowledge" : the cotractors willed all reasoable coseque ces of their agreemet, while what could ot have bee ratioally willed was ot willed at all (restrictios o property ad capital accumula tio, for example, were ureasoable ad a political system that eforced them brought the cotract's termiatio clause ito opera tio) Secodly, if the legal ad social order derives from a origial agreemet, it was realised through the power of reaso ad logic to deduce a complete ad gapless system o f rules from a few axiomatic priciples. The essece of the state was to b e ratioally recostructed from its valid elemets ad justied oly by meas of reasoed argu met, based o its foudig priciples i the cotract; ideed reaso was declared the essece of the state The prestige of the atural sci eces was thus trasferred to political phi losophy ad atural law became a pure discourse o f deductio modelled o mathematics.
The atural sciece s i their quest for predictability ad certaity discarded irregularities; atural law followed sui t. The methodologi cal purity of mathematics complemeted p erfectly the belief i ui versal homogeeous cocepts ad eteral laws, which became a cetral teet of ratioal atural law. The iro laws ad the strict ecessity ad homogeeity o f Newto's mechaical ature were re iterpreted as a ormative uiversality ad were co opted i the ght agaist the hierarchical society of feudal privilege. Ratioal atural law ad atural rights became the discourse of revolutio The lib eral versio of Thomas Paie i spired the mericas, the democra
7
it srvs no prpos to pik ot partial rlations and vn partial tn dnis in ral lif and insrt thm into th had as an arithmtial problm in ordr to om p with a logi that formally is lik iron bt rmains wakr and nral from th point of viw of ontnt . formal nssity that is th absn of ontradition in th ddtion and form of a proposition is hardly a ritrion of its trth in a dial tial world
But alogside this lawabidig ad sombre ature, which accorded with the bourgeois iterests i calculability ad certaity, a differet coceptio of a atura immaculata lured below the surface, i the pure ad harmoious ature of classicism, the edeic visios of romaticism ad the perfectibility of utopia socialists. This margial coceptio of a puried ad perfect ature lied with the classical traditio of ature as stadard ad provided a critical ad redemptive perspective agaist the ijustice s ad oppressios which th so cial sys tem, justied by ratioal atural law, tolerated ad eve promoted.
68
A BRI EF HIS TORY OF NATURAL LAW
Ths co cept o f atue would evetually combe wth the dea of socal uto pa ad povde the adcal sde of huma ghts ***
t the ed o f ths hstocal jo uey, t s mpotat to emembe that classcal atual law was bult o the tsc coecto betwee atual ght ad justce The same tems, dikaio ad u cooted both the just a d the law, ad the busess of the classcal lawyes was to dsco ve the just sol uto to a c oct Ths lgustc lk suvves today the double meag of the wod just ce, as the tascedet deal o f law ad as the admstato of the judcal system But clas scal ght was ot a moal law that luks the huma co scece as a uvesal supeego ad places all ude the same moal commads It was athe a methodologcal pcple whch allowed the phloso phe to ctcse sedmeted tadto ad the just to dscove the just sol uto the case had Classcal atual law cotaed a pas so fo justc e but t d d ot co cde wth t Natual ght etes the hstocal ageda, dectly o dsguse, evey tme people stuggle to ovethow all elatos whch ma s a degaded, eslaved, abadoed o despsed beg" 63 ustce, o the othe had, has too ofte bee assocated wth a moalstc, patachal atttude, whch dstbutos ad commutato potect the establshed ode ad pe petuate the equaltes ad oppess o atual law tes to ed ss Genune natural law whch p sts the free wll n accr wth rea sn was the rst t reclam the justce that can nly be bt ane by strug gle; t nt unerstan justce as smethng that escens frm abve an prescrbes t each hs share strbutng r retalatng but rather as an actve justce f belw ne that wul make justce tself unnecess ary. atural law never cnce wth a mere sense f ju s tce
Fo those ghtg agast justce ad fo a socety that tasceds the peset, atual ght has bee the method ad atual law has deed the co tet of the ew Ths s the lk betwee atual law, atual ad huma ghts But the volutasm of mode atual law caot povde a sufcet foudato fo huma ghts Its evtable tetwg wth legal postvsm meat that the tadto whch ce ated atual ad late huma ghts has also cotbuted to the epeated ad butal volatos of dgty ad equalty whch have accompaed modety, lke ts escapable shadow 3 och, opct, supra
I I , xxvxxx
4 Natural Right in Hobbes and Locke Fom Plato's Republic to ealy modety, phlosophy placed the seach fo the best polty at ts cete Thomas Hobbes c otued ths tadto whch bought togethe poltcal thought ad legal co ces Hs ealy woks wee geeal theoes of law The late De Cive ad Leviatha ad the posthumous Dialogue chaged somehow the emphass, a attempt to ceate a scece of poltcs whch accod g to edt, would make poltcs as exact a scece as the clock dd fo tme" Fo most commetatos, the ma achevemet of Hobbes les hs poltcal theoy, whch has also bee deouced by othes fo ts authotaasm ad paochalsm I f oe could aalyt cally dstgush betwee poltcal ad legal theoy, a dfcult task fo that peod, t s aguable that Hobbes made a moe lastg cotbu to to the sc ece of law hs adcally ew method of aalysg legal foudatos, hs edeto of the tadtoal judcal co cepts of law, ght ad justce , ally, hs adjustmet of tadtoal souce s ad eds of law to the c oces of modety The uece of Hobbes has waed polt cs, w th the se of the pue lbealsm of Locke ad the democatc tadto of Rousseau But hs e veto of the judcal wold emas usupassed We ca sum mase hs cotbuto by sayg that Hobbes s the foude of the mode tadto of dvdual ghts, the st phlosophe t o eplace fully the cocept ofjustce wth the dea of ghts If ths aspect of hs wok s udestood, legal postvsm becomes the ecessay accom pamet ad pate of ghts dscouse ad some of the lbeal ctques of Hobbes lose much of the valdty Hobbes evolutoa cotbuto to juspudece s pefectly llustated by the followg statemet fom the begg of the XIV Chapte of Leviatha ettled Of the st ad secod Natuall Lawes, ad of Cotacts", whch s woth quotg at legth H GH F U whch Wters cmmnly call Jus
N A TU R A L R G H T N H O B B E S A N D L O C K E
NATURAL RGHT N HOBBES AND LOCKE
its w rol, r aso ca discovr th bst mas ad coordiat thir actio towards a dsird d This is th calculativ, istrumtal ra so of th modrs ad its task i th ld of morals ad politics is ot to guid th coscic but to build a scic through th obsr vatio of th xtral world ad huma atur Wh raso coms to xami huma atur ad dvlop th scic of politics, it discovrs thr dsir, raso's gatio ad advrsary Id d, whil th rst atural law is urstrictd frdom, th scod is th duty to kp promiss ad th twtyodd othr laws offrd from th obsrvatio of huma atur rfr to passios, such as gratitud, sociability, modratio ad impartiality (th virtus or rvg, lack of grosity ad arrogac (th vics Th passi os, dsir, apptit ad avrsio, ar th most powrful huma forc
cofr powrs this maks it th opposit of right Wh right is a shar of social goo ds, i t is always part of rlatioships, it implis dutis ad is by ditio limitd Nw atural right is th powr of doig ay thig, a ulimitd ad udividd sovrigty of th sl Wh w tur from sourc to form, atural right is dd as th librty [of ma] of doig ay thig as h will hims lf ad librty as th absc o xtral Impdimts4 Right mas doig it is a activ stat of bodily motio guidd by will which, agaist th school s, i s o logr dd as ratioal dsir but as th last apptit i dlibratig ,5 dsir's al stat which puts th body ad its apptits ito mo tio ad, through thir actio, raliss its d i th world 6 Th Cartsia divid btw spirit ad body is abst hr Ma is tratd as a forc of atur, a agt o f actio, motivatd by dsir ad skig plasur Librty is gativ it is a iit lics , a frdom of motio that has o ihrt limitatios but oly xtral, mpirical costraits, most otably i th librty of othr m to pursu th sam ds or to gag i motio that puts thm o a collisio cours Th atural athropolog of Hobbs is a cocis statmt of modrity Followig a flicitous ad ow classical prstatio of th mov from th acits to th modrs, ma is o logr co civd as a mirror of som suprior ad xtral rality but as th lamp, th s ourc ad c tr of light illuatig th world B ig is o logr th cratio of a divi rst caus or dos it approach rality as a copy of a prxistig origial Ma is productiv, his ssc is to b foud i his doig ad bodily motio, h bcoms th crator ad caus of actios ad th bstowr of ma ig upo a profa rality Th slf as agt rcogiss himslf as th ctr of dcisio makig with a powr that sprigs ithr from pur moti os or from pur itlligc Th powr o f will is uiqu This powr ds its prfct maifstatio i dcisio I dig dlibratio ad takig a dcisio, th dsirig slf proj cts itslf i th world ad bcoms a sovrig agt for Hobbs or a autoomous ad rsposibl subjct for Kat Imagiatio ad art, too, ar o logr cocivd as rsmblacs of a trascdt rality of forms, or is th artist a craftsma imitatig th divi demiourge Th modl of th modr artist is th ivtor ad
2
u t whatsever is the bect f any mans ppetite r Desire; that is it, which fr his part calleth Good n the bect f his Hate an versin, vi; n f his Cntempt, Vle and Innsiderable Fr Mrall philsphy is nthing else but the science f what is Good, an Evil! in the cnversatin, an ciety f man-kin Good an Evil! are names that signie ur ppetit es, an versins; which in iffer ent tempers, custmes, an ctrines f men, are ifferent
Dsir is strogr tha raso Wh raso cofrots it, it must ithr ackowldg its impotc or try ad rcruit th passios to its ow always dagrd advatag Dsir ad plasur, pr std as istictual forcs or drivs i th psycho aalytical trmi olo, acquir ctral political ad lgal sigicac, ad tur th thological oalism of th mdivals ito a scitic idividu alism This radically w c ocpt will provid th ida of idividual rights, strugglig to mrg i th rligiously ispird writigs of th scholastics, with a s cular ad pragmatically fcud foudatio Th ctrality of th passios, both mpirically obsrvd ad mtaphysi cally assrtd as atural, turs th moral philosophy o f Hobbs ito a political hdoism ad prpars th groud for utilitariaism Th d oflaw is o logr virtu ad justic , but idividual plasur, ad raso is th mai istrumt to this d This approach maks at ural right o logr th fair shar of a lgal distributio, a stat of thigs i th outsid world, but a sstial attribut of th subjct Right is a powr that blogs to th idividual, a subjctiv qualit which logically xcluds all dut This is prcis ly th basis of th dis tictio btw law ad right: th law imposs dutis ad dos ot
4 bd , Chaper 9I 5 bd , Chaper , Chs Tsaourdes, LevahanMoby Dck: The Physcs o Space,
3
VIIIh w and
NATURAL RIGHT IN HO BBS AND LOCK
NATURAL RIGHT I N HOBBS AND LOCK
magato, ts ablt to coordate the facultes, becomes tself trascedetal Faly, the practcal realm, agecy becomes cetral. The subj ect s ethroed as a free aget, as the mmedate source of actvty ad the cause o f actos that emaate from t. The moder self fulls tself what he does , our acto s express o ur true exstece, ad as a result we ca oly kow what we make But the uecumbered desre ad acto of atural rght creates two dfcultes. Frst, t s shared equally by all Nature hath made me so equall, the facultes of body, ad md . the weakest has stregth eough to kll the strogest . . ad as to the facultes of the md, . d yet a greater equalt amog me tha that of stregth" Ths atural equalty of desre ad stregth has othg commo wth the classcal herarchcal cocepto of rght ad of justce Tradtoal poltcal phlosophy had clamed that ma ca perfect hmself poltcal socet ad had made duty the prmary moral fact From rstotle to early moderty, the just outcome was determed accordg to a persos due a commuty, uum u cuique tribuendum the poli or the civita the atural herarchy of the parts of the soul or amogst the varous classes provded a order, a measure whch was also the prcple of justce But whe ature s emacpated from the harmoous ad hearchcal order of the acets, t beco mes absolute equalty, a terble equvalece o force , whch kows oly the justce of desre ad the costrat of force d law Se codly, as a result of Hobbe ss detcato of pleasure wth the goo d ad of pa ad death wth evl, moralt caot dstgush betwee the dfferet tpes of pleasures ad pas ad s uable to create a scheme of values. The Desres ad othe Passos of ma, are themselves o S. No more are the ctos whch proceed from these Pass os, tll they kow a Law that forbds them" . t s pre csely ths combato of ulmted lbert of acto, of equalty of powers ad of the moral dfferece of desre ad ts obj ects that leads to a warre o f every ma agast every ma" The poltcal recogto of desre leads to the prmacy of rght over duty. Whe the dvdual becomes the cetre of the world, whe fear, hate ad ve are the oly eds of acto, everyoe s ettled to selfpreservato ad to the meas to acheve t Each ma s the sole judge of the rght meas ad every acto pursut of
desire is by nature just. "To this war of ever man against ever man, this is also consequent: that nothing can be unjust. The notions of right and wrong, justice and injustice, have there no place. Where there is no common power, there is no law: where no law, no injus tice".9 The primacy of desire leads to the establishment of civil laws (leges). Classical and medieval cosmolog, the source of natural right, assumed a natural hierarchy of spheres and being. Hobbes turns the co smolog into an anthropolog and transfers the hierarchical model from the universe to human desires Death, the denial of nature, is the most natural of all facts, and the fear of death the most powerful of all passions. Uncontrolled desire nds its limit in the desire and fear of the other and in death The desire of self-preservation makes men abandon unrestricted freedom in return for the security o ered by the commonwealth created through their contractual subj ection to the Sovereign .O It is not nature therefore but death, as the negation of nature, which is the most natural and strongest of passions. Death is the basis of natural law and the target o f civil laws. Because equal ity is unlimited, because desire is uncontrollable, death becomes the master and the power of the Sovereign must be total and ilimitable. The Sovereign is a Mo rtall God", its only limit is death, the absolute master". The law is the outcome of desire and of a death drive which, well before Freud's discovery, linked law, desire and mortality Unlimited passion creates unlimited sovereignty, violence and its fear are the ground of law. Both natual right and the state entrusted with its limted protection are deathbound. As Leo Strauss put it, in Hobbes "death takes the place o f the telos" .
7
Levathan, supra n I, Chapter , 8 Hobbes states that what "men Desire, they are aso sayd to LOVE and to HATE those thngs, or whch they have Averson S o that Desire, and Love, are the same th ng,
75
The mpasse c reated by the free pursut o f desre by equals ca oly be broke through a coveat that erects a Commo Power" ad trasfers atural rght to t. The object of agreemet s to conferre all their power an strength upon one Man, or upon one ssembly of Men, to beare their person; an theren to submt their Wills, every one to his Wll, an their Jugements, to hs Jugement. his is more than Consent or Concor; it s a real Unite of them all, in one an the same Person, mae by Covenant of every man with every man, n such manner, as f every man shoul say to every man, I authorise and gie up my Rht Goerning my se, to this Man, or to this Assembly ofme n, on this condi tion , that thy gie up thy Right to him, and Authorise all his ations in like manner the ssence of the 9 bd , Chapter , 9 0 bid
NATUAL IGHT IN HOBBE AND LOCKE
N AT U A L I G H T I N H O B B E A N D L O C K E
CommonWealth is One Peon of whose Acts a great Multitude, by utuall Covenants one with another have ade theselves every one the Au thor to the end he a y use the strength and eans of the all as he shall think expedient r their Peace and Coon Dence
The distribution o f the materials of this nourishment, i s the c onstitu tion of mine and thine and his that is in one word propriety; and belongeth in all kinds of commonwealths to the sovereign power The introduction of propriety is an effect of commonwealth which can do nothing but by th� pers n that represents it, it is the act only of the soveregn; and conssteth m the laws, which none can make that have not the sovereign power18
7
Th Sovig c atd though th covat taks th chaactistics of atual ma ad his ight. Th Lviatha has ustictd pow his sovigty caot b fofitd h is th sol lgislato himslf ot subj ctd to th law 1 3 ad his ights a idivisibl absolut ad icommuicabl. Civil law is to vy subjct thos Ruls which th CommoWalth hath commadd him by Wod Witig o oth sufcit Sig of th Will to mak us of fo th D istictio of Right ad Wog; that is to sa y of what is cotay ad what is ot cotay to th Rul" . 1 Ths laws followig cosisttly th ali aalysis a commads ad impositios: th d of makig Laws is o oth but such stait . . . Ad Law was bought ito th Wold fo othig ls but to lit th atuall libty of patic ula m" . 15 Th cati os of absolut lgislativ pow a cssay v though thy violat th st atual law of ustictd fdom bcaus of th uc taity ad iscuity of qual dsi s ad focs . Civil laws a poply laws" .16 Thy div fom atu ot as its spotaous acctios but as atics: w hav divd civil uls fom atu which givs us atual laws though th us of at assistd by aso itslf atual but abl to tasfom atu ad adapt to th ds of a wold of si adjust thm to th cicumstacs of so cial lif " .17 Civil laws a both atual ad th out com of th pub lic aso of th Sovig ad ulik uchagabl atual law adapt to social d volv ad vay. Natual law did ot cat popty ights bcaus atual humaity joyd soucs com mualy bfo th fall whil aft th fall uctaity about goods domiatd. Civil laws a cssay thfo fo th catio of ights. Thy distibut ichs ad cat pop pop ty ights: 1 Leviahan supra n I, Chapter , . he may when he pleaseth, free hm 1 3 For havng the power to make, and repeal laws, sel from that subj ecton" , De Cive, V 14 , at 8 3 ; Leviathan, Chapter 26 Ths s the reason wth why Hobbes s so hostle to the common law tradton, paculary the clam assocated e, S r Edward Coke that common law s superor to the law of king and Parlament Se Dialogue between a Philosopher and a Student of the Common Law c England (J . Crospey ed. (Chcago, Unverst o f Chcago P ress, 19 97 1 4 Leviathan, supra n I , Chapter 26, 1 8 3 15 bd , . .
id
77
Oc th ommowalth has b stablishd th atual ight that ld to its foudatio is tasfd to th Odiacs of Souvaig Pow". Wh civil laws Lviathas sol sposibility a gv th task of potctig th ights of idividuals atual law i a al fat o f tassubstatiatio bco ms idtical w th civil law. Th law of Natu ad Civil Law cotai ach oth ad a of qual xtt . . . Th Law of Natu thfo is a pat of th Civill Law i all Commowalths of th wold . . . Ad thfo Obdic to th Civil Law is also pat of th Law of Natu" . 1 9 Civil law ad ights a th scula vsio of atual law. Its souc mais th sam a atual aso adaptd oly to th xigcis of th s cula wold; but th pactical cssitis of civil lif o ft lad to c ommads which cotadict atual law. As a sult aft th id ti catio f civil ad atual law justic was adically dd: Fst ad kpg with atual law INUSTI CE is o oth tha the ot eormace i Coveat Ad whosov is ot is Jut" . 0 B ut sc o dly Laws a th Ruls ofust ad Ujust; oth big putd Uj ust that is ot c otay to s om Law" .2 1 At th g d of a log pocss atual ight was tud ito statgiv idi v dual i ht a justic bcam obdic to th law. Th oly pi pl of ustc cofomity with stat laws. At st cotactual cost appas to b th foudatio of Lviatha ad th m d stat. But this is a slight of had. Th pi may of d lads xoably to th social c otact which psts ty as th outcom of idividual fdom ad agmt. To b su a covat basd o thos pmiss caot wok ulss it is tud ito th total subjctio of al to th commads of th stat. Th violc that makd th bgiig ad th foc cssitatd by t fa of dath ts civil law ad bcoms its iscapabl codi to ad supplmt. Th commad of th Sovig bcoms th
i
18 bd, 7 1 9 bd, . 20 bd, Chapter I ,
NATURAL RIGH T IN HOBBES AND LOC KE
78
basis of all authorit. Laws are laws because of their source and sanctions, not because of their reason. The supremacy of state author it mirrors the natural eedom of the individual; Leviathan, the p er fect partner and necessary constraint of the individual, both shares and inaugurates the individuals attributes. 22 The power of the Sovereign is therefore the result of individual desire and right. Liberasm, the political philosophy which treats rights as the fundamental political fact and eventually identies the function of the state with their protection, nds its foundational doc ument in Hobbe s. Rights are natural while duties conventional; they arise from the contract and, as the contract means total subj ection to the state, they ultimately derive from the will of the Sovereign. Legal positivism is the inevitable accompaniment of the individualism of rights. The Liberty of a Subjec t, lyeth therefore only in thos e things, which in regulating their actions, the Sovereign hath praetermit ted". 2 Burke complained that the Parisian philosophers . . . explode or render odious or contemptible, that class o f virtues which restrain the appetite . . . n the place of all this, they substitute a virtue which they call humanity o r benevolence " .24 But the repl acement of virtue and dut with a right deriving logically from human nature and polit ically from the will of the S overeign had already been completed in Hobbes. Al the elements of political and legal mo dernit are present in Leviatha: individual prior to society; natural and later human rights based on law's recognition of desire; the conventional Sovereign, made in the image of the free individual whose right establishes individual rght; legal p ositivism and the c entrality of will and contract. Most of all we nd in Hobbes the internal link between desire violence and law. One could argue, therefore, that the doctrine of sovereignty is a legal doctrine, b ecause all power and rights belongs to the Sovereign not through grant or custom but as of rght. According to Strauss natural public law, the discipline created in the seventeenth centu by Macchiavelli and Hobb es, lowered the goal of politics ". Classical political philosophy had distinguished between the ideal of the best polit and that of the legitimate regime. The latter depended for its realisation o n the practical wisdom of the statesman, who a djust ed the ideal to the exigencies of time and place. Modern natural law answers the problem of the just social order once and for all.
Strauss, op ci , supra n I I, 1 86 f ibid, Chapter 21 148 .
23
NATURAL RIGHT IN HOBBES AND LOCKE
79
Though nothing can b e immortall, which mortals make; yet , if men had the use of reason they pretend to, their Coon-wealths might b e se cu re d . . for by the nature of their Insitution, they are designed to live, as long as Mankind, or as the Lawes of Nature, or as Justice is selfe, which gives them life 25
The new scienc e of politics , based on the dogmatism of state and rights, is almost identical to the legalisation of political life.2 6 t i tends to ive a universally valid solution to the political problem s I mea to e universally applicable in practice" and, by necessit, It replaces the Idea of the bes t polity with that of efcient and legiti mate government.27 n legal terms, the study of ends is replaced by the � tdy f means and techniques , while the rights of the Sovereign , as dIstInguIshed from their exercise, allow an exact denition with out reference to the circumstances o f their application; but this kind of exactness is again inseparable om moral neutrat: right declares what is permitted, as distinguished from what is honourable" . 28 n the new climate, the main task of politics b ecomes the design of the right institutions. But modern constitutionbuilding bears no relationship to the best polity" of the classics. The institutions of modern politics should be so valueneutral that according to Kant, they should be acc eptable even to a nation of devils" guided by rea soned desire and fear. When commonwealth come to be dissolved not by external violence, but intestine disorder, the fault is not i men, as they are the matter but as they are the aker, and orderers of the " . 29 When the business of politics is focuse d on the efciency or legItImacy of power rather than its ends and prudent use, all the char acteristics of the Sovereign will be visited on its notional progenitor, the individual and his human rights. Power can guarantee the social order by conquering human nature and manipulating its passions. The mortall God created in the imaginary image of man the maker, must now shape man, the matter", in its own image. An apparent contradiction s eems to accompany therefore the creation of Leviathan. As s oon as he is b orn, h e destroys the natural rights of his progenitor, o f the subj ects who contracted to create him. The sub j ec s ho voluntaily entered into submission in order to safeguard theIr ghts, must now lay them down and consent to their abolition.
26 "Doctnairism made its rst appearance within poitical philosophy - for awyers are a class by themselves - in the seventeenth centur, Strauss, opci t, supra n. altogether n II, 192 27 ibid, 190,191. 8 ibid, 195
80
NAURA RIGH IN HOBB S AND OCK
The recognition and protection of natural right prepares its disap pearance. To that extent, natural right is always deferred a mirage or heuristic device which explains the creation of modern politics. ut this is not the whole picture. Even in Hobb es authoritarian sys tem, natural right survives in two forms. t survives, rst, in the person of the Sovereign and in the construction of state power Sovereign right retains all the characteristics of the individual natural right Leviathan's unique and innite right is the civil expression of the absolute right in the state of nature. The Sovereign retains absolute power both in relation to its subects and the other Sovereigns in inter national law. The subects do not give the Sovereign a right or power he does not possess ; they simply forfeit their right of resistance . F or the nominalist Hobbes, rights belong only to individuals. Communities, multitudes, the people as people can have no right. For sovereignty to become operative and offer its services, it must belong to a singular subect. This happens twice. First, in the ction of the articial per sonality, of Leviathan, the crown or the state. Secondly, in the demand that the real bearer or symbol of sovereignt should be a monarch, a natural person rather than Parliament or the people. Sovereignty is an attribute of individuality, its ctitious construction is necessar because collectivities have no rights. ut the subects too retain rights. They do not forfeit the right to selfdefence and to freedom of conscience. ore importantly, they acquire those civil rights which were e opardised in the state of nature and upon which the moral legitimacy of the state rests . n particular, they acquire the right to property. Ho bbes inaugurates a legal system based on the realisation and safeguarding of individual rights. An individual natural right is both the foundation and the outcome of the edice. Conicting natural rights lead to the pact, which gives birth to Leviathan, who lays down the law in order to protect and secure individual rights. Civil law is created through the unstoppable advance of individual rights, law's end is the creation of rights. But these are private rights only. Public rights, rights against the state, are totally excluded. The creation and enoyment of private rights is accompanied by an absence of what we now call human rights. The price for the protection against others is minimal protection against the state. Private rights are the end and value of the system of law, which becomes a system of subective rights, of their preconditions and consequences: contracts, a strong state and an absolute law. n this transition from natural right to individual rights, the old link
N A U R A R I G H I N H O B B S A N D O C K
8
keep promises and to obey the law. The former is necessa in order to keep the fraile social peace of a society based largely on private agree�ents, hle the latter is the logical c onsequen ce of the lack of any ght agaInst the Sovereign. Public and private rights, while for mally smI r, are clearly distinct. The precondition ofindividual prop ert g�t I the absence of political and human rights, subjection the
precondItIon of freedom This is the tragedy of individualism, miti gated by the introduction of democracy but still present in the various ors of eo-liberaism. ts attempt to establish law and a system of socIal relatIons on teir dnia� , the isolated individual and his rights, end up wIth theIr can easIly fghtening mirror image, an omnipotent destroys rights in sta �e, whIch their name Despite jurisprudential claIms to the contrary, individual and human are often bitter enemies ***
Joh Locke's olitial writings are commonly presented as the early manfesto of berasm and as the o pposite of Hobbe s' totalitarian is . Yet the main assumptions of Locke did not differ radically from hs predeces sor. The state of nature hypothesis was again at the basis of the political consti tution. ut the status of natural law is ambigu ous . ts rules are not imprinted o n the mind as a duty . O n the contrary, conscience is nothing else but our own opinion or udge ment of the moral rectitude or pravity of our own act ions .3 1 Like Hobbe s, however, desire is the mainspring of human nature. Nature . . . ha put into mn a desire of happiness, and an aversion to misery; these nd ed, are nnate practical principles.32 The right to pursue happness the only innate right, it c omes b efore and founds the law of natur . en must be allowed to pursue their happiness, nay, can not be hndered. 3 Happiness depends on life and the desire for selfpreservation takes precedence over the pursuit of happiness when the two come into conict. n the state o f nature, man is the s ole u dge of his actions and may do what he thinks t. t folows that the natural state is full of fear and danger. Reason wills peace and teaches man what is neces sary to that end. The only remedy to the constant conict of the state of natur is the establishment of civil society or government, and nat ural law the sum of its dictates as regards peace and mutual security. 3 0
John Locke, An Essay Concerning Human Undetanding P
Clarendon, 97), , , 3 bd, , , -9 3 bd., , ,
.
H.
Nidditch (ed.) (Oxford,
84
NATURAL RIGH T IN HOBBES AND LOC KE
self or thing is malleable and can become the target of conscious intervention and investment. an can fashion himself through his endeavour as much as he can fashion the physical world. The great est happiness turns out to be the greatest power to shape and acquire things. Nature, including human nature, which started as the mea sure of all things, ends up being ust matter, to be controlled, eploited and shaped either by the selffashioning individual or by the allpowerful Sovereign The fear and desire of the other are united in a new social and political system which makes the desiring individual individual and the desiring Leviathan the mirror image of each other. With Locke, the transition from natural law to natural rights and from the purposeful cosmos to human nature was completed. The law's end is no longer to deliver ustice as an obective relation amongst people, nor is natural right a warning against sedimented laws and common opinions. Their aim is to serve the individual and promote his happiness" , in other words his desire epressed through through his free free will. But that means that individuals no longer pursue virtue or strive for the good and politics are not interested in pragmatic approimations and prudent udgments but in the application of truths. The pro liferation liferation of many desires destroyed the good , as it had done with the one truth. T he emptie d place of the good was lled by the (fear o evil, symbolised by death and broadly interpreted as the nonachievement or frustration of desire. Avoiding the ad has become the end of modern societies: it is the outcome of the enthronement of desire as the principle of individual and social action. The only distant reminders of the old best polity" are the varous utopias, memories of a communal past and promises of a future good society, most of them selfconscious about their impos sibility. sibility. The huma n rights rights announce d by the great revolutions of the eighteenth century shared briey the utopian aspiration. They etended freedo freedo m from from the private to the public , unlike Hobb es , and they supplemented it with equality, uike Locke. ut these moves were not nal or irreversible. The roa d from from the natural natural rights of the revolutions to the human rights of our age has wi tnessed the triumph of both individualistic individualistic humanism and of the cannibalism of (state and individual) individual) desi re The dialectics o f desire inaugurated by Hobbe s and Locke , and sanctied by Hegel Hegel and Freud, have turned evil and and death into the greatest fear and desire But evl and its fear cannot replace the (pursuit of the) good. Human rights are caught in this continu ous seesaw between the best and the worst, between hope for the
5
evolutions and Declarations: The Rights f Men ) Citizens and a Few Others The symbo symbollic foun ou ndat dation and and starti tartin ng p oin oi nt o f mo derni ernity ty can b e time im ed a t t h e assin ass ing g of th e grea reat revolu vo luti tioonary na ry d ocum cu ments o f th t he eighte gh teen entth centu en tury ry the American ric an D ecl ec larat aration o f nd n depe ep ende nd ence nc e ( I77 I7 7 6) , the th e Bill Bi ll o f Rig Rights ( I79 I7 9 I ) , the the Fre Fr ench nc h Dclar claration atio n des des D roits de [ 'Hom Hom me et du d u C itoyen itoy en ( I 78 9) . 1 ts t s sy s ymbo mb o lic li c clos clo sure ur e has has bee be en plac ed at at the the fall of o f the th e B erin erin Wall n I 98 9 n bet be t wee we e n, the the natu natura rall rig right htss pro pr o claim claimed ed b y th t he eighte gh teen enth th ce ntur ntury de d eclar cla ratio ati ons muta utated i nto nt o hum human righ rights, ts , their their s co pe and and u risdic isd ictio tion n epan pand de from ro m France ance and the the Stat St ates es o f the n ion to th t he who w hole le human ma nity and an d, the th eir legis legisllator ato rs we were enlar nlarge ged d from the th e revo re vollutio uti onary nary assem ss emb blies lie s to the inter nterna nattiona ion al co c om munit nit and its its pleni le nip poten ote ntiar tiarie iess and and dip diplomats lomats in New York, Gen eva ev a and Stra St rasb sboourg ur g n the th ese two two long lon g centu nt uries, rie s, the th e revol ev olu ution tio nary ary ide id eas b oth trium riump h ed in the wor wo rld s cen ce ne and were violat ola ted in the th e most atroc trocio ious us and unp un prece rec eden de nted ways. The prin ri nciple cip less of the the declar cla ration ati onss were ere as revo evolutio lution nary ary in the the his tory tory o f ideas as were w ere the revo ev olutio lut ions ns in the the hi h istor sto r of o f pol po ltic ticss . We W e can can follo oll ow the them he mes, es , con co n cer ce rns and fea ears rs o f moder od ern nity in the tra ra ecto ry of the righ ights o f man. an . f mod modeernit rnity y is the the epo ep o ch of the subj ubj ect , hum human rights ghts hav have paint ain ted the world in the image age and and liken ik eneess o f th the indi vid vidual. ual. The im i mpac pa ct o f the the Frenc re nch h D eclar clarat atio ion, n, in partic articul ular ar,, has b e en profo ofou nd . The niver iversa sall D ecla ec lara rati tion on of Human Rig Ri ghts, hts , ado ad opted pt ed by the the Gene eneral ra l As Assem se mbly o f the the nited ited Natio ati ons in I 94 8 , follo ol low wed cl closel ose ly the Fre Fr ench nc h D e clar claratio atio n, b oth ot h in subs su bsta tan nce and form orm2 As a contem nte m pora orary c omme om men ntato tatorr put i t, the fram ramers o f the the N decla ecl aratio ration n of 1 For a histo of the French Declaration Declaration s ee Lynn Hunt (ed . ) e French Revoluion and Human Rh: A BriDocumena Hiso (Boston, Bedford Bedford Books I996o; Gail Schwab Schwab and o 789 and i Impac Impac (Westport Greenwood John eanneney (eds) e French Revol uion o PressI99) 2 Se e Stephen Marks "From the Single Confused Confused Page' t o the Decalogue for for Six Billion Billion Persons: The Roots of the Universal Declaration of Human Rights in the French
