Human rights development impacts on the relationship between the form of life of the jurist and the office of the jurist in a number of ways. Thus it is integral that we analyse and critique the relations between the form of life and the jurisprudence of the office in the domain of the human rights. The essay will attempt to look at this relationship within the lens of natural law jurisprudence. And whilst we could simply look at how these links are affecting the jurist it also important to look at how we can proceed within the arena of human rights development and how the relationship may change. Jurisprudence theorist such as Finnis, Simonds and to some extent Hobbes have supported the development of human rights and whilst sceptics such as Bentham may tarnish such support there is and always will be a future for global human rights.
Human rights and development impact on the relationship between the form of life of the jurist and the office of the jurisprudent in many ways. To understand the links between the form of life and the office in this context, it is necessary to explore the links between these concepts as developed by natural law theorists. According to natural law jurisprudence, law is a form of regulation in which abstract, formal equality inheres. According to natural law theorists, this social form must be tied to some kind of “form of life”.
That is, the concerns of jurisprudence are more usually shaped around the conduct and form of life of the jurist than that the active citizen. According to Finnis, this form of life is one in which individuals are able to pursue diverse life paths, and thus their own ways of engaging in ‘objective goods’. Simmonds further proposes that the form of law grants individuals a certain degree of ‘distance’. Jurisprudence theories link the form of law with a form of life in which abstract individuals are able to pursue their own projects through an idealised form of liberal capitalism. Hence there is a connection made in this sense by analysing two important aspects of the jurisprudence traditions, that of prudence, and of office.
Natural law in practice is essentially the idea that individuals possess an innate free will that it restricted by society through law. An ideal government for example, would protect natural law so as to ensure that each person had free will and liberty. John Locke defined this phenomenon as ‘[t]he state of nature has a law of nature to given it, which obliges very one, and reason, which is that law, teaches all mankind who will but consult it that being all equal and independent, no one ought to harm another in his life, health, liberty of possessions.’1
Locke’s basic idea was that the natural liberty of man is to be free from any superior power on earth, and not to be under the will of the legislative authority of man, but to have only the law of Nature for his rule. As a jurisprudential theory, natural law approaches law as a form of social regulations, with its own identity. Natural law jurisprudence views law as a form of regulation in which formal equality inheres. The basic premise is that rights exist, which are inherent in the individual because of their rational nature, and not because of any grant of right by a sovereign. This has the tendency for critics to argue that such a concept which can be invoked to support human rights that don’t yet exists, and can lead to indeterminacy because individuals may invoke laws to support anything they wish.
Naturalists also tie the concept of law as a form of social regulation based on rationalism to a form of life. As noted, in Finnis, the ‘form of life’ of the jurisprudent’ is one in which individuals are encouraged to take different life paths. Contrast Simmonds who asserts that the form of law grants individuals the distance to pursue their path. Irrespective of the law’s burden an individual’s paths is not to be decided by the will of the sovereign. Theorists link the form of law with a form of life in which individuals are able to pursue their own ends through an idealised form of liberty. Applied in the context of human rights, this may relate to pursuits of freedoms, such as free speech and individual liberties. Importantly, it is also necessary to consider the office of the jurisprudent, which can constrain such pursuits of individual expression, and in essence restrict the form of life itself. Law is tied to a form of life that is morally evaluated.
Simmonds and Finnis argue that this form of life is intrinsically morally valuable, as it enables individuals to pursue their own ends though at some distance to other individuals. Thus, the form of law is given moral value, as it is productive of individual liberty. The form of law is also systematically morally ‘good’; and this moral value exists even when it expresses concepts thought to be immoral. Simmonds justifies this by reference to the distance between the sovereign and the rules and regulations themselves, as the form of law supports a system of individual liberty (the form of life). This gives rise to a ‘collateral obligation’ to obey those rules and regulations. In basic form, when one decides whether or not to obey the law, the justice of the content of the law is not the only thing one considers. Rather, it must be weighed against the intrinsic moral value.
A) Evolution of Human Rights Theories
Rising from natural law jurisprudence, the language of human rights, according to some commentators has become the ‘dominant mode of public moral discourse over the last fifty years’.2 Upendra Baxi observes that this century has seen a ‘profusion of human rights enunciations on a global scale’. Human rights are characterised as evolving legal regimes, substantive moral theories, discourse theories, a body of ideas, Western colonial ideology.3 Pioneers of human rights theories such as Dworkin laid the foundational principles of the discourse. In Dworkin’s opinion, everyone should be treated with equal concern and respect, so it is the duty of the courts in upholding the rule of law to ensure minimal non interference with individual autonomy.4
Whilst human rights are admittedly ‘exasperatingly vague, if not incoherent’5, there are several broad conceptions and visions of human rights. A complete and comprehensive analysis of the theoretical underpinnings of human rights jurisprudence is beyond the scope of this paper. However, in order to understand the complex relationship between the jurist and the office of the jurisprudent in the context of human rights, it is necessary to distinguish the two important principal theories underpinning the rights discourse. The “will” or “choice” theory, and the “interest” theory. Hart advanced the idea that when a person possesses a right to do something, it is this choice which is fundamentally protected. In contrast, the ‘interest’ theory espoused by MacCormick, asserts that the purpose of rights is to protect as opposed to preserving an individual’s choice. Rather, according toe MacCormick it is the interests of the holder of the right that are protected by human rights.6
Hence, human rights discourses accentuate and provide an example of the strong connections between the form of life, and the office of the jurisprudent. The human rights movement is accentuated by examples in history involving significant large scale abuses which have lead to the questioning of legitimacy of the discourse. Tragic events in history such as the Holocaust and the bombing of Hiroshima in World War II lead to the legal recognition of human rights in the twentieth century through the development of international instruments, mainly the Universal Declaration of Human Rights in 1948 and the International Covenants on Civil and Political Rights7.
Developed through the office of the jurisprudent and directly impacting on the form of life of the jurist, these instruments embodying the practical wisdom of law are directed by the practices of argument and reasoning, enabling legal relationships to be formed and enacted. However, such international legal agreements do not necessarily preserve the form of life at the domestic and local level. For instance, in Australia the treatment of Aboriginal people highlights the modern conception of the nature of human rights, where exclusionary concepts are paramount. Arguably the role of the jurist in this scenario is to transcend the office of the jurisprudent, which has failed to preserve human rights. This would involve a consideration of what can be done to preserve the form of life.
The jurisprudence of human rights directly addresses questions about the existence, content, nature, universality, justification, and legal status of human rights. Over time there have been strong claims made on behalf of human rights, that they are universal in nature and transcend legally enacted laws, justified on the basis of a body of moral norms. However, equally in answer to the advocates of human rights jurisprudence, the discourse frequently provokes sceptical doubts and countering philosophical defences.
From the perspective of the office, human rights may be regarded as essentially political norms as to how people should be treated by their governments and institutions. Historically, the connection between form of life and the office of the jurisprudent in this sense has often become blurred. Yet conversely, some rights, such as rights against racial and sexual discrimination are primarily concerned to regulate private behaviour.
The question then arises as to how governments should be directed and influenced by the discourse of human rights. Human rights both forbid governments to discriminate in their actions and policies, and simultaneously impose duties on governments to prohibit and discourage both private and public forms of discrimination. From a theoretical perspective, human rights have been said to exist as moral and/or legal rights. According to James Nickel of Stanford University, a human right can exist as one of four concepts; a shared norm of actual human moralities; a justified moral norm supported by strong reasons; a legal right at the national level; a legal right within international law.8
Finally, in terms of theoretical perspectives on human rights, it is relevant to note the growing distinctions between domestic and international human rights. According to theorists such as Baxi, there is a universal concept that is now challenging principles of state sovereignty9. Who then, is the active participant in human rights? Is it State actors in the form of the office of the jurisprudent as a source of prudence in the development of international treaties? Or is it the form of life and the conduct of the jurist who must individually pursue human rights as advocate and thereby shape the discourse? The answers to these questions may be better understood through an analysis of human rights as a primarily moral discourse, and the relationship between human rights and morality.
B) Human Rights And Morality
Having explained the theoretical underpinning of human rights in the context of natural law jurisprudence, it is necessary to examine the link between human rights and morality. Human rights are often described by theorists as a form of moral discourse. Fuller, Aquinas, Locke (and even to some extent Hobbes) argue that the form of life is intrinsically morally valuable. In this respect, the form of law itself is intrinsically morally value, given that it is productive of abstract individual liberty. Essentially, given that the form of law is systemically morally good, the moral value of the legal form exists even when it expresses immoral content. For Simmonds this is because there is still a ‘distance’ between the rulers and the rules and for Finnis, this is because the form of law is supportive of a system of individual liberty.10 As noted, Finnis refers this as a ‘collateral obligation’ to obey the law.
Essentially, when one decides up whether or not to obey the law, the justice or injustice of its content is not the only factor to be taken into account, this has to be weighed against the intrinsic moral value of the legal form, which is produced by an intrinsically moral form of life. International aid agencies and non-governmental organisations supporting fundamental human rights provide examples of the embodiment of human rights discourses in the office of the jurisprudent. Prudence, essentially being the wisdom behind treaties is present through the various Treaties and agreements preserving human rights. When given the powers to determine laws in relation to human rights, the role of the jurist is to avoid abuse of such powers. Thus, there is an inherent an omnipresent risk that individuals will either submissively fail to implement treaty obligations, or actively contrive to circumvent human rights. There are too many tragic events in history, including the Holocaust and other large scale abuses of human rights, which are sobering reminders of these risks.
A critical analysis of human rights in the context of the relations between the form of life and the jurisprudence of the office of jurisprudent cannot be complete without an examination of sceptics to the theory. Twining observes that ‘scepticism comes in many forms’ with respect to human rights jurisprudence.11 Challenges come in varying degrees, with the most comprehensive questioning the very idea of human rights. There are two distinguishable categories of scepticism; rejection on the basis that human rights are purely subjectively determined and thus are merely expressions of individual preference; and the cultural relativism argument that the concept of universal human rights is a fallacy as they are culturally determined and cannot therefore be applied neutrally to all people.
There are also forms of scepticism based on ethical positions. Jeremy Bentham, Edmund Burke and Karl Marx are two such jurisprudential theorists who voiced strong opposition to the concept of inalienable universal rights that underpin the human rights movement of the present era.12 According to utilitarian views such as Bentham and Burke, the inalienable right is groundless because in fact rights arise from the office of the jurisprudent in the form of government, or evolve from tradition and hence neither of these sources can provide anything inalienable. In his text Anarchical Fallacies, Bentham asserts that to talk of non-legal rights, that is natural, moral or human, is nonsensical and has no meaning. Revisiting the moral rights discourse, this poses a direct challenge. According to Bentham, as natural law does not exist, the idea of natural rights is equally meaningless and has no jurisprudential foundation. Utility is the only moral principle. In answer to these critics, Twining asserts that many of Bentham’s statements are ‘wrong’.13
More recently, critics have stated the notion of a ‘human right’ lacks any defined criterion and in this way the concept has become debased.14 Other commentators such as Costas Douzinas assert that the movement of human rights predicated on the preservation of the form of life has ultimately become meaningless and obscured in a swathe of declarations, treaties and other instruments devised by the office of the jurisprudent.15 Challenges to human rights have also come from communitarians,16 post-modernists, and some feminist theorists also attack human rights on the basis that the preserving legal instruments are meaningless and have no basis in the realm of jurisprudence17.
Furthermore, the conception of international human rights law that arouses critics is that of a pre-existing body of rules that regulate the interrelations of nation states. A distinction is made between international law and supernational law that comes from a distinction between a community of states and world government. The remaining theorists sit between these two conceptions. It has been stated that particular rules of international law can only be changed with the specific consent of state and the essence of sovereignty. Domestic jurisdiction and independence puts up a barrier towards achieving greater protection of human rights. When the authority is required to transcend nation states authority it must be found in natural law.
Whilst human rights have been questioned and criticised by a number of jurisprudential theorists, the discourse is valid and still supported by well established commentators, defying sceptics and the challenges from the utilitarian advocates. Jurisprudential theorists have recognised that a human rights discourse is strongly supported in the global community and has attained moral value. As early as 1952 the Yale University Law Journal published articles articulating that jurisprudence theories support international law and human rights18.
Many jurisprudential theorists conceive human rights development as a sharing of values between individual human beings as part of a community process. According to this view, the whole of human kind consists of a single earth space community, and there is a sharing and shaping of values which occurs that influences the character and quality of the rights development process. In this space the individual jurist is the ultimate actor in all social interaction, identifies and affiliates with, and makes demands upon the office of the jurisprudent in the form of government and non government organisations, special interest groups, general community groups.
It appears that in the future the range of ‘jurists’ and so too the office of the jurisprudent will be ever expanding and flexible. For instance, the United Nations was originally formed by a group of government and legal actors and is now run in conjunction with a range of non-government institutions as well as special interest groups. The variety of actors has increased, and the jurist no longer occupies purely the role of diplomat, but rather could represent any number of non-government organisations.
The traditional conception of a jurist as a judge or scholar can be adapted to fit the development of human rights. In its true essence, a jurist follows the atomisation of justice in the pursuit of the protection of an individual’s rights to pursue their own paths. International law jurists are essentially following this theme in attempting to ensure that the nation States work collectively to ensure global respect for the rights and choices of the individual, no matter their race, economic status or gender. As a system, the international laws also act as a limitation on State power to ensure that nation states are not a law unto themselves that individuals have the opportunity to seek justice in other jurisdictions. For example, the ability for individuals to access United Nations Committee’s as a form of redress for a wrong against them, or simply to draw attention to a social issue is a key element of the system. Individuals who demand that the whole community respect fundamental human rights are therefore jurists in the more literal sense of the word.
The international law jurists usually insist on sociological factors and believe that a full understanding of that law is a perquisite to reform, and are generally strong advocated of natural law. Past jurists of this nature include Max Huber and Dierich Schinered. There are international lawyers who follow the natural law developed by anti metaphsycial scholars who reject the natural law theory as a basis of law. Others will follow a natural law view based on the legal consciousness of people and nations. Other jurists may simply confuse the law with a law of ethics. A natural law jurist occupying office in international law may simply consider law as a fact and thus make decions based on statistically proven facts. A true jurist in international law would consider a system of ethical norms when deciding on a treaty or committee regulations. Theoretically a jurist occupying office must consider the highest general principles that apply in the context of the conditions of the time, and the State actor the jurist represents.
Prudence is what can be learned from the law and what precedents may be applied to. Nothing that has occurred has arisen without reference to past human affairs. New rules, laws and rights arise in relation to what has come before prudence what has been in its place. All that has occurred with the new is that prudence has made its way in to the law and thus resided there and gains legimitcay. All laws, however, in order truly to be laws must be embodiments of law. That is, laws must be developed in accord with the authority of human reason. In contrast to the vacuity of criterion-based ethics, ethics based on jurisprudence supplies any situation requiring a moral decision with content. What has gone before in human affairs that apply to a particular situation is the beginning point for a moral decision. The decision will be based on reasoning by analogy from past resolutions of similar situations.
The role of the traditional international jurist has now expanded. A jurist is no longer simply occupying an office of State, rather that person is practicing another form of legal science. The organisation of ‘the office’ and ‘persona’ of the jurist is not the sole point of organisation now that the practice of international law includes non government organisations and a range of overarching organisations set up by nation States. Many theorists have analogised the role of the jurist in terms of the judge or the legal representative, rather than a person with responsibilities and obligations outside the State. The office of the jurisprudent can be occupied in a number of ways, however for Salmon the office of the jurist prime concern must be the administration of justice. According to this view the jurisdiction of law is the administration of justice.
This fits within the conception of international law as enforcing moral norms and behaviours that respects individual freedoms. For Salmon law is ‘the body of principles recognised and applied to the State in the administration of justice’19. Thus law is ‘justice speaking to men by the voice of the State. As the primary function of the State, in Salmon’s view is to ‘maintain right, to uphold justice, to protect rights to redress wrongs’, international office provides more flexibility as jurists are not forced to walk a ‘pre determined path’20. Each jurist has the opportunity to exercise free will and discretion in each judgement. Thus decisions made by international organisations originate from a private thought, informed from State actors as well as their own view on what are ‘natural rights’.