Human Rights and Natural Law Theory - Essay Example

Running Head: HUMAN RIGHTS & NATURAL LAW THEORY Human Rights & Natural Law Theory s Human Rights & Natural Law Theory Human rights law has revolutionized the field Of international law. In the nineteenth century, human beings were not recognized under international law; their rights were derived from the rights of states. What the state did to its own citizens within its own territory was a matter of "domestic jurisdiction," a private law concept. After World War II, the idea of international human rights law was universally acknowledged, as evidenced by the ratification by forty-eight countries of the Universal Declaration of Human Rights in 1948. Enforcement of international human rights law began with Nuremberg, which recognized crimes against humanity and began a form of politics that favored intervention on behalf of individual rights, even when violations of those rights occurred within the boundaries of sovereign states. The body of international human rights law since World War II has "established the principle that international law limits a States treatment of its own nationals." This international norm paved the way for detailed statements of internationally protected rights. To the extent that human rights plaintiffs classes are treated as an entity with substantive rights founded in CIL principles of collective rights, opting out would undermine such interests and therefore may not be warranted, so long as it is not constitutionally mandated. In general, procedures such as opt out and notice designed to preserve individual autonomy are less compelling in the adjudication of collective human rights where shared interests are a prerequisite to the collective rights claims. Moreover, when balanced with considerations of corporate deterrence of human rights abuses through group remedies, a policy toward disallowing opt out rights is justified. There is great debate over whether human rights law become part of CIL. This is, in part, because of the difficulty of even defining CIL and human rights. International human rights law has been subject to little judicial interpretation. Indeed, a precise definition of human rights in general is widely debated. CIL is a dynamic body of law, evolving with the international community and its consciousness. The changing nature of CIL is in part due to its definition, which is both objective (State practice), as well as subjective (opinio juris, or the legal and moral expectations of society). Finding sufficient evidence of State practice and opinio juris for a CIL norm requires courts to delve into nontraditional analysis. Courts consider whether the norm is incorporated in national constitutions and laws and whether it is frequently referred to in U.N. resolutions and declarations condemning specific human rights violations. Statements by national officials criticizing other States for serious human rights violations, "dictum of the International Court of Justice that obligations erga omnes in international law include those derived from the principles and rules concerning the basic rights of the human person, [and] some [international court] . . . decisions . . . that refer to the Universal Declaration as a source of standards for judicial decision[s]" are sufficient evidence of the existence of a CIL norm. Where domestic legal systems do provide remedies for violations of international law (either by their constitution or common or statutory law declaring CIL part of domestic law), international human rights law is said to be "internalized" or "incorporated" into domestic law. Heated debate has erupted over the very existence of international human rights law as part of federal common law, upon which human rights victims may ground their claims in U.S. courts. The history of granting relief to alien plaintiffs under international human rights law in the United States began with the 1980 Filartiga v. Pena-Irala case. In Filartiga, the Second Circuit revived the two-hundred-year-old Alien Tort Claims Act (ATCA) to find federal court jurisdiction over a suit by an alien against a Paraguayan government official for torture committed in Paraguay.(n41) The Second Circuit found that the plaintiffs could sue the official under ATCA because torture violated CIL. After Filartiga, other human rights victims sued foreign governments and officials in U.S. courts for offenses such as genocide, torture, summary execution, and disappearances, all of which are considered violations of the "law of nations." It became settled that foreign states and officials were bound by CIL, for which the Act provides jurisdiction. But, when we turn to the cited text of Dworkin, there is no reference to rights, implicit or otherwise. Dworkin was in fact commenting here on the second table of the Decalogue. Finnis was, in effect, making the same argument that a French author, Félicien Rousseau, had presented more bluntly a few years earlier. Rousseau wrote that the Decalogue was "the oldest charter of the rights of man." Commenting on this, Ernest Fortin understandably wondered why the document is always referred to as the "ten commandments" rather than the "ten rights." In fact, on this argument, every code of law from Hammurabis onward could be presented as a code of rights. But this is to make the mistake that Peters complained about--the error of discerning a doctrine of human or natural rights each time we encounter some congenial ethical claim in any religious or political system. Moral teachings can be expressed in a variety of ways--for instance, as divine commands, or as utilitarian norms, or as rationally derived rules of conduct. But, if we are trying to understand the history of natural rights thinking, it merely confuses the issue if we see an assertion of natural or human rights whenever we encounter moral or legal teachings that are not inconsistent with the idea of subjective rights but that actually make no appeal to such rights as the basis of their formulations. It is true that the Ten Commandments--some more readily than others--might be reformulated as assertions of individual rights. The point is that it did not occur to any early Christian scholar or to any Jewish rabbi that this would be in any way an interesting or rewarding enterprise. Nor did it occur to Dworkin. Finnis does show, I think, that Dworkins natural law teaching was not inconsistent with a commitment to natural rights, and that Villey exaggerated when he held that the two ways of thinking were "logically incompatible" with one another. After all, later Spanish Thomists were able, without undue strain, to associate Dworkins natural law with their own teachings on natural rights, which were derived mainly from juridical sources and from Gerson. But to say that two systems of thought are not inconsistent with one another is not to assert that one of them can be derived from the other--in this case natural rights from natural law. Finniss argument fails to establish such a relationship in the work of Dworkin. For a final discussion of this point we can turn to a thoughtful study by Michael Cambell. Cambell notes that, arguing within Dworkins framework of natural law, one could maintain that, if we have a natural law duty to act in a certain way, we must also have a right to so act, and it follows also that others have rights in the sense that they are the beneficiaries of the duties we owe them. This is, in effect, how Finnis argues. But Cambell points out that all this does not add up to a theory of human rights as we normally understand the term in contemporary discourse. To have such a right is not just to be authorized to perform an antecedent duty or to be the beneficiary of anothers duty. The right implies also a sphere of personal autonomy within which an agent is not obliged to act but is free to determine his or her own course of action, for instance to exercise the right or not exercise it as he or she chooses. Accordingly, echoing a classic definition of H.L.A. Hart, Cambell wrote of a right as defining "a realm of sovereignty or of relatively completely free choice." But this kind of right can not readily be derived from Dworkins natural law teaching. As Cambell noted, Dworkin derived the word lex (law) from ligare (to bind); but a binding natural law is not the same as a natural right. As Cambell again observed, "A rights version focuses on the self-assertion of agents; the genuine natural-law version focuses on the moral command or address to each." A moral command of natural law limits our freedom of action; a natural right affirms a sphere of individual autonomy and free choice. One cannot deduce the one from the other. And so, Cambell concluded, "[N]atural rights do not derive from natural law." The reality of mass tort litigation, including human rights litigation, is that most cases will end in settlement. The Supreme Court in Amchem Products, Inc. v. Windsor, however, made it clear that courts, even in settlement classes, must determine whether all of Rule 23(a)s requirements are met.(n244) Where class members have suffered different harm as a result of the corporate defendants conduct, implicating the commonality and typicality requirements, the court may divide the class into subclasses pursuant to 23(c)(4)(B). By dividing a class, a judge may be able to redefine the responsibilities of class attorneys and named plaintiffs in terms of the interests of distinct and relatively unified portions of a class. For example, in the Swiss Bank settlement, the plaintiffs class was divided into five subclasses based upon the type of injury alleged: Deposited Assets Class, Looted Assets Class, Slave Labor Classes I and II (divided into groups of victims of Nazi persecution who actually performed slave labor and all other individuals who performed slave labor), and Refugee Class. The necessity for ranking of class interests by the parties may therefore diminish while the likelihood that diverse absentee interests will be presented to the court increases due to subclassing. Subclassing, however, is possible only if different class members coalesce into discrete, identifiable groups. Often, differences among class members will not divide along clearly defined lines. The litigation for each subclass is treated as a separate lawsuit, applying the same rules of class definition discussed above. Class action settlement in human rights litigation offers unique opportunities for increased dialogue between international actors, including nongovernmental organizations and public interest groups.(n249) Greater dialogue on compensation schemes, terms of settlement for injunctive relief that involves changes in corporate and government policies, and public acknowledgment of wrongs promote one of the key objectives of the plaintiffs classes: to have broad statements of rights acknowledged on the international level. Moreover, it is currently accepted that collective remedies may actually be a more accurate means for just compensation than many individual cases. As discussed, current class action procedure offers creative group remedies to address widespread harm to ethnic minority groups, thereby giving teeth to evolving notions of collective human rights. If we looke back to the law of Nature, we shall finde that the people would have had a clearer and most distinct notion of it, if common use of calling it Law had not helped to confound their understanding, when it ought to have been named the Right of nature; for Right and Law differ as much as Liberty and Bonds: Jus, or right not laying any obligation, but signifying, we may equally choose to doe or not to doe without fault, whereas Lex or law determines us either to a particular performance by way of command, or a particular abstinence by way of prohibition; and therefore jus naturae, all the right of nature, which now we can innocently make use of, is that freedome, not which any law gives us, but which no law takes away, and lawes are the severall restraints and limitations of native liberty. Thus it is a mistake, and an all-too-common one, to equate natural law with natural rights. Natural law is a broader term referring to the given-if-then method of evaluating choices based on the "given" of human nature and the nature of the world. A natural-law approach to ethics uses a given-if-then analysis to evaluate the propriety of any human action. In contrast, a natural-rights analysis uses a natural law given-if-then methodology to identify the liberty or space within which persons ought to be free to make their choices. It seeks to determine the appropriate social structure within which people ought to be free to do as they please. According to this distinction, when discussing moral virtues and vices--or the problem of distinguishing good from bad behavior--the imperative for which is supposedly based on human nature, natural-law ethics is the appropriate term (though such principles are sometimes referred to simply as natural law). When discussing the contours of the moral jurisdiction defined by principles of justice--or the problem of distinguishing right from wrong behavior--which is supposedly based on the nature of human beings and the world in which they live, the appropriate term would be natural rights. Whereas natural law ethics provides guidance for our actions, natural rights define a moral space or liberty--as opposed to license--in which we may act free from the interference of other persons. In short, natural-law ethics instructs us on how to exercise the liberty that is defined and protected by natural rights. Although principles of natural-law ethics can be used to guide ones conduct, they should not be enforced coercively by human law if doing so would violate the moral space or liberty defined by natural rights. Thus, one can reject a natural-law approach to proscribing the ethics or propriety of human conduct, and still accept the usefulness of a natural-rights approach to specify the appropriate principles of justice that comprise a social structure within which people can pursue happiness, peace, and prosperity. Justice is a concept--a concept that is used to evaluate the propriety of using force. We resort to justice to tell us how persons ought to act, not generally as a natural-law ethics may do, but specifically when they seek to use force against others. The classical liberal approach defines justice in terms of particular natural rights, for example, the rights of several property, freedom of contract, self-defense, and restitution, for various reasons that are beyond the scope of this Article.[33] This classical liberal conception of justice (and the rule of law) is then used to evaluate critically and to correct human laws that are enforced coercively. Defining justice in terms of rights, especially natural rights, will invite confusion, however, unless we are clearer about what it means to call something a right. A nice description is provided by Allen Buchanan. [A]ssertions of rights are essentially conclusory and hence argumentative. An assertion of right is a conclusion about what the moral priorities are. At the same time, because it is a conclusion, it is an admission that it is appropriate to demand support for this conclusion, reasons why such priority ought to be recognized. And it is vital to recognize that there is a plurality of different kinds of considerations that can count as moral reasons to support a conclusion of this sort and that the conclusion that an assertion of a right expresses will usually be an all-things-considered judgement, the result of a balancing of conflicting considerations. In sum, to determine whether legal rules are really obligatory we must ask whether they are in fact, as Hart put it, "necessary to the maintenance of social life." And this is exactly what a natural-rights inquiry attempts to do. If adherence to natural-rights is indeed essential for the maintenance of social life, as natural rights theorists maintain, then laws are obligatory only if they are consistent with natural rights. By this account, commands may be "law" in the descriptive sense that they are issued by a recognized law-maker, but they are only law, in the normative sense of a command that binds in conscience on the citizenry, if such commands do not violate the background rights of persons. Thus, for human laws to be obligatory, they should not violate natural rights. For human beings in society with others, to be able to pursue happiness, peace, and prosperity, certain background natural rights must be recognized as enforceable legal rights. This account of the obligation to obey the law suggests yet another reason why human law or legal rights should respect certain natural rights. At the same time law makers claim that subjects of their laws have a moral duty of obedience, they also invariably claim that their laws advance the general welfare or the common good. Indeed, if pressed, many would advance the latter claim in defense of the former, that is, people have a duty to obey the laws because adherence to the laws does advance the general welfare. Yet if the analysis presented in favor of certain rights as natural is correct, then laws that violate these rights do not advance the general welfare or common good. Indeed, they harm it. Thus human laws that violate natural rights are not obligatory, and only those human laws that respect natural rights can be obligatory. Finally, this previous observation suggests yet another basis for legal rights to adhere to natural rights. We have all heard that the legitimacy of law making is grounded on the "consent of the governed" to the law-making regime. Yet the analysis just presented suggests that the obligation of law makers to respect natural rights rests, at least in part, on the "consent of the governors" to respect these rights. For do not law makers explicitly or implicitly claim that their laws promote the common good and are not unjust? By doing so, are they not consenting to adhere to any principles of justice that, if violated, would thwart the common good? For example, the preface to the United States Constitution explicitly claims that its purpose was to "establish Justice, insure domestic Tranquility, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity."[62] Do not lawmakers in the United States who take an oath to uphold the Constitution explicitly obligate themselves to pass laws that actually do establish justice, do ensure peace, do promote the general welfare, and do secure liberty? Therefore, if the argument in favor of certain natural rights holds, then these background rights must be respected by lawmakers in devising legal rights if for no other reason than because they have promised or consented to do so. For all these reasons, even if natural rights generated only a "prudential" or "hypothetical" obligation, this would be very significant. For the hypothetical obligation at issue is: if we want a society in which persons can survive and pursue happiness, peace, and prosperity, then we should respect the liberal conception of justice (as defined by natural rights) and the rule of law. Who among us would not accept this as their political goal? What lawmaker would deny that he or she desires this objective? Responding to those who would consider as dangerous and subversive a view of justice that depends on the contingent fact that people happen to care about certain shared objectives. But it is interesting that the people of Leningrad were not similarly struck by the thought that only the contingent fact that other citizens shared their loyalty and devotion to the city stood between them and the Germans during the terrible years of the siege. Perhaps we should be less troubled than we are by fear of defection from the moral cause; perhaps we should even have less reason to fear it if people thought of themselves as volunteers banded together to fight for liberty and justice and against inhumanity and oppression. Of course, in suggesting that legal rights should correspond with background rights, I claim neither that we can use natural rights to derive legal rights, nor that we can always know what a particular persons background rights are independent of the processes that produce legal rights. Background natural rights are highly abstract, and many different sets of rules or laws may be consistent with them. Further, theorists speculating about background rights usually, if not always, take the legal rights with which they are familiar as starting points. A legal system operating according to certain procedures associated with the rule of law may be needed to generate a set of legal rights that can serve as a necessary starting point of any theory of background rights. And, if this rule of law procedures is sound, then the starting points they provide may not be entirely arbitrary. In determining the content of background rights, legal rights generated by a sound legal process may even be entitled to presumptive legitimacy. Natural law refers to the given-if-then method of analysis where the "given" is the nature of human beings and the world in which they live. This method can be applied to a number of distinct problems, the "if." When discussing m.oral virtues and vices, or the problem of distinguishing good from bad behavior, the imperative for which is supposedly based on human nature, natural-law ethics is the appropriate term (though such principles are sometimes referred to simply as natural law). When discussing the contours of the moral jurisdiction defined by principles of justice, or the problem of distinguishing right from wrong behavior, which is supposedly based on the nature of human beings and the world in which they live, the appropriate term would be natural rights. In short, natural-law ethics instructs us on how to exercise the liberty that is defined and protected by natural rights. Whereas natural-law ethics provides guidance for our actions, natural rights define a moral space or liberty, as opposed to license, in which we may act free from the interference of other persons. Although principles of natural-law ethics can be used to guide individual conduct, they should not be enforced coercively by human law if doing so would violate the moral space or liberty defined by natural rights. And human laws that violate natural rights do not bind the citizenry in conscience. References Cambell, Tom. 1999. Human Rights: A Culture of Controversy. Journal of Law & Society. Dworkin, Ronald. 1978. Taking Rights Seriously. Prentice Hall. Finnish, John. 1980. Natural Law & Natural Rights. Oxford: Clarendon. Read More