Human Rights, Rule of Law and the Contemporary Social Challenges in Complex Societies: Proceedings of the 26th World Congress of the International Association for Philosophy of Law and Social Philosophy in Belo Horizonte, 2013 3515111301, 9783515111300

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Human Rights, Rule of Law and the Contemporary Social Challenges in Complex Societies Proceedings of the 26th World Congress of the International Association for Philosophy of Law and Social Philosophy in Belo Horizonte, 2013 Edited by Marcelo Campos Galuppo / MÔnica Sette Lopes / Karine Salgado / Thomas Bustamante / Lucas Gontijo

ARSP Beiheft 146 Franz Steiner Verlag

Archiv für Rechts- und Sozialphilosophie

Human Rights, Rule of Law and the Contemporary Social Challenges in Complex Societies Edited by Marcelo Campos Galuppo / MÔnica Sette Lopes / Karine Salgado / Thomas Bustamante / Lucas Gontijo

archiv für rechts- und sozialphilosophie archives for philosophy of law and social philosophy archives de philosophie du droit et de philosophie sociale archivo de filosofía jurídica y social Herausgegeben von der Internationalen Vereinigung für Rechts- und Sozialphilosophie (IVR) Redaktion: Dr. Annette Brockmöller, LL. M. Beiheft 146

Human Rights, Rule of Law and the Contemporary Social Challenges in Complex Societies Proceedings of the 26th World Congress of the International Association for Philosophy of Law and Social Philosophy in Belo Horizonte, 2013 Edited by Marcelo Campos Galuppo / MÔnica Sette Lopes / Karine Salgado / Thomas Bustamante / Lucas Gontijo

Franz Steiner Verlag

Bibliografische Information der Deutschen Nationalbibliothek: Die Deutsche Nationalbibliothek verzeichnet diese Publikation in der Deutschen Nationalbibliografie; detaillierte bibliografische Daten sind im Internet über abrufbar. Dieses Werk einschließlich aller seiner Teile ist urheberrechtlich geschützt. Jede Verwertung außerhalb der engen Grenzen des Urheberrechtsgesetzes ist unzulässig und strafbar. © Franz Steiner Verlag, Stuttgart 2015 Satz: DTP + TEXT Eva Burri Druck: Druckhaus Nomos, Sinzheim Gedruckt auf säurefreiem, alterungsbeständigem Papier. Printed in Germany. Franz Steiner Verlag: ISBN 978-3-515-11130-0 (Print) Franz Steiner Verlag: ISBN 978-3-515-11133-1 (E-Book) Nomos Verlag: ISBN 978-3-8487-2495-6

Table

of

ConTenTs

Preface . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

7

I – Human RigHTs and demoCRaCy Stephan Kirste The Human Right to Democracy as the Capstone of Law . . . . . . . . . . . . . . . .

11

Celso Lafer Human Rights Challenges in the Contemporary World: Reflections on a Personal Journey of Thought and Action . . . . . . . . . . . . . . . .

33

ii – THe PHilosoPHiCal foundaTions of Human RigHTs Mortimer N. S. Sellers Law, Reason, and Emotion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

71

Norbert Horn Human Rights: Philosophical Foundations and Legal Dimensions . . . . . . . . .

89

Tom Campbell Human Rights: A Democratic Way . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105 iii – Human RigHTs, demoCRaCy and THe CHallenged Rule of law Sindiso Mnisi Weeks Contested Democracy and Rule of Law(s) in Pluralistic Societies: The Example of South Africa . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123 Miracy Barbosa Gustin Social Governance of Communities in Peripheral Exclusion: Fundamental Questions About Its Effectiveness . . . . . . . . . . . . . . . . . . . . . . . 145

PRefaCe Modern societies often claim to be democracies and, by virtue of their democracy, to enjoy greater legitimacy than would otherwise have been the case . Democracy has many meanings, but at a minimum it implies: 1) the rule by the people; 2) the Rule of Law; 3) the respect for Human Rights . Although these three concepts usu­ ally appear together, they are sometimes in tension . The XXVI World Congress of Philosophy of Law and Social Philosophy sought to comprehend this tension that constitutes Democratic law . The Congress’ meeting on Human Rights, Rule of Law and the Contemporary Social Challenges in Complex Societies took place at the Universidade Federal de Minas Gerais (Brazil) from July 21st through July 27th, 2013, and was attended by more than 900 scholars and students from 72 countries . This book presents some of the Congress lectures1 . The keynote speakers, among the most important and respected scholars in their fields, showed in their papers how complex the relationship between Human Rights and the modern Rule of Law can be in democratic societies . Stephan Kirste (Universität Salzburg – Austria) argues that the tension is due to a misunderstanding about what Democracy is . Since both Democracy and Human Rights are conceived as grounded on Freedom, at least in the Kantian tradition, Democracy should be understood itself as a Human Right, and cannot be taken in an instrumental way, nor can Human Rights be conceived as granted by the sov­ ereign without people’s participation . Democracy is thus, according to him, a kind of machine, which permits “the constant transformation of new rights into the laws under the eyes of the rational process” established by the Rule of Law . In an almost autobiographical paper, Celso Lafer (Universidade de São Paulo – Brazil), former Brazilian Minister of Foreign Affairs, conceives Human Rights, in a somewhat similar analysis, as “the Right to have Rights” . From his point of view, they are also connected to self­determination and to the resistance against the arbi­ trary violence that even the established power can perpetrate . Using some recent events (such as the Brazilian dictatorship in recent past and the persecution of Jews during the II WW) and with reference to Norberto Bobbio’s and Hannah Arendt’s thinking, he shows that an integrated comprehension of Democracy, Human Rights and Peace should be the goal of a general theory of Law and Politics . In this path, Human Rights are seen as connected to the Sense of Justice, as Mortimer Sellers (University of Baltimore – USA) points out . One can assume that Legal Systems are justified, and therefore legitimate, only “when they give better answers to questions of justice and the common good than society could otherwise find or implement, without their intervention” . We only need Human Rights if they, as a concept, can help us to provide a better society than otherwise . And we only need Democracy and the Rule of Law if they could advance justice . 1

Besides the lectures that are included in these proceedings, prof . Yasutomo Morigiwa presented a lecture on The truth in ‘Gesetz ist Gesetz’, and Jan Christoph Bublitz, the winner of the IVR’s Young Scholar Prize, presented a lecture on Freedom of Thought in the Age of Neuroscience: A Plea and a Proposal for the Renaissance of a Forgotten Fundamental Right (ARSP 2014, vol . 100, 1–25) .

8

Preface

But, in order to do so, Human Rights need a better foundation . Norbert Horn (Universität Köln – Germany) thinks that, although Human Rights are enacted by policies and enforced by Law, one cannot understand them properly if one does not take into account their moral dimension . This moral foundation is so important because “the moral prestige of Human Rights helps their implementation in a world that is full of violations of Human Rights” . Once we know what Human Rights (and Democracy and Rule of Law) are, we should ask how should they be implemented: through legislation (and constitu­ tional provision) or through judicial review? According to Thomas Campbell (Charles Sturt University – Australia), democratic procedure tends to develop a kind of “one size fits all” policies and legislation that could threaten minorities rights, and, in an age when the list of Human Rights develops itself more quickly than the bills which protect them, judicial review has been used to advance Human Rights . This can be a problem, from a democratic point of view, since the Judicial Power isn’t legitimate in the same way as Legislative Power is in an elective democracy . And it can also be a problem when the courts relativize the Rule of Law . As Sindiso Mnisi Weeks (University of Cape Town – South Africa) shows, Hu­ man Rights can be under threat when the Rule of Law (understood as “the suprem­ acy of the law in a legal order”) is blocked by the courts, who argue to better under­ stand people’s needs than the Legislative Power and even the Framers could do . This can be seen in South Africa, where the Judicial Power, and even Legislative Power, sometimes override the Constitution while looking to protect traditional communi­ ties and Democracy . This is a very tricky matter, when we face the conflict between universally recognized Human Rights and the self­determination of traditional communities, sometimes not so democratic ones . Finally, Miracy Barbosa Gustin (Universidade Federal de Minas Gerais – Brazil) shows that the real problem with the Rule of Law and Human Rights is about their effectiveness, since in many countries, and particularly in Brazil, “the discourse that Human Rights are equally applicable to all and that they are constitutionally guar­ anteed as fundamental rights seems to conspire not only against statistical evidence, but also against the visible and unquestionable current injustices” . Thus, people who care about justice should also help to empower through social governance those who have their rights systematically denied . How, then, should we understand Human Rights, Democracy and the Rule of Law? What should we do, when the Human Right to self­determination comes into conflict with other Human Rights, such as the right to equal protection under the Law? And how should the Rule of Law and Democracy help to protect the Human Rights? These challenges cannot be answered by Law itself, and that’s why the Phi­ losophy must come to its aid, to make the law more coherent, and perhaps more just . Belo Horizonte, July 27th, 2013 . Prof . Marcelo Campos Galuppo, PhD President of the XXVI World Congress of Philosophy of Law and Social Philosophy

i – Human RigHTs

and

demoCRaCy

Stephan KirSte, UniverSität SalzbUrg (SalzbUrg) THe Human RigHT

To

demoCRaCy

as THe

CaPsTone

of

law

i. inTRoduCTion The claim that persons should not only enjoy general freedom, but also actively participate in the creation of the various liberties, is a classic issue in political phi­ losophy and in the philosophy of law . The struggle for this right to decide erupted in the 18th century revolutions and remained extremely competitive, theoretically and politically, throughout the 19th and 20th century; recently, it reappeared force­ fully in the Arab Revolution . As a consequence of these struggles, the rights to free speech and thought, to free association and to vote were codified in many national constitutions . On a supranational level the European Union, e . g ., implemented these rights in art . 11, 12 and 39 of the Charta of Fundamental Rights and in art . 20 II B of the Treaty on the Functioning of the European Union . Also, international law now acknowledges the collective dimension in right to self­determination of peoples (art . 1 II UN­Charta), the right to vote (art . 21 UDHR) and communicative (art . 19 UDHR) as well as associative freedoms (art . 20 UDHR)1 . Art . 25 ICCPR2 in particular obliges the states to ensure the participation of the individual in public elections and presupposes other communicative and associative freedoms – includ­ ing the freedom of information as a precondition of these elections3 . The “United Nations Millennium Declaration” states: “Men and women have the right to live their lifes and raise their children in dignity, free from hunger and from the fear of violence, oppression or injustice . Democratic and participatory governance based on the will of the people best assures these rights .”4 Other human rights declarations also contain these freedoms; the European Convention for the Protection of Hu­ 1 2

3

4

FrancK, t. M. The Emerging Right to Democratic Governance . American Journal of International Law, 86, 1992, 46 ff ., 57 ff . Article 25: “Every citizen shall have the right and the opportunity, without any of the distinc­ tions mentioned in article 2 and without unreasonable restrictions: (a) To take part in the conduct of public affairs, directly or through freely chosen representa­ tives; (b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors; (c) To have access, on general terms of equality, to public service in his country” . General Comment No . 25: The right to participate in public affairs, voting rights and the right of equal access to public service (Art . 25): 12 .07 .1996 . CCPR/C/21/Rev .1/Add .7, General Comment No . 25 . (General Comments), Adopted by the Committee at its 1510th meeting (fiftyseventh session) on 12 July 1996, http://www .unhchr .ch/tbs/doc .nsf/%28Symbol%29/ d0b7f023e8d6d9898025651e004bc0eb?Opendocument, (30 .11 .2013): “Article 25 lies at the core of democratic government based on the consent of the people and in conformity with the principles of the Covenant” . “8 . Citizens also take part in the conduct of public affairs by exerting influence through public debate and dialogue with their representatives or through their capacity to organize themselves . This participation is supported by ensuring freedom of expression, assembly and association” . Resolution 55/2 of the General Assembly of the United Nations, Sept . 8th, 2000, I, 6 .

12

Stephan Kirste

man Rights and Fundamental Freedoms, for instance, in art . 10 and in art . 3 of its 1 . Additional Protocol . Similar provisions are to be found in the Inter­American Democratic Charter (OAS), where art . 26, 1 of claims that “democracy is a way of life based on liberty and enhancement of economic, social, and cultural condi­ tions .” None of these acts, however, entails a unified individual right to democracy . Whether there is something like a human right to democracy and if so, how it is justified, is still a matter of debate . There are roughly five positions: (a) general critique of this right, (b) liberal position, considering human rights and democracy as oppo­ sites, the idea of (c) democracy being instrumental for human rights, or (d) of human rights being instrumental for democracy and finally (e) of both being co­original . In this paper, I will examine these positions, starting with those critical of a human right to democracy before presenting the positions in defense of it . These examinations will lead to the third part, the elaboration of my own conception . I will develop my understanding against the background of the concept of law and the relationship between law and freedom . Finally, I will explain the interplay of human rights and democracy and the justification of a human right to democracy . I understand the right to democracy as a right to free and equally participate in the deliberating, decision­making and interpreting procedures of general rights and du­ ties . This positive human right to democracy can be justified by a common princi­ ple of human rights and democracy . This unifying principle is legal freedom . In order to justify human rights as legal rights on the basis of legal freedom, I will show that the legal form itself originates in freedom . The understanding of the interde­ pendency of human rights and democracy based on law as an order of freedom ul­ timately replaces the conception of their co­originality . ii. THe CRiTique

of a

Human RigHT

To

demoCRaCy

1. hUMan rightS aS external liMitationS oF pUblic aUthority Conceptions that deny a human right to democracy assume an external relation of human rights and democracy – some of them in the tradition of Carl Schmitt5 . They hold that the French Revolution merely replaced the Ancien Régime’s monarchic legitimation of the absolute sovereign by a democratic legitimation; the people as a collective replaced the monarch in the legitimation of public authority, or so they argue . In both forms of government, human rights served as external limitations of public authority . Accordingly, these scholars reject the idea of an individual right to democracy . This critique ignores, however, that the exchange of the subject of legitimation – namely the monarch by the people – is accompanied by an exchange of the mode of legitimation of power . The absolute monarch could rely on the objectives of the state and his inherited legitimation as a political person . In democracy, the people act as an entity of persons as well; doing so, however, they do not only express their traditional competences . Democracy cannot be justified with reference to the past 5

bieleFeldt, Heiner . Philosophie der Menschenrechte . Grundlage eines weltweiten Freiheit­ sethos . Darmstadt, 1998, 103 .

The Human Right to Democracy as the Capstone of Law

13

only; rather, it needs permanent reaffirmation through its present form of deci­ sion­making . In addition to this, democracy imposes a new form of responsibility for public power, namely the responsibility towards the governed . Accordingly, the idea that the change of the form of government from monarchy to democracy is a mere exchange of subjects violates the concept of democracy itself . In a democratic state under the rule of law the state does not only serve men and men do not only serve the state; the democratic state’s very existence rests on the basis of men and their deliberations and decisions . The understanding of democracy as a mode of legitimation of the otherwise constant state authority necessarily yields the external relation of human rights and democracy: Human rights then serve as limitations of the state and enabling clauses for public action6 . 2. Moral ForM oF hUMan rightS and the inStitUtionalization oF deMocracy The German legal philosopher and former justice of the Federal Constitutional Court, Ernst-Wolfgang Böckenförde, conceives human rights as categorical rights, which men have qua their humanity and independent of any positive legal institu­ tionalization of these rights7 . In contrast, “democracy means … the concretely com­ prehensible, institutionally and procedurally secured exercise of power and political competence to make decisions by the people, signifying again the empirical, con­ cretely existing people, not a people as a transcendental subject .”8 Because democ­ racy as a “form of political order” depends on institutional preconditions that do not exist for human rights, a human right to democracy would either relativize the validity of human rights or dissolve and atomize democracy, he argues . The prevalent understanding of law and freedom relies on the liberal concep­ tion of law as being instrumental for individual freedom . Law has to enable and secure freedom . Böckenförde holds that law has to be “directed” towards freedom9 . This “directedness,” however, is not itself necessarily the result of a free decision about the law . When Böckenförde writes, “Law appears as a necessary form of free­ dom,” he stresses the protection of freedom by law, but neglects the influence of freedom on the creation of law . “The relation between freedom and law remains a merely external relationship .”10 This does not lead to the neglect of the importance of democracy for the legitimation of the state; the demand for democracy is an objective principle but no individual right . Democracy is thus not a right, but an 6

7 8 9 10

Maus 1999, 279: “Das Problem besteht für die internationale Dimension, insofern eine globale Menschenrechtspolitik, die die Menschenrechte gegen ihren demokratischen Kontext isoliert, ursprünglich vorstaatliche Rechte der Abwehr gegen das staatliche Gewaltmonopol in Aufga­ benkataloge für ein globales Gewaltmonopol transformiert, das heißt Freiheitsrecht zu Ermäch­ tigungsnormen umdefiniert” . böcKenFörde, Ernst­Wolfgang . Ist Demokratie eine notwendige Forderung der Menschenre­ chte? In: Philosophie der Menschenrechte . Eds . v . Gosepath, Stefan; Lohmann, Georg . Frankfurt/ Main, 1998, 236 . böcKenFörde (note 7), p . 237, all translations of Böckenförde’s texts by Stephan Kirste . böcKenFörde, Ernst­Wolfgang; enderS, Christoph (1991): Freiheit und Recht . Freiheit und Staat . In: böcKenFörde: Recht, Staat, Freiheit . Studien zur Rechtsphilosophie, Staatstheorie und Verfassungsgeschichte . Frankfurt/Main, 1991, 44 . böcKenFörde (note 9), 45 .

14

Stephan Kirste

“organized decision­making process amongst equals as a legitimizing source of all positive laws, including fundamental and human rights .”11 Therefore the objectively conceived democratic process would be the basis of human­ and civil rights not the other way around . Since the principle of freedom remains outside law and state, law has a merely instrumental function for human rights and democracy is a mere objective principle that sets external constraints on the state and its laws . Law itself is not considered an active realization of freedom . This sort of critique of an independent right to de­ mocracy is often backed by historical arguments12 . Indeed, philosophy and politics seemed, first and foremost, to be concerned with negative rights . Ernst Tugendhat suggests that liberal human rights first unfolded in non­democratic states13 . Well in the line of the Aristotelian tradition14 Montesquieu has it that freedom means to act according to the laws rather than the permission to act as one pleases . For him this excludes the right to voluntarily deciding about the laws themselves15 . The 18th century revolutions indeed seem to have claimed this right of the people to decide about their laws, refrained, however, from codifying an individual right to democ­ racy and concentrated on the negative liberal rights . Only later rights to public benefits and participation in them were included in the catalogues of fundamental rights . In the constitutionalist monarchies in Germany, for instance, the right to vote took a long way to go until it was fully codified and never served as a legitima­ tion of the monarchical powers themselves . Like historical arguments in general, this is not a categorical argument against an individual right to democracy . In a de­ mocracy, however, law is not only an external warrant of freedom, but is itself an expression of the freedom of the people . Since law in the democratic state is the expression of the freedom of the people a human right to democracy could be jus­ tified if democracy itself is not only an objective principle but also an expression of individual freedom .

11 12 13

14 15

brUnKhorSt, Hauke . Menschenrechte und Souveränität – ein Dilemma? In: brUnKhorSt, Hauke; Köhler, Wolfgang r.; lUtz-bachMann, Matthias (Eds .) . Recht auf Menschenrechte. Menschenrechte, Demokratie und internationale Politik . Frankfurt/Main, 1999, 173 . hoFMann, Hasso . Menschenrechte und Demokratie . Oder: Was man von Chrysipp lernen kann . In: Juristenzeitung, 2001, 7 . Tugendhat holds it, “daß der Liberalismus seinen Ursprung innerhalb autokratischer Ordnungen hatte; es gab daher Liberalismus ohne Demokratie, und es gibt die Idee der Demokratie ohne Liberalismus . Aber die einzig legitime politische Ordnung scheint die einer liberalen Demokratie zu sein, denn nur sie scheint die politische Macht so zu strukturieren, daß die Individuen erstens gemeinsam die Träger der politischen Macht sind und daß sie zweitens einen Spielraum als In­ dividuen behalten”, tUgendhat, Ernst . Die Kontroverse um die Menschenrechte . In: goSepath, Stefan; lohMann, Georg (Eds .) . Philosophie der Menschenrechte . Frankfurt/Main, 1998, 52 . ariStotle: Politics . With an Engl . Transl . by H . Rackham . Cambridge, Mass . 1967, 217 . MonteSqUieU, Charles Louis de Secondat de: Vom Geist der Gesetze . Tübingen 1992, pp . 212 f .: “In der Tat scheint das Volk in den Demokratien zu tun, was es will . Aber die politische Freiheit besteht nicht darin, zu tun was man will . In einem Staat, das heißt in einer Gesellschaft, in der es Gesetze gibt, kann die Freiheit nur darin bestehen, das tun zu können, was man wollen darf, und nicht gezwungen zu sein, zu tun, was man nicht wollen darf .“

The Human Right to Democracy as the Capstone of Law

15

3. deontological jUStiFication oF hUMan rightS – pragMatic or axiological jUStiFication oF deMocracy James Griffin objected to a human right to democracy that human rights would be expressions of human dignity, whereas democracy would aim at pragmatic goals like the stability of the political process16 . Whereas the deontological justification of human rights would lead to definitive claims, democracy could only be established as an objective principle of state organization . Griffin assumes that human dignity as the basis of human rights would also have to be understood as an objective value expressing the values of life, autonomy and freedom of the individual . But this is not necessarily so . Human dignity, too, can be understood as an individual right . One may argue that the content of such a right would be too vague . This may indeed have been true in the beginning of the legal development of the concept of human dignity after World War II . But since then, the principle of human dignity was included in many constitutions and inter­ national declarations – most importantly the human rights declarations – and spec­ ified by constitutional courts, human rights courts and jurisprudence . One can un­ derstand human dignity as the ability of a human being to be an end in itself or as the potential to act freely . It would then protect human beings in situations in which they are incapable to act17 . This would secure the subjectivity of the individ­ ual in a Kantian sense and safe it from being treated as a mere object . Consequently, human beings are not only protected by human rights against being treated as ob­ jects, but are also permitted to take an active part in the foundation of these rights . Otherwise they would be mere objects of others who grant the rights . I will return to this aspect later . For the moment it is sufficient to assume that human dignity can be understood as an individual right and thereby as a fundament of other human rights . If human dignity is understood as men being an end in him­ self or herself, it may be taken not only as the basis of negative human rights (in Georg Jellinek’s status negativus), as positive rights in the sense of a right to public aid (status positivus), but also in an participatory sense in the status activus18 . As Friedrich Müller has put it: “Democracy is a positive right of all human beings .” 19 This active 16

17 18

19

griFFin, James . On Human Rights . Oxford, 2011, 249: “Human rights grew up to protect what we see as constituting human dignity: the life, autonomy, and liberty of the individual . Democratic institutions grew up in our need for a decision procedure for groups – a procedure that is stable, manages transfer of power well, appropriate to a society whose members are more or less equal in power or worth, reconciles losers in social decisions to the basic structures of the society, and tends to promote the commonweal – that is, order, justice, security, and prosperity” . KirSte, Stephan . Das Fundament der Menschenrechte . In: Der Staat, 2013, 119–138 . Köhler, Wolfang R. Das Recht auf Menschenrechte . In: Brunkhorst, Hauke; Köhler, Wolfgang R .; Lutz­Bachmann, Matthias (Eds .) . Recht auf Menschenrechte. Menschenrechte, Demokratie und internationale Politik . Frankfurt/Main, 1999, 124: “Die Menschenrechte lassen sich nur durch einen Verweis auf den Status des Menschen als Zweck an sich selbst, das heißt als Person, begründen, der in der Freiheit, Gleichheit und Preislosigkeit des Menschen seinen Ausdruck findet . Die Be­ gründung besteht darin, letztlich daraus ein Recht auf Menschenrechte abzuleiten – und damit auch ein Recht auf Demokratie” . Müller, Friedrich. Demokratie zwischen Staatsrecht und Weltrecht. Mationale, staatlose und globale Formen menschenrechtsgestützter Demokratisierung. Elemente einer Verfassungstheorie, 2003, 72, transla­ tion from German, S . K .

16

Stephan Kirste

status would be an expression of all rights that allow individuals to participate in decisions concerning the foundation and interpretation of their rights . Apart from a right to democratic participation, this status would also be the basis for rights in administrative procedures and trials . Since we can understand the concept of hu­ man dignity as justifying a human right to democracy – and I do not want to claim more at this stage – Griffin’s critical argument can be rejected . Samantha Besson does not consider human dignity to be an objective value, but democracy: “There cannot be a right to a value and democracy is such a value” 20 . On the one hand it is true that values and norms exclude each other . On the other hand it is not impossible that human rights transform values into norms . The so­ called “objective dimension” of fundamental rights interprets the content of these norms as objective values, for example the freedom of opinion as a central value for the commonwealth . Conversely, it is also true that an objective value can be trans­ formed into a norm and an individual right if it fulfills the respective formal criteria . To sum up, the just examined positions present no principal objection against an individual human right to democracy . iii. ConCePTions defending

a

Human RigHT

To

demoCRaCy

The refutation of objections against a human right to democracy is a first step to­ wards such a right, but we still need a justification . There are roughly three attempts for such a justification: An instrumental conception, a theory of the co­originality of human rights and democracy and the assumption of an intrinsic connection of human dignity and democracy . 1. the inStrUMental valUe oF the right to deMocracy to hUMan rightS – a liberal poSition Some authors justify the right to democracy as being instrumental to human rights21 . “Democracy serves the realization of human rights, but human rights do not serve the realization of democracy .”22 This assumption does not – as the above men­ tioned conceptions – deny the justification of a human right to democracy; it rather justifies this right instrumentally because it serves other human rights . John Stuart Mill and John Rawls claim that democracy protects human rights better than any other institution23 . By means of democracy individuals have better control over the violation or infringement of their other rights . John Rawls rejects the republican idea that political autonomy holds a central position in the people’s conception of the good . Directed against Hannah Arendt he 20 21 22 23

beSSon, Samantha. Demokratie als Menschenrecht . In: haller, Gret; günther, Klaus; neUMann, Ulfrid (Eds .) . Menschenrechte und Volkssouveränität in Europa. Gerichte als Vormund der Demokratie? Frankfurt/Main­New York . Besson, 2011, 78 . Allen Buchanan assumes that there should be a right to democracy to improve the enforcement of other human rights . bUchanan, Allen . Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law . Oxford, 2004, 142 . Köhler (note 18), 113 . rawlS, John . A Theory of Justice . Cambridge, M . A, 1971, § 36 .

The Human Right to Democracy as the Capstone of Law

17

claims that in Athens people may have considered democracy as primary24 . But this would not apply to the present liberal states . However, he does not go so far as to claim that political rights would not belong to the basic freedoms . He considers them to be only institutional means for the protection of other basic freedoms though25 . Following Rawls, Charles Beitz concedes at best an instrumental character of a human right to democracy . He does not plainly reject the idea that basic inter­ ests of persons could be better served under different forms of government26 . He refers to empirical studies showing that the wealth of people and the success of fights against famine in non­democratic states were not worse than in democratic ones . Whether or not this is a sound argument, to take wealth as a dominant crite­ rion raises the problem of paternalist means to improve this wealth . Furthermore, it is clear that there is at least one important interest that non­democratic states serve less than democratic states, namely the interest in freedom itself . If citizens only have individual freedom, it may be guaranteed perfectly – they still lack political freedom . Like Böckenförde and others who emphasize social and economic precondi­ tions of democracy, Beitz too claims that an efficient democracy depends on a democratic culture – who would deny this having experienced the Weimar Republic and the present day Arab Spring27? – and minimal social wealth and education28 . This, however, is no conclusive objection against a human right to democracy; it is not even an argument for the instrumental character of such a right . It points to the mutual dependence of the three states of rights – the negative, the positive and the active state in Georg Jellinek’s sense . Negative Rights (property, work etc .) may also have social preconditions to work effectively, which does not render them second­ ary . And active rights may be fundamental for the free interpretation and establish­ ment of both kinds of rights . All of this does not give the others a secondary role in the realization of rights in general . But it does show that the three status could be interdependent and that stability can only be achieved – another relativization of Beitz’29 –, if these three dimensions of human rights are optimized . Amartya Sen initially followed Rawls and Beitz in their assumption of the instru­ mental character of democracy; he has extensively surveyed the connection of fam­ ine and the form of government and came to the result that, historically, larger famines never occurred in functioning democratic states with a free press; the reason seems to be that free press and elections sufficiently constrain attempts to unjust enrichments30 . He then exceeds Rawls’ concept, however, assuming that political freedom is part of freedom in general and an integral part of the concept of persons 24 25 26 27

28 29 30

She does indeed adopt this view herself . arendt, Hannah . On Revolution . London, 1990, 217 . rawlS, John . Justice as Fairness . Cambridge, M . A ., 2001, 142 . beitz, Charles . The Idea of Human Rights. Oxford, 2009, 176 . beitz (note 26), 180: “So although perhaps there is an ‘ideal’ sense in which democratic institu­ tions might be said to be better justified by considerations about their likely performance than others, it is uncertain, taking relatively poor societies as a group, that any practically available stratregy of political action would bring about a successful transition .” beitz (note 26), 181 . beitz (note 26), 178 . Sen, 1999, 7 f .: “I have discussed elsewhere the remarkable fact that, in the terrible history of famines in the world, no substantial famine has ever occurred in any independent and dem­ ocratic country with a relatively free press . We cannot find exceptions to this rule, no matter

18

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of a good life31 . An additional function of active rights is to give persons in public matters voice and hearing and enable them to learn from their mistakes . I will re­ turnto the inner connection of the negative, positive and active dimension of free­ dom below . 2. the co-originality oF hUMan rightS and deMocracy Jürgen Habermas argues against the idea that human rights are non­positive moral rights paternalistically imposed on the citizens by a benevolent state32 . His approach is to ask which fundamental rights free and equal citizens would mutually acknowl­ edge in a rational discourse in the situation of establishing positive laws33 . At first these are rights that are required for a rational discourse in the form of the positive law: “The desired internal relation between human rights and popular sovereignty consists in this: human rights institutionalize the communicative conditions for a reasonable political will­formation .”34 The legal form itself is a precondition for this communication . With this form, legal persons are conceived as having the ability to obtain human rights . On the other hand, “they can realize equality in the enjoy­ ment of their private autonomy only if they make appropriate use of their political autonomy as citizens .”35 The legal form also presupposes the legal subjectivity of persons in law . In this communication, however, the legal form as well as the dis­ course principle are presuppositions of the procedural elaboration of human rights . The scope and extent of liberal human rights then depend on the criterion that cit­ izens “on the basis of their equally protected private autonomy … are sufficiently independent .”36 The particular discursive legitimation is an external factor to the legal form . The kind and extend of human rights are insofar determined by the de­ mands of the discourse . Although Habermas takes the potential problem of the in­ strumentalization of the liberal human rights by political autonomy into account, he does not achieve a balanced relation between the two in the formation of posi­ tive laws . His approach fails because the form of law itself is not justified by a prin­ ciple that founds both, the sovereignty of the people and the rule of law . Just as the

31

32

33 34 35 36

where we look… The policies went uncriticized because there were no opposition parties in parliament, no free press, and no multiparty elections .“ Sen, Amartya . Democracy as a Universal Value . In: Journal of Democracy 10, 1999, p . 9: “polit­ ical freedom is a part of human freedom in general, and exercising civil and political rights is a crucial part of good lives of individuals as social beings . Political and social participation has intrinsic value for human life and well­being . To be prevented from participation in the political life of the community is a major deprivation…” . haberMaS, Jürgen . Between Facts and Norms . Cambridge, M . A . (original: Faktizität und Geltung . Frankfurt/Main 1994 .), 1996, 160 f .; Maus, Ingeborg . Menschenrechte als Ermächtigungsnor­ men internationaler Politik oder: der zerstörte Zusammenhang von Menschenrechten und Demokratie . In: MenKe, Christoph; raiMondi, Francesca (eds .) . Die Revolution der Menschenrechte. Grundlegende Texte zu einem neuen Begriff des Politischen . Frankfurt/Main, 2011, 346 . haberMaS, Jürgen . Remarks on legitimation through human rights . In: The Postnational Constellation . Cambridge, M . A . (original: Zur Legitimation durch Menschenrechte . In: Die postnatio­ nale Konstellation . Politische Essays . Frankfurt/Main 1998), 2001, 137 f . haberMaS (note 33), 117 . haberMaS (note 33), 118 . haberMaS (note 33), 118 .

The Human Right to Democracy as the Capstone of Law

19

form of positive laws is presupposed so is the elaboration of the particular human rights submitted to a discourse that subjects also the negative rights to its require­ ments37 . The system of rights secures the forms of communications which are nec­ essary for a politically autonomous enactment of laws38 . Only in this way can the subjects of rights also be their authors . Also Sheila Benhabib and Ingeborg Maus39 as­ sume that persons are authors of their rights, only if they can interpret their legal claims themselves by being active participants in the judicial or administrative de­ liberation regarding these rights40 . “Co­Originality,” according to Habermas, means that neither human rights nor democracy have priority over the other . It does not signify that they would have the same origin . Their “intrinsic connection” points to their equivalent function for the legal institutionalization of the discourse principle . It simply needs both, human rights and democracy, for its legal implementation . The instrumentalization of de­ mocracy for the realization of human rights by the liberal conception and the in­ strumentalization of human rights for democracy in the republican conception has turned into the mutual instrumentalization of both for the legal institutionalization of the discourse principle . To avoid this mutual instrumentalization conceptually would mean to trace both back to a common value41 . Before turning to my own conception, let me discuss other views briefly . 3. the intrinSic connection oF hUMan rightS and deMocracy Only very few theories argue on the assumption of an intrinsic connection between democracy and human rights based on a single justification . These theories justify the connection by a common value or a common interest as a basis both for human rights and democracy . For example Thomas Frank – one of the earliest advocates of a human right to democracy in international law – assumes that the right to democ­ racy would serve for all men to “assume responsibility for shaping the kind of civil society in which they live and work .”42 37

38 39

40 41

42

This Rousseauean danger may be more imminent in Sheila Benhabib’s conception, when she states “Human rights, I will maintain, articulate moral principles protecting the communicative freedom of individuals; while such moral principles are distinct from the legal specification of rights, nevertheless there is a necessary and not merely contingent connection between human rights as moral principles and their legal form .” Benhabib, Sheila . Another Universalism: On the Unity and Diversity of Human Rights . In: Proceedings and Addresses of the American Philosophical Association, Vol . 81, 2007, 9 . haberMaS (note 32), 103 f . MaUS, Ingeborg . Menschenrechte als Ermächtigungsnormen internationaler Politik oder: der zerstörte Zusammenhang von Menschenrechten und Demokratie . In: MenKe, Christoph; raiMondi, Francesca (Eds) . Die Revolution der Menschenrechte. Grundlegende Texte zu einem neuen Begriff des Politischen . Frankfurt/Main, 2011, 344 . benhabib (note 37), 21 . In a Kantian interpretation of human “dignity as equal and solidary freedom,” Bielefeldt holds that human dignity and democracy would mutually encompass: Democracy would be necessary for the determination and elaboration of human rights, these again, if taken as communicative and associative rights, would be preconditions for democratic discourses, bieleFeldt (note 5), 107 . FrancK (note 1), 79 .

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An internal connection between human rights and democracy was already claimed by Jean-Jacques Rousseau . The volonté générale transforms the original and egoistic freedom of men into a legally ordered socially responsible freedom . Rous­ seau is afraid of a fall back into human freedom’s egoistical form at any time . There­ fore the social contract does not only transform men into legal persons, but – be­ yond that – socializes his ethical personality and binds it to the general will by a political religion . This concept does indeed serve the worries of the critics of a hu­ man right to democracy: Rousseau’s democracy simply ‘absorbs’ the negative hu­ man rights43 . The result of interpreting all rights in the perspective of political rights is that the force of these rights vanishs . It was and still is one of the functions of negative rights to guarantee each individual to remain an individual moral person within the confinements of law and, even more, that this status can be the driving force for both his private as well as his political action . Immanuel Kant refrains from this consequence . His concept of law could give reasons for the justification of a right to democracy . As is well known, he interprets law as a form of external freedom . Kant’s inner freedom of moral improvement re­ mains, unlike Rousseau’s, within the domain of the individual – bound only by the categorical imperative . The delimitations of external freedoms only serve to secure the possibility of the individual for this moral improvement . With Rousseau he shares the conviction that the delimitations of freedoms should not be left to the arbitrariness of a ruler and expands the concept of law – again based on the idea of freedom – to the demand that the delimitation of the negative freedom of each citizen should be determined by a “general law of freedom .” However, the demand towards the ruler to set the laws as if all citizens had individually decided about them remains a “regulative idea” just as the social contract in his theory is only the condition of the possibility of a reasonable interpretation of the state and not a contract that has been signed in fact . Also does the rejection of any paternalist ac­ tion of the state towards the individual and the people not lead him to an argument for democracy, but to a limitation of public goals . It would be paternalist if the state would not only care for external security, but also secure inner happiness (“Glückse­ ligkeit”)44 . As a “regulative idea” democracy is an objective principle, but no individ­ 43

44

gierKe, Otto Von . Johannes Althusius und die Entwicklung der naturrechtlichen Staatstheorien. Zugleich ein Beitrag zur Geschichte der Rechtssystematik . 2 . ed . Breslau, 1902: “Alle zur Erreichung dieses [der “Wiedererzeugung der zum Unheil der Welt verlorengegangenen Freiheit und Gleichheit des Naturzustandes”, S . K .] Zieles führt als einziger logisch denkbarer und rechtlich gültiger Weg die Ausstattung des Vereinigungsvertrages mit dem Inhalt einer absoluten Veräußerung alles Individualrecht an die souveräne Gesammtheit (l’aliénation totale de chaque associé avec tous droits a toute la communauté) . So ergibt sich trotz aller individualistischen Ausgange­ und Ziel­ punkte die schrankenlose Despotie des im jedesmaligen Mehrheitswillen erscheinenden Souve­ räns, dem gegenüber· Rousseau nur vermöge einer Reihe von Inkonsequenzen und Sophismen den Begriff unzerstörbarer natürlicher Menschenrechte rettet” . Kant, Immanuel . On the Old Saw: That May Be Right in Theory, but It Wont’t Work in Practice . Phil­ adelphia . (Original: Über den Gemeinspruch: Das mag in der Theorie richtig sein, taugt aber nicht für die Praxis) . 1974, 58 f .: “If a government were founded on the principle of benevolence toward the people, as a father’s toward his children – in other words, if it were a paternalistic government (imperium paternale) with the subjects, as minors, unable to tell what is truly ben­ eficial or detrimental to them, obliged to wait for the head of the state to judge what should constitute their happiness and be kind enough to desire it also – such a government would be the worst conceivable despotism .”

The Human Right to Democracy as the Capstone of Law

21

ual right, and it is not institutionalized in the positive law45 . Kant does not even consider drawing the consequence from his construction of freedom and conceptu­ alizing democracy as a human right, since he regards the financial and legal inde­ pendence of citizens as a precondition of their participation in public matters . The task would be to combine the advantages of Rousseau and Kant and trans­ form the individual freedom such that a sphere of this freedom remains as a nega­ tive right while also including every individual in the establishment of the public laws necessary for it . One approach in this direction is Georg Wilhelm Friedrich Hegel’s . For Hegel, freedom is “being with oneself in another” (“Bei­sich­selbst­Sein”,46) . This “being” is not a mere fact, but is in itself produced by the self and reproduced and amplified by different forms of mutual recognition . In this concept of self­lib­ eration Hegel unites negative and positive freedom47 . At the same time he extends the concept of freedom from the freedom of actions to the state of being free . Elab­ orated in his Philosophy of Right based on this dialectical concept of freedom both, the bourgeois and the citoyen, find their place in the legal commonwealth – the bourgeois secured by his negative freedom in the “civil society,” where he can live up to his individual needs and unfold his abilities (PhR § 190)48; the citoyen in the political state, realizing his active freedom in the work for the public interest . This does neither lead to a dualism of freedoms nor to a complete privatization of the bourgeois and the socialization of the citoyen in each person, nor finally – which is 45

46

47

48

Michelman speaks of democracy as a regulative idea, MichelMan, Frank I . Bedürfen Men­ schenrechte demokratischer Legitimation? In: brUnKhorSt, Hauke; Köhler, Wolfgang R .; lUtz-bachMann, Matthias (Eds .) . Recht auf Menschenrechte. Menschenrechte, Demokratie und internationale Politik . Frankfurt/Main, 1999, 65 . hegel, Phil . of Right, § 23: “Only in this freedom is the will completely with itself [bei sich], because it has reference to nothing but itself, so that every relationship of dependence on some­ thing other than itself is thereby eliminated” . Hegel, Georg Wilhelm Friedrich (Phil . of Right): Philosophy of Right . Edit . By wood, Allen W . Transl . by H . B . Nisbet . Cambridge 1996 . Original: Grundlinien der Philosophie des Rechts oder Naturrecht und Staatswissenschaft im Grundrisse . hegel, Encyclopedia III, § 382: “The entire development of the Notion of Geist represents only Geist’s freeing of itself from all its existential forms which do not accord with its Notion: a lib­ eration which is brought about by the transformation of these forms into an actuality perfectly adequate to the Notion of Geist .“ Hegel, Georg Wilhelm Friedrich (Encyclopedia III) . Encyclopedia of the Philosophical Sciences Part Three . Transl . by William Wallace . Oxford, 1971, § 382, 26, “Die ganze Entwicklung des Begriffs des Geistes stellt nur das Sichfreimachen des Geistes von allen seinem Begriffe nicht entsprechenden Formen seines Daseins dar; eine Befreiung, welche dadurch zustande kommt, daß diese Formen zu einer dem Begriffe des Geistes vollkommen angemessenen Wirklichkeit umgebildet werden” . hegel, Georg Wilhelm Friedrich (Rechtsphilosophie/Griesheim 1824/25) . Philosophie des Rechts nach der Vorlesungsnachschrift K . G . v . Griesheim 1824/25 . In: ders .: Vorlesungen über Rechtsphilosophie 1818–1831 . Edition und Kommentar in sechs Bänden von Karl­Heinz Ilting . Vierter Band . Stuttgart­Bad Cannstatt, 1974, before § 182, 472: “Die Franzosen machen einen Unterschied zwischen bourgeois und citoyen, das erste ist das Verhältniß des Individuums in einer Gemeinde, in Rücksicht der Befriedigung seiner Bedürfnisse; es hat so keine politische Beziehung, diese hat erst der citoyen . Hier betrachten wir nur die Individuen als bourgeois” and in the manuscript of Hotho we find at § 187, (Rechtsphilosophie/Hotho 1822/23), 580: “Die Bürger sind Privatpersonen, Mitglieder eines Gemeinwesens, das das Besondere zu seinem Zwecke hat, und insofern solches Gemeinwesen auf solche Zweck beschränkt ist ist der Bürger bourgeois; citoyen als politisches Mitglied des Staates als politischen Staates . In der bürgerlichen Gesellschaft ist der Zweck Privatzweck” .

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a common misunderstanding – to a separation of civil society and the public sphere of the state . The person is not limited to its private interests, but wants to institu­ tionalize the aspect of the public profit of its private work49 . Thus driven by free­ dom in the sphere of the civil society public institutions emerge that have their or­ igin in particular interests and design an order for them . At the same time they work for the commonwealth . These institutions are the corporations and courts . They institutionalize first forms of persons to work for the public sphere50 . Although supported by individuals these organizations realize aspects of general political in­ stitutions . In the Prussian constitutional state of Hegel’s time the work for the gen­ eral interest of the state was still based on the monarchical sovereignty . Hegel does not reserve an institutional place for the interest of persons to participate in the forming of the general interest as an expression of public freedom . He acknowledges the right of each person to its individual freedom and bases the state (under the rule of law) on freedom and further accepts that positive freedom may realize itself in associations and social institutions . Accordingly, he integrates the freedom­based status activus in his theory . This does not bring him, however, to the integration of the democratic form of government in his architecture of society and state . He en­ trusts these claims corporatist arrangements that transform the particular wealth of societal forces into aspects of the public good . At the level of general laws the pro­ tection of individual freedom does not correspond to the participation of all citi­ zens deciding about this protection . This is the reason why they cannot make use of their positive freedom . His achievement to combine the legal institutionalization of individual negative with positive freedom does not lead to the institutionalization of the positive and active freedom in the participation of general political decisions . This leaves the question open, if the concept of freedom in its threefold aspect of negative, positive and active freedom can serve as a unified principle for the foundation of a human right to democracy .

49

50

löwith, Karl . Menschenrechte und Bürgerrechte bei Rousseau, Hegel und Marx . In: MenKe, Christoph; raiMondi, Francesca (Eds .) . Die Revolution der Menschenrechte. Grundlegende Texte zu einem neuen Begriff des Politischen . Eds . v . Frankfurt/Main, 2011, 381 ff ., 389, writes: “Als Privat­ mensch im Unterschied zur öffentlichen Allgemeinheit ist dieser Mensch selber nur eine priva­ tive Art des Menschseins” . hegel (note 48), § 251, 620 f .: “Die Menschen, sagen sie sich, sind selbstsüchtig, das Zweite ist, sie wollen auch für das Allgemeine thätig sein, sich nicht reduziren zu bourgeois, sie wollen auch das Allgemeine durch ihre Einsicht, ihren Willen bethätigen . Solch ein Feld der Wirksamkeit für das Allgemeine, welche sittlich ist, die nicht nur eine vorgeschriebene ist, die aus eigener Einsicht, eigenem Willen hervorgeht, ist den Bürgern eines Staates in der Gemeinde, in der Korporation gegeben… Es ist eine Schwierigkeit wie man mit diesem Triebe für das Allgemeine zu rechte kommen soll, man muß ihm ein Feld anweisen und dieß geschieht in dem Kreise der Corporation . Die Korporation hat zunächst dieselbe Bestimmung, Zweck, wie die Polizei, nämlich das besondere Interesse, welches jedoch nicht wie bei der Polizei nur Gegenstand einer äusseren ordnenden Thätigkeit, sondern Gegenstand einer Thätigkeit ist die auch das Allgemei­ ne will, aber so daß das Individuum selbst Theil an dieser Thätigkeit nimt . Die Corporation macht das Mittelglied zwischen Familie und Staat, und zwar als sittliches Mittelglied aus…” .

The Human Right to Democracy as the Capstone of Law

iV. THe foRm

of

law

as a

foRm

of

23

fReedom

1. the concept oF law In the remaining parts of this paper, I will elaborate on the aforementioned question to some extent . First, I will reconstruct the form of law based on these aspects of freedom . Then I will show how a human right to democracy completes the realiza­ tion of the potentials of freedom enshrined in the form of modern law . Positive Law is often considered to be a fact the validity of which still has to be justified by other principles – be it natural law or democracy . In contrast, I will de­ fend the position here that the modern concept of law is justified already . This jus­ tification is based on the forms of freedom which are expressed in law . To be sure, this does not mean that any legal order somewhere in the world is already justified . Evidently there are unjust legal orders . These legal orders then make no use of the potential of the concept of law and shift the justification or critique of their defi­ cient regulation to other normative systems like morals . Modern law can be understood as a system of norms51 . A norm is law if its en­ actment and enforcement are subject to other norms . Norms are sentences contain­ ing an obligation . They aim at regulating human behavior by commands, prohibi­ tions or permissions . Norms become positive because of their enactment . This vol­ untary enactment is the facticity that raises the question, if it is law or just an act of arbitrariness . An arbitrary command may contain a norm . What distinguishes it from law is that the legal norm is being enacted in an organized procedure . This norm­setting procedure is again regulated by the respective norms for legislation, procedural law for courts and administrations and contract law . Constitutions, laws, statutory instruments, international and private contracts are kinds of legal norms in this sense . Accordingly, the setting of a norm is a necessary condition for its pos­ itivity . However, it is not a sufficient condition of a norm’s legal form . In order to be law the respective norm must be enacted in a normatively ordered procedure . Some authors consider the enforcement of norms or the general efficiency of a legal order a necessary condition of law . Indeed, many legal norms can be distin­ guished from moral or conventional rules by their enforcement . On the one hand, this is not true for all legal norms and on the other hand, there are other social norms that can react with sanctions on their violation . Many norms of international law cannot be enforced by public authorities . The debate about humanitarian inter­ ventions shows that the question if and how the violation of human rights should be enforced and sanctioned requires a decision between alternative forms to make them efficient52 . An impolite and insulting behavior in a conversation as a violation of a conventional rule can result in a termination of communication as a sanction to this insult . If other norms and conventions can also be enforced and if different forms of enforcement are possible, then enforcement itself is not a distinctive fea­ ture of law . What distinguishes the mere use of force such as torture, brutal punish­ ment, war and others from legal enforcement is that the enforcement of legal norms 51 52

For the following cf . KirSte, Stephan . Einführung in die Rechtsphilosophie . Darmstadt (Wissen­ schaftliche Buchgesellschaft, Reihe: Einführung Philosophie), 2010, 87 ff . MUrSwieK, Dietrich . Souveränität und humanitäre Intervention . In: Der Staat 35, 1996 .

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is organized in legal procedures, justified and limited by other norms: the enforce­ ment laws . Accordingly, it is not the facticity of their enforcement that bestows norms their legal character, but that they are enforced in procedure organized by norms . Necessary and sufficient conditions for a norm to be law then are the nor­ mative regulation of its enactment and enforcement . Because of the normative organization of the enactment and enforcement of its norms, law is not a mere facticity, but evaluates and regulates the possible actions for its genesis and realization . Law can therefore include the criteria for its validity and does not need to shift them to other normative systems, thereby transgressing the dichotomy of facticity and validity . Legal orders themselves concretize the gen­ eral concept of law and specify the criteria for legal validity of their respective norms . Accordingly, legal validity signifies the matching of a legal norm into the system of a concrete legal order . To refute possible objections, it should be empha­ sized here that this concept of legal validity does not imply anything regarding the moral or social validity of law . As a normative system, law aims at controlling free behavior . In contrast to force or subconscious control, norms presuppose that their addressees are capable of acting alternatively and determining one of the alternatives as preferable . They also enable freedom by permitting legal possibilities for action . The reflective struc­ ture of law provides the possibility that legal norms are expressions of freedom, but not the actualization of this possibility . These normative systems determine the content of the legal obligations (de­ mands, prohibitions, permissions) and the legitimation of them . In morality, the regulation of behavior follows self­commitment, because there is no external power, to bind the individual moral consciousness . Moral norms have to be accepted by the individual in order to have practical relevance for its action . This is the basis for his or her autonomy, understood as the ability to act according to self­determined laws . Only law can legitimately enforce norms against the will of its addressee . If the law merely enforces its norms without giving the addressee any influence on its es­ tablishment, he is subjected to a heteronomous regulation of his behavior . This basic model (model of security) of law secures the enforcement of its commands, but shifts the legitimation of them to other normative or social systems . The respective norm can be legitimate, but this legitimation stems at least in part from extra­legal factors such as the authority of the ruler, a moral justification of its content or pos­ itive consequences of the norms for the common good etc . The addressee of the obligation of these norms is deprived of the influence, however, he has with respect to moral norms: Regarding moral norms, the individual can decide whether or not to accept this norm as a guideline to his or her action53 . Now, the complexity of law can be increased if the individual is given the possibility to decide about the foun­ dation of obligations . Contractual obligations are legitimate if the partners of con­ 53

arendt (note 24), 1990, 130: “Tyranny, as the revolutions came to understand it, was a form of government in which the ruler, even though he ruled according to the laws of the realm, had monop­ olized for himself the right of action, banished the citizens from the public realm into the privacy of their households, and demanded of them that they mind their own, private business . Tyranny, in other words, deprived of public happiness, though not necessarily of private well­being, while a republic granted to every citizen the right to become ‘a participator in the government of affairs’, the right to be seen in action” .

The Human Right to Democracy as the Capstone of Law

25

tracts act upon their private autonomy . Generally binding rules are, in this sense, legitimate if they are expressions of the wills of the addressees of these norms (model of autonomy) . Both, the security model and the autonomy model of law concern only law (and not other orders) . They are distinguished by the differentiated use they make of the conceptual potentials of law . Different specifications of the concept of law with respect to the legitimation of its norms between the two models are possible . A legal order following the model of autonomy, including the individual at each step of the enactment and enforcement of its norms, is then more differentiated than a system in the security model . Autocrats that submit the use of force certain procedures, but protect norms which serve their own interest only, are over­simplis­ tic then, because they shift the problems of norm­justification and justice to other normative and social systems . 2. the legal ForM and FreedoM If norms are aimed at freedom, because they regulate the choice between alternative actions, and if law orders the choice between regulatory and enforcement alterna­ tives of these norms, than freedom is at the core of legal regulation . I take individual self­determination as the core of the modern use of the con­ cept of freedom54 . In a negative sense, freedom means the independence of the self from heteronomy . The positive meaning of freedom is the ability of the self to de­ termine the motives of its action . This dimension is also called “autonomy .” The individual is free in his thinking, if his concepts and conceptions do not appear in his consciousness as dogmas or as mere associations, but are, in fact, produced by his or her own activity and thereby made consciously . The individual is free in his actions, if the motives for them are self­determined – autonomous and not originat­ ing from any heteronomous influence . Accordingly, freedom is not a given attrib­ ute, but a quality the individual has to produce itself by transforming the external facts into one’s own . The individual is free if and insofar as the self is not something objectively given, but produced by her or him on the basis of an autonomous choice among different motives . Legal freedom then is the possibility for a person to determine his own action not being subjected to any other person . This freedom is especially secured when legal norms provide individual rights . An individual right is a norm that puts an obligation on the addressee of the right and gives the subject of the right a claim to the fulfillment of this obligation55 . The subject of this right cannot naturalistically be understood as a human being . The attribution of an individual right rather trans­ forms the human being into a legal person by making it the subject of the right and the point of attribution of its claim . Law reconstructs the natural human being as a 54 55

böcKenFörde (note 9), 42; gerhardt, Volker . Selbstbestimmung. Das Prinzip der Individualität . Stuttgart . Gerhardt, 1999 . KirSte, Stephan . § 204 . Die naturrechtliche Idee überstaatlicher Menschenrechte . In: KirchhoF, P .; iSenSee, J . (Eds .) . Handbuch des Staatsrechts, Vol . 10 . Heidelberg, 2012, marginal note . 2; alexy, Robert . A Theory of Constitutional Rights . Oxford (original: Theorie der Grundrechte . Frankfurt/Main . 1996), 2002, 120 ff .

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legal person by the individual rights it attributes him or her . Just like the identity of the individual is his autonomous production, so is the legal identity the result of the attribution of rights . The individual constructs itself as free by morality and is rec­ ognized in its social identity by the autonomy of people . Accordingly, it is only by the attribution of human rights that the human being becomes a subject of law . This is the reason for the brutal injustice Hannah Arendt deplores when she shows that, as long as the states are the addressees of the obligations of human rights, the loss of citizenship results in the loss of the subjectivity of human rights56 . The state can get rid of its obligations from human rights by depriving the individ­ ual of its citizenship . As a consequence of the atrocities of the totalitarian regimes of the 20th century, the individual could be expelled from the law altogether, be­ coming a legal naught, a mere thing with less security than the worst criminal, who is still acknowledged as a legal person . This is the reason, why she demanded a “right to have rights,” more precisely, a right to be acknowledged as a subject of law . From this right the state cannot escape, because it is precisely intended to protect the in­ dividual from this deprivation . It grants the individual the right not to be treated as a mere object of any public authority . Guaranteeing this right (cf . Art . 6 UDHR57) international law fulfills the demand that already Kant had derived from human dignity . This right to be acknowledged as a legal subject is the basis of all further rights . All further human rights reconstruct the human being as a legal person more concretely . Understood as opportunities to express ones freedom in law they strengthen his state of being free . This way, not only the legal form is an expression of freedom, but also the individual right and the legal subject . If the person in law makes use of these freedoms, it realizes the potentials of freedom that are contained in the modern concept of law . In contrast to Habermas’ conception, this shows that freedom is already contained in the legal form . If a right is attributed to a person, this person is legally free in a negative sense, because he can avert illegal infringements of her freedom . The person is also free in a positive sense, because within the free sphere guaranteed by the right, he can de­ termine his or her actions autonomously58 . If laws would stop specifying the per­ sons’ potentials at this stage, freedom would only be realized in the sense of the security model: the subject is free with respect to the protection by this right, but not with respect to its foundation, justification and interpretation . In the words of Georg Jellinek: the status subiectionis, status negativus and status positivus are secured59 . 56 57 58

59

arendt, Hannah . The Origins of Totalitarianism . Cleveland and New York, 1958, 266 ff . “Everyone has the right to recognition everywhere as a person before the law .” I use a different concept of positive freedom here than Carol Gould . “Positive Freedom” in this text is equivalent with “self­determination”, namely self­determination in the form of laws; in other words: autonomy, be it private or public . Gould understands “positive freedom” as “effective freedom” and means the realization of freedom in social practices (2013, 285 ff .) . In this sense, it would be equivalent with my “positive right” in Jellinek’s sense . However, I take positive freedom not as a status, but as a human capacity that can realize itself in status and can be protected by legal status . goUld, Carol: The Human Right to Democracy and its Global Im­ port . In: holder, Cindy; reidy, David (Eds .) . Human Rights: The Hard Questions, ed . Cambridge, 2013 . brUgger, Winfried: Georg Jellineks Statuslehre: national und international . Eine Würdigung und Aktualisierung anlässlich seines 100 . Todestages im Jahr 2011, in: Archiv des öffentlichen Rechts 136, 2011, 1 ff .

The Human Right to Democracy as the Capstone of Law

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According to this model, law has indeed only an instrumental function for the se­ curity of freedom60 . At the same time the positive freedom of persons is limited, because they cannot take part in the founding of their rights . In the conclusion of a contract positive freedom is guaranteed by the private autonomy of the parties . The mutual obligations and rights are expressions of au­ tonomy of the contracting parties . How can individual rights and duties towards a public authority be reconstructed on the basis of autonomy? If their enactment would remain within the security model, these rights would not be expressions of the subjects’ positive freedom61 . Rights would be granted in a paternalist way to the advantage of the individual, but without his consent62 . Obligations would be heter­ onomous . The justification of these rights and duties would stem from social conse­ quences and moral values, but not from legal grounds . The realization of human rights in this model is possible, but with respect to individual autonomy deficient . Insofar Frank Michelman rightly assumes that democracy is no necessary condition for human rights63 . If the subjects of the rights and obligations cannot participate in the foundation of their rights, the active aspect of their autonomy is infringed and the form of law without formal legitimation . As Robert Alexy has put it forcefully: “If we would limit human rights to private autonomy, there would be self­determina­ tion within the framework of completely heteronomous laws . This would contradict the idea of autonomy .”64 Positive freedom of the individual is guaranteed only if he can participate in the foundation of the individual rights and duties65 . To be ex­ cluded legally or factually from the foundation and interpretation of the rights and duties that affect the individual would make him a mere object of law66 . Thus, for the realization of positive freedom deliberation, decision and interpretation of hu­ man rights have to be organized in public discourses, which are open to the partic­ ipation of all subjects of these rights and duties67 . 60

61

62 63 64 65

66

67

böcKenFörde (note 9), 42 . Human rights declarations “sind zumeist aus dem Streben nach Befreiung von staatlicher Übermacht und die Freiheit mißachtendem Recht entstanden . Doch schon an ihnen zeigt sich, daß zwischen Freiheit und Recht ein notwendiger und begrifflicher Zusammenhang besteht: Freiheit muß, damit sie Bestand und Sicherung erhält, als Recht for­ muliert und anerkannt werden” . With respect to the concept of human rights, they are indivisible, alexy, Robert . Die Institu­ tionalisierung der Menschenrechte im demokratischen Verfassungsstaat . In: goSepath, Stefan; lohMann, Georg (Eds .) . Philosophie der Menschenrechte . Eds . v . Frankfurt/Main, 1998, 261 (Transl . Stephan Kirste) .; 19th century constitutionalism has shown, however, that the realization of the two aspects of autonomy can fall apart . For the concept of paternalism as benevolent action towards another without his will, cf . KirSte, 2011, pp . 805 ff . MichelMan, 1999, p . 53 . alexy, 1998, 261 . jellineK, Georg . Die Entstehung der modernen Staatsidee . In: Schriften und Reden, Vol . 2 . Berlin, 1911, 53 f .: “Frei ist derjenige, der niemand unterworfen ist als sich selbst; das ist die zweite weltgeschichtliche Nuance der Freiheitsidee in der neueren Geschichte . Neben den liberalen tritt der demokratische Freiheitsgedanke” . Accordingly, just as the exclusion of human beings from society is a political (Müller, Friedrich . Demokratie in der Defensive. Funktionelle Abnutzung – soziale Exklusion – Globalisierung. Elemente einer Verfassungstheorie, 2001, 73 and 77 f .), exclusion from the active participation of the formu­ lation of legal rights and duties is a legal problem, namely a violation of their dignity . bieleFeldt (note 5), 107 f .

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Without negative human rights law is self­contradictory, since it is necessarily directed towards freedom; without active human rights in the status activus, the cat­ alogue of human rights is incomplete . Both are necessary and sufficient conditions for the reconstruction of law on the basis of freedom . The active status of political autonomy as the basis of a right to democracy then rounds up the legal status . 3. SoMe conSeqUenceS The justification of the right to democracy on the basis of legal freedom enables us to understand democracy only as one aspect within a broader right to participation and not limit it to democratic elections – which would dry out the concept to an illusionary right with tragic consequences for democracy68 . Public autonomy by making use of the right to participation is realized, whenever the individual is ac­ tively included in the enactment of norms in the broadest sense – in the framing of a constitution, in legislation or in the enactment of administrative statutes . Persons can make use of their right to participation in private associations dedicated to pub­ lic interests like NGOs69, in self­administration in the public sphere or as demo­ cratic participation in public elections or forms of immediate democracy . Private and public autonomy are secured by law according to the qualified pos­ sibility of a concernment or affectedness of derogations of their interest70 . From this follows that the forms of participation are different according to these concerns . They can be distinguished between contracts, where private autonomy has a deci­ sive impact on the conclusion, to societal associations and NGOs which may have asymmetrical influence according to the engagement and concernment, up to the participation in legislation that affects all people alike and therefore has to be strictly equal71 . The influence of NGOs on public authorities does not necessarily have to 68

69

70

71

bUrchill, Richard . The Developing International Law of Democracy . In: The Modern Law Review 64, 2001, 134, rightly emphasizes: “an international law of democracy concerned only with elections will not be sufficient . Elections are central to the democratic process . They are a means by which individuals and societies can express their views . By limiting democracy to a proce­ dure, an understanding of what democracy is or should be becomes limited… An international law of democracy that develops with the needs and interests of individuals in mind will see the necessity of looking beyond elections to ensure the democracy that exist is effective and not illusory .” KirSte, Stephan . Politische Partizipation und globale Politik – Zur menschenrechtlichen Be­ gründung eines Rechts auf globale Partizipation . In: Ungern-Sternberg, Jürgen von; rainaU, Hansjörg von (Eds .) . Politische Partizipation. Idee und Wirklichkeit von der Antike bis in die Gegenwart . Berlin (Colloquia Raurica Bd . 13), 2013b, 315 . Carol Gould pervasively introduces an differentiated affectedness criterion here: If people are “importantly affected”, because the fulfillment of basic human rights is at stake, they should have significant input into political decisions . goUld, Carol: Structuring Global Democra­ cy: Political Communities, Universal Human Rights, and Transnational Representation . In: Metaphilosophy 40, 2009, 24 ff . (30); goUld, Carol . Self­Determination beyond Sovereignty: Relating Transnational Democracy to Local Autonomy . In: Journal of Social Philosophy 37, 2006, 55 . In this particular aspect Dworkin is right to trace democracy back to equality: “The second is the right to treatment as an equal . This is the right, not to an equal distribution of some good or opportunity, but the right to equal concern and respect in the political decision about how

The Human Right to Democracy as the Capstone of Law

29

be dependent upon the democratic participation of its members in their own deci­ sions . NGOs that have no democratic internal structure are not expressions of the autonomy of its members though . Accordingly, they may contribute only expert knowledge to the output legitimation of public authorities, but not to the input le­ gitimation grounded in freedom72 . A particular legal order that does not only protect and limit freedom, but in which the enactment of its norms is organized in a participatory way, builds the complete structure of law on freedom . Freedom then is not only a protected and limited value but the protections and limitations are themselves expressions of free­ dom . I defined law as a norm the enactment and enforcement of which is regulated by other norms . A legal order realizes the potentials of freedom contained in the concept of modern law, if the enactment and justification of its norms are expres­ sions of free self­determination, just as the enforcement of its norms respects the freedom of the persons concerned, and if it delimits the freedoms of the citizen in a just way and enables freedom, where the individual is incapable of doing so him­ self . Because the legal form itself is not conceptualized as external to freedom, but derived from the concept of freedom, it needs no further legitimation . The core of this order – the norm – is necessarily directed towards freedom to decide between desired and undesired motives for action . The reflective structure of law does not only organize this freedom, but also the freedom to decide between alternative norms and alternative modes of enforcing the norms . Hannah Arendt correctly emphasizes that, with an intensifying formation of a society by its people, their sensitivity towards heteronomous determination of their work increases73 . If a legal order makes only minimal use of the potentials of free­ dom in the concept of law, because, e . g ., an autocratic ruler enforces unjust norms, the freedom of its subjects has to find a way to articulate itself outside the law . This would weaken it . However, if in the autonomy model the enactment and enforce­ ment is organized in a way that the people concerned can deliberate and decide about their rights and duties themselves and can realize their freedom in the adjudi­ cation and enforcement of them as much as possible, then this legal order realizes the potentials of the concept of modern law and strengthens its structure74 . This may not be a smooth way and result in temporary instability; however, the people

72 73

74

these goods and opportunities are to be distributed . … I propose that the right to treatment as an equal must be taken to be fundamental under the liberal conception of equality, and that the more restrictive right to equal treatment holds only in … special circumstances,” dworKin, Ronald . Taking Rights Seriously . London, 1977, 273 . KirSte (note 69), 315 f . arendt (note 56), 300: “The more highly developed a civilization, the more accomplished the world it has produced, the more at home men feel within the human artifice –the more they will resent everything they have not produced, everything that is merely and mysteriously given them” . Aristotle already knew that, although he considered democracy to be unrealistic for his time: “… a fundamental principle of the democratic form of constitution is liberty – that is what is usually asserted, implying that only under this constitution men participate liberty, for they assert this as the aim of every democracy… And one is for a man to live as he likes; for they say that this is the function of liberty, inasmuch as to live not as one likes is the life of a man that is a slave . This is the second principle of democracy . ariStotle (note 14), VI, 2, 1317a 40­b 17, 489–491 .

30

Stephan Kirste

are responsible for these sometimes burdening social experiments, can learn and voluntarily change their situation – thereby realizing their freedom . Real democracy does not only presuppose democracy, but is at the same time the best way to learn democracy . Law as an order of freedom and for freedom even permits the decision, how much freedom should be realized by law or in other social systems . Thereby, it is not a naturally given state, but rather a permanent construction and reconstruc­ tion driven by the freedom of its subjects75 . Negative freedom and positive freedom as self­determination and determina­ tion of this self is expressed in individual rights in the form of the status negativus, status positivus and status activus76 . The unity of these as expressed in the reflexive form of law is the basis of the connection of human rights and democracy . The critique of a right to democracy can be rejected, because human rights are not exter­ nal to the law, its organization in the state and its democratic legitimation . Just as law can be reconstructed as an expression of freedom, so can democracy . Since law as an order of norms the enactment and enforcement of which is regulated by other norms, presupposes freedom, protects it and can be an expression of it, it is not merely instrumental to freedom, but an order of and for freedom . In an advanced legal order the rights that protect and enable freedom are themselves products of freedom . Democracy then does not only have a function for human rights and also they are not mere prerequisites of democracy . This mutual instrumentalization of human rights and democracy dissolves when we justify both on the basis of free­ dom . The human right to democracy is a right to participate free and equally in the deliberating, decision­making and interpreting procedures of general rights and du­ ties . It is stronger than a mere right to participation or a “right to have a say”, which also covers legitimate asymmetrical influences . Within the reflexive structure of law, it is not a right the legal order paternalistically grants the people, as Frank Michelman correctly claims77; this would mean granting and withholding the right to democ­ racy at the same time . People rather realize the right to democracy in the foundation of the legal order itself – be it guaranteed by a national, supranational or interna­ tional legal order and be it united in an explicit right to democracy or be it a unify­ ing principle for a couple of rights securing aspects of it . Thus the human right to democracy is the capstone of the concretization of the potential of freedom in the concept of law . This right is not opposed to the legal form, but realizes it . Legal freedom realizes itself in the reflexive structure of law only if the enactment, too, is an expression of freedom . Like the capstone of a pyr­ amid is its part, democracy too is not an addition to the legal form but its comple­ tion . Legal freedom realizes itself in the reflective structure of law only if the enact­ ment of norms including the enactment of the human right to democracy itself is 75 76 77

MenKe, Christoph . Einleitung . In: Die Revolution der Menschenrechte . Frankfurt/Main, 2011, 16 . For a classification of human rights into these categories: KirSte (note 17), 122 f . MichelMan, Frank I . Bedürfen Menschenrechte demokratischer Legitimation? In: BRUNK­ HORST, Hauke; Köhler, Wolfgang R .; lUtz-bachMann, Matthias (Eds .) . Recht auf Menschenrechte. Menschenrechte, Demokratie und internationale Politik . Frankfurt/Main, 56: “Der Gedanke wäre, daß Rechte, die eine Person nicht aktiv selbst ausübt und selbst interpretiert, mit Blick auf diese Person nicht eigentlich ‘Rechte’ sind, sondern eher Gnadenakte von seiten der anderen Handelnden” .

The Human Right to Democracy as the Capstone of Law

31

the work of freedom . Not only the revolutionary constitutions and declarations of the 18th century and many constitutions since then have included this stone into their legal orders – in some cases it still shakes and does not completely fit into the whole construction, in others it rubs up against other stones like the rule of law . However, where this right is not yet fully implemented into the legal order as in international and supranational legal systems the concept of law itself secures that its place is being kept free . Where it is included, the human right to democracy can set free reasonable discourses that can have an eye on the shortfalls of its own trans­ formation into law and cope with temporary instabilities and learn from them . The acknowledgement of the right to democracy is also a right to participate in the refor­ mulation and reinterpretation of human rights78 . Thus the capstone of the human right to democracy is not a grave stone but a kind of mill­stone, permitting the constant transformation of new rights into the laws under the eyes of the rational process it has itself established by the law . The movers of this capstone are all human beings as craftsmen of democracy, based on their ability to make themselves the one they want to be79 and behave according to self­formed orders80: The demos is the demiurgos of its legal identity .

78 79

80

viSMann, Cornelia . Menschenrechte: Instanz des Sprechens – Instrument der Politik . In: MEN­ KE, Christoph; raiMondi, Francesca (Eds .) . Die Revolution der Menschenrechte. Grundlegende Texte zu einem neuen Begriff des Politischen . Frankfurt/Main, 2011, 323 . Mirandola, Pico della . On the Dignity of Man . In: caSSirer, E .; KriSteller, P . O .; randall, J . H . The Renaissance Philosophy of Man . Chicago and London, 1948, 225: “We have made thee neither of heaven nor of earth, neither mortal nor immortal, so that with freedom of choice and with honor, as though the maker and molder of thyself, thou mayest fashion thyself in what­ ever shape thou shalt prefer”; Latin: “Nec te celestem neque terrenum, neque mortalem neque immortalem fecimus, ut tui ipsius quasi arbitrarius honorariusque plastes et fictor, in quam malueris tute formam effingas .” On the basis of this ability, all human beings have become kingly politicians – “πολιτικοι βασιλικοι” – as craftsmen – “δημιουργοι” of the cosmos of the political order, Plato Timaeus 41 A f .; Nomoi 716 C/D; Wolf 1970, pp . 160, 220; Jaeger 1973, pp . 1197 .

celSo laFer, UniverSidade de São paUlo (São paUlo) Human RigHTs CHallenges in THe ConTemPoRaRy woRld: RefleCTions on a PeRsonal JouRney of THougHT and aCTion* i. THe ePisTemologiCal Role legal THeoRy

of

exPeRienCe

in THe

field

of

Human RigHTs

The general theme of the XXVI World Congress of Philosophy of Law and Social Philosophy – Human Rights, Democracy, Rule of Law and the Contemporary Challenges in Complex Societies – is very broad . Thus, analytical prudence recommends the selec­ tion of an organizing perspective to break down the broad theme . In what follows, I review my thoughts on human rights and the challenges they face, and my own path in that field, which is the result of an interaction between experience and thought . But let me first justify my choice of this organizing perspective in light of the epistemological role of experience in the reflections of Hannah Arendt and Norberto Bobbio on human rights . These two great thinkers of the twentieth cen­ tury are my twin points of departure, and have been a basic point of reference in my work on human rights as in so many other matters . In the preface to her book, Between Past and Future, Hannah Arendt’s assump­ tion is that, ‘thought itself arises out of the incidents of living experience and must remain bound to them as the only guideposts by which to take its bearings .’1 Arendt viewed that collection of essays as an exercise in political thought . More specifically, given the gap between past and future, she aimed to highlight the inadequacy of traditional theoretical categories to address the realities of ‘an era of extremes,’ as a first step towards their conceptual reconstruction . Hannah Arendt noted that ‘the actuality of political incidents’ that prompted the thoughts in Between Past and Future, lay below the surface, was barely ‘audible,’ so to speak, and was only sporadi­ cally mentioned . In the dense fifth chapter of her great work of 1951, The Origins of Totalitarianism, Arendt examined the shortcomings of legal and political theorizing about human rights (which she dates back to the French Revolution) in light of the new realities brought about by totalitarian rupture .2 In that work, she posited the concept of “the right to have rights,” the starting point of my own book, The Reconstruction of Human Rights,3 which consists of a dialogue of sorts with Arendt’s thought . The experience of ‘the actuality of political incidents’ that gave rise to Arendt’s thought is not below the surface or quasi­inaudible when it comes to human rights . Arendt addressed that topic in a text of 1943, We Refugees, in which she described the personal experiences of displaced people, and the corrosive and harrowing effects *

I would like to thank very warmly Alexandra Barahona de Brito who has helped me to convey into English a text that was originally thought out and written in Portuguese .

1 2 3

arendt, Hannah, Between Past and Future, New York: Viking Press, 1968, 14 . arendt, Hannah . The Origins of Totalitarianism, New York: Schoken Books, 2004, 341–384 . laFer, Celso . A Reconstrução dos Direitos Humanos: Um diálogo com o pensamento de Hannah Arendt, São Paulo: Companhia das Letras, 1988 .

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Celso Lafer

on the integrity of human beings, when their social, political and legal status be­ comes ‘completely confused .’ Arendt’s displaced people found themselves on the fringes of the law, as a result of the ‘status of legal outlaws .’ As she movingly de­ scribes: ‘we lost our homes, which means the familiarity of daily life… lost our oc­ cupation which means the confidence that we are of some use in this world… lost our language, which means the naturalness of reactions, the simplicity of gestures, the unaffected expression of feelings .’4 Arendt’s wide­ranging conceptual elabora­ tion on the importance of “the right of have rights” emerged from this context and from her ‘stopping to think’ about her own ‘living experience .’ Miguel Reale says that ‘Law is not mere experience, but can only be understood bearing experience in mind’, so it is ‘a basic epistemological issue .’5 According to his view, “law” is a dynamic and dialectic experience combining facts, values and norms . As he sees it, the knowledge underlying the act of experiencing arises from a blend of subjective experience (the experiencer, or parte subjecti experience) and objective experience (what is experienced, or parte objecti) . For Hannah Arendt, ‘the incidents of living experience’ occurr in the plurality of the human condition of inter homines esse, in her view a conditio per quam for all political life .6 The original meaning of experience, notes Reale, is experiencing reality, in which what is experienced is dif­ ferent but not separable from what the person observes and evaluates as positive or negative . In the case of human rights, their absence is experienced as negative, which is what motivates the need to affirm them . And, as Reale emphasizes, it is the expe­ rience of that negativity, which produces the power­duty to communicate that knowledge conquered by experience to the world of shared life (Lebenswelt) .7 This is how Hannah Arendt proceeded when elaborating the concept of the “right to have rights .” This power­duty to impart what one conquers for knowledge as a result of expe­ rienced hardships also shapes Norberto Bobbio’s reflections on human rights . Bob­ bio’s formative years took place during the fascist regime in Italy . Fascism expressed the fury of extremes, focusing its activism on the destruction of reason . This marked much of Europe during the twentieth century, with ripple effects elsewhere . Bobbio opposed Fascism, participated in the Resistance, and lived through the Nazi occu­ pation and the war for Italy’s liberation . As Bobbio recalls in De Senectute, this was a densely configurative period in existential terms for him, marking a “before” (the limbo­like prehistory of his life as a scholar) and an “after” (which marked the work of his mature years) .8 As Pier Paolo Portinaro points out,9 the search for alternatives that were radi­ cally distinct from those that characterised Fascism, was the key trait that marked both Bobbio’s scholarly and militant intellectual activities during the “after” period in re­democratised post­War Italy . Prominent among the traits of Fascism were the 4 5 6 7 8 9

arendt, Hannah . The Jew as Pariah . FeldMan, R . (ed .) . New York: Grove Press, 1978, 62, 66, 55–56 . reale, Miguel . O direito como experiência, São Paulo: Saraiva, 1992, xxxviii . arendt, Hannah . The Human Condition, second edition, Chicago: University of Chicago Press, 1998, 7–8 . reale, Miguel . Variações, São Paulo: GRD, 1999, 13–27 . bobbio, Norberto . De Senectute, Turin: Einaudi, 1996, 122, 164 . portinaro, Pier Paulo . Introduzione a Bobbio, Rome/Bari: Laterza, 2008, 31 .

35

Human Rights Challenges in the Contemporary World

annihilation of democracy, the denial of human rights, the dissolution of individu­ als within the whole of the state, and the belligerence and glorification of violence, as Bobbio points out in his studies of Fascism .10 It was in response to this experience that Bobbio gradually built up the links between three themes – democracy, human rights and peace – arguing that an integrated view of the three should be the goal of a general theory of law and politics .11 Hence his statement, in the introduction to L’età di diritti, that ‘without democracy and human rights in the internal plane, there will not be, in the external plane, the stable peace resulting from the peaceful settle­ ment of disputes .’12 For both Bobbio and Arendt, then, the ‘incidents of living ex­ perience’ were the guideposts in the development of their work on human rights . The gains that experience accrues for knowledge are particularly important in the field of human rights . As Luigi Ferrajoli notes, in different historical contexts and period, human rights have represented the ex parte populi affirmation of the leggi del piu debole (the law of the weakest) against la leggi del piu forte (the law of the strong­ est) .13 The language and values of human rights were part of the emancipatory plat­ form of Soviet dissidents in the struggle against the arbitrariness of the communist regime; of the civil rights movement against the iniquities of racial discrimination in the USA, and of the fight against Apartheid in South Africa; of the demand for gender equality of the feminist movement; and of the diplomatic demand of Third World countries for a “right to development” to address the inequalities permeating the international order . In her reflections on the history and memory of human rights over time and space, Danièle Lochak notes that human rights struggles are neither a triumphal march nor an a priori lost cause . They result from the experience of and reflection about a struggle that is given density and specificity by reference to context and circumstance, but which is relevant at all times for those who are committed to the value of human dignity .14 It is with this organizing framework and epistemological basis that I will discuss, explain and evaluate the experience of my own “human rights path .” My hope is that it will be useful to analyse the challenges proposed by the general theme of the XXVI World Congress of Philosophy of Law and Social Philosophy . ii. THe “liVing exPeRienCe” of THe bRazilian auTHoRiTaRian Regime THe signifiCanCe of THe Human RigHTs agenda

and

I graduated from the University of São Paulo School of Law in 1964, the year when an authoritarian military regime was established in Brazil . This regime was character­ ised, in the legal­political sphere, by a concentration of power in the hands of the government . By means of various institutional acts (from Institutional Act No . 1 of April 9, 1964 to Institutional Act No . 5 of December 13, 1968), it explicitly broad­ ened the scope for arbitrariness and weakened the rule of law – a situation that only 10 11 12 13 14

bobbio, Norberto . Del fascismo alla democrazia . bovero, M . (ed .) . Milan: Baldino & Castoldi, 1997, passim. bobbio (note 8), 164–165 . bobbio, Norberto . L’età dei diritti, Turin: Einaudi, 1997, vii, viii . Ferrajoli, Luigi . Diritti Fondamentali . vitale, E . (ed .) . Rome/Bari: Laterza, 2001, 338 . lochaK, Danièle . Les droits de l’homme, Paris: La Découverte, 2005, 114–116 .

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abated in the late 1970s . Arbitrary state action included, inter alia, the revocation without trial of the political rights of public personalities, professors and intellectu­ als who were thought to oppose the regime; the suspension of habeas corpus for po­ litical crimes against national security; the denial of judicial review as a result of the “regimes of exception” established by institutional acts and their supplementary decrees; and censorship that limited freedom of expression . At the same time, all this led to the de facto establishment of a crypto-government, which operated in the shadows, together with the secret services and the police, which repressed those perceived by government authorities to pose the threat of arcana seditionis . At a time when there were no computers, the regime also sought to gather all the information it could to become an omnis videns power that could see and control everything .15 Thus, times were dark in Brazil when I ended law school, during my years of graduate study, and at beginning of my academic life as a professor . The curtailment of liberties and the sombre public arena made political vita activa a dubious and precarious proposition, as Hannah Arendt observes in her reflections on Men in Dark Times .16 Such dark times are not a historical exception, she says, and can be sombre even if they do not reach the unprecedented scale of monstrosities of the totalitarian period she studied in The Origins of Totalitarianism . The Brazilian regime was authoritarian, not totalitarian, but even so, there was a general atmosphere of unease caused by a highhanded arbitrariness, and by the dangers and realities of repression perpetrated by the operation of a crypto government . I was not personally a victim of the arbitrariness and repression, but it affected several friends, colleagues, and public personalities whom I admired . Among them was former president Juscelino Kubitschek, whose democratic government and fo­ cus on national development I studied for my doctoral dissertation in Political sci­ ence when at Cornell University in 1970 .17 This experience gave rise to my discon­ tentment with the ‘dark times’ underway, and led me to join others, in particular lawyers and jurists, who used the leggi del piu debole of human rights to combat la leggi del piu forte of those in power as a means to resist the authoritarian regime in a dem­ ocratic and peaceful way . Because of this, I felt the foul breath of repression and became aware of the importance of living in a political system that respects civil and political rights. In brief, this was the ‘living experience’ that served as a guidepost for my subsequent focus on human rights and shaped my understanding of how hu­ man rights are intertwined with democracy and the rule of law . On the academic front, my first effort to tackle this topic happened at the Uni­ versity of São Paulo School of Law in the second semester of 1974, in particular through a graduate course entitled ‘International Law of the Human Person .’ Then a young assistant professor, I gave this course with Professor Vicente Marotta Ran­ gel, a respected full professor of international public law, who supported my feat of “academic daring .” This was indeed an audacious move at the time, since the au­ thoritarian regime was at its peak, and the graduate course contrasted Brazilian real­ ity with the broad normative aspirations embodied in the Universal Declaration of 15 16 17

I draw here on Bobbio’s explanation of the mechanisms of arcana dominationis . See bobbio, Norberto . Il futuro della democrazia, Turin: Einaudi, 1995, 108–110 . arendt, Hannah . Men in Dark Times, New York: Harvest Books, 1968 . laFer, Celso . JK e o Programa de Metas, Rio de Janeiro: Fundação Getúlio Vargas, 2002 .

37

Human Rights Challenges in the Contemporary World

Human Rights of 1948 and the international covenants it gave rise to on Civil and Political Rights, and on Economic, Social and Cultural Rights in 1966 . I taught this course in a more favourable Brazilian political context, in 1980, 1983 and at other times after re­democratisation, adopting a broader scope and reflecting more deeply on the domestic and international agendas . I mention the course of 1974 because it was the starting point of my “human rights path,” of analysing and reflecting on those rights and the importance of their international protection, an understanding brought about by the ‘living experience of the actuality of political incidents’ and by the consequent power­duty to publicly impart to others what one conquers to knowledge by experience . iii. Human RigHTs and aCCess To “THe RigHT To HaVe RigHTs”

THe

fRamewoRk

of THe

legal oRdeR:

In the 1980s, the requirements of university life led me to prepare a thesis to enable me to become a full Professor of Philosophy of Law at the University of São Paulo School of Law . From this thesis resulted my book of 1988, The Reconstruction of Human Rights . This work reflected my own dedication to human rights and my perma­ nent dialogue with the thought of Hannah Arendt, whose student I had been privi­ leged to be at Cornell University in 1965, and whose course on ‘Political Experi­ ences in the Twentieth Century’ had an impact on my views .18 My intention was to develop a legal analysis of the unprecedented rupture brought about by the totalitarian regimes examined in The Origins of Totalitarianism, articulating my views with the reflections of Hannah Arendt, and focusing on the challenges involved in the protection of human rights . This approach called for an articulated explanation of the meaning of human rights in Arendt’s work, which had not been attempted at the time and only later attracted the interest of other students of her work .19 In my book of 1988 and in subsequent studies20 I discussed the heuristic scope of Hannah Arendt’s concept of the right to have rights . My starting point was her article, The Rights of Man: What Are They,21 in which Arendt reflected further on the experience of We Refugees of 1943, which constitutes the basis of the fifth chapter of the second part of her Origins of Totalitarianism of 1951,‘The Decline of the Na­ tion­State and the End of the Rights of Man .’22 18 19 20

21 22

laFer, Celso . Experiência, ação e narrativa: sobre um curso de Hannah Arendt, Estudos Avançados, 21(60), May­August 2007, 289–304 . See, for example, caloz-tSchopp, Marie­Claire . Les sans-Etat dans la philosophie and Hannah Arendt, Lausanne: Payot, 2000; birMinghaM, Peg . Hannah Arendt and Human Rights, Bloomington: Indiana University Press, 2006 . See laFer, Celso . Hannah Arendt: Pensamento, persuasão e poder, São Paulo: Paz e Terra, 2003; laFer, Celso . Direitos Humanos em Hannah Arendt: Considerações sobre as fontes materiais da Declaração Universal, Justitia 198(1), 2005, 111–115; laFer, Celso . Entrevista com Eduardo Jardim, O que nos faz pensar? 29, May 2011, 7–20; laFer, Celso . Entry, “Menschenrechte,” . In: heUer, W .; heiter, B .; roSenMüller, S . (eds .) . Arendt Handbuch: Leben, Werk, Wirkung, Stutt­ gart: J . B . Metzler, 2011 . arendt, Hannah . The Rights of Man: What Are They, Modern Review 3(1) 1949 . arendt (note 2), 341–384 .

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Human rights emerged and spread with the French Declaration of Rights of 1789 . In the French model, said Hannah Arendt, human rights were aligned with the rights of the self­determination of peoples . Indeed, it was the concept of popular sovereignty based on the principle of nationality that undermined the concept of dynastic legitimacy, giving rise in the legal and political spheres – and here I para­ phrase Norberto Bobbio23 – to the move from the duty of subjects to the rights ex parte populi of citizens . The implicit assumption of this paradigm is that the standard of normalcy was the worldwide distribution of human beings among States of which they are nation­ als . This standard was challenged by the dismantling of multinational empires after the First World War, which also decoupled human rights from the nation­based rights of peoples . This resulted in a massive displacement of people, such that na­ tional minorities, refugees and anyone who lost their nationality found themselves expelled from the People­State­Territory trinity . These displaced people became “rightless” because they were stripped of their citizenship and therefore of the pro­ tections granted by the principle of legality . For this reason, they were unable to resort to the human rights leggi del piu debole against la leggi del piu forte. In the words of Hannah Arendt: ‘The calamity of the rightless is not that they are deprived of life, liberty and the pursuit of happiness, or of equality before the law and freedom of opinion – formulas which are designed to solve problems within given communities – but that they no longer belong to any commu­ nity whatsoever . Their plight is not that they are not equal before the law, but that no law exists for them .’24

The situation of the mass of displaced people was further worsened because there was no haven for them in the world of the twentieth century, a world entirely organ­ ised into, and politically occupied by, sovereign states . Thus, displaced people be­ came erga omnes undesirables . It was in this context of xenophobia and autocracy that barriers to free circulation of persons were established, along with very restric­ tive immigration policies, ineffective asylum regimes, inadequate repatriation provi­ sions, and precarious rules of naturalisation . This situation was intensified by arbitrary Nazi German and Soviet communist sovereign rule, under which the citizenship rights of human beings were massively revoked, not because of any acts they had committed as nationals, but because they were held, according to the logic of totalitarianism, to be ‘objective enemies’ for racial or political reasons . This had a broad impact because the existence of a mass of persons without citizenship, who lived on the fringes of tangible law as sans papiers in different countries, reinforced the arbitrariness of police forces even under constitutional democracies, thus also undermining the effectiveness of democratic rule of law . All this contributed to the creation of the concentration camps – the material basis of the genocide – where human beings were ‘disposable’ because they had previously been considered ‘undesirable .’ They had become “rightless,” then sans papiers, and were thereby divested of legal protection and consequently overlooked by legal systems as being “redundant .” 23 24

See bobbio (note 12), xi–xii, 89–141 . See arendt (note 2), 375

39

Human Rights Challenges in the Contemporary World

Making a reflective judgment on the universal reach of these circumstances, Hannah Arendt concluded that equality of dignity and rights, the cornerstone of human rights, is not a “given” as posited by the natural law tradition and by the belief in historical progress . As she noted: ‘We are not born equal .’ Rather, we be­ come equal ‘as the result of human organisation insofar as it is guided by the prin­ ciple of justice .’25 Equality of dignity and rights is not an element of human exist­ ence but rather a political construction of collective coexistence based on the plu­ rality of human beings that share the earth . It was the validity of this construction that the totalitarian regimes strove to extirpate in the twentieth century era of ex­ tremes . Thus, the paramount right must be “the right to have rights .” Above all, a person must be given a place in the world through access to a legal and political order that ensures ‘a framework where one is judged by one’s actions and opinions’; this is what ‘makes opinions significant and actions effective .’26 This is the frame­ work that gives us the necessary the space to affirm who we are, not what we are, in the web of human relations and histories .27 As Bobbio clearly shows, one of the conditions that make such a framework possible is the preservation of democratic rules .28 The other goes beyond state sov­ ereignty, as the historical experience of totalitarianism has proved . This is why the right of human beings to have rights, which depends on access to a framework built from a legal­political order, requires a nomos of the earth ‘guaranteed by the comity of nations .’29 And this is why it is so important to internationalise human rights, a topic I address below along with other facets of the human rights agenda which can be examined in light of Arendt’s thought, including the right to nationality, the rights of refugees, and the rights of immigrants without papers; as well as situations that emerged after the Cold War as a result of a flourishing logic of fragmentation resulting from national, ethnic, cultural and religious identity claims . The subleva­ tion of particularisms, to paraphrase Octavio Paz,30 has created new kinds of gaps between human rights and the rights of peoples, which limit the universal reach of international human rights and pose a serious threat to their protection . In this context, it is worth noting the relevance of the current debate in the UN about an international “responsibility to protect,” and the need to take collective action when a state is incapable of protecting its population from genocide, war crimes, ethnic cleansing and crimes against humanity . iV. THe PluRalism and diVeRsiTy of THe Human CondiTion foR THe PunisHmenT of THe CRime of genoCide

as

foundaTions

Hannah Arendt noted that injustice and exploitation, loss of freedom and political oppression are crimes that characterise all types of tyranny . These crimes should not be confused with crimes against humanity, which are the hallmark of totalitarian 25 26 27 28 29 30

See arendt (note 21), 33; arendt (note 2), 382 arendt (note 2), 376 arendt (note 6), 175–207 bobbio (note 15) arendt (note 21), 37 paz, Octavio . Tiempo Nublado, Barcelona: Seix Barral, 1983, 93–103

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regimes .31 It was on the nature of this latter crime and its relation to totalitarianism that Hannah Arendt focused on in Eichmann in Jerusalem, her account of the Eich­ mann case,32 in which she develops insights found in The Origins of Totalitarianism . In her report on the Eichmann case, Hannah Arendt had in mind the concept of crimes against humanity set forth in Article 6 of the Nuremberg Charter, and speci­ fied in the Convention on the Prevention and Punishment of the Crime of Genocide of 1948 . As we know, the Rome Statute of the International Criminal Court of 1998 drew a line between the crime of genocide (Article 6) and crimes against humanity (Article 7) . There is an affinity between the two . Indeed, the objective elements that result from both types of crime potentially overlap . What differentiates them is mens rea, or intent, as Cassese explains .33 What sets genocide apart as a crime, and makes it a specific sub­category of the broader category of crimes against humanity, is ‘the intent of destroying, in whole or in part, a national, ethnic, racial or religious group,’ as stated in the Convention of 1948, and now the Rome Statute . The specificity of the totalitarian rupture resides in this intent, because geno­ cide, the paradigm of which is the Holocaust, was a historically unprecedented crime . As pointed out by Bobbio in 1960, genocide is a crime that cannot be ex­ plained by traditional concepts such as economic interest, desire for power, national prestige or social conflicts . It stands out because of the lucid gratuitousness of an organised and premeditated crime the aim of which is extermination per se . For this reason, it also falls beyond the scope of “regimes of exception” for reasons of state since the latter follow a means and ends logic that cannot explain the gratuitous aim of extermination .34 In brief, as Hannah Arendt stated, genocide is not a crime ‘pro­ moted by necessity of one form or another .’35 It was his perplexity with this histor­ ically unprecedented crime that led Churchill to call it “a crime without a name .” It was the jurist Raphael Lemkin who proposed that a treaty should define gen­ ocide as an international crime, and promoted the drafting and approval at the United Nations of the Convention on the Prevention and Punishment of the Crime of Genocide of 1948 . Lemkin also coined the term genocide, which derives from the Greek genos (tribe, race) and the Latin cidio, from the verb caedare (to fall, to kill), by analogical approximation with homicide, fratricide . Given his vast knowledge of law and his great legal imagination, Lemkin not only named what Churchill had called a “crime without a name,” but he also defined its specific nature, as actions commit­ ted ‘with the intent of destroying, in whole or in part, a national, ethnic, racial or religious group,’ as stipulated in Article 2 of the Convention of 1948 .36 If Lemkin coined and typified genocide as an international crime and thus made it possible for international public law to respond to the horrors of the Holo­ 31 32 33 34

35 36

arendt (note 21), 36–37 arendt, Hannah . Eichmann in Jerusalem, New York: Viking Press, 1965 caSSeSe, Antonio . International Criminal Law, Oxford: Oxford University Press, 2003, 106 bobbio, Norberto . Quindici anni dopo, Rassegna mensile di Israel, 6, June 1974, 1–9; bobbio, Norberto . Elogio della mitezza e altri scritti morali, Milan: Linea d’Ombro, 1994, 105–125; laFer, Celso . Bobbio e o Holocausto: Uma aproximação com Hannah Arendt, Revista USP, 61, March­May 2004, 223–227 arendt, Hannah, Responsibility and Judgment . Kohn, J . (ed .) . New York : Schocken Books, 2003, 38–39 . beaUvallet, Olivier . Lemkin face au génocide, 2011, Paris: Michelon, 33 et passim

Human Rights Challenges in the Contemporary World

41

caust, it was Hannah Arendt who established the philosophical foundations of this crime . This is what Seyla Benhabib argues in a recent comparison between Lemkin and Arendt .37 This was also the argument I developed in the fourth chapter of The Reconstruction of Human Rights,38 in which I review Eichmann in Jerusalem . In her analysis of the Eichmann case, Hannah Arendt criticised the one­sidedness of the prosecutor’s perspective: he focused on the suffering of the victims, on what the Jews had suffered by being punished without guilt, and failed to address the broader scope of Eichmann’s actions . The crime committed by Eichmann, one of the master­ minds and perpetrators of the Holocaust, was directed against the Jewish people as a whole . Modern anti­Semitism – an instrument of power of Nazi totalitarianism that differed from traditional anti­Semitism, as Arendt shows in the first part of The Origins of Totalitarianism – explains the choice of victims but not the nature of the crime . For Hannah Arendt, the prosecutor’s view was that the Holocaust had the char­ acteristics of a large­scale pogrom and, as such, was part of the long history of perse­ cution of the Jews . In his accusation, the prosecutor did not address the novel uni­ versal reach of the unprecedented experience of totalitarianism . In my view, the prosecutor also failed to perceive that the Holocaust differed from other the disas­ ters marking the Jewish historical experience because, for the first time ever, it threatened the very existence and survival of all Jews . As Yehuda Bauer explained, in accordance with the ideological view that characterised the exercise of power by the German variant of totalitarianism, the Nazis viewed the Jewish issue as a global problem and the resolute annihilation of the Jews – all Jews in the world – was the mens rea of their goal, on which the future of humanity depended .39 For Hannah Arendt, the universal scope of the reason to punish the crime of genocide is that it is a crime against humanity and a deliberate attack on the diver­ sity and plurality of the human condition . Arendt concluded her report on the case by stating that Eichmann and the totalitarian authorities granted themselves the right to determine who should and should not be allowed to live in the world . Thus, one could not expect any member of the human race to wish share the Earth with Eichmann, and this is why he had to be (and was) executed as an enemy of the hu­ man species (hostis humani generi) .40 For Hannah Arendt, the ontological basis for the punishment of the crime of genocide is supported by her earlier reflections of 1958 about the plurality of the human condition,41 and by her view, as expressed in Lectures on Kant’s Political Philosophy, about the importance of a plural world governed by the Kantian principle of universal hospitality and reciprocal trust .42 Hannah Arendt’s reasoning demonstrates why the compulsory repression of genocide is a valid jus cogens norm, and central for international public policy . No 37 38 39 40 41 42

benhabib, Seila . International Law and Human Plurality in the Shadow of Totalitarianism: Han­ nah Arendt and Raphael Lemkin . In: benhabib, S . (ed) . Politics in Dark Times: Encounters with Hannah Arendt, Cambridge: Cambridge University Press, 2010 laFer (note 3), 167–186 baUer, Yehuda . Rethinking the Holocaust, New Haven: Yale University Press, 2002, 22, 27 arendt (note 32), 279 Arendt (note 6) arendt, Hannah . Lectures on Kant’s Political Philosophy, ed . R . Beiner, Chicago: Chicago Univer­ sity Press, 1982 .

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community on Earth can feel reasonably safe about its survival – and, by extension, at ease and at peace in the world – if genocide remains a conceivable future possi­ bility . The Holocaust was a precedent that should be seen as a warning with a uni­ versal reach . As Marrus noted, for Hannah Arendt the importance of this warning resided in the fact that, despite the defeat of Nazism, post­World War II societies retained a latent openness to genocide .43 This is the basis of Organised Guilt and Universal Responsibility, an essay of 1945, in which she states that: ‘In political terms, the idea of humanity, excluding no people, assigning a monopoly of guilt to no one, is the only guarantee that one “superior race” after another may not feel obligated to follow the “natural law” of the powerful and exterminate “inferior races unworthy of surviv­ al”…’44

In German texts dated 1958 and 1959, an English translation of which was posthu­ mously published as The Promise of Politics, Hannah Arendt sheds additional light on why the plurality of the human race is the cornerstone of her amor mundi: ‘… human beings in the true sense of the term can exist only where there is a world, and there can be a world in the true sense of the term only where the plurality of the human race is more than a simple multiplication of a single species .’45

For this reason: ‘If a people or nation, or even just some specific human group, which offers a unique view of the world arising from its particular position in the world – a position that, however it came about, cannot readily be duplicated – it is not merely that a people or a nation or a given num­ ber of individuals perishes, but rather that a portion of our common world is destroyed, an as­ pect of the world that has revealed itself to us until now but cannot reveal itself again .’46

For Hannah Arendt, then, the world only comes into existence because there is a plurality of individual and collective perspectives, and from this follows that pun­ ishing genocide is necessary to legally protect this order of things in the world . In my opinion, this reasoning applies to other serious crimes typified in the Rome Statute of the International Criminal Court, considering (as can be inferred from the first considerandum of its Preamble) the risks that the ‘delicate mosaic’ of plural perspectives stemming from peoples and their cultures united by common bonds ‘may be shattered at any time .’ Consequently, the grave crimes that put this delicate mosaic at risk must not go unpunished because they affect the international community as a whole (fourth considerandum) in that they ‘threaten the peace, secu­ rity and well-being of the world’ (third considerandum, emphasis added) . V. demoCRaCy

and

Human RigHTs

in THe

inTeRnal naTional sPHeRe

There are other less explicit aspects of Hannah Arendt’s work that, because of its focus on totalitarianism and the ‘actuality of political incidents,’ provide scope for other approaches to human rights issues . I discussed this in The Reconstruction of 43 44 45 46

MarrUS, Michel R . Eichmann in Jerusalem: Justice and History. In: aScheiM, S . A . (ed .) . Arendt in Jerusalem, Berkeley: University of California Press, 2001, 212 . See arendt (note 4), 235 . arendt, Hannah . The Promise of Politics. Kohn, J . (ed .) . New York: Schocken Books, 2005, 176 . Ibid, 175 .

Human Rights Challenges in the Contemporary World

43

Human Rights and other later studies,47 which also draw significantly on Bobbio and were prompted by my experience of living under the Brazilian authoritarian regime . I will revisit these approaches, taking the public-private dichotomy as a starting point . They have to do with transparency in the exercise of power; the right to informa­ tion; the legal protection that must be accorded to freedom of association and opinion; and the right to intimacy, all of which are instrumental for democracy and the rule of law within states . In The Human Condition, Hannah Arendt explores the meaning of the pub­ lic­private dichotomy, a classical dichotomy in legal thought since the Romans .48 “Private” alludes to what is particular, domestic, familiar and familial, as opposed to “public,” which concerns the common interest and utility of the res publica and, as such, outranks the more limited realm of private interests . But “public” also stands for what is visible, what becomes and should become public within the realm of the vita activa .49 The convergence between what is ‘common’ and ‘visible’ as articulated by Hannah Arendt concurs with Bobbio’s view that one of the characteristics of democracy is the exercise of common power in public, since what is of interest to all must be known to all so that the actions of rulers may be controlled through citizenship .50 That is why transparency in the exercise of power, and the adoption of the principle of publicity by state bureaucracies is so important, as a key trait of the democratic rule of law . A totalitarian regime has the exact opposite traits: ‘The only rule of which everyone in a totalitarian state may be sure is that the more visible government agencies are, the less power they carry, and the less known of the existence of an institution, the more powerful it will ultimately turn out to be .’51

The divide between real and ostensible government is how totalitarian domination takes hold . Its bureaucratic structure is not pyramidal but rather shaped like an on­ ion: government entities are akin to successive layers that have the same formal functions, which cover up the real power that lies at the core . Real power is exercised through the secret police, which permeates all aspects of life in a totalitarian society with fear arising from generalised suspicion that leaves nobody unscathed . Within this context the secrets of domination are covered up and the lies of official ‘truth’ are spread through propaganda, the aim of which is not persuasion but the accumu­ lation of power .52 For Hannah Arendt, the relevance of a shared and visible public realm acts as a counterpoint to the unprecedented negativity of totalitarianism, backed by a full­ fledged omni videns crypto­government, to borrow from Bobbio .53 But this counter­ point is also necessary to address the dangers of invisible government and credibility gaps that put the public realm at risk in the contemporary world54 . The deteriora­ tion of the public realm, which results from the opaque exercise of power to safe­ 47 48 49 50 51 52 53 54

See laFer (note 20), 109–123, 134–194; LAFER (note 20), 111–115 . bobbio, Norberto . Stato, Governo, Società, Turin: Einaudi, 1985, 3–22 . arendt (note 6), 50–58 . bobbio (note 15), 85–113 . arendt (note 2), 524 . arendt (note 2), 450–616 . bobbio (note 15), 106–110 . arendt (note 16), 8 .

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guard the secrets and lies of rulers, paves the way – not only under authoritarian regimes such as the one Brazil had – for crypto­governments of secret services to act in the shadows and for the sotto governo that facilitates the concealment of corrupt practices . The right to information as a human right ex parte populi is justified by the need to control the actions of rulers within a democratic rule of law system . The right to in­ formation protects the factual truth, which is the truth of politics;55 and in a demo­ cratic system, it limits the scope for the secrets and lies that thrive when the reasons of state are abused .56 In fact, the transparent exercise of power submits government acts to a Kantian public morality, as enunciated in Perpetual Peace: ‘All actions affect­ ing the rights of other human beings are wrong if their maxim is not compatible with their being made public .’57 This means making government actions public rather than hiding them from public scrutiny under a veil of secrecy or lies . In institutional terms, autonomous universities support the framework for the right to information, on the basis of the right to freely pursue intellectual activity and the truth – or, in the words of Kelsen, the ‘freedom of science in conjunction with the belief in its possible objectivity’;58 it depends on a judicial system governed by reliable and predictable rules, acting independently from the executive and ma­ jority whims within the legislative branch; and on uncensored media that are legally protected by freedom of the press and of opinion . The right to information is one of the ingredients of transitional justice, the means by which re­democratised systems deal with a repressive past (see below for more details) . This right has been curbed increasingly in the twenty­first century in the name of the transnational fight against terrorism, which works in secret net­ works . Thus, the arcana seditionis of the “pact of the violent” in terrorism has rekin­ dled the undercover actions of secret service crypto­governments . This has increased the dangers of omni videns power, ex parte principis, which monitors and controls citizens without the safeguards inherent to a democratic rule of law system .59 By contrast, the digital revolution and the exponential accumulation of data that enable the existence of the internet, Facebook, the dynamics of social networks and horizontal interrelations, make the ex parte populi right to information both easier and more complex to ensure: easier because research, access and dissemination is easier than ever in contrast with the past, allowing hackers to leak confidential information (as recently demonstrated by the WikiLeaks affair); but also more complex because the overwhelming broadening of information horizons has made it more difficult to process and identify what is really relevant for ex parte populi control of rulers .60 55 56 57 58 59 60

arendt (note 1), 227–264 . arendt, Hannah . Crisis of the Republic, New York: Harvest Books, 1972, 3–47; bobbio, Norberto . Teoria generale della politica. BOVERO, M . (ed .) . Turin: Einaudi, 1999, 352–369; laFer, Celso, Desafios: Ética e política, São Paulo: Siciliano, 1995, 13–29 . Kant, Immanuel . Political Writings . In: reiSS, H . S . (ed .) . Cambridge: Cambridge University Press, 2010, 126 KelSen, Hans . Essays in Legal and Moral Philosophy, Dordrecht­Holland, Boston: D . Reidel Pub­ lishing Company 1973, 102 . laFer, Celso . La democrazia di fronte al terrorismo transnazionale . In: bovero, M .; vitale, E . (eds .) . Gli Squilibri del Terrore, Turin: Rosenberg & Sellier, 2006, 127–133 . laFer, Celso . Vazamentos, sigilo, democracia: A propósito do significado do Wikileaks, Política Externa 19(4) March­May, 2011, 11–17 .

Human Rights Challenges in the Contemporary World

45

In her reflections on the public and private realms, Hannah Arendt underscored the importance of ex parte populi exercise of the public rights of association and of freedom of opinion within the common realm of citizenship .61 The importance that Hannah Arendt attaches to these rights is that they counteract all tyrannies, the identifying traits of which are the unrelenting effort to annihilate, by use of force and violence, the free exercise of citizenship within the public realm, allowing rulers to retain exclusive rights and authority over matters of state .62 For Hannah Arendt, the need to counteract tyrannical regimes was not just a political stand because of her experience during the ‘dark times’ when liberties were curtailed; her position is ontologically grounded, and is based on the difference she articulated between power as distinct from strength and violence . In articulating this difference, Hannah Arendt pinpointed what is specific to the creation and preservation of power, stand­ ing apart from those who, like Max Weber, Bertrand de Jouvenel and Mao Zedong, focused on the efficacy of command that emanates from the use of power . For Arendt, power is inherent to any political community; it emerges from the human ability to act in a concerted manner; and it depends on the consensus reached by many to undertake a common course of action .63 As she states, then: ‘Power corre­ sponds to the human ability not just to act but to act in concert .’ Power cannot be generated top­down, ex parte principis; nor can rulers accumulate it . Power originates from its acknowledgment and recognition ex parte populi . Hence the maxim: ‘Potes­ tas in populo, i . e . without a people or a group, there is no power .’64 Thus: ‘All political institutions are manifestations and materialisations of power; they petrify and de­ cay as soon as the living power of the people ceases to uphold them .’65

The rights of association and freedom of opinion within the public realm protect the potential sources of power, which are essential for the existence of a political community: ‘What first undermines and then kills political communities is loss of power and final impo­ tence, and power cannot be stored up and kept in reserve for emergencies, like the instruments of violence, but exists only in its actualisation .’66

It is for this reason that tyrannies are the most violent and least powerful forms of government,67 because violence undermines power rather than generating it; the greater the decline of ex parte populi power, the higher the level of ex parte principis violence . The emergence of power as the result of the concerted action of many explains how the trade union movement in modern societies not only improved the living conditions of workers but also enhanced citizenship by bringing workers into the 61 62 63 64 65 66 67

arendt, Hannah . Public Rights and Private Interests: in Response to Charles Frankel, Small Comforts for Hard Times. Mooney, M .; StUber, F . (eds .), New York: Columbia University Press, 1977, 104 arendt (note 6), 221 laFer (note 56), 50–51; haberMaS, Jurgen . Sociologia . Freitag, B .; roUanet, S . P . (eds .) . São Paulo: Ática, 1980, 100–118 . arendt (note 56), 143 . Ibid, 140 . arendt (note 6), 200 arendt (note 56), 140

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public realm as emancipated citizens .68 The same can be said about borderline situ­ ations of resistance to oppression via civil disobedience, as exemplified by Gandhi in India . This dynamic also sheds light on the “Revolution of Carnations” that overthrew the authoritarian Salazar regime in Portugal; the role of the Diretas Já campaign in eroding the authoritarian regime in Brazil; the corrosive effect of the Eastern European movements on the foundations of the Soviet Union, the starting point of which was the Hungarian Revolution of 1956 . This dynamic was a decisive ingredient of the Arab Spring, which resulted in the overthrow of autocratic regimes in the region, inter alia because of the multiplying power of concerted action fos­ tered by the social networks that have emerged with the digital revolution . It also helps to shed light on the dynamics that inform variable coalitions in diplomatic life, especially in the multilateral sphere .69 In brief, the rights of association and freedom of opinion are meant to protect the generation of ex parte populi power . These rights are a constituent ingredient of the life of the “we” that makes up a democratic political community, and they pre­ vent that community from petrifying and decaying when ‘the living power of the people’ ceases to uphold it . To paraphrase Luigi Ferrajoli,70 this is the affirmation of human rights as the leggi del più debole as an alternative to the legge del più forte, which would otherwise prevail . Such a view counters the radical asymmetry between rulers and ruled, which is the cornerstone of autocratic regimes, as Kelsen showed .71 From the private perspective, the distinction between the public and private realms within the inner limits of a democratic system governed by the rule of law goes beyond the difference between what is common (and should be known to all) and what is private (which is of more limited exposure) . For Hannah Arendt, the private realm comprises the part of human existence that should not be exposed to general public view . She is referring to the great forces of intimate life that, in their subjectivity, ought to be preserved and protected from public exposure – a protec­ tion the relevance of which Rousseau was one of the first to call our attention to – as a means of resisting the harmful aspects of social conformity .72 It is for this reason that, as noted above, the rights to information and of association are human rights of a public nature, whereas the right to intimacy is an ex parte populi human right that is grounded in the private realm and extends beyond the inviolability of one’s home . It is part of the direitos de personalidade (rights pertaining to individual privacy and the inviolability of each individual person), and protects a person’s right to be left alone, while also enabling anyone to protect whatever refers only to them from public knowledge . This draws on the principle of exclusivity, and leaves no room for publicity because it does not involve the right of third parties, as argued by Kant .73 One of the reasons why Hannah Arendt attaches so much importance to the right of intimacy stems from her analysis of the operational dynamics of totalitarian 68 69 70 71 72 73

arendt (note 6), 216–218 arendt (note 56) . 51–52; Schell, Jonathan . Introduction . In: Hannah Arendt, On Revolution, New York: Penguin, 2006; LAFER (note 3), 187–236; laFer (note 20, Pensamento, Persuasão e Poder), 173–194 Ferrajoli, L . Per una Teoria dei Diritti fondamentalli”, Diritto Publico, 1–2, 2010, 160 KelSen (note 58), 100–101 arendt (note 6), 50–52, 72 arendt (note 61): arendt (note 35), 207–208; LAFER (note 3), 237–272

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domination . Indeed, unlike authoritarian domination, the totalitarian variant does not end with banning ex parte populi freedom of participation in the public realm in order to separate and undermine people’s capacity for concerted action . Totalitari­ anism is characterised by making fear ubiquitous, and by the systematic destruction of the private realm and of negative freedoms (the non­impairment of jouissances privées as Benjamin Constant puts it) . Totalitarian domination imposes an all­en­ compassing loneliness that affects the whole of human life and, in so doing, nur­ tures the conditions for the erga omnes terror that makes that domination effective .74 In brief, neither public nor private subjective rights exist in the rationale of totalitar­ ianism in power . As Danièle Lochak recalls, this is made abundantly clear by the official motto of the Nazi regime: Du bist nichts, dein Volk ist alles (You are nothing, your people is everything) .75 The downfall of totalitarian regimes did not obviate the need to defend the right to intimacy: a shrinking public realm and growing social conformity tend to make public the great forces of intimate life and, by making them visible to all, strip them of their private and individual nature . Indeed, Hannah Arendt once warned that the risks to the right of intimacy were shifting from governments to societies .76 In the contemporary world, the dangers to the right to intimacy have multiplied with the emergence of new technologies, the digital revolution, and the increasingly prominent role played by social networks such as Facebook . Thus, we need to focus not only on the omni videns power of governments, but also on societies . Paradoxi­ cally, while new technologies and the digital revolution have bolstered the potential for the ex parte populi exercise of the right to information, they have also shrunk the potential for the ex parte populi exercise of the right to intimacy, given how they have supported a tendency to make a “spectacle” of the private realm . Vi. THe RigHT To HaVe RigHTs of Human RigHTs

and THe

inTeRnaTionalisaTion

The UN Charter supported the sweeping internationalisation of human rights after World War II . The Charter differed from the Covenant of the League of Nations, a pactum societatis entered into after the First World War in which human rights played a limited role in structuring international peace and security among nations . Indeed, the ‘idea of a work to be achieved,’77 expressed in the preamble of the Charter is akin to a vis directiva to build an international society committed to making peace and international security a reality, taking into account not only the equality of states ‘large and small,’ but also establishing a framework to protect the ‘dignity and worth of the human person, in the equal rights of men and women .’ The problems faced by the rightless and the realisation of the evil of the modus operandi of totalitarian domination were the material origins of the openness of the international community and the tenets of international public law to support hu­ man rights and protect the “right to have rights .” Hannah Arendt’s sheds much light 74 75 76 77

arendt (note 2), 610–616 lochaK (note 14), p . 34 . arendt (note 61), 108; arendt (note 6), 50 . haUrioU, Maurice . Teoria dell’Instituzione e della Fondazione, Milan: Giuffrè, 1967, 14–18 .

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on the implications of these material origins and on the importance of protecting human rights beyond national borders . The normative aspirations placed on the international agenda by the Charter of the United Nations, such as the need to practice tolerance and to live together in peace as good neighbours referred to in the preamble, are essential, to quote Hannah Arendt ‘if the new universal neighbouring of all countries is to result in something more promising than a tremendous increase in mutual hatred and a somewhat universal irritability of everybody against every­ body else .’78 Thus, the vis directiva offered by the Charter of the United Nations constitutes a new vision of how to organise the international community . Clearly, this vision went well beyond the traditional rationale of the Peace of Westphalia based on the prudent Realist mutual abstention rules that aimed to ease frictions in a world of coexisting sovereign states . This vision is also about more than mutual cooperation rules . From the nineteenth century onward, and with the support of the interna­ tional organisations created since then, these rules have focused on managing grow­ ing interdependence among states . These rules were underpinned by the Grotian potential for sociability in the inter­governmental approach to conflict and cooper­ ation, which is the material source for the development of international public law to govern inter­state relations . By contrast, by acknowledging the importance of human rights at an international level, the UN Charter paved the way for a possible Kantian reading of international life, which is sensitive to an all encompassing rea­ son of humanity that transcends “reason of state” of governmental actors . The Charter of the United Nations thus paved the way for what Kant termed a jus cosmopoliticum governing the external and interdependent relations of human beings and states .79 As Kant noted in Perpetual Peace, the scope for a ‘universal right of humanity’ leads to a situation in which ‘a violation of rights in one part of the world is felt everywhere.’80 It was the widespread awareness of the large­scale horrors suffered by those deprived of access to a legal system that prompted the far­reaching internationalisation of human rights to protect “the right to have rights .” In so do­ ing, it made universal hospitality potentially possible and also established the hori­ zons for human beings to feel at ease and at home in the world . Kant was the great conceptual groundbreaker in this regard . The Charter of the United Nations is a pactum societatis with a universal vocation and constitutional dimensions in terms of organizing the international community . It deals with human rights in several of its provisions, and enunciates the principles of equality and non­discrimination, which are the starting point of a positive ap­ proach to human rights in the legal sphere . However, unlike national constitutions governed by the rule of law the Charter of the United Nations is a “constitution” 78 79

80

arendt (note 16), 84 Kant (note 57), 41–53, 126–130, 164–175; bobbio, Norberto . Introduzione a I . Kant, Per la pace perpetua: Un progetto filosofico . MerKer, N . (ed .) . Rome: Riuniti, 1985, vii–xxi; wight, Martin . International Theory, the Three Traditions . wight, G .; porter, B . (eds .) . Leicester: Leicester Univer­ sity Press, 2005, 63–87; vieira de Mello, Sérgio . História filosófica e história real: Atualidade do pensamento político de Kant . In: Marcovitch, J . (ed .) . Sergio Vieira de Mello. Pensamento e memória, São Paulo: EDUSP/Saraiva, 2004, 35–60; laFer, Celso . Kant e a razão abrangente da humanidade no percurso de Sergio Vieira de Mello, in ibid., 27–34 Kant (note 57), 107–108

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without a corresponding declaration of rights . This Declaration was prepared by the United Nations Committee on Human Rights from 1946 onward, and was adopted and proclaimed by the United Nations General Assembly on December 10, 1948 . Select, high­level members of the Committee who I have called “the six godparents” of the Declaration were entrusted with elaborating it, among them Eleanor Roo­ sevelt, who presided over the Committee and kept the Declaration project alive during the hardest moments, and renowned jurist René Cassin . Through his inter­ actions with fellow Committee members, Cassin gradually gave the project its archi­ tectural dimensions, shedding light on the meaning of the rights contemplated in the Declaration and their interdependent nature . We owe to Cassin the universal rather than merely international nature (as was originally intended) of the Declara­ tion . This attribute is not merely formal; it is essential because the universal reach of the Declaration points to a jus cosmopoliticum backed by the operative presence of broad and encompassing reason of Humanity .81 The Universal Declaration of Human Rights was the first international text to deal with human rights comprehensively, declaring them to be ‘a common standard of achievement for all peoples and all nations .’ It was a global turning point or in­ augural moment, just as the shift from the duties of subjects to the rights of citizens enshrined in declarations of rights was for the domestic organisation of democratic states . The preamble and the thirty Articles of the Declaration were the result of the consensus reached among states . That consensus – 48 votes in favour, none against, and eight abstentions – was supported by the then smaller, pre­decolonisation number of UN members . But it nevertheless promoted a legal policy that led to the expansion of a new normative galaxy, in Cassese’s parlance .82 The importance of the Universal Declaration of Hu­ man Rights was reiterated throughout the years, both by the main bodies of the United Nations and by subsequent international human rights texts, which origi­ nated with the legal policy outlined by the Universal Declaration . To this one must add the 1993 World Conference on Human Rights held in Vienna, which heralded human rights as a global issue on the post­Cold War agenda . As Lindgren Alves notes, given the attendance of delegates from 171 states this amounted to a plane­ tary agreement about the theoretical trans­cultural validity of human rights, until then acknowledged by the 1948 Universal Declaration without the representative participation of all cultures .83 The Universal Declaration is underpinned by an ex parte populi perspective: it was conceived as a legge del più debole rather than as an expression of a leggi del più forte 81

82 83

See laFer, Celso . A Declaração Universal dos Direitos Humanos (1948). In: Magnoli, D . História da Paz (ed .) . São Paulo: Contexto, 2008, 297–329; LAFER, Celso . A Declaração Uni­ versal dos Direitos Humanos: Sua relevância para a afirmação da Tolerância e do Pluralismo . In: Marcilio, M . L . A (ed .) . Declaração Universal dos Direitos Humanos: Sessenta anos, São Paulo: EDUSP, 2008, 27–43; glendon, Mary Ann . A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights, New York: Ramdom House, 2000; AJI, Marc . De l’idée d’universalité du concept des Droits de l’Homme d’aprés la vie et l’oeuvre de René Cassin, Antibes: Alpes azer, 1980; Aji, M ., René Cassin, Prix Nobel de la Paix, 1887–1976: Père de la Declaration universelle des droits de l’homme, Mesnil­sur­L’Estrée: Périn, 1998 caSSeSe, Antonio . I diritti umani oggi, Rome/Bari: Laterza, 2005, 6 lindgren alveS, José Augusto . Relações internacionais e temas sociais: A década das conferências, Brasília: IBRI, 2001, 110 .

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of rulers in sovereign states . As Cassin stated in defence of the Universal Declara­ tion when receiving the Nobel Peace Prize in 1968: ‘It is the most oppressed, the weakest of these individuals who would be threatened by any attempts to frag­ mentize the effective scope of the Declaration .’84 This explains the interest and at­ tention of states and rulers as well as societies in the Declaration . It is no coinci­ dence that the Vienna Conference of 1993 was characterised by receptivity to civil society organisations . It mobilised more than ten thousand people . Like the Rio Conference in 1992, an active World Forum was held alongside the Intergovern­ mental Conference, under the motto ‘All Human Rights for All,’ and more than 800 NGOs were accredited to take part in the official activities of the Conference .85 The Universal Declaration is neither the sum nor a world­scale expansion of national declarations, however complete and perfect these may be . As noted by Cassin, with the acumen acquired by one who lived through an era of extremes, by formulating human rights as being beyond the reach of national jurisdiction and by making them universal,86 the Declaration innovated by endeavouring to give inter­ national protection of rights that, according to Arendt, are necessary to support the right to have rights . Among these rights, I would like to highlight that enshrined in Article 6 of the Declaration: ‘Everyone has the right to recognition everywhere as a person before the law .’ This reiterates the indispensable ties between every human being and the legal system – the hard core of every process of making human rights positive rights . Article 6 of the Declaration thus stands against the legal annihilation of human beings that was the drama experienced by “rightless” people . An offshoot of Article 6 is Article 15 .1, which stipulates that ‘everyone has the right to a nationality,’ and Article 15 .2, which further provides that ‘no one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality .’ This Article represents an important step in the internationalisation of human rights because the previous rule was that the issue of nationality was the exclusive concern of sovereign states . It was on the basis of this “reserve domain” that the Soviet Un­ ion and the Nazi Germany arbitrarily massively revoked nationality rights, and sig­ nificantly expanded the number of rightless people by making them stateless; and eroded their recognition as human beings before the law by denying their access to a legal system . Article 15 provides a way for collective attempt to prevent stateless­ ness and to preserve the unity of the human family within the inter­state system – the foundation ‘of freedom, justice and peace in the world,’ according to the pream­ ble of the Declaration . Article 13 deals with ‘everyone’s right of movement and residence within the borders of each state,’ and ‘to leave any country, including his own, and return to his country .’ Article 14 addresses the ‘right to seek and enjoy in other countries asylum from persecution.’ Both these articles innovate by proposing the free circu­ lation of people at the domestic and international levels . They express the aspiration for a shared legal order for all human beings, an enlarged Kantian expression of the 84 85 86

aji (note 81), 344 . lindgren alveS (note 83), 93–99 . caSSin, René, La Declaration Universelle et la mise en oeuvre des droit de l’homme, Recueil des Cours de l’Académie de Droit International, 79(2), 1951, 281–282

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right to universal hospitality articulated by a Declaration that aims to promote a jus cosmopoliticum . The Declaration stood against xenophobia and sought to harmonise the legal systems as they apply to nationals and foreigners . It states that the latter are entitled to the same rights as those accorded to nationals on relevant issues . As underscored by Cassin, these issues include the right to life, freedom and security of person (Ar­ ticle 3); the right ‘to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted’ to human beings ‘by the constitution or by law’ (Article 8); the right to marriage ‘without any limitation due to race, na­ tionality or religion’ (Article 16 .1); the right to spiritual and moral freedom (Article 18 and 19); the right to property (Article 17); the right to equal pay for equal work (Article 23–2); the right to education (Article 26); and the intellectual rights of cre­ ation and innovation (Article 27–2) .87 In addition to addressing rights that extend beyond national boundaries, the Declaration protects the freedom to participate in public domestic matters within states (Articles 19 and 20), which is necessary for the empowerment that keeps a democratic political community alive, as well as negative freedoms . In the private realm, negative freedoms ensure the non­impairment of jouissances privées (Article 12) . The Declaration was one of the first legal texts to address the right to a private life and to intimacy (Article 12) . I believe this provision sought to give concrete meaning to the freedom to live without fear, in sharp contrast to one of the facets of totalitarian regimes – which, as noted above, invaded the private realm through the actions of an omni videns crypto­government as part of the ubiquitous reach of total domination . The Declaration embraces not only civil and political rights, but also economic, social and cultural rights that later led to the two distinct covenants of 1966 . In ad­ dition to the legal justification for two independent covenants, they were also a consequence of the ideological clashes and the “material constitution” of the Cold War period during which the USA prioritised civil and political rights whereas the Soviet Union turned to the socialist defence of economic and social rights . The ex­ istence of two distinct covenants offered authoritarian governments such as the Brazilian regime at the time an opportunity to justify conditional adherence, alleg­ ing that the development of economic and social rights was a stepping­stone for the future affirmation of civil and political rights .88 The interdependence and interrela­ tion between the rights enunciated in the two covenants and the Universal Declara­ tion were resumed in the post­Cold War world, with the Declaration of the Vienna Conference in 1993, which proclaimed the indivisibility of all rights . The Universal Declaration also affirms a right to general collective entitlements, as per Article 28: ‘Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realised .’ One of the consequences of this Article was the progressive development of international law on human rights . An important facet of this development relates to what Bobbio calls the principle of specificity, which is about protecting human beings in situations arising from the difference between ordinary and exceptional 87 88

Ibid, 282–283 lindgren alveS (note 83), 201–243

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states of human existence .89 Among the treaties relevant to the exceptional condi­ tion of “rightlessness” that Hannah Arendt reflected on, I would mention: (i) the Convention relating to the Status of Stateless Persons of 1954, and the Convention on the Reduction of Statelessness of 1961; (ii) the Convention on the Status of Refugees of 1951, and its protocol of 1966, as well as the Statute of the Office of the United Nations High Commissioner for Refugees of 1950 (it is worth remembering that the Office is a worldwide protection institution that offers diplomatic and con­ sular protection that would otherwise not be available to refugees); and (iii) the In­ ternational Convention on the Elimination of All Forms of Racial Discrimination of 1965 . The 1965 Convention exemplifies the specification of legal principles re­ lated to the right to equality and non­discrimination, which came about primarily as a result of the devastating impact of the anti­Semitism of the Nazi regime (as well as apartheid in South Africa) .90 I return to the Convention on the Elimination of Racial Discrimination below, when discussing the Ellwanger case, in which I acted as amicus curiae before the Brazilian Federal Supreme Court . Norberto Bobbio distinguishes between three approaches to human rights in his analysis of the practical problems of protecting those rights internationally from a Kantian point of view . The first (historically and otherwise) is the promotion to spread and ensure the erga omnes consolidation of the value of the human rights . The second, which in practice came about in 1976 with the entry into force of the two Covenants of 1966, is control . This consists of monitoring–through reports, interstate communications and individual petitions–of state compliance with their international human rights treaty commitments . Both promotion and control are an expression of the vis directiva of influence, and it should be mentioned that the monitoring bodies, especially the expert committees established by the major hu­ man rights treaties, are independent third parties acting inter-partes in favour of hu­ man rights at the international level . The third approach is to guarantee rights, which happens when there is a real legal remedy .91 This happens at the regional level in Europe through the European Court of Human Rights operating in accordance with the European Convention on Human Rights; and through the Inter­American Court of Human Rights in the Americas, which operates on the basis of the Con­ vention of San Jose, Costa Rica . And it happens at a global level in the criminal sphere for the crimes listed in the 1998 Rome Statute of the International Criminal Court .92 International law is a changing entity, emanating from an international society with specific features, and differs in its dynamics from the law that applies within states . In international law, there is always a troublesome gap between norms and reality, and this applies most particularly to human rights violations . According to Koskenniemi, one can examine the influence of international law norms, including the jus cosmopoliticum of human rights, from two perspectives: from the point of view of the doctrine of sovereignty and of the sources of law . According to the first view, international law is held to depend on the self­containment of state sover­ 89 90 91 92

bobbio (note 12), 62 laFer, Celso, A Internacionalização dos Direitos Humanos: Constituição, Racismo e Relações Internacionais, São Paulo: Barueri, 2005, 64–66 bobbio (note 12), 35–37 pioveSan, Flávia . Direitos Humanos e Justiça Internacional, São Paulo: Saraiva, 2006

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eignty and is a result of the various factors that explain limits to its scope, which may not be permanent . According to the second view, international legal norms gain life when they become positive law regardless of state sovereignty, and thereafter oper­ ate according to the juridical logic of their sources . Sovereignty doctrines make room for what Carl Schmitt called “decisionism” of exception, and therefore have an affinity with realism in the theory of international relations . The doctrine of sources makes room for normativism and the international domestication of power through law (Kelsen’s “peace through law”), and so has an affinity with the idealistic approach of international relations theory .93 The dichotomy between norms and facts, between sources and sovereignty, and between idealism and realism are not mutually exclusive in my view . As Miguel Reale states, they operate in a dialectic of mutual implication and polarity, in which there is a permanent and evolving relationship between the two poles of the dichot­ omies, which cannot be understood separately in the field of law in general and in the field of international law in particular .94 I myself experienced this complemen­ tary dialectic when serving as Minister of Foreign Affairs, not least because interna­ tional law is an integral part of the repertoire and language of diplomatic practice . Indeed, essential aspects of the international system and states’ behaviour in today’s word are shaped by legal norms and international organisations . This is why international law is “empowering .” It can legitimise and legalise some diplomatic practices and, conversely, delegitimises some state actions . That is why it is prag­ matic for a country to argue its position using international law in the daily manage­ ment of international relations and diplomacy . In other words, where international law is concerned, the pragmatic dimension prevails over the syntactic or semantic dimensions of legal discourse, to borrow from Tercio Sampaio Ferraz Jr . The prag­ matic approach is concerned with persuasion and the behaviour of those on the receiving end of a decision . It expresses the “taming” of power that results from an objective legal argumentation, of a country’s position . It is therefore an element of “soft power” that Brazil must safeguard and protect in the context of the specificities of its global insertion and constitutional provisions .95 The 1988 Brazilian Constitution is the constitution of a democratic state and as such is open to international law . Article 4 of the Constitution signals that open­ ness, since the principles it enshrines and should guide Brazil’s international rela­ tions are akin to those that govern the international community under international public law (see Article 2 of the UN Charter) . The principle that affirms the pre­em­ inence of human rights (Article 4 .II) is an innovation that also signals the shift in 93 94 95

KoSKennieMi, Martti . From Apology to Utopia, Cambridge: Cambridge University Press, 2005, 574–575 reale, Migel . Fontes e modelos do direito: Para um novo paradigma hermenêutico, São Paulo: Saraiva, 1994, 85 crawFord, James; KoSKennieMi, Martti . Introduction . In: crawFord; KoSKennieMi (eds .) . The Cambridge Companion to International Law, Cambridge: Cambridge University Press, 2012, 1– 21; SiMpSon, Gerry . International Law in Diplomatic History . In: crawFord, J .; KoSKennieMi, M . (eds .) . The Cambridge Companion to International Law, Cambridge: Cambridge University Press, 2012, 25–45; KoSKennieMi, M . International Law in The World of Ideas . In: crawFord; KoSKennieMi (eds .) . The Cambridge Companion to International Law, Cambridge: Cambridge Uni­ versity Press, 2012, 47–68; SaMpaio Ferraz jr ., Tércio . Introdução ao Estudo do Direito: Técnica, decisão, dominação, São Paulo: Editora Altlas, 1994, 309–346 .

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Brazil from an authoritarian to a democratic regime . This tenet affirms a principle that is valid both at home and abroad, namely that the exercise of power cannot be restricted to the standpoint of rulers, but must include the standpoint of those who are governed . In other words, in its conduct abroad Brazil must make an ex parte populi and not just an ex parte principis reading of international reality . The principles enunciated in Article 4 of the Constitution provide a normative framework to guide the executive as it conducts Brazil’s foreign policy as part of its competences . The day to day application of the principles enshrined in Article 4 is the responsibility of the Minister of Foreign Affairs, who is, ex officio, the main col­ laborator and advisor of the President of the Republic, who is constitutionally man­ dated to establish foreign policy guidelines (Article 84 and Article 87, sole paragraph of the Federal Constitution) . The role of principles as opposed to rules is to suggest a path, to optimise the values they contain . In the case of Article 4 .II, the purpose is to promote the pre­em­ inence of human rights in the international arena through Brazil’s foreign policy . While serving as Minister of Foreign Affairs in 1992 and 2001–2002, I sought to further develop and deepen the adherence of a re­democratizing Brazil to interna­ tional and regional human rights conventions, and to ensure that it participated in the negotiation of new agreements and in international and regional human rights bodies .96 In this sense, I strove to strengthen, through the legal presence of Brazil, the importance of a human rights jus cosmopoliticum in the international sphere . As already mentioned, Article 28 of the Universal Declaration of Human Rights enunciates the right to a social and international order in which the rights and lib­ erties therein may come to fruition . To what extent, in light of my experience con­ ducting Brazil’s foreign policy, does the current international order favour or hinder the pre­eminence of human rights in the international sphere? Raymond Aron concludes his book, Paix et Guerre entre Nations, with a praxeo­ logical study of the antinomies faced by those in charge of conducting the foreign policy of states . Such persons confront what Aron calls the Machiavellian and the Kantian problems . The first refers to realism of means in foreign policy, which ulti­ mately allows for the use of force and focuses on preserving the autonomy and in­ dependence of states at the international level . The second refers to the search for a “perpetual peace,” a principle to govern the whole of humanity that overrides the ‘morality of battle’ underlying the friend­foe relationship .97 Article 4 .I of the Brazil­ ian Constitution enunciates the principle of national independence, and thus refer­ ences Aron’s Machiavellian problem . Article 4 .II establishes the principle of pre­em­ inence of human rights and therefore references one of the aspects of the Kantian problem, since one of the facets of a human rights jus cosmopoliticum is that their protection ensures freedom, justice and peace in the world and, conversely, that these goals are hindered by disrespect and disregard for the international framework of the right to have rights .

96

97

laFer, Celso . A inserção internacional do Brasil: A gestão do Ministro Celso Lafer no Itamaraty, Bra­ sília: MRE, 1993, 237–239; laFer, Celso . Prefácio a Pedro Dallari . In: Constituição e relações internacionais, São Paulo: Saraiva, 1994, xv–xxv; laFer, Celso . Mudam-se os Tempos: Diplomacia brasileira 2001–2002, Brasília: FUnag/ipri, 2002, vol . II, 33–47; LAFER (note 90), 11–28 aron, Raymond . Paix et Guerre entre les nations 1962, Paris: Colmann­Levy, 565 et passim

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When dealing with the antinomies arising from these perspectives, I believe it is useful (albeit taking some liberties) to resort to another of Aron’s distinctions to deal with chance and evolution: the dichotomy between the politics of understanding and the politics of reason . In the politics of understanding, strategy is a tactic that renews always itself; it has the realist nature of a praxeology that helps sovereignty to navigate in the midst of international norms guided by the Machiavellian problem . In the politics of reason, tactics are subordinated to a strategy with a sense of direction of Kantian inspiration, which recognises the regulatory role of a Reason that encom­ passes all of humanity, helping sovereignty to navigate in the midst of international norms .98 Based on the reading of the dichotomy between the politics of understand­ ing and the politics of reason, I am proposing a roadmap for those in charge of foreign policy making, according to which tactics cannot ignore the Machiavellian problem of the existence and actions of Machstaat – power states – in international life, but equally, diplomatic activities must strategically strive to implement and make a reality the jus cosmopoliticum that establishes the pre­eminence of human rights . This sense of purpose and direction is within reach of Brazil’s foreign policy and is favoured by the nature of Brazil’s international insertion, among them its geo­ graphical location in South America, the absence of territorial disputes with its ten neighbours, a historical distance from the most serious poles of tension in interna­ tional life, the weight of a continental country with a vested interest in the rules and practices of the international system, and the importance of its diplomatic soft power achievements .99 All these characteristics favour the exercise of the politics of reason and, consequently what Alexy calls the ‘optimisation mandate,’ when reflect­ ing the pre­eminence of human rights in foreign affairs as mandated by Article 4­II of the Constitution .100 The politics of reason to ensure the pre­eminence of human rights in foreign policy does not occur in a vacuum or in the abstract . As Portinaro evoking Heideg­ ger suggests, it happens in a real context marked by ‘resistibility .’101 Its implementa­ tion depends on real diplomatic circumstances, since the jus cosmopoliticum is not a datum but rather a construction that is developed within the international system . This construction has its weaknesses and so it is no easy task to create the conditions for the right to an international order that permits the full realisation of rights and liberties, as enunciated by Article 28 of the Universal Declaration of Human Rights . Indeed, the international system is composed of different governmental and non­governmental players that do not have a univocal view of the structural foun­ dations of the international order and the domestic structuring of societies and states . This establishes persistent political constraints that, in a heterogeneous and fragmented system, may give rise to questions about the legitimacy of the acts of rulers, who are always sensitive, even in democracies, to intrusions on state sover­ 98 aron, Raymond . Mémoires: 50 ans de reflexion politique, Paris: Julliard, 1983, 126; aron, Ray­ mond . Introduction à la philosophie de l’histoire, Paris: Gallimard, 1981, 414; aUdier, Serge . Raymond Aron: La democratie conflictuelle, Paris: Michelon, 2004, 77–79 99 See laFer, Celso . A Identidade internacional do Brasil e a política externa brasileira, São Paulo: Per­ spectiva, 2004 100 alexy, Robert . Teoría de los derechos fundamentales, Madrid: Centro de Estudios Políticos y Cons­ titucionales, 2002, 86–87 101 portinaro, P . P . Il realismo politico, Rome/Bari: Laterza, 1999, 14

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eignty . This is why consensus around a jus cosmopoliticum is elusive . And in my view, this is why the Vienna Declaration and Programme of Action emerging from United Nations Conference on Human Rights of 1993, constituted a Kantian moment in international life, and was the fruit of a ‘thin morality’ consensus .102 In that Kantian moment, the preamble of the Vienna Declaration reiterated the importance of the Universal Declaration of Human Rights as an inspiration for the development of international human rights law . In the first paragraph it affirmed the ‘the solemn commitments of all States to fulfil the obligations to promote universal respect for, and observance and protection of all human rights’; and paragraph 5 confirmed that ‘All human rights are universal, indivisible and interdependent and interrelated .’ The world is not experiencing a Kantian moment at this time . This is one of the reasons why the international rule of law is provisional, and in the area of human rights in particular, rules and facts, and sources and sovereignty collide . My view is that the idealism­realism dichotomy in foreign policy cannot address the ontologi­ cal complexity of international life and thereby weakens the scope of diplomatic judgment . Given its philosophy of law underpinnings, the English school of international relations, particularly the work of Martin Wight but also of Hedley Bull, holds that international reality can be read in three ways: according to the realism of power tradition inspired by Machiavelli and Hobbes; according to the tradition of ration­ ality, inspired by the potential for interstate sociability as explained by Grotius, from which emerges the jus voluntarium that establishes mutually agreed norms and institutions for international life, and produces an international society in which states share an interest in maintaining arrangements for their existence; and accord­ ing to the Kantian view, inspired by an all embracing “reason of humanity,” which establishes the conditions for the jus cosmopoliticum of human rights .103 Because of the ontological complexity of international reality, the universal fea­ tures of the three traditions are elusive and cannot apply to diplomatic life without an analysis of the contextual specifics . This is why diplomatic decisions are based on reflective rather than determinative judgments, when dealing with the interplay be­ tween theory and practice . In other words, as per Arendt’s interpretation of Kant, the validity of reflective judgment stems from discerning the universal in a particu­ lar and specific situation . This exercise of discernment in diplomatic judgment is more akin to the capacity to differentiate than to organise and systematise regulari­ ties such as space, number or resources .104 With the attention and diplomatic skills that are common in Brazilian foreign policy it is possible to identify opportunities to promote the global pre­eminence of 102 walzer, Michael . Thick and Thin: Moral Argument at Home and Abroad, Notre Dame: University of Notre Dame Press, 1994 103 wight (note 79), 1991; wight, Martin, Four Seminal Thinkers in International Theory . wight, G .; porter, B . (eds .) . Oxford: Oxford University Press, 2005; bUll, Hedley . The Anarchical Society: A Study of War in the World, London: Macmillan, 1977; bUll, Hedley . Hedley Bull on International Society . alderSon, K .; hUrrell, A . (eds .) . London: Macmillan, 2000; laFer, Celso . Comércio, Desarmamento e Direitos Humanos, São Paulo: Paz e Terra, 1999, 15–22, 179–200 . 104 arendt (note 42); arendt (note 45), 202; laFer, Celso . Discurso no recebimento do título de doutor honoris causa da Universidade Nacional de Tres de Febrero, Política Externa 20(4) Mar­ ch­May, 2012, 245–254 .

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human rights on the basis of the politics of reason . Brazilian delegate Austregésilo de Athayde did this at the time of the approval by the United Nations of the Universal Declaration of Human Rights of 1948; and so did Gilberto Saboia, in collaboration with J . A . Lindgren Alves, at the 1993 Vienna Conference on Human Rights .105 In his conclusive essay, in L’età dei diritti, Bobbio argues that making human rights real is a long­term process . However, Bobbio reflects on what the historical signs identified by Kant in The Contest of Faculties (signum rememorativum, demonstrativum and prognosticum) may suggest about the direction of human rights .106 In my view, the emergence of the jus cosmopoliticum of human rights is suggestive of the potential of this trend, which as Bobbio notes evoking Kant, must be made denser through fair concepts, great experience and goodwill .107 Vii. anTi-semiTism as RaCism: THe bRazilian suPReme CouRT He ellwangeR Case (2003)

and T

In a famous passage, Oliver Holmes stated that the life of law is experience . It is more related to the ‘felt necessities of the time,’ the ‘prevalent moral and political theories,’ the ‘intuitions of public policies,’ the ‘story of a nation development’ that ‘the law embodies’ than to the logical consistency of a system .108 These comments match my comments here regarding the role of experience related to human rights being a construction rather than a datum, and they are relevant to the analysis of the Ellwanger case . This was a prominent human rights case in Brazil that was decided by the Federal Supreme Court in 2003 . I took part as amicus curiae in this case, and so was able experience “the living law” when I addressed two important topics in my brief, which relate to my own history as a scholar in human rights law and were re­ viewed and settled by the Federal Supreme Court judgment (Supremo Tribunal Federal – STF) . The first topic was the scope of the crime of racism, and the dispute was about whether the court should classify anti­Semitism as a form of racism . The second topic, which emerged as a consequence of the first, was the possible conflict be­ tween constitutional principles, specifically the Federal Supreme Court deliberation about the potential conflict between freedom of expression and convicting Ell­ wanger for “hate speech” as a form of racism . The case may be summarised as follows: Ellwanger, a publisher in the city of Porto Alegre, systematically and deliberately published books known to disseminate anti­Se­ mitic lies, such as the Protocols of the Wise Men of Zion, and others denying the Holo­ caust as a historical fact, including his book, Jewish or German Holocaust? Behind the 105 Sandroni, Cicesro; Sandroni, Laura de A . Austregésilo de Athayde: O século de um liberal, Rio de Janeiro: Agir, 998, 458–478; SABOIA, Gilberto V ., Um improvável consenso: A Conferência Mundial dos Direitos Humanos e o Brasil, Política Externa 2(3) 1993, 3–18; Saboia, Gilberto V ., O Brasil e o sistema internacional de proteção dos direitos humanos . In: aMaral jr ., A . do; perrone-MoiSéS, C . (eds .) . O Cinquentenário da Declaração Universal dos Direitos Humanos, São Paulo: EDUSP, 1999, 219–238; laFer (note 56) 106 bobbio (note 12), 252–253, 264; Kant (note 57), 181 107 bobbio (note 12), 253, 266 108 holMeS, Oliver Wendell . The Common Law, Boston: Little, Brown & Co ., 1963, 6

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Scenes of the Lie of the Twentieth Century (Holocausto judeu ou alemão? Nos bastidores da mentira do século XX) . He was convicted of the crime of the practice of racism in ac­ cordance with Brazilian legislation, which includes the “practice of racism” among the crimes arising from prejudice against race or colour: ‘To perform, induce or incite, through means of communication or publications of any kind, discrimination, preju­ dices against race, colour, religion or national or ethnic origin’ (Article 20 of Law 7716 of October 5, 1989, as amended by Law 8011 of August 21, 1990) . This legislation implemented Article 5­XLII of the Constitution on the protection of rights and guar­ antees, which reads as follows: ‘The practice of racism constitutes a crime for which there is no bail and no statute of limitations and for which the penalty is imprison­ ment, pursuant to law .’ Among other elements of the Brazilian constitution, this text exemplifies the specification of the general principle of equality and non­discrimina­ tion that opens the main section of Article 5 in which it is included . The matter was brought before the Federal Supreme Court because Ellwanger had applied for a writ of habeas corpus – previously denied by the Superior Court of Justice – on the grounds that because Jews were not a race, the crime imputed to him was that of incitement against Jews, not racism . Ellwanger thus sought to avoid the constitutional “no statute of limitations” rule and thus to have the statute of limitations apply to the crime he was accused of . Justice Moreira Alves who issued the first opinion, accepted Ellwanger’s argu­ ment, explaining that he interpreted the crime of “the practice of racism” in a re­ stricted way; expressing his concern that this sort of crime should not be subject to a “ no statute of limitations”; and holding that history suggested that racism should be understood as racial prejudice or discrimination against the black race in particular . I prepared my amicus curiae brief after this opinion was issued, in response to the restrictive interpretation of the crime of the practice of racism . In this detailed brief, I discussed, inter alia, the concept of race, Brazil’s history of racism – including an­ ti­Semitism – the criteria for interpreting human rights, and the interface between Brazilian and international law as it applied to the issues raised by Ellwanger’s writ of habeas corpus . My starting point was the Constitutional ‘idea of a work to be achieved’ as enunciated in Article 3­IV of the Constitution, which lays out one of basic tenets of the Brazilian republic, namely: ‘To promote the well­being of all, without prejudice as to origin, race, sex, colour, age and any other forms of discrim­ ination .’ My brief also addressed this issue from an international perspective, in light of the statement made on November 21, 2002 by the then United Nation High Commissioner for Human Rights, Sergio Vieira de Mello . In response to multiple incidents of racism worldwide, as listed by a United Nations documents on xeno­ phobia, negrophobia, Islamophobia, and anti­Semitism, Vieira de Mello stated that: ‘There are international legal obligations a majority of states have accepted that prohibit incitement to racial, religious and ethnic hatred – not least anti­Semitism – and they must be adhered to .’ My brief was extensively discussed by the Federal Supreme Court justices and was included in their deliberations when they ruled on the petition of habeas corpus No . 82 .424/RS .109 109 See laFer (note 90), 33–88; Federal Supreme Court, Crime contra o racismo e antissemitismo: Um julgamento histórico do STF – Habeas Corpus nº 82.424/RS, Brasília: Federal Supreme Court, 2004 .

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The argument in my brief was that, from a scientific point of view, there are no races but only one human race, the ‘human family’ as stated in the preamble of the Universal Declaration of Human Rights . If, in fact, Jews are not a race, neither are whites, blacks, mulattoes, indigenous peoples, gypsies and any other members of the human species . However, all may be victims of racism, since discriminatory practices are historical and cultural, originate prejudices, and have a negative politi­ cal impact in a democratic political community on the construction of human rights that are based on equality and not on discrimination . It is no accident, therefore, that the Constitution refers to “the practice of racism,” a term that is common in international law . I argued that discussing the crime of the practice of racism based on the term “race” is tantamount to stripping the constitutional tenet of its legal content . Ultimately, it means converting the crime of practice of racism into an impossible crime for lack of a subject: races . In this context, I argued that the scope of the crime of the practice of racism contemplated by Brazilian law – which has Law 1390 of July 3, 1951 as its starting point (the Afonso Arinos Law) – is clearly in line with the United Nations Interna­ tional Convention on the Elimination of All Forms of Racial Discrimination of 1965, in the negotiations of which Brazil took part, and the text of which was incor­ porated into Brazilian law in 1969 . In fact, Article 1 of the Convention provides a broad definition of ‘racial discrimination’ as ‘any distinction, exclusion, restriction or preference based on colour, descent or national or ethnic origin, which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing of human rights and fundamental freedoms in the political, eco­ nomic, social cultural or any other field of public life’ (emphasis added) . It is impor­ tant to note the reference to ‘purpose’ or ‘effect,’ which means that it suffices that intent be present; further, the terms ‘nullifying and impairing’ have a broad mean­ ing and, by the way, are the cornerstone on which the General Agreement on Tariffs and Trade (GATT) built its dispute settlement system . Article 1 of the Convention is supplemented by Article 4(a), which sets forth the commitment of the States to declare ‘an offense punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitements to such acts…’ I sustained in my brief that, in light of the international commitments adopted by Brazil and as a result of the internationalisation of human rights, Ellwanger’s acknowledged crime of incitement against Jews was a crime of the practice of racism . The Federal Supreme Court accepted the argument and concluded, by a majority of eight votes, that anti­Semitism is racism . The first and fourth points the summary indictment of September 17, 2003, for which then Chief Justice Maurício Corrêa acted as Reporting Justice, read as follows: ‘1 . To write, publish, promote books that praise biased and discriminatory ideas against the Jewish community (Article 20 of Law 7716/89, as amended by Law 8081/90) constitutes a crime of rac­ ism, subject to no bail and no statute of limitations (Article 5, XLII of the Federal Constitution) .’ ‘4 . Race and racism . The division of human beings into races results from a process that has a merely political and social content . This presumption gives rise to racism which, in turn, gener­ ates discrimination and segregationist prejudice .’

Unsurprisingly, the existence (or not) of limits to freedom of expression and, more specifically, the acceptability of “hate speech” and Holocaust­denying “revisionism”

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were discussed throughout the proceedings . Given the comparative law import of the issue, it is worth mentioning that many democratic states have outlawed hate speech because it affects social inclusion, and several European countries, including France, have laws that criminalise denial of the Holocaust . Also noteworthy is that denial of the Holocaust brings to the fore the issue of factual truth, or the truth that cannot be changed, as emphasised by Hannah Arendt in her essay on ‘Truth and Politics’ in Between Past and Future;110 further, in a polemic with historian Renzo de Felice in 1996, Bobbio distinguished positive from negative revisionism . Positive historical revisionism is that which uncovers new facts to advance our understand­ ing of the past; negative revisionism is undertaken in a partisan spirit and denies proven facts, as Faurisson did in France when he denied the Holocaust .111 Regarding factual truth, the German Constitutional Court ruled that incorrect information does not merit protection, and that the protection of freedom of opin­ ion does not include assertions that known or proven facts are incorrect .112 In my brief, I explored the convergence between Brazilian law and international law and how the latter could contribute to elucidate the Ellwanger case . Brazilian law is in line with Article 4 of the Convention on the Elimination of all Forms of Racial Discrimination, in which State Parties commit to making the dissemination of ideas based on racial superiority or hatred punishable by law . Further, Article 4 relies upon the vis directiva of Article III(a) of the 1948 UN Convention on the Prevention and Punishment of the Crime of Genocide, which Brazil signed and promulgated in 1952, and which defines the direct and public incitement to commit genocide as a punishable act . Some State Parties objected to Article 4 of the Convention when the text was negotiated, arguing that it would limit freedom of expression, but I stressed that the limitation was considered broadly justified and maintained in the final text because of the historically proven need for “the right to have rights .” The same objections were raised with regard to Article 28–2 of the more far­reaching International Covenant on Civil and Political Rights, but the view pre­ vailed, as stipulated in the text, that ‘Any advocacy of national, racial, or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law .’ The International Convention on Civil and Political Rights of 1966 was incorporated into Brazilian law in 1992 . In the regional context, the Convention of San Jose, to which Brazil is also a party, conditions fundamental rights and freedoms of a person to the fundamental rights and freedoms and dignity of others . Like Article 20–2 of the International Covenant on Civil and Political Rights, Article 13–5 of the San Jose Convention establishes that ‘any propaganda for war and any advocacy of national, racial or re­ ligious hatred that constitute incitement to discrimination, hostility or violence shall be prohibited by law .’ I argued that both Brazilian law and the international treaties to which Brazil is a party and which were incorporated into Brazilian law are in keeping with the Bra­ zilian Constitution, since the boundaries for the exercise of liberties can be defined 110 arendt (note 1), 227–264 111 bobbio, Norberto, Il dubbio e la ragione, Turin: Stampa, 2004, 8 . 112 See GE, Decision No . 90241 – Auschwitz­Lüge case, item 1(b)

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by law . The standard of legitimacy and legality when determining the constitution­ ality of a law that limits freedom of expression is defined by Article 3 of the Consti­ tution, which establishes that one of Brazil’s fundamental goals is ‘to promote the well­being of every citizen, without any discrimination on account of origin, race, sex, colour, age or any other condition .’ This is why I argued that Brazilian law, under which Ellwanger was indicted, is consistent with the ‘idea of a work to be achieved’ where human rights are con­ cerned, as expressed by the 1988 Constitution which emerged with the process of re­democratisation, and with the relational concept that the freedoms of one person are limited by the injury that may be caused to the freedoms of others . In brief, Ellwanger’s conduct was a criminal offense because it led to the ‘nullification and impairment of the recognition, enjoyment, or exercise, on an equal footing, of hu­ man rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life,’ as per Article 1 of the Convention on the Elimination of all Forms of Racial Discrimination . The STF Justices scrutinised the limits on freedom of expression, citing interna­ tional treaties and “hate speech .” In his opinion, Justice Gilmar Mendes referred to the European Court on Human Rights decision confirming the judgment against another Holocaust denier, Garaudy, who had contested the decision of the French court that ruled against him for violating his freedom of expression . The STF endorsed the limits on freedom of expression, denying Ellwanger’s habeas corpus writ by eight votes, in the thirteenth and fourteenth paragraphs of the summary indictment: ‘13 . Freedom of expression . Not guaranteed by the Constitution in absolute terms . Moral and legal limits . The right to freedom of expression cannot protect speech that is immoral and im­ plies a criminal offense . 14 . Public liberties are not unconditional and should therefore be exercised harmoniously, in keeping with the limits defined by the Federal Constitution (CF, Article 5, paragraph 2, first part) . The fundamental tenet of freedom of expression does not cover the right to incite racism because an individual right cannot translate into protection of illicit acts, as happens with criminal offenses against honour . Pre­eminence of the principles of human dignity and of equality before the law .’

The STF proceedings stretched out on over five long sessions until September 19, 2003, when the STF decision and the full text of the opinions issued by the justices were made public . On that occasion, Justice Mauricio Corrêa, who led the Ell­ wanger case with great discernment, stressed the landmark nature of the case . He asserted that the majority had adopted a teleological and systematic interpretation of the Constitution, reflecting ‘the felt necessities of the time, the prevalent moral and political theories, the intuitions of public policy, and the story of a nation’s development, which the law embodies,’ which Oliver Holmes referred to . I concluded my review of the judgment and the opinions issued by the Justices with a citation by Bobbio, whose reflection had inspired my amicus curiae brief .113 In an address delivered in Turin on January 10, 1960, when swastikas first appeared on European after the end of the Second World War, Bobbio had stated: ‘Our duty is to affirm that there are no races but rather human beings; that racial hatred is one of the most terrible torments of humanity; that the most violent expression of racial hatred was 113 laFer (note 96), 89–120

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Celso Lafer Hitlerism, supported by most German “good patriots”; that the appearance of a swastika is a shadow of death . In any place it reappears, men of good will must, although split as to their ideologies and interests, cancel it in a pact of solidarity .’114

This was what the STF achieved as a result of the noteworthy opinions issued by – and I cite their names in the order that they cast their opinions – Justices Mauricio Corrêa, Celso de Mello, Gilmar Mendes, Carlos Velloso, Nelson Jobim, Ellen Gra­ cie, Cezar Peluso, Sepúlveda Pertence . Viii. TRansiTional JusTiCe: seTTing uP Commission (2011)

THe

bRazilian naTional TRuTH

Transitional justice refers to the process whereby a re­democratised society deals with the legacy of repression, as Brazil is doing with its authoritarian past .115 My experience of the Brazilian authoritarian regime led me to prioritise human rights in my work on the philosophy of law and on international law . So it seems appropriate to end my already extensive reflections by focusing on the creation of the Brazilian Truth Commission through Law 12528 of November 18, 2011 . The seven renowned members of the Commission were appointed by President Dilma Rousseff by a Decree of May 10, 2012, and took office on May 16, 2012 at the Planalto Palace in the presence of former Presidents José Sarney, Fernando Collor, Fernando Henrique Cardoso and Luis Inácio Lula da Silva . This ceremony thus strengthened the state rather than a government or party orientation of the duties and responsibilities of the Commission . My initial reflections on this matter were made in May 2012 at the International Seminar on Contemporary History: Memory, Trauma, Reparation (História Contemporânea: Memória, Trauma, Reparação) held in Rio de Janeiro . Professors Carlos Fico, Maria Paula Araújo and Monica Grin organised the seminar, which adopted a multi­ disciplinary and comparative approach to the topic . All the papers, including my own revised contribution, were subsequently published . My paper Justice, History, Memory: Reflections on the Truth Commission (original title, Justiça, História, Memória: Reflexões sobre a Comissão da Verdade), was published as the opening chapter in the book of collected essays, of the Seminar on Violence in History: Memory, Trauma and Reparation (Violência na história: memória, trauma e reparação) .116 When preparing my reflections for the Rio seminar I recalled Ricoeur’s momen­ tous and deep thoughts on memory, history and forgetting,117 and Hannah Arendt’s reflections on the importance of factual truth as truth in politics, and on the re­ demptive power of narrative . On the latter issue, I also took into account the reflec­ tions on Hannah Arendt’s study of the Eichmann case by Israeli thinker and Profes­ sor of Law, Leora Bilsky . I brought these reflections to the conference in which I discussed the contemporary approach to Hannah Arendt’s analysis . I delivered that 114 bobbio (note 34); LAFER (note 90), 120 115 See teitel, Ruti . Transitional Justice, New York/Oxford: Oxford University Press, 2000 116 laFer, Celso . Justiça, História, Memória: Reflexões sobre a Comissão da Verdade . In: Fico, M . P . C .; grin, M . (eds .) . Violência na História: Memória, trauma, reparação, eds . Rio de Janeiro: Ponteio, 2012, 9–22 117 ricoeUr, Paul . A Memória, a história, o esquecimento, Campinas: Editora da Unicamp, 2007

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conference paper in Curitiba on September 11, 2011 at the Colloquium Eichmann in Jerusalem, Fifty Years On: Anti-Semitism and Genocide Between Memory and History (Eichmann em Jerusalém: Cinquenta anos depois: antissemitismo e genocídio entre Memória e Historia), organised by Professor Marion Brepohl .118 Leora Bilsky notes that Hannah Arendt focused on the unprecedented nature of the crime of genocide perpetrated by Eichmann, and on the justification for punish­ ing him according to a “humanity perspective” as discussed above . As also noted above, Hannah Arendt criticised the “particularism” of the attorney’s position in that case, stressing that he focused on the suffering of the victims – on the Jews who were sentenced without guilt – and not on the unprecedented nature of the crime of genocide perpetrated by Nazi rulers . Bilsky adds that the prosecutor’s particular­ ism had broader and more far­reaching, albeit unintended, implications that Han­ nah Arendt did not fully account for .119 In contrast with the proceedings at Nurem­ berg, the Eichmann court allowed multiple voices and victim narratives to be heard . In their depositions and testimonies, the latter offered a much clearer picture than documentary evidence would have done of the inhuman experience the victims had suffered . In so doing, the case provided more concrete legal elements concerning the crime of genocide . Thus, the recognition ex parte populi of the role that victim testimonies can play became a way of meting out a form of justice that is broader than the judgment against Eichmann per se . In the words of Hannah Arendt, it lent dignity to the redemptive power of the narrative about their suffering . At the Curitiba conference, I stressed that recognizing the role of victim testi­ monies about arbitrary repression is a significant aspect of transitional justice and truth commissions in particular, which focus on victims . In the back of my mind was Elizabeth Young­Bruehl’s discussion of the South African Truth and Reconcili­ ation Commission in light of Arendt’s reflections on factual truth, and of the role of narrative and forgiveness as a means to address the irreversible flow of history, not by forgetting past evils but to avoid the creation of a barrier to future coexist­ ence . As we know, the South African Commission did not have prosecutorial pow­ ers . It relied on the authority of Nelson Mandela, balanced the specific post­apart­ heid requirements of justice, accountability, stability, peace and reconciliation, and established procedures for forgiveness and amnesty in the interaction between the perpetrators of a hideous racism and their victims .120 In Brazil, it was civil society that initiated memory work about the legacy of repression, particularly the Justice and Peace Commission of the Archdiocese of São Paulo, which in those troubled “dark times” was bravely supported by Cardinal D . Paulo Evaristo Arns . The Archdiocese of São Paulo organised the publication in 1985 of Brazil: Nunca Mais (Brazil: Never More), which was based on research initi­ ated in 1979 of Military Justice proceedings (specifically, the documents produced by the authorities legally in charge of repressing “subversive activities”) . Brazil: Nunca Mais played the role of a truth commission avant la lettre . It gave an exact 118 laFer, Celso . Reflexões sobre a atualidade da análise de Hannah Arendt sobre o processo Ei­ chmann . In: brephol, M . (ed .) . Eichmann em Jerusalém: 50 anos depois, Curitiba: Ed . UFPR, 2013, 17–33 . 119 bilSKy, Leora . Transformative Justice, Ann Arbor: University of Michigan Press, 2004 120 yoUng-brUehl, Elizabeth . Why Arendt Matters, New Haven: Yale University Press, 2006, 110– 122

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account of the modus operandi of the crypto­government and of the repressive system and of the widespread use of torture . It endeavoured to substantiate the truth with documentary evidence, the goal of which was to warn against the recurrence of repression rather than to prepare evidence for a Nuremberg­style trial . The book was published during the period of transition to democracy, and a Constituent Assem­ bly was being set up to rebuild Brazil’s democratic institutions . Brazil: Nunca Mais was clearly inspired by the evangelical precept that the pursuit of knowledge is an essential condition for freedom . In its preface, D . Paulo urged the Brazilian government to sign the UN Conven­ tion against Torture and Other Cruel, Inhuman or Degrading Treatment or Punish­ ment of 1984, the preamble to which is based on the provisions of Article 5 of the 1948 Universal Declaration of Human Rights, and on Article 7 of the 1966 Interna­ tional Covenant on Civil and Political Rights . Taking the specific Brazilian context into account, D . Paulo emphasised the importance of the internationalisation of human rights and of jus cosmopoliticum in terms of “the right to have rights .”121 The rules and activities associated with transitional justice raise the classical question about the relationship between law and morality . The values underpinning the norms and activities of transitional justice emerge in response to the repression that gives rise to it . They are also shaped by the features specific to the processes of the political transition from authoritarianism to democracy in the various countries that experienced such dynamics, as well as with the severity of the authoritarian past and its level of radicalism . Political scientists have reflected extensively on the dynamics involved in tran­ sitions to democracy . In Brazil the transition did not take place overnight in con­ trast to what happened in Portugal with the Carnation Revolution, or in Argentina with the fall of the military regime after the Malvinas war . In Brazil, re­democratisa­ tion was a gradual and long­term process . Indeed, on the one hand, Brazil’s rulers perceived the risks of entropy for the regime, and experimentally initiated a “relaxation” (distenção) and an “opening” (abertura) during the Geisel administration; and on the other hand, the opposition to the regime, epitomised by the courageous leadership of Ulysses Guimarães, gradu­ ally took advantage of the spaces created by the this opening, which included a re­ vitalisation of electoral and Congressional politics . This process benefited from the 1979 amnesty law and the return of those who had been exiled, and from the glasnost that increased freedom of the press . The process was marked by uncertainties, ad­ vances and setbacks, but was ultimately successful, culminating in the election of Tancredo Neves and in the subsequent Constituent Assembly that drafted the 1988 Constitution .122 In Brazil, the first institutional steps taken to address the legacy of repression had to do with the affirmation and consolidation of democracy . These culminated in the 1988 Constitution, which dealt politically with the past driven as it was by concern with the future, getting rid of the weight of the juridical and institutional 121 Arquidiocese de São Paulo, Brazil: Nunca Mais, Petrópolis: Vozes, 1985 122 laFer, Celso . The Brazilian Political System: Trends and Perspectives, Government and Opposition, 19(2), Spring 1984; laMoUnier, Bolívar . Da Independência a Lula: dois séculos da política brasileira, São Paulo: Augurium Editora, 2005, chapters 5 and 6

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“debris” of authoritarian rule, which suspended the rule of law and promoted to the arbitrariness that gave rise to the violation of human rights . The Brazilian Congress established the National Truth Commission following the legislative initiative of President Dilma Rousseff . The Commission was preceded by other state institutional initiatives to deal with the legacy of past violence and repression . Senator Aloysio Nunes Ferreira, who was the rapporteur on the matter in Congress, mentioned these prior initiatives, observing that the Commission should bear in mind those precedents . Senator Nunes Ferreira emphasised the work of the Special Commission on the Dead and Missing established by Law 9140 of December 4, 1995, enacted during the Fernando Henrique Cardoso administration . This Commission examined repression during the authoritarian period (1964–1985) and thereby enabled the extension of reparations to the family members of the dead and missing .123 It was followed by the Amnesty Commission, created by Law 10559 of November 13, 2002, which originated with Provisional Measure of August 24, 2001, also enacted by President Fernando Henrique Cardoso . As a result of these initiatives, several indemnity and reparation measures have been taken since the Luis Inácio Lula da Silva administration, to benefit people affected by arbitrary ac­ tions prior to promulgation of the 1988 Constitution . The Truth Commission is building on the work of these predecessor bodies in order to examine and shed light on gross violations of human rights, with a view to affirming the right to memory and historical truth . The Commission will not have a jurisdictional or punitive nature, so it will neither punish (retributive transition justice) nor indemnify (reparative transitional justice), the latter job having been taken care of by the Special Commission on the Political Dead and Missing and the Amnesty Commission . Under Article 8 of the Act of Transitory Constitutional Dis­ positions of the 1988 Constitution, the Commission will study the period from September 18, 1946 up to promulgation of the 1988 Federal Constitution, which removed the authoritarian debris . However, as Senator Aloysio Nunes Ferreira rightly stated, given the nature of Brazilian political life, the focus of the Commission will be the on the authoritarian regime . Below, I summarise the important tasks to be undertaken by the Truth Commis­ sion and the issues it raises that are germane to the agenda of transitional justice, notably the pursuit of justice, how the activities of the Commission relate to am­ nesty, the nature of the truth it seeks, and the difference between memory and his­ tory . The Commission can hear the testimony of witnesses in its attempt to adminis­ ter justice and clarify the facts of and circumstances surrounding the gross violation of human rights . The witness statements taken by a truth commission are usually broader than those heard in judicial proceedings, which is one of the merits of cre­ ating such body . If it does its job properly, the Truth Commission will mete out justice by hearing the multiple voices of the suffering of the victims and their fami­ lies caused by the violation of human rights, regardless of who committed them . It will give back to victims their dignity through the redemptive power of narrative and the difference between describing and listening .

123 gregori, José . Os sonhos que alimentam a vida, São Paulo: Jaboticaba, 2009

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The work of the Commission will not impinge on the limits imposed by am­ nesty, or on legal discussions about the validity of the Brazilian amnesty law . The word amnesty, which comes from the Greek and means oblivion, has both a pho­ netic and a semantic similarity with “amnesia .” Amnesties have been instituted since the time of Ancient Greece, when an amnesty was declared, after the victory of Athenian democracy over the bloody oligarchy of the Thirty Tyrants, in the name of reducing social tensions rather than pursuing the truth . This was a legally com­ manded oblivion with regard to past criminal actions,124 and has nothing to do with forgiveness . Commanded oblivion does not exclude an affirmation of the right of Brazilian citizens to collective ownership of the factual memory about serious hu­ man rights violations . In order to guarantee that right, the Commission is ex lege, a special locus, not related to the scope of the judiciary and criminal law, set­up to investigate facts and circumstances, the understanding of which is vital for the fu­ ture of democracy . What are the nature and role of the truth that it is incumbent on the Commis­ sion to ascertain? It is not the juridical truth that characterises the judicialisation of political processes . It is, turning again to the teachings of Hannah Arendt, the fac­ tual truth of events, which is the truth of politics . What characterises this truth is the fact that its opposite is not error, illusion or opinion but rather the concealment or manipulation of the facts .125 Thus, its modes of assertion are not those of the evi­ dence of rational truth, but rather the unveiling of facts through testimony and ac­ cess to hidden information, enabled by Law 12527 of November 18, 2011 . The duty of the National Truth Commission is, therefore, in the words of Ricouer, to prevent forgetting through erasing the marks of the violation of human rights .126 The Commis­ sion is equipped with the necessary powers to achieve these goals . This will allow it to deepen the findings of its final report on the basis of what has been accomplished in Brazil and elsewhere with regard to dealing with the legacy of repression . This final “circumstantiated” report describing the activities of the Commis­ sion, the facts it reviewed, and its conclusions and recommendations, will empha­ sise the importance of the principle of transparency of power, of the common and visible public arena for the affirmation of democracy . This principle is a constitutive element of a democratic regime based on the public exercise of common power, because what is of interest to all should be known to all . This is why in a democracy publicity is the rule and secrecy the exception . But as Bobbio points out, ensuring the visibility of power is no easy task, even in a democracy, given the difficulties of attaining a debellatio of invisible power .127 The Commission’s report will no doubt reveal the heinous impact on political life of a crypto­power, whether it emerges from the state or society, because it acts in the shadows, hides itself and conceals what it does in secret . In this sense, the broad scope of the Truth Commission will contribute to a key goal of transitional justice, namely defending democracy, since it goes beyond the individual liability and pun­ ishment of criminal proceedings . 124 125 126 127

ricoeUr (note 117), 459–462 arendt (note 1), 227–264 ricoeUr (note 117), 425 et seq bobbio (note 15), 106–110

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In addition, the factual truth and its objective and unbiased pursuit by the Na­ tional Truth Commission will, if properly conducted, contribute to history . Factual truth is not history, although the latter depends on the former to the extent that the writing and interpretation of history cannot change actual facts . Hannah Arendt explains that each generation has the right to write its own his­ tory, to rearrange the facts according to its perspective, although this does not mean altering the actual truth itself .128 This is the difference between a historical revision that seeks new facts and elements to develop understanding and reflection, and a partisan revisionism that denies manifest facts, such as the negative revisionism of the Holocaust denial of the Ellwanger case . Thus, the human rights violations under the authoritarian regime will cease to be an issue of opinion but rather of facts exten­ sively ascertained by the National Truth Commission . Let me conclude with a final consideration . If successful, the work of the Truth Commission will act as a site of memory, a lieu de mémoire, in the terminology of Pierre Norà,129 “telling the truth” about the violations of human rights during the period under investigation . This represents the institutionalisation of the will of citizens to build a collective memory of the evils of past human rights violations . In the words of poet Robert Lowell, quoted by Martha Minow in her analysis of truth commissions: ‘We are poor passing facts’ and so we must give ‘each figure in the photograph his living name.’130 But memory is not history: it chooses, selects, is lived in the present, and concerned with the future . The memory of repression and the right to the truth about the suffering of the victims is not only proof that one cannot govern with impunity as it is that repres­ sion was undoubtedly a constituent element of the authoritarian regime in Brazil . The authoritarian regime has other facets, however . The writing and interpretation of its history requires consideration of other aspects of the period, in a narrative coherence that will emerge from a synthesis of heterogeneous views . By this I mean that historical evaluation of the period involves research and reflection, and is not comparable to the res judicata of legal truth in criminal proceedings . To illustrate this point, let us take the example of the New State of President Getúlio Vargas and the presidency of Floriano Peixoto . There were significant violations of human rights that were an integral part of these periods of Brazilian history, but there are other dimensions to those governments that are being examined, explained and evaluated in a more or less positive manner, and they have little to do with the juridical truth of res judicata . In sum, the factuality to which the Truth Commission will contribute is the limit of freedom of interpretation, but historical reality is elusive . As Raymond Aron noted when addressing the limits of historical objectivity, it is elusive and in­ exhaustible because it is human .131

128 129 130 131

arendt (note 1) 227–264 nora, Pierre . Les Lieux de Mémoire, 3 vols, Paris: Gallimard, 1997 Minow, Martha . Between Vengeance and Forgiveness, Boston: Beacon Press, 1998, 84 aron 1981 (note 98)

ii – THe PHilosoPHiCal foundaTions of Human RigHTs

MortiMer n. S. SellerS, UniverSity oF baltiMore (baltiMore) law, Reason,

and

emoTion

Law, reason, and emotion have a long, close, and complicated relationship in the history of philosophy and justice . Cicero famously observed that “law is the highest reason, inherent in nature,”1 a definition which neatly embraces all three ideas . Law, according to this formulation, arises from who and where we are,2 which is to say, deeply social creatures, ruled by social emotions .3 This discussion will demonstrate that law gains legitimacy and effectiveness when it marries reason with emotion, that reason and human emotion are the guiding values of any just legal system, that all legal systems claim to be just, and that all legal systems and legal scholars make use of these insights, whether they acknowledge them or not . The project here in the first instance is one of definition: “law”, “reason”, “emotion”, “justice”, “effective­ ness” and “the rule of law” all require specification to better understand how they relate to one another and set the agenda for future conversation . The first step is to consider how these words have been and should be used for the better understand­ ing and eventual improvement of law and society . 1. sPeCifiCaTion Words can, as Humpty Dumpty rightly observed,4 mean whatever we choose them to mean, but we should choose well, and the usual basis for such choices is useful­ ness, or rather, usefulness constrained by usage, because conversation becomes self­defeating when it departs too far from the embedded insights of etymology and tradition . The best known and longest established definition of law in the world’s most developed legal tradition, which is to say, the civil law tradition, was well­ framed by Cicero: “Law is the highest reason, embedded in the nature of the world, requiring what must be done and prohibiting what must not be done .”5 Note the implicit distinction between law and morality: law is what must be done, morality is what ought to be done . More important for our purposes: law claims to be the ex­ pression of reason applied to human society .6 This conception of law is also the basis of the common­law tradition, where Sir Edward Coke similarly defined law as “summa ratio,” the “artificial perfection of reason, gotten by long study, observation,

1 2 3 4 5 6

cicero, M . Tullius . de legibus, I .vi .18: “lex est summa ratio, insita in natura .” cicero, M . Tullius . de re publica, III .33: “est quidem vera lex recta ratio naturae congruens, dif­ fusa in omnes .” cicero (note 1), I .xxiii: “sequitur igitur ad participandum alium alio communicandumque inter omnes ius nos natura esse factos .” carroll, Lewis (Charles Lutwidge Dodgson), Through the Looking Glass and What Alice Found There, 1871, 364 . cicero (note 1), I . vi . 18: “lex est ratio summa insita in natura quae jubet ea, quae facienda sunt, prohibetque contraria .” Cf . de re publica III . 22 . cicero (note 1), I . v . 16 .

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and experience .”7 There is some difference here about procedure – how we discover what reason and the law require of us – but none about purpose . The essence of law in these and all other legal traditions is its claim to discover and to implement right reason for the benefit of society as a whole .8 “Reason” and “emotions” are viewed as distinct in this context, because reason begins with axioms, asserted as true, while emotions begin with feelings, accepted as real .9 “Emotions” are those feelings and appetites that move us to action of their own accord (ex + movere), while “reason” implies correct assessments about the nature of things (reor, reri, ratus) . Both motivate action, and often concern the same questions, but reason purports to guide and regulate the emotions,10 by determining when they are useful or appropriate, and when they are not .11 This in turn implies a stand­ ard, or purpose, in the light of which to evaluate emotions, and perhaps to bring emotional responses into better accord with reason and reality . The usual standard for reason in the law is justice12 and the usual standard for justice is the universal (and individual) welfare of all members of society, taking all into account and disregarding no one .13 For the sake of simplicity, I have taken these definitions from Cicero, because they are so widely known, but also because they are useful . Cicero identified the basis of law and justice in the universal society of all humanity,14 and the innate human sympathy for other human beings .15 This takes us back to human emotion: the feelings of generosity (“liberalitas”), love (“caritas”), and loyalty (“pietas”), that animate the widely shared desire to be fair and useful to others, which supports the institutions of human society .16 Justice can also exist within smaller groups, excluding non­members . Such local or parochial communities of justice may be appropriate for some purposes, but I will take it as axiomatic that all human beings deserve justice, and that no one should be oppressed .17 When proposed rules of law meet the standard properly set for them (justice), or proposed canons of justice meet the standard properly set for them (the common good), then they achieve “legitimacy,” which signifies a practice’s conformity with the appropriate rule . Legal systems claim to embody justice or right reason about what ought to be required or forbidden by public authority, because if they did so in fact 7 8 9 10

11 12 13 14 15 16 17

Sir Edward Coke, The First Part of the Institutes of the Laws of England; or; a Commentary Upon Littleton, 1628, 97b . “Lex…est recta ratio in iubendo et vetando,” . cicero (note 1), I .xii .33 . See e . g . cicero, M . Tullius . de officiis, I . iv .11 . Cf . cicero (note 9), 1 . xxviii . 101: “Duplex est enim vis animorum atque naturae; una pars in appetitu posita est, quae est ὁρμή Graece, quae hominem huc et illuc rapit; altera in ratione, quae docet et explanat, quid faciendum fugiendumque sit . Ita fit, ut ratio praesit, appetitus obtemperet .” See e . g . taylor, Gabriele . Justifying the Emotions . In: Mind, New Series, Vol . 84, 1975, 390– 402 . See e . g . cicero (note 1), I . vi . 19 . See e . g . plato . Politeia, I . xv . 342 E; Nomoi IV . 715 B; ariStotle . Politica, III . iv . 7; XII . ii . 10 . See also cicero (note 9), I . xxv . 85 . cicero (note 1), I . v .16: “fons legum et iuris .” cicero (note 1), I . xv . 43: “quia natura propensi sumus ad diligendos homines, quod fundamen­ tum iuris est .” cicero (note 1), See also . I . v . 16 . See SellerS, M . N . S . (ed .), Parochialism, Cosmopolitanism, and the Foundations of International Law, 2012 .

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they would be serving their proper purpose, sub specie aeternitatis, and therefore be le­ gitimate, according to the appropriate standard of legitimacy . All legal authorities rely on the claim (implicit and often explicit) to serve right reason and justice, whether they actually do so (or even care to do so) or not . Even corrupt or ill­intentioned legal authorities make this claim, because the legitimacy conferred by being believed to serve right reason and justice vastly increases the willing obedience of subjects of the law . We are more likely to respect and obey laws that we believe to be legitimate (which is to say just), because justice is the ultimate standard of value in the law . Law and legal systems that are perceived to be legitimate are usually also more effective than would otherwise be the case . “Effective” here signifies that the laws make a difference in practice, and have an actual effect (ex + facere) . Would­be law­ makers wish their laws to be effective and secure this effectiveness in part by claim­ ing that their laws are just . Laws will also be more effective when they are more­or­ less in keeping with other human emotions, which may not always coincide exactly with justice . Thus, legal systems can be effective without being just in fact, and just in fact without being entirely effective . But effectiveness itself remains a significant component of justice . Legal systems must have an effect to be useful, and to be ef­ fective must respect the reality of human emotion . Thus, effectiveness requires at­ tention not only to the pro­social emotions, but also to emotions less directly sup­ portive of society . The study of law in its broadest sense concerns the question what is or is not, or ought or ought not be required in any setting . Applied more narrowly, to the struc­ ture of human associations, the province of law becomes the proper distribution of rights and duties and benefits and burdens in society (“justice”) . The sense of justice is itself an emotion, widely felt, that responds to perceived oppression or corruption or unfairness in society . Justice can be both an inarticulate sense, informed by our social proclivities, and a reasoned judgment that comes to the same (or different) conclusions . There will be gaps and differences between the emotional and the ra­ tional perception of justice and the same is true of all human emotions . One can both feel an emotion and consider whether one has a rational basis for feeling as one does . This invites two parallel inquiries for students of law and emotion: 1) What emotions do people actually feel? (The sense of justice may not always coin­ cide with justice itself .) 2) When and how should these emotions be guided or shaped by law? (Educated emotions conform to the purposes of a just society .) Suppose that the foundational axiom posited for rational justice is that every human being has value and that all deserve support and encouragement in living worthwhile and fulfilling lives in society with other human beings . This formula (which also approximates our emotional sense of justice) would validate certain emotions actually experienced by members of society and disapprove others . Such judgments would vary in time and place in the light of historical and other circum­ stances . What counts as “worthwhile” and “fulfilling” according to this standard would depend both on the range of emotions available to real human beings and on the actual state and circumstances of the societies in which they find themselves . Nevertheless, it gives us a standard for determining when a legal system or society is just, and when it is not . Philosophers since Aristotle and Cicero have identified the rule of law (“legum imperium”) as the ultimate guarantor of practical justice . The “rule of law and not of

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men” (as it is more fulsomely described) requires a standard outside and beyond human will to protect the subjects of law and society from the arbitrary control of any other person . Cicero’s standard of right reason draws the traditional line be­ tween the “rule of law,” which respects this external standard of legitimacy, and the “rule of man,” which does not . This does not mean that law should disregard emo­ tion, but rather that law should incorporate and direct human emotions toward their proper purposes, which include the construction and maintenance of justice in society . The rule of law, as praised by Aristotle, Cicero, and the founders of modern constitutional government, requires the constant guidance of reason and justice in all legislation, and in the interpretation and enforcement of the law . The best legislation and the most interesting and persuasive philosophy and in­ terpretation of law will take our natural human emotions into account, as they relate to the possibility of a good life and the rules of a just society . The central concepts to be discussed in this context, in order to better understand law and its place in society, are the ones just mentioned in introducing this discussion: law, reason, emotion, justice, legitimacy, and effectiveness . These will be addressed in the order in which they are listed here . Emotions are malleable and should be cultivated or not according to their value and likely effects, in the light of reason and justice . We cannot and should not deny law its claim of reason in support of society, but emotions remain the first and final basis of justice, and ultimate foundation of the law . 2. law The usual and ubiquitous associations made between law, reason, justice and emo­ tion have been challenged on four main fronts . Proponents of reason have disputed the role of emotion in law . Proponents of emotion have disputed the role of reason in the law . Proponents of power have disputed the role of justice in the law . And proponents of authority have challenged all three . Let us call these the technocratic, the romantic, the postmodern and the totalitarian fallacies of law, listed here in ris­ ing order of the damage they do to a proper understanding of law and society, with the totalitarian fallacy being the worst, because it is the most pervasive, both in the scope of its assertions and the influence it has had on legal discourse . The locus classicus of what I have called the totalitarian fallacy of law is in the works of Thomas Hobbes . Hobbes set out specifically to attack the traditional belief that legitimate law and legal systems must seek to reflect right reason in permission and prohibition, for the benefit of society as a whole .18 Hobbes claimed that, “Law properly is the word of him, that … hath command over others .”19 and that “The notions of Right and Wrong, Justice and Injustice have … no place” where there is no “Power” to tell us what they are .20 “Law is … not Counsell, but Command; nor a Command of any man to any man; but only of him, whose Command is ad­ dressed to one formerly obliged to obey him .”21 18 19 20 21

See hobbeS, Thomas . Leviathan, 1651, at 21 .111 for his attack on “Greek and Latine Authors .” hobbeS (note 18), at 15 .80 . hobbeS (note 18), at 13 .63 . hobbeS (note 18), at 26 .137 .

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Hobbes’ totalitarian conception of law is a fallacy, first because it fails to capture the actual usage of the word “law,” even in totalitarian states, but also because Hob­ bes’ new usage would not be useful even if it were accepted, and would undermine the purposes of the law even for those seeking to establish their own totalitarian rule . If law and justice were, as philosophical totalitarians sometimes suggest, simply “the will and appetite of the state,”22 then there would be no impetus to obedience, beyond constant coercion, which could not be sustained . Hobbes is the most lucid of the totalitarians, but he too falls back in the end on arguments from reason and the common good . To be at all persuasive, totalitarians must argue (as Hobbes him­ self did) that society is better off on the whole when subjects enslave themselves to their rulers .23 Thus Hobbes argues from the dangers of anarchy, from the terrible consequences of contests for power, and from the ultimate benefits of order, at al­ most any cost .24 To justify totalitarianism, totalitarians must make arguments from reason and justice . This reduces the dispute from conflict over first principles to easier questions of authority and procedure . Whose reason or what procedures of reasoning will prevail? James I asserted that “he had reason as well as judges .”25 His subjects were not convinced . The postmodern fallacy of law is less pernicious than the totalitarian fallacy, be­ cause better intentioned, but falls prey to the same incoherence in the end . Where the totalitarian fallacy of law denies the possibility of any independent standard of justice, and gives all authority to the sovereign in order to secure peace,26 the post­ modern fallacy denies the possibility of objective reason about justice, and chal­ lenges all legal authority, as resting on pretense or the exercise of raw despotic power, for the benefit of those in authority .27 The postmodern sensibility at its best chal­ lenges the obfuscations of orthodoxy and false claims advanced by unjust legal systems, to implement reason and justice, but in doing so the postmodern fallacy denies the possibility of reason itself, and precludes the best argument for reform . By denying the possibility of external standards of right reason in law, the post­ modern fallacy leaves itself no response to the totalitarian tendency it purportedly exists to oppose . Law needs some basis to become effective and critics of unjust enactments need some standard for their criticisms . While the postmodern critics of existing legal systems perform a useful service by challenging the legitimacy of force and fraud in law, they have nothing to offer in its place . Or they recur to arguments from social or distributive justice, which vitiates their original claim against reason . The very practice of criticism and argument about law in itself implies the possibil­ ity of intersubjective consensus about legal questions, and in doing so destroys the postmodern challenge to reason in the law . The postmodern denial of law’s claim of reason collapses in much the same way as the totalitarian fallacy it opposes . The romantic fallacy of law attempts to solve the self­refutation of post­ (or pre­) modern legal scepticism by offering emotion in place of reason as the basis of inter­ subjective reality . There is considerable truth in this, but not in the way that roman­ 22 23 24 25 26 27

hobbeS (note 18), at 46 .376 . hobbeS (note 18), Chapter 18 . hobbeS (note 18), at 21 .111 . See, Prohibitions del Roy in Sir Edward Coke, Reports, volume 12, 1607, 63 . Cf . Digest I .3 .31: “princeps legibus solutus est .” See e . g . Unger, Roberto . The Critical Legal Studies Movement, 1983 .

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tics suppose . While cross­cultural studies reveal consistency in the moral and other emotions across the barriers of time and place, as reflected in physical expressions of emotion and similarities in human behavior,28 these emotions are often mutually contradictory and in any case deeply embedded in social practice, which may vary from place to place . People experience anger, disgust, contempt, shame, guilt, grati­ tude and so forth in much the same way everywhere, but not always for the same reasons, unless they coordinate their response . Coordination requires a standard, beyond the immediate experience of the emotion itself . The unstated emotional rules of human interaction do in fact supply a very useful basis for human society, but a basis that can be very much improved by applying human reason to questions of justice . Law cannot depend on unmediated emotion because emotions arise differently in each person, according to her or his own interests, situation, and circumstances . People develop their emotions through education, and educations differ, can be faulty or incomplete, and in any case require a purpose or standard beyond the emotion itself . Not all emotions have equal bearing on questions of justice (and therefore law) and many emotions, such as lust, greed, and envy, can be antithetical to justice . The difference between reason and emotion in legal and moral judgment is easily perceived by distinguishing the questions “What do I want?” from “What would it be right for me to have?” Legislators and judges must ask themselves: “What law is right in this circumstance?”, not “What would I wish the law to be?”, which would often yield a different answer . At best, the romantic fallacy falls back on interest­group pluralism or simple majority rule . More often it succumbs to na­ tionalism, racism, or other emotionally rich but socially pernicious expressions of dangerous human desires . The technocratic fallacy of law is the mirror image of romanticism . Where roman­ tics embrace shared emotion in place of reason in the law, technocrats seek to re­ move emotion from the law altogether by redefining legal reasoning as mere logic or deduction . Technocrats, like post­modernists and romantics, perceive that al­ though all legal systems claim to serve justice, not all legal systems serve justice in fact . This leads them, like totalitarians, to try to remove justice from the law . Tech­ nocrats do not deny the possibility of justice, but see justice as a question entirely separate from law . Technocrats sometimes concede that justice is what the law ought to be advancing, in an ideal world, but the law is (for them) whatever the legal au­ thorities say it is – and often unjust . Technocrats claim to be able to separate law from emotion to implement a more rigorous “science” of the law . Many self­styled legal positivists fall prey to this technocratic fallacy . Their fun­ damental insight is correct: not all legal systems are just . Many technocrats even agree that the primary purpose of legal scholarship should be to correct and identify these injustices . But the technocratic fallacy fails like the others, according to its own terms, because it cannot accurately describe how any existing legal system operates in fact . By claiming justice, all legal systems incorporate standards of justice and right reason at numerous points into their administration of the law . Whether they fully achieve justice or not (none do), all legal systems make constant reference to its re­ 28

See e . g . haidt, Jonathan . The Moral Emotions . In: davidSon, R . J .; Scherer, K . R .; goldSMith, H . H . (eds .), Handbook of Affective Sciences, 2003, 852–870 .

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quirements . The claim to justice is what gives law its interest and force – and justice rests ultimately on human emotion . Technocrats miss the point of the enterprise . The technocratic fallacy of law is the least pernicious of the four discussed here because although it narrows the definition of law too far in the futile pursuit of clarity and legal certainty, it remains compatible with justice – or almost so . Totalitarians, postmodernists, and romantics all in different ways deny the possibility of reason in the law . Technocrats embrace reason, which is preferable, but in doing so they narrow its definition so far that reason loses much of its virtue . By setting the axioms of justice on which law rests outside the province of law and reason (as they define them), tech­ nocrats miss the most interesting and important questions in the study of law . 3. Reason Reason differs from emotion as a motive to action, because reason begins with axi­ oms, asserted as true, while emotion begins with feelings, accepted as real . Emotions express a personal condition . Reason seeks an external reality – or rather reason seeks to approximate reality, because the axioms of reason are undemonstrable, and subject to revision, if they prove to be false . Reason differs from emotion in that it seeks truth, claims to approximate truth as closely as is possible (given the current state of knowledge), and accepts that it must be modified if shown to be untrue . Because all legal systems claim to realize the truth about justice, and therefore to deserve our obedience, they also claim to act in accordance with reason – as is made explicit in the traditional definitions of law . To the extent that the law is not reason­ able, it is not legitimate, and therefore not worthy of our obedience or attention . The standard of reason is truth, but not all truths are easily made evident, or perhaps ever become evident, despite the most persistent inquiry . This leaves open the possibility of a narrower conception of reason, as consisting in arguments that are true according to their own premisses, but not universally or objectively true Applied to law, this conception of reason (which I have called the “technocratic fallacy”) would disregard all references in law to what is “reasonable” or “just”, ex­ cept as referring to formerly articulated conception of what will count as “reasona­ ble” or “just” in a particular set of circumstances . The determination of such ques­ tions could then be understood as an unconstrained power in the hands of identifi­ able public authorities . This technocratic way of looking at things exaggerates the scope of arbitrary authority, by taking the fundamental axioms of reason outside the authority of law, but it captures a fundamental truth, which is that every legal system must have some way of specifying what the law requires in particular circumstances . Recall the difference between common law and civil law conceptions of reason in the law . This distinction is more historical than current, and an oversimplifica­ tion in any case, but will do by way of illustration . Both the civil law and the com­ mon law understand law to be “summa ratio” (the highest perfection of reason), but the common law found this reason in the work of precedent, “ fined and refined by an infinite number of grave and learned men,”29 mostly judges, while the civil law found reason in the responsa sometimes even of law professors, which would be 29

Edward Coke, Commentary Upon Littleton, 1628, 97 b (also known as First Part of the Institutes of the Laws of England) .

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unheard of in the common law world . The point here is not to prefer one system of law to the other, but simply to illustrate a difference . Different systems will have different ways of finding and implementing the requirements of reason in the law . One of the most interesting questions of legal science will always be which pro­ cesses work best to specify what reason requires in the law . This question arises at two levels: first, at the constitutional level, which creates the public structures that will specify the content of the law in particular circumstances; and second at the individual level, as authorities exercise their duties of interpretation and deliberate within themselves . Constitutional structure is beyond the scope of this present in­ quiry, so we must set it aside, except to observe that the constitutionalism of legal modernity is itself the expression of a heightened attention to the roles of reason and legitimacy in the law . Constitutionalism arose to solve the first problem of practical legislation: “What combination of powers in society, or what form of gov­ ernment, will compel the formation of good and equal laws, an impartial execution, and faithful interpretation of them, so that the citizens may constantly enjoy the benefit of them, and be sure of their continuance .”30 Totalitarians, technocrats, postmodernists, and romantics all mistake the central purpose of law when they minimize reason as the measure of legal legitimacy . Con­ stitutionalists rightly recognize good procedures as the secret of legal rationality, but even constitutionalists must also concede the role of judgment in finding and main­ taining the law . This constitutes the second and more direct response of reason to emotion, at the personal level of interpretation, which must always complement the broader processes of systemic rationality . Designers of constitutions and the framers of the laws must consider the harmony of human society, the axioms of human reason, and the channels of human emotion to maximize justice . But those who interpret, implement, enforce, and obey the law will also need to apply their reason in order to understand their duty . Reason in both instances requires more merely than the mechanical applica­ tion of rules, predetermined by others . Reason, in its best and usual role as the summa ratio of law or any other discipline, requires a correct apprehension of the nature of the enterprise, understanding the constraints within which it must oper­ ate – in this case, the bounds of human emotion and actual circumstances . This means getting the axioms of reason right, and accepting their necessary implica­ tions .31 Since human beings share reason and human emotion, they also share justice, which is the application of reason to human emotion in pursuit of the common good .32 Philosophers since Cicero and Aristotle have identified this high­ est reason with the harmony of the universe as a whole,33 but most domestic legal systems can get by with a much more parochial standard of justice . 30 31 32 33

adaMS, John . A Defence of the Constitutions of Government of the United States of America, 1787, at I . 128 . cicero (note 1), I .vii .23: “Est igitur, quoniam nihil est ratione melius eaque est et in homine et in deo, prima homini cum deo rationis societas; inter quos autem ratio, inter eosdem etiam recta ratio communis est; quae cum sit lex, lege quoque consociati homines cum dis putandi sumus .” cicero (note 1): “inter quos porro est communio legis, inter eos communio iuris est; quibus autem haec sunt inter eos communia, et civitatis eiusdem habendi sunt .” cicero (note 1): “ut iam universus hic mundus sit una civitas communis deorum atque homi­ num existimanda .” Cf . ariStotle, Politika III, 1287a .

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The subject matter of reason is reality, and the most important reality in law is the architecture of human emotion . If the object of law is justice, and the object of justice is the common good, then reason must consider what is good for humanity, which is largely a question of human emotion . The purpose of human emotion is a reality, which human reason can discover by observation and experience . The hu­ manistic nature of justice is an axiom of reason which must be accepted as true be­ fore anyone can understand or interpret the law . Reason makes sense of the emo­ tions and in the context of law must make a harmony of the emotions, so that all members of society can live worthwhile and fulfilling lives . 4. emoTion Emotions are those feelings and appetites that move us to action of their own ac­ cord . This may happen directly, as in anger or disgust, but also less directly, as through certain feelings of happiness, harmony, or justice, which we seek to achieve, because we embrace them as good . There is a vast literature going back to the Stoics and beyond on the nature of human emotion, the universality of human emotion, and the science of human emotion . There isn’t space to rehearse it here, except to draw attention to one general conclusion that has been obvious since Aristotle: many human emotions promote social cooperation and service to the well­being of others .34 The preeminent human emotion in any discussion of law is the sense of justice . This feeling concerns the right order of society, and arises in the face of unfairness, oppression, exploitation, or any of the many other transgressions through which someone may violate the precept according to which all members of society should have the opportunity to live worthwhile and fulfilling lives . Thus the sense of justice arises most often in response to injustice, which may have been practiced against others, as well as against oneself . The sense of justice and injustice patrols the boundaries of cooperation among allies, by protecting the rules that make it possi­ ble to work together in pursuit of some common end . The sense of justice may also be mobilized against outsiders, justifying violent action by identifying their behav­ ior as “unjust .” This illustrates the dangerous side of making claims about justice . They justify strong action . Scholars sometimes speak of “the moral emotions,” such as contempt, anger, or disgust, when directed at others, or shame, embarrassment and guilt, when directed at oneself .35 This range of feeling can be highly nuanced, but all apply or can be applied to human behavior, which is also the subject matter of law . Put in a less flattering light: human beings are subject to appetites, which cause them to pursue ends (ad + petere), which may or may not advance the well­being of others . Emo­ tions arise from these appetites . We all want food, drink and companionship . We all need exercise and rest . We want to live, to learn, to play, to experience beauty, and 34 35

Two very recent examples are in the useful Nomos series on social and legal philosophy . FleMing, James E .; levinSon, Sanford (eds .) Evolution and Morality, 2012, and FLEMING, James E . (ed .), Passions and Emotions, 2013 . See e. g. haidt, Jonathan . The Moral Emotions . In: davidSon, R . J .; Scherer, K . R .; goldSMith, H . H . (ed .s), Handbook of Affective Sciences, 2003, 852–870 .

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friendship and love . Or we may want honor or glory or domination or even to enjoy the pain or abasement of others . The sense of justice helps to determine when these appetites and emotions are appropriate and when they are not . The sense of justice, like all other human emotions, developed in the first in­ stance through the vagaries of natural selection .36 As one emotion among many, the sense of justice may not always predominate, but its purpose, when it prevails, is to facilitate human cooperation, by guiding or regulating our other appetites and emo­ tions . One may feel anger or contempt for those who harm others, by taking more than their share . One may also feel guilt or shame when one transgresses oneself, by denying others the opportunity to live worthwhile and fulfilling lives . The sense of justice measures our access to food, drink, and sexual gratification, and our ability to exercise, rest, learn, play, associate and love . We are subject to the feelings of justice in others, but also within ourselves . The sense of justice regulates our other moral emotions, our appetites, and our passions by judging their relative legitimacy, in the light of our common project of just human society . All other appetites and emotions arose, like the sense of justice, to serve some evolutionarily useful purpose, but almost all of them, taken to extremes, would have the opposite effect . The sense of justice helps to keep the other emotions in proportion, by judging their effects on other persons and society as a whole . Speak­ ing of “justice” in this way subsumes a host of other­regarding emotions . This does not diminish the importance of generosity, loyalty, and the rest . The sense of justice stands here as representative of the others . Like all moral emotions, the sense of justice has a social effect, in this case the effect of strengthening human society . The point here is not that the sense of justice is always correct, or useful, or productive in the current state of human society . Nor does it follow that the sense of justice should apply unrestrained or without education or mediation, any more than any other emotion can or should be left as we find it . Nor is it necessary that the sense of justice be a single or uniform emotion . The sense of justice may best be described as a family of emotions, that all serve a similar purpose of coordinating human relations . The importance for law of the emotional sense of justice is the motive it gives humans to create and maintain legal systems, and the attitudes that it gives them, when they face pretensions to legality . Human beings are motivated by the sense of justice to respect or resist the laws, and laws are most effective when they coincide to some extent with the prevalent sense of justice . The primary importance of emotions for law, including the emotional sense of justice, is the motive that they give for human action, and the human appetites they reflect, which will always cry out to be satisfied . Emotions are in the first instance the natural and unmediated expression of generally embedded rules of action and social interaction that the law improves or seeks to improve through the application of reason to the problems of human society . Emotions have much broader applica­ tion than the law . They also embrace morality and all aspects of the human condi­ tion, extending beyond humanity to all creatures that benefit from simple rules of action . Emotions supply the ultimate basis of law . They animate the purpose of our lives . 36

See e. g. haUSer, Marc D . Moral Minds: How Nature Designed Our Universal Sense of Right and Wrong, 2006 .

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5. JusTiCe Rational justice is the reasoned expression of the emotional sense of justice, and serves the same purpose, which is to maintain the welfare of society as a whole, in­ cluding all its members . Expressed in this way, justice is an axiom of reason, whose value is taken as evident . “Justice” signifies the proper structure of rights and duties, benefits and liabilities, restrictions and liberties in society, when the purpose to be served is the common good, taking all equally into account .37 No legal system de­ nies this purpose and all legal systems claim to advance it, whether they actually do so or not . Rational justice differs from the emotional sense of justice because it is considered and reflective . Given the purpose of worthwhile and fulfilling lives for all, justice determines which emotions should be cultivated and which should be modified, or denied . The great breadth and variety of human appetites and emotions is one of the beauties of human society . We all have vast opportunities for self­cultivation and so many worthwhile and fulfilling possibilities in life that in many thousands of lives no individual could satisfy them all . We therefore broaden our experience by living vicariously through our friends and neighbors and relishing their diversity . Society cultivates the fruits of diversification . One needn’t be a shoemaker to have shoes, or an athlete to enjoy the game . Justice contemplates and encourages this freedom, which everyone desires . We all are to some extent the authors of our own lives . Jus­ tice sets the boundaries of this autonomy . Many expressions of emotion or appetite must be constrained, because they threaten the welfare of others, or of society as a whole . Other emotions should be encouraged, because of the joy they bring to hu­ man existence . Some parameters of justice are universal, as expressed in such widely accepted documents as the Universal Declaration of Human Rights, which begins with the inherent dignity and the equal and inalienable rights of all members of the human family, protected by the rule of law .38 The rights to life, liberty, and security of per­ son, the prohibitions against servitude, torture, or arbitrary arrest, these and many other attributes of a just society39 are “self­evident,” to use the old­fashioned vocab­ ulary,40 because they serve such obvious human needs .41 Other aspects of justice are more aspirational, to be achieved progressively, within the constraints of existing economic and cultural resources .42 Rational justice is universal, in the sense that human emotions are universal, but it is also variable, as the expressions of emotion are variable, given the differ­ ences between societies in their history and circumstances . Some legal systems and societies will be more just than others, because of differences in design or the ad­ ministration of justice . Others will be more (or less) just, because of the constraints of culture or history . Justice arises in society at the interface of culture and institu­ 37 38 39 40 41 42

plato, Politeia, I .xv .342 E; Nomoi IV .715B; ariStotle, Politika, III .iv .7; VII .iii .10; cicero, de republica, I .xxv .39; de officiis, III .vi .26 . Universal Declaration of Human Rights (December 10, 1948), Preamble . Ibid . Arts . 1–20 . Declaration of Independence of the United States of America, July 4, 1776 . See e . g . the International Covenant on Civil and Political Rights (1966) . International Covenant on Economic, Social, and Cultural Rights (1966), especially Art . 2 .I .

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tional design . The emotions and sensibilities of citizens and public officials must be cultivated and improved as much as the laws themselves, and one of the primary purposes of law is to educate the citizens in this way . Justice depends on emotion, because the harmonization of appetites and aver­ sions – expressed in emotions – is the primary purpose of rational human society . Our desires to live, learn, play, experience beauty, friendship, and love (for example) may be easier to harmonize with the welfare of others than desires to hurt or domi­ nate those around us . Not all untutored emotions will survive the scrutiny of ra­ tional justice, measured against the standard of the common good . Some attitudes and appetites with non­ or anti­social purposes may not deserve the same level of encouragement as more beneficent emotions . Our feelings matter, but they are ca­ pable of improvement in the light of reason . The human sense of justice is deeply engrained in our social natures, present in all human beings . But the natural scope of our desire for justice may not be very broad at all . The progress of justice in the modern world has been the gradual exten­ sion of society to embrace increasingly broad communities of humanity . Cicero considered us all to be citizens of one great society of creatures and the gods togeth­ er .43 Too often we have taken a narrower view . For most of human history, people gathered in small, selfish, and mutually antagonistic bands, each seeking justice within her or his own small group, but advantage against everyone else . Peace, pros­ perity and justice have advanced as we have expanded the scope of our social affin­ ities . The highest justice is cosmopolitan, which is why cross­cultural gatherings of scholars and statesmen from different nations are so important . Trans­cultural expe­ riences open our eyes to the parochial nature of local laws – and even of legal phi­ losophy, which differs in different communities . This should not be taken to imply that parochialism is always a bad thing . The opposite is true . Much that is sweetest in life arises from the shared experiences and affinities of local experiences and cul­ ture . But we also benefit from distinguishing what is parochial and contingent in justice from what is cosmopolitan and universal .44 The human desire for justice is “written by the finger of God in the heart of man,” as Coke quaintly explained it (following Aquinas) .45 We feel and make use of our moral emotions whether we wish to or not . 6. legiTimaCy Legitimacy denotes conformity with the governing standard or rules by which we measure a status or practice . And the governing standard of legitimacy for laws and legal systems is justice . The legitimacy or illegitimacy of laws and legal systems is important, not only for its own sake (we want our laws to be just), but also because the perception of legitimacy encourages compliance . It is not enough to say that a 43 44 45

cicero (note 1), I .vii .23 . See M . N . S . Sellers, ed ., Parochialism, Cosmopolitanism, and the Foundations of International Law (2012) . Edward Coke, Reports, 12a–12b on Calvin’s Case (1610) . Cf . aUgUStine, de lib. arb . 1 .5 . In aqUinaS, Thomas . Summa Theologiae, 1–2 .95 .2 .

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law is valid according to the terms of the legal system that promotes it . People must also accept that the legal system itself is legitimate before they will defer to its judg­ ments . Legal systems seeking this necessary legitimacy inevitably incorporate some basic standards of justice into the structure of their legal rules . To be legitimate is to be justified according to some external standard46 and for a practice to be legitimate requires justification . The totalitarian, technocratic, post­ modern and romantic fallacies of law all fail precisely because they offer no persua­ sive justification to legitimate the legal system as a whole . The totalitarian justifica­ tion (“because I say so”) has no bearing on justice and very little persuasive force . The postmodern explanation (“justification is impossible”) can place no significant constraints on human action . The romantic explanation (“my feelings are all that matter”) has very little intersubjective appeal, and the technocratic approach (“legit­ imacy is a separate question”) misses the nature and the purpose of law which always claims to be legitimate, justified by its service to justice .47 What, then, could justify a legal system, or give it legitimate authority? Legal systems are justified, and therefore legitimate, when they give better answers to questions of justice and the common good than society could otherwise find or implement, without their intervention . The legitimacy of law emerges on a contin­ uum . Some legal systems will be more legitimate than others . Some will be legiti­ mate for certain purposes, but not for others . Some will be legitimate only fleetingly and by chance, when they meet the standards of a separate and better measure of justice . The focus here will be on procedural legitimacy, making no direct inquiry into the substantive legitimacy of specific legal results . But these two aspects of le­ gitimacy are related . The best measure of any procedure’s legitimacy is the likeli­ hood that it will yield substantively legitimate results . Legal systems are legitimate when they serve justice well and illegitimate when they do not . Such questions are a matter of degree, but decent humility should lead us to concede that well­designed procedures of legal deliberation will yield better and more accurate answers to questions of justice than our own private reflections, however wise we may be . Even were this not true, well­designed systems of legal deliberation will coordinate our collective pursuit of justice better than any one of us could without help .48 Legal systems are legitimate when they make the societies they guide more just, and do so better than any available alternative system of legal determination . Students of the philosophy and practice of law do the world a great service when they question or seek to improve the legitimacy of the legal systems with which they concern themselves . Totalitarian, technocratic, postmodern and roman­ tic theories of law subvert the primary benefit both of the legal and of the academic enterprise when they avoid fundamental questions of legitimacy in law . Our great universities developed first in Bologna, Paris, Oxford and elsewhere precisely to address this question: What is justice and how may law serve it? Or as an anony­

46 47 48

See taSioUlaS, John . Parochialism and the Legitimacy of International Law . In: SellerS, M . N . S . (ed .) . Parochialism, Cosmopolitanism, and the Foundations of International Law, 2012, 17 . See SellerS, M . N . S . The Value and Purpose of Law . In: 33 University of Baltimore Law Review, 145, 2004 . See SellerS, M . N . S . Republican Impartiality . In: 11 Oxford Journal of Legal Studies, 1991 .

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mous jurist expressed it in the 12th century: “Law and justice ought to be the same – and whatever justice wants, the law ought to follow .”49 Sociologists and some lawyers seek to avoid substantive questions of legitimacy by making legitimacy a sociological rather than normative fact . This fails because it misses the point of the enterprise . The sociological fact of perceived legitimacy hinges on arguments that legal systems make for their own normative legitimacy, and their acceptance by their subjects as just . Empirical or sociological legitimacy is parasitical on real legitimacy, which for law is measured by reference to justice . The proper purpose of law is the realization of justice, and law has value only to the extent that it does so .50 This makes it possible to say of certain enactments or judi­ cial decisions that they are “legal,” but not “legitimate .” Law always claims legiti­ macy, but may not possess it in fact . Law’s legitimacy arises from right reason in permission and prohibition, in pur­ suit of the common good . Substantive justice matters,51 but in fact, due to differ­ ences in the individual perception of justice, the more useful measure of legitimacy rests on good procedures, which find the laws and justice better then we could ourselves .52 Scholars can attack injustice on both fronts, developing standards of substantive justice, and perfecting the procedures of rational deliberation . When laws and legal systems are known to be legitimate, their subjects are more likely to respect them, their magistrates are more likely to enforce them, society prospers, and justice reigns . 7. effeCTiVeness Law and legal systems that are perceived to be legitimate are usually also more effec­ tive than would otherwise be the case . “Effective” here signifies that laws have an actual effect . Legislators, judges, and others who frame or interpret the laws gener­ ally want the laws that they promulgate to be effective and frame the laws in part to achieve this end . This desire to be effective pushes even corrupt or despotic legal regimes to take reason, emotion, and justice to some extent into account in framing and interpreting the laws . They want their subjects to perceive the laws to be just, and make the laws just, at least in part, in order to secure this perception . The obvious value of effectiveness can also pose a threat to reason and justice in the law, through the line of argument advanced by Thomas Hobbes . The cost of anarchy or civil war is so high that almost any stable regime is preferable to civil unrest . Given the enormous costs of the absence of settled law, almost any existing 49

50 51 52

Anonymous jurist (ca 1130), to Cod . 1 .13 .2 s . v . Qui religiosa mente, Paris, Bibliothèque nationale de France, MS lat . 4517, fol . 18r; (Bottom margin); Vatican City, Biblioteca Apostolica Vaticana, MS . Vat . lat . 1427, fol 22r (next to Cod . 1 .12 .6 .6–9 .) . Cited in pennington, Kenneth . Lex natu­ ralis and Ius naturale. In: YOUNG, Spencer E . (ed .) Crossing Boundaries in Mediaeval Universities, 2011, 233: “Iustitia est ius in effectu idem sunt vel esse deberent . Quid enim iustitia vult, idem et ius persequi studet .” SellerS (note 47) . pope, Alexander . Essay on Man, 1734, iii .303 . “For forms of government let fools contest; whate’er is best administer’d is best .” adaMS, John . Defense of the Constitutions of Government of the United States of America, 1787, at I .128 .

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legal system deserves some allegiance, in the interest of stability, however unjust it may be in fact . This raises the delicate question how much despotism or injustice must be accepted in the interest of peace, to maintain the effectiveness of law, even when the law is unjust . Simply to articulate better standards of legitimacy can threaten the effectiveness of regimes that derive their power from ignorance or fraud . The discussion so far has emphasized the close connection between reason and emotion in the law, but in seeking effectiveness, the two may diverge, and the bal­ ance becomes more complicated . Recall that the emotional sense of justice may differ from justice itself . The same is true of many moral emotions . There are also the non­moral or even anti­social emotions of violence and domination . Law, to be effective, requires emotional support, but not all emotions serve justice . Legal sys­ tems maintained for purposes beyond or even counter to justice and the common good may draw strength from emotional sources beyond their institutional claim of justice . The claim of justice will always be made, but reality may be quite different . Profoundly unjust regimes may maintain effectiveness in the sociological sense, by manipulating emotions against the interests of justice . This gives the less praiseworthy emotions salience even in substantially just re­ gimes, as is evident in the distinction made between justice and rhetoric . Since the first inception of the public sphere, orators and statesmen have studied the science of motivation, distinct from the science of right and wrong . To achieve its purpose of justice, law must be effective, and to make itself effective, the law and the servants of law must take human emotions as they find them . Law must consider not only the optimal distribution of permissions and prohibitions in society in the interest of justice, but also the optimal effective distribution of permissions and prohibitions, which may be different . Emotions have implications for effectiveness beyond their more direct role in the understanding the requirements of justice . The best under­ standing of law in its relation to justice will include its ability to be effective, and obeyed . What matters in securing the effectiveness of law will depend on the state of society, the moral development of its subjects, and the culture and traditions to which the law must apply . John Stuart Mill famously observed that “despotism is a legitimate mode of government” in “backward states of society” and that “a ruler full of the spirit of improvement is warranted in the use of any expedients that will at­ tain an end perhaps otherwise attainable .”53 Strong governments in less­developed nations frequently make these arguments to justify their disregard for normal proce­ dural justice, and this argument may have some validity, provided the ultimate aim of justice is retained . But the argument from barbarism is ultimately unpersuasive . No people should remain in tutelage forever . Emotion governs effectiveness because obedience requires motivation, but rea­ son can modify emotion by directing rational attention to the value to be achieved . Constructing an effective legal system becomes every bit as much the work of rea­ son as the construction and understanding of justice itself, because effective legal systems will not only respect, but also educate the emotions, to better maintain a well­ordered society, in which all persons can thrive . Emotions move us to actions 53

Mill, John Stuart . On Liberty, 1859, 1 .9 .

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that can in many cases be made compatible with the needs of others around us . Laws must be effective to make any difference at all .54 8. ConClusion The discussion set out here has led to several conclusions about law, reason, and emotion . Law claims to be right reason in permission and prohibition . The defini­ tion comes from Cicero, but every legal system makes the claim, explicitly or im­ plicitly, to “establish justice,” “promote the general welfare,” and “secure the bless­ ings of liberty to ourselves and our posterity .”55 The “rule of law and not of men,” so often praised by philosophers and statesmen, presumes a standard outside and beyond any particular human will to protect the subjects of law and society from the arbitrary control of any other person . This standard in law is justice, and all legal systems claim it, to justify their authority to rule . The claim of justice is what gives law its interest and force . And justice rests in the end on human emotion . Reason differs from emotion because it claims to seek truth, always subject to revision in the face of better evidence . Reason rests on axioms, asserted as true, while emotion rests on feelings, accepted as real . One of the most interesting ques­ tions in legal science will always be which processes work best to specify what reason requires in the law . Totalitarians, technocrats, postmodernists and romantics all mis­ take the central purpose of law when they minimize reason as the measure of legal legitimacy . The subject of reason is reality and the most important reality in law is the architecture of human emotion . The nature of human emotion is a truth, which reason can discover by observation and experience . Emotions are those feelings and appetites that move us to action of their own accord . These appetites or desires may or may not advance the well­being of others, but many of them do, including the sense of justice, which values all members of society, and disapproves oppression . This sentiment arises in the first instance, like all other human emotions, from the vagaries of natural selection, but it also pro­ vides the basis for the rational sense of justice, which pursues the same values more deliberately . To understand what people should be required to do or be prohibited from doing by law, we must first understand what they want and feel, as determined by human emotion . Rational justice is the reasoned expression of the emotional sense of justice, and serves the same purpose, which is the universal welfare of society as a whole, includ­ ing all its members . Rational justice is universal in the sense that human emotions are universal, but also variable, as expressions of emotion are variable, given differ­ ences in history and circumstance . Justice depends on emotion because the harmo­ nization of human appetites and aversions – expressed in emotions – is the primary purpose of rational human society . Justice is the universal standard of reason in the law . 54 55

cicero (note 2), II .xlii .69: “et quae harmonia a musicis dicitur in cantu, ea est in civitate concor­ dia, artissimum atque optimum omni in re publica vinculum incolumitatis, eaque sine iustitia nullo pacto potest esse .” Cf . Constitution of the United States (1787), Preamble .

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All legal systems claim to be legitimate, which is to say they claim to be just, because justice is the standard of legitimacy in the law . The legitimacy or illegiti­ macy of laws and legal systems is significant, not only for its own sake, but also because the perception of legitimacy encourages compliance . The totalitarian, tech­ nocratic, postmodern and romantic fallacies of law all fail precisely because they offer no persuasive justification to legitimate the legal system as a whole . Legal sys­ tems are justified, and therefore legitimate, when they give better answers to ques­ tions of justice and the common good than society would be able to do without their intervention . The primary purpose of law is to advance justice, and law has little value unless it does so . Laws will be more effective when they are more­or­less in keeping with other human emotions, including the sense of justice . Effectiveness itself is a significant virtue of law, which justifies certain departures from justice, in the interests of peace and legal certainty . Emotion governs effectiveness, because obedience requires mo­ tivation, but both are subject to reason, which can shape our emotions, in the inter­ est of justice . Reason and emotion are the twin pillars of the law, which make the law legitimate, just, and effective when they are properly taken into account, and otherwise not . No one can understand law without reference both to human emo­ tion and to the purpose law properly exists to serve, which is the common good of each and every member of society . Law, reason and emotion are three related facets of the human desire for justice . Law claims to establish justice . Reason sets out to discover justice . Emotions seek and recognize justice (among other things) . To actually establish justice, laws must be both legitimate, and effective in fact, which may not always be easy to reconcile . None of this is original . None of it is difficult . All of it is present in every legal system that has ever regulated human society, wherever and whenever laws have held sway . Yet these conclusions challenge much contemporary discourse about law . The reason, the emotion, the justice, the legitimacy, and the effectiveness of law touch on every as­ pect of legal science . They deserve our careful attention, and a vastly more nuanced examination than is possible here . Duplex est enim vis animorum atque naturae. Una pars in appetitu posita est… Altera in ratione, quae docet et explanat, quid faciendum fugiendumque sit .56

56

M . Tullius Cicero, de officiis, 1 .xxviii .101 .

norbert horn, UniverSität Köln (cologne) Human RigHTs: PHilosoPHiCal foundaTions legal dimensions

and

i. THe PHenomenon 1. hUMan rightS, the Modern State and international order What is justice? Justice can best be defined as the respect for and the protection of human rights . This at least appears to be worldwide the most accepted answer of our time to this perennial question . Human rights define fundamental rights such as the right to life and freedom that are believed to vest in every human being .1 The rise of the modern State with a democratic parliament and a government under the rule of law has been promoted and accompanied by declarations of human and civil rights .2 Today, human rights are recognized and protected in many constitutions of Western democracies and elsewhere in the world where they form part of a set of protected and warranted civil rights . In the twentieth century, human rights became part of public international law . On the basis of the United Nations Universal Declaration of Human Rights of 1948,3 there emerged a UN human rights treaty system that encompasses nine ma­ jor treaties, i . e . on the elimination of racial discrimination, on civil and political rights, on economic, social, and cultural rights, on the elimination of discrimination against women, against torture, on the rights of the child, on the protection of the rights of migrant workers, on the rights of persons with disabilities, and for the pro­ tection of all persons from enforced disappearance .4 On the basis of the UN Decla­ ration, conventions with a regional character were concluded, such as the American Convention on Human Rights of 1969 and the African Charter on Human and Peoples’ Rights of 1982 . Already in 1950, the European Convention for the Protec­ tion of Human Rights and Fundamental Freedoms was promulgated that estab­ lished the European Court of Human Rights and came in force in 1953 .5

1

2 3 4

5

Cf . brieSKorn, Norbert . Menschenrechte. Eine historisch-philosophische Grundlegung (Human Rights . A Historical and Philosophical Foundation) 1997; bUergenthal, Thomas; thürer, Daniel . Menschenrechte. Ideale, Instrumente, Institutionen, (Human Rights . Ideals, Instruments, Institu­ tions), 2009; wellMan, Carl . The Moral Dimensions of Human Rights, 2011 . Virginia Bill of Rights of June 12,1776; US Declaration of Independence of July 4, 1776; French Declaration of the Rights of Man and of the Citizen of August 26,1789; Kriele, Einführung in die Staatslehre (Introduction to the Theory of State), 6th ed . 2003 . UN General Assembly Res . 217 A (III) of 10 December 1948 . The UN established a number of committees with the task to monitor the implementation of treaty obligations . UNTCDatabase (4 . Oct . 2012) http://treaties .un .org/pages/Treaties .aspx­ ?id=4&subid=A〈 Introduction to UN Human Rights Treaty System; http://www .bayef­ sky .com/introduction .php . In 2000, the European Union proclaimed the Charter of Fundamental Rights of the European Union of 7 December 2000, 2000/C 364/01, O . J . 18 . 12 .2000 .

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2. the growing liSt oF hUMan rightS Since the human rights movement entered the historical scene in the late 18th cen­ tury, the number, contents and scope of human rights expanded considerably . In the beginning, the movement was mainly confined to the rights of life and freedom with their political implications, i . e . free elections, freedom of press and free exer­ cise of religion, protection against unlawful acts by the government, e . g . freedom from taxation unless approved by a freely elected parliament . Political rights of citi­ zen were confined to men only . Female voting right was gained and legal equality of women with men was achieved in the 20th century in the Western world, social rights for the working class and the socially weak were established, 6 as well as rights to freedom from racial discrimination and for the protection of children . ii. THe legal dimensions

of

Human RigHTs

1. norMative StrUctUre; eqUality and UniverSality Human rights are subjective rights of a human being; they share the normative na­ ture of all rights . Rights invariably imply a command addressed to other persons who are obliged to respect such rights .7 The main thrust of human rights is to estab­ lish obligations of the State . Human rights such as the right to life and freedom are broadly termed, and Wellman describes them as a “rights package” with manifold correlative obligations,8 not only to respect those rights, but also to protect them actively . Human rights are elements of the basic political and legal principles of a democratic State under the rule of law . They are claimed to vest in every human being and thus are categorically linked to the idea of equality of men and to the idea of a universal, global ambit of validity . Under the conventions, human rights constitute obligations of the States under international law, including those towards private persons that are citizens of other States, e . g . foreign refugees or investors . Finally, human rights can have horizontal effects in the relationship between private persons, as in the Ogoni v . Shell case, where a Nigerian ethnic minority, suffering from the destruction of its natural hab­ itat through oil exploitation and from suppression by its own government, brought suit against Shell .9 6

7

8 9

Art . 22–28 Universal Declaration of 1948, inspired by the Atlantic Charter’s promise of “free­ dom from want” . Joint declaration of the President of the US and the British prime minister of 14 Aug . 1941 (Atlantic Charter) Art . 6; Schapp, Jan . Probleme der universellen Geltung der Menschenrechte (Problems of a universal validity of human rights), 2000, reprinted in Schapp, Jan . Über Freiheit und Recht (On freedom and law), 2008, 181 et seq; KaUFMann, Franz­Xaver . Die Entstehung sozialer Grundrechte (The Rise of social fundamental rights), 2003 . This is a prerequisite of the validity of all and any right, not only of so­called claim rights, as proposed by wellMan (note 1), 41, but also of so­called liberty (privilege) rights, power rights or immunity rights; these categories are borrowed by Carl Wellman (note 1), 19 et seq, 4, from hohFeld . Wesley, Fundamental Legal Conceptions as Applied in Judicial Reasoning, 1919 . See wellMan (note 1), 42 . Center for Constitutional Rights http://ccrjustice .org/learn­more/faqs/factsheet­case­against­ Shell; Vanguard http://vanguardngr .com/2012/03/0goni­shell­us­supreme ­court .; Frankfurter

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2. political, Moral and legal rUleS a. The different categories. Since the beginnings of the human right movement, human rights were the subject of political claims . At the same time, they were meant as moral prescriptions . The moral dimensions of human rights appear indispensable to their understanding (Wellman) .10 Many human rights were cast into legal rules . Human rights, in their majority, are law . Some formally promulgated human rights, however, are too broadly defined to be law . Art .28 of the Universal Declaration declares that “Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized” . This is a general principle of political ethics . It needs further specification to become law . A number of social rights in constitutions and conventions do not confer subjective rights, others do .11 Both moral and legal norms prescribe or forbid a certain behaviour . There are, however, differences . Legal norms are guaranteed by the State, and compliance with the law is enforced by legal sanctions . Moral rules, in contrast, are not enforced by the State . According to classic moral philosophy, moral rules are designed to give guidance for the decisions between good and evil, right and wrong .12 Moral judg­ ments of each individual depend on the individual’s conscience; they may vary greatly and differ from one another . Nevertheless, every human society develops commonly recognized moral principles and rules that H . L . A . Hart labelled “posi­ tive morality” .13 b. The interrelation of law and morals. Lawyers know that a safe and predictable func­ tioning of the legal system requires that moral rules, that are not clearly covered by the wording and purpose of a law, cannot be the basis of a legal decision .14 The legislator also cannot cast all consented moral rules into law . Law mainly deals with actions and forbearances15 and sometimes with intentions or negligence accompa­ nying them (criminal law, fraud etc) . Moral principles or rules encompass the per­ sonal mental and emotional life and moral consciousness of the individual . Making them a subject of law outside defined acts or forbearances would suffocate personal freedom in a totalitarian system . E . g ., there are good reasons to believe that hus­ band and wife have the moral duty to protect the integrity of their marriage and to

10 11 12 13 14 15

Allgemeine 1 Oct . 2012, 10 . In a law suit before US courts under the Alien Tort Statute of 1789, a 15 .5 mio US $ settlement was reached in favour of Ogoni victims in 2009 . The case was still pending in 2012 before the US Supreme Court . See wellMan (note 1) . KradolFer, Matthias . Verpflichtungsgrad sozialer Menschenrechte (Degrees of Obligatory Ef­ fects of Social Human Rights) . Archiv des Völkerrechts 50, 2012, 225–284; KaUFMann . Franz­ Xaver, Variations of the Welfare State, 2013 . aqUinaS, Thomas, Summa Theologica 1–2 q .94 a .2 c: Bonum est faciendum et malum vitandum (Leonine ed . Rome 1862–1948); Grisez, Germain . The First Principle of Practical Reason, 10 Nat . L . F ., 1965, 168 et seq . On moral scepticism infra III .1 .c–d . hart, Herbert L . A . Liberty and Morality, 1963, reprint 1984, 19–20 . On the exceptional case of a bluntly unjust law infra note 20 . Cf . aqUinaS, Thomas, Iustitia est circa actiones (Justice is about actions); In Ethicam Nikomacheiam 5,1; No . 886; pieper, Josef, Gerechtigkeit (Justice), 2d ed ., 1954 .

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foster their mutual love . But the legislator must not penalize the lack of love nor marital unfaithfulness .16 The differences between law and morals caused Kant17 and many others to be­ lieve that both categories and sets of rules must be kept strictly separate . Such separa­ tion is the highest virtue also of legal positivism . On the other hand, such strict sep­ aration would be a mistake in the administration of law . Human rights are strong evidence for the fact that legal rules also have a moral dimension . This is not excep­ tional . Every law wants to carry out an aspect of justice, e . g . safety in road traffic, trust in freely agreed contracts, protection from crime . This widely accepted insight has found an expression in the three­dimensional theory of law of the renowned Brazilian philosopher Miguel Reale .18 The moral purpose of a legal rule is crucial for its interpretation and application . This does not mean that the validity of a law can be challenged because of its moral short­comings . Classical moral philosophy teaches that abiding by the law is as such a moral duty and virtue (“justitia legalis”) .19 In ex­ treme cases only, a law violating supreme moral principles of justice may be void .20 3. legal and Moral interpretation oF hUMan rightS Basic human rights are broadly termed and judges have difficulties in their applica­ tion, a problem we meet in all constitutional civil rights .21 The right to life can serve as an example . The Pretty case (in 2002) before the European Court of Human Rights raised the question of whether the right to life includes the right to commit suicide including the right (of a paralysed patient) to the assistance of other persons for this aim .22 Could the British legislator penalize such assistance? The court con­ firmed this law and denied a human right to suicide assistance . The logic operation involved runs that a right to a good (life) does not include the contrary of this good (death) . It was, however, rightly accompanied by value oriented reasoning, taking into account the cultural moral tradition and widespread opinion which, under the 16 17

18

19 20

21 22

The death penalty for adultery of women exists still in some countries, as a gross violation of human rights on the basis of morally mislead cultural traditions . Kant, Immanuel . Metaphysik der Sitten (Metaphysics of Morals), 1797, introduction AB 6,7; horn, Norbert . Einführung in die Rechtswissenschaft und Rechtsphilosophie (Introduction to Legal Science and Philosophie of Law; hereinafter cited: Introduction), 1st ed ., 1996; 5th ed . 2011, no . 334, 339 . (Portuguese translation of the 2d ed . by Antoniuk, 2005: Introduçâo à ciência do direito e à filosofia jurídica) . His theory integrates sociology of law, legal positivism and natural law . Cf . Filosofia do Direito, 1st ed . 1953, 19th ed . (3d print) 2003, chap . xxxvi et passim; liMa, Augusto C . Moreira . A Brazilian Perspective on Jurisprudence: Miguel Reale’s Tridimensional Theory of Law, Oreg . Rev . Int’l Law vol 10 (2008) 77 et seq . ariStoteleS, Ethica Nikomachea, 1130b; aqUinaS, Thomas, S .Th .II .II, 57–79 . radbrUch, Gustav . Grundzüge der Rechtsphilosophie (Outline of Legal Philosophy) 1914, 171; Id . Gesetzliches Unrecht und übergesetzliches Recht (Legal injustness and Law above the Law), 946, horn, Norbert . Introduction (note 17), no . 428; FinniS, John . Natural Law and Natural Rights, 2nd ed . 2011, 26–28, 281 et seq . See alexy, Robert . A Theory of Constitutional Rights, 2002; dworKin, Ronald . Taking Rights seriously, 1977 . Pretty v . the United Kingdom (application no . 2346/02) Chamber judgment of 29 April 2002 (http://www .echr .coe .int .) .

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influence of Christian religion, consider life as a gift and a value that man cannot freely dispose of . The court furthermore took into account the social defence against the criminal misuse of a permitted assistance to suicide . 4. conFlict oF hUMan rightS It is widely held that human rights protecting high ranking primary goods such as the right to life, are absolute rights and must never be the target of a direct action against this protected good .23 This does not exclude the necessity to weigh one pro­ tected good against the other in a conflict . A German somewhat untypical case re­ lating to the strict prohibition of torture illustrates the problem . A man had kid­ napped a schoolboy to blackmail his wealthy parents . He was arrested and confessed the kidnapping, indicating that the child was still alive, but refusing to disclose the place where it was kept . After two days, the chief police investigator threatened to apply torture against the suspect to squeeze out the information where the child was kept, in order to save its life . The man gave up under pressure and led the police to the place where the dead body of the child was found, killed by the kidnapper . The district court of Frankfurt found the police investigator guilty of having violated the prohibition of torture by his menace, though for honourable reasons; the court did not impose a penalty . In my view, the prohibition of torture was not violated . The victim’s right not to be tortured and killed outweighed the kidnapper’s right not to be tortured .24 iii. PHilosoPHiCal foundaTions of Human RigHTs. 1. the need For a rational FoUndation oF Moral rUleS a. The question. When we ask whether human rights exist as moral rules irrespective of their legal quality or political prestige, we need a moral­philosophical founda­ tion . The answer must explain whether and why human rights have a morally bind­ ing validity . Such foundation is of interest also for lawyers . For it supports the legal authority of a corresponding legal human right and helps lawyers in their interpre­ tation of such right .25 Good moral quality is also relevant for human rights as polit­ ical rules; for political ideas cannot survive when their moral authority is challenged for good reasons . b. The historical answer: God and natural law. The historical answer is well known . The authors of the Virginia Bill of Rights and of the American Declaration of Independ­ ence saw human rights founded in God and natural law .26 Christian religion was the

23 24 25 26

FinniS, (note 20), chap . VIII .7, 223–226 . horn, (note 17), no 420d . alexy, Robert . The Existence of Human Rights, ARSP­B 136, 2013, 9–17, at 9–10 . The same applies to the French Declaration of 1789; its preamble invokes the natural rights of man and the presence and protection of the “Highest Being” .

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decisive spiritual force behind the American Revolution .27 John Locke, an author most influential on both documents, in 1690 recognized human rights of life, free­ dom, equality and property as vested in every man by the “law of nature and reason” that “teaches all mankind…that being all equal and independent, no one ought to harm another in his life, health, liberty or possessions; for men being all the work­ manship of one sovereign Master…” .28 With these two inter­related foundations – God and natural law – human rights became the basis of modern Western societies, of States and legal systems, and this basis warranted the high political and moral prestige of human rights . c. Moral scepticism. In the meantime, these foundations in God and in natural law have lost their universal approval in the Western countries, though this approval partially continues to exist . Western philosophy of the last two and a half centuries struggled to emancipate philosophy from religion and to exclude religious thought from philosophical discourse .29 The same happened to the great tradition of natural law as a guide for positive law . Classical moral philosophy was attacked by utilitar­ ian, empiricist and sensualist philosophy 30 and David Hume told the Western in­ tellectual world that “the distinction between vice and virtue is not … perceived by reason” .31 A little later, Kant, in an attempt to defend the reasonability of morals against empiricism and moral scepticism, declared that the universality and binding force of moral laws cannot be found in human nature but only in the notions of pure reason .32 Today, the possibility of a philosophical foundation of human rights as moral rules remains controversial, though the value and prestige of human rights is mostly unchallenged . The critique comes from different angles . When MacIntyre says that there are no such rights, he argues from the point of view of classical moral philos­ ophy, criticizing the rationalism at the time of enlightenment .33 Rorty, in contrast, argues from a sceptic perspective of blunt anti­rationalism, when he rejects as futile any moral discourse on human rights grounded on rationality and universalism .34 Habermas says that philosophy has no answers of its own to questions of morals that could compete with personal moral intuition: “It is before all philosophy that 27 28 29 30 31 32 33 34

MiddleKaUFF, Robert . The Glorious Cause. The American Revolution 1763–1789, 2nd ed . 2005, 4–5, 52, 302, 622 . Two Treatises of Civil Government, 1690 (reprint 1970 by Dent, London) II, chap . II no 6 p . 119 . Locke was inspired by the Glorious Revolution (1688) and the Convention Bill of Rights (1689) in England . We will postpone here the issue of religion; cf . infra III .4 .b . hUMe, David . Enquiry concerning human understanding, 1748; Enquiry concerning the principles of morals, 1751 . hUMe, David . A Treatise of Human Nature, 1740, Book III Part i sec .1 (Raphael, British Moralists 1650–1800, 1991, para . 504) . Kant, Immanuel . Grundlegung zur Metaphysik der Sitten (Foundation of the metaphysics of mor­ als), 1785, 389, 410 . Macintyre, Alasdair . After Virtue, 1981, 3rd ed, 2007; Whose Justice? Which Rationality?, 1988, in MacIntyre Reader ed . Knight (Notre Dame University Press), 107 . He recommends instead education for more tolerance and empathy; rorty, Richard . Human Rights, Rationality and Sentimentality . In: On Human Rights . The Oxford Amnesty Lectures ed . Shute/Hurley, 1993, 111–134; crit . hayden, Patrick . In Philosophy in the Contemporary World, vol 6, Nos 3–6, 1999, 59–66 .

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we experience and learn what moral and immoral behaviour is .”35 This is certainly true and applies to all sectors of intellectual and moral life, but it misses the point . The question, instead, is whether philosophy can explain morality and help to bet­ ter understand and perhaps improve our moral capacities . The position of Haber­ mas, however, is in line with widespread moral scepticism .36 d. Rebuttal of scepticism. The restrictive theories of empiricism, subjectivism and pos­ itivism that see a cognizable world only in the material world that can be sensually perceived, measured and counted, and thus exclude (“metaphysical”) moral reason­ ing from a rational discourse, are useless . For this exclusion cannot be justified by the methods they adopt, and constitutes itself an unfounded metaphysical hypoth­ esis .37 Moreover, this sceptic position is in contrast to the fact that human rights enjoy a substantial moral prestige, and their core moral values and principles – uni­ versal justice, equality, freedom and self­rule – are widely accepted by different phil­ osophical schools .38 These values are constantly discussed in private and public life on the assumption that they exist and can be ascertained in a rational way . Scepti­ cism cannot end this discussion, but at most could exclude philosophers from tak­ ing part in it . 2. evaSive philoSophical StrategieS Since David Hume and the rejection of a metaphysical foundation of morals by the English empiricists and their many followers, we can identify evasive philosophical strategies that substitute the rational foundation of morals by other approaches . The most prominent ones still in our days are utilitarianism (a) and consented truth (b and c) . a. Utilitarianism. Utilitarianism substitutes the classical moral distinction of good and evil by something else: utility . According to the utilitarian argument, man, “governed by pain and pleasure” in his actions, does not make a choice between good and evil, but each individual follows its own interest and utility to attain hap­ piness as its predominant goal . Utilitarian ethics aim at “the greatest happiness to the greatest number”, as Bentham puts it .39 In fact, human rights can be partially explained as serving this aim . Historically, utilitarian philosophy had a strong influ­ ence on the human rights movement and its success . Art . 1 of the Virginia Bill of 35 36 37

38 39

haberMaS, Jürgen . Diskursethik (discourse ethics), 2009, 254 . Further references on moral scepticism in jurisprudence in HORN, Norbert . Introduction (n .17), no . 158, 337, 349, 359 . horn, Introduction (n . 17), no . 402 et seq . On the different methods of humanities (hermeneu­ tics, phenomenology and rationality of moral values) as opposed to natural sciences cf . infra III .3 .d­f . For a defense of philosophical scepticism in morals, HABERMAS, Jürgen . Nachmetaphysisches Denken (Post­metaphysical reasoning), 1988; critical of Habermas: SCHAPP, Jan . Metaphysisches und nachmetaphysisches Denken (Metaphysiscal and post­metaphysical reasoning), ARSP 1997, 193, reprint in SCHAPP, Über Freiheit und Recht (On Freedom and Law), 2008, 117 . taylor, Charles . Sources of the Self: The Making of Modern Identity, 1989 . Introduction to the Principles of Morals and Legislation, 1789 .

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Rights cites the pursuit of happiness as a human right . This utilitarian argument is indispensable in political life of all times, e . g . to win the majority in a democratic vote . But utilitarianism, by substituting the core notions of morals, the distinction of good and evil, by pleasure and pain, has substantial defects as to its moral dimen­ sions . Utilitarianism, at least as advocated by some of its followers, neglects and sacrifices the interests of individuals if the greatest happiness of the greatest number so requires .40 Moreover, many phenomena of ethics, in particular unselfishness, are not considered . b. Rawls’ consensual approach. John Rawls undertakes a consensual approach to justice in the tradition of the doctrine of social contract as the basis of States (Hobbes, Locke, Rousseau, Kant) .41 He defines the preconditions for a consensus on distribu­ tive justice within a society . A man in a free and unbiased “original position”, en­ trusted with the task to establish, together with others, just principles of a society, without knowing what his own position in that society will be, would make a ra­ tional choice for Rawls’ proposed principles of distributive justice and fairness in the pursuit of the primary goods of self­respect, liberty, opportunity, and wealth . On this basis, fair principles of a just society can be worked out by consensus . The op­ timistic conclusion from consensus (of a few) to fairness is logically weak .42 It is not convincing as a justification of principles of morals and justice, whatever merits Rawls may else have in the rational analysis of those principles . The desired justifi­ cation of moral principles can only be brought about by moral arguments, as Dwor­ kin rightly observes .43 c. Discourse theory. In a similar way, the discourse theory proposes that men can come to a reasonable consent about moral values and rules through a procedure, i . e . a discourse or exchange of arguments (Habermas, Apel, Alexy) . Habermas, in his the­ ory of communicative action,44 claims that the ideal discourse must be free and unbiased between participants vested with similar capacities . Their words must have the inherent aim to be true and honest and must not be confused by ideology and other errors . This communicative process can lead to moral answers by consent . The discourse theory remains silent as to the moral values and rules as the very substance of a moral discourse, on the grounds that we allegedly live in a “post­metaphysical era”,45 and moral values belong to the realm of “metaphysics” that, as Habermas and many others believe, are not suited for scientific reasoning . At the same time, how­ ever, moral values can, as the discourse theory presupposes, be the subject of a ra­ 40 41 42 43 44 45

Singer, Peter . Practical Ethics, 2nd ed .1993; SMart, J . J . C .; williaMS, Bernard . Utilitarianism for and against, 1973, 69 . rawlS, John . A Theory of Justice, 1971 . FinniS, John . Rawls’ theory of justice, 1973, in FinniS, Human Rights and Common Good (coll . essays vol III) 2011, 72, 75 . Dworkin, Ronald . A matter of principle, 1985, 171–177 . Theorie des kommunikativen Handelns, 2 vols . 1981 (= Theory of Communicative Action vol . I 1984); Moralbewusstsein und kommunikatives Handeln, 1983 (= Moral Consciousness and Communicative Action, 1992) . haberMaS, Jürgen . Diskursethik (Discourse ethics), 2009, 250–254, 443; id ., Nachmetaphysisches Denken (Post­metaphysical Reasoning), 1992; Critique of Habermas: Schapp, Jan . Über Freiheit und Recht (On Freedom and Law), 2008, 117 et seq . Cf . supra III .1 .c .

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tional discourse, and the outcome of such discourse should, even more surprisingly, be the establishing of a justified moral rule or decision, at least in questions of jus­ tice .46 The silence of the discourse theory as to the contents and meaning of moral values and rules has been rightly criticised by Taylor as defining practical reason as exclusively procedural . These theories “utterly mystify the priority of the moral by identifying it not with substance but with a form of reasoning around which they draw a firm boundary . They then are led to defend this boundary all the more fiercely in that it is their only way of doing justice to the hyper­goods [i . e . freedom, altruism, universalism]47 which move them although they cannot acknowledge them” .48 The emptiness of discourse theory as regards moral values and principles renders it unfit to explain the moral dimensions of human rights . There are, how­ ever, attempts by prominent proponents of discourse theory to cure this deficiency, to be discussed in a moment (infra III .3 .b) . 3. in qUeSt oF trUth and objectivity in MoralS a. The transcendence of morals. The philosophical foundation of moral human rights depends on the capacity of human reason to find true and objective answers against empiricist scepticism (supra III .1 .c) . Can human reason perceive and answer the core question of good and evil, justice and unjustness (supra II .2 .a)? Moral ques­ tions undeniably transcend our empirical world, if one understands by this the material world of space, time and matter and its sensual and rational perception . But the realm of human experience does not end here . The “transcendent” 49 experience of morals and its rational analysis are the subject of moral philosophy .50 Is such ra­ tional analysis possible? This is the question . Two affirmative answers are to be considered . One is given by Kant: man can find the rational answers in the innate (a priori) notions of pure practical reason independently of any experience . The re­ sult is the strictly formalistic “moral law” that can be generalized . The other answer 46 47 48 49

50

haberMaS (note 45), 13 . Brackets added . taylor, Charles . Sources of the Self. The Making of the Modern Identity, 1989, 88 et seq . Countercrit­ icism by haberMaS, Jürgen . Diskursethik (Discourse ethics), 2009, 248 et seq . The term can denote 4 different things:(1) the existence of the object perceived outside the con­ sciousness of the individual cognizing subject (gnoseological transcendence); (2) the (inter­sub­ jective) intellectual sphere beyond the material empirical world of empiricism (Aristotelian logic and metaphysics being a reflective part of it), (3) the (inter­subjective) moral sphere beyond the material world (a subject of “metaphysics” after Kant) and (4) something beyond our world as a whole (God; special metaphysics) . We use here the third meaning without excluding the fourth one . We find the term “transcendent” in context with the controversial, today ill­famed but hardly dispensable term “metaphysics” . On the discredit and indispensability of metaphysics see Kant, Immanuel . Prolegomena zu jeder künftigen Metaphysik (Prolegomena to all Future Meta­ phyiscs), 1783, 367; id ., Grundlegung der Metaphysik der Sitten (Foundation of the Metaphysics of Morals), 1785, 410 et seq . The answers are called “metaphysics” by Kant, Immanuel . Metaphysics of Morals, 1797, and note 49 . On the proclamation of the “post­metaphysical” era that allegedly holds sway today, see Habermas (supra III .1 .c) . John Finnis keeps metaphysics and morality strictly separate; Philoso­ phy of Law (coll .essays vol . IV, 2011), 94 .

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could be that human reason can find substantive moral answers in a general and objective way . b. Kantian answers. Among the many legal philosophers influenced by Kant’s ration­ alism and universalism, Ronald Dworkin is one that came closest to a workable theory of human rights in discussing substantive moral issues . His work, however, focuses on the judicial review of legislation by the US Supreme Court . A decided critic of legal positivism (Hart) and its strict separation of law and morality, Dworkin submitted a theory of general legal principles and their application in court, compa­ rable to jurisprudence in civil law countries . In this framework, he put forward a legal theory of civil (human) rights of the individual based on equality, the integrity of the rights holder and the overriding authority of civil rights as basic rights .51 Within discourse theory, attempts were made to overcome the stunning Kan­ tian emptiness of this theory as to substantive moral values and rules . Such values and rules are found in the necessary preconditions for the ideal discourse . Apel uses them as an ultimate foundation of the discourse;52 Habermas disagrees .53 Alexy puts forward a foundation of the existence of human rights through an analysis of the essential preconditions of the discourse:54 the required freedom and equality of the participants is the basis of respect for others and thus of human rights and hu­ man dignity (“explicative argument”) . He supports this result by an “existential ar­ gument”: if a person takes the results of such discourse as guidance of the correct­ ness of his own actions, he subscribes to these values and rules in an existential manner .55 The last argument is not convincing; for the fact that a person follows a certain rule does not mean that this rule exists morally . As a result, Alexy analyses certain human rights as elements of an aprioristic structure of the discourse .56 Is this new “metaphysics” of morals? If so, then unintentionally and, so to speak, through the backdoor . For both Apel and Alexy apparently want to stay within the formal boundaries of the discourse theory . c. In quest of ontological answers beyond subjectivism. Is it possible to find an ontological foundation of moral human rights beyond the subjectivist and formalistic approach 51 52

53 54

55 56

Taking Rights Seriously, 1977; A Matter of Principle, 1985; Law’s Empire, 1986 . Karl­Otto Apel strives to establish those rules as an “ultimate foundation” of the moral dis­ course; Auseinandersetzungen in Erprobung der transzendental­pragmatischen Ansatzes (Dis­ putes in testing the transcendental­pragmatic approach),1998 . This reasoning, however, is not seen by Apel as ontological, but as internal to the discourse theory . haberMaS, Jürgen . Diskursethik (Discourse ethics), 2009, 435 et seq . alexy, Robert . The Existence of Human Rights, ARSP Supp. 136, 2013, p . 9–17; id ., Discourse Theory and Human Rights, Ratio Juris 9, 1996, 209–235; id ., Recht, Vernunft, Diskurs. Studien zur Rechtsphilosophie (Law, Reason, Discourse . Studies in Legal Philosophy), 1985; critical com­ ment by Norbert Brieskorn, Menschenrechte (note 1)158 . See also günther, Klaus . Liberale und diskurstheoretische Deutungen der Menschenrechte (Interpreting Human Rights under Liberal and Discourse­Theorical Aspects), in Brugger/Neumann/Kirste (eds), Rechtsphilosophie im 21 . Jahrhundert (Philosophy of Law in the 21st century), 2008, 338–359 . alexy, Robert . The Existence of Human Rights, as cited, at 16 et seq . A similar approach is used by Nino who strives “to uncover an underlying structure of moral reasoning, discourse or action which supports basic moral rights”; nino, Carlos S . The Ethics of Human Rights, 1991, 83 . Critical comment on Nino’s theory by Alexy in Festschrift (Liber Amicorum) Kriele, 1997, 187 et seq .

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of Kant? The core thesis of Kant that man discovers the moral law by virtue of his own moral consciousness and recognizes it autonomously, is a universal thesis, i . e . it is claimed to apply evenly to every reasonable human being . Could it – against Kant – not better be interpreted as an ontological statement on human reasonable nature? In fact, Kant strived to save the universality of moral philosophy from the attacks of empiricism,57 and Finnis rightly observes that Kant’s Metaphysics of Morals “is in some ways the most sophisticated exposition of modern natural law theory” .58 For practising lawyers and judges, an ontological approach to moral values con­ tained in the law (supra II .2 .b) – be it in legal human rights or other legal rules – is implicitly common ground in their daily work . These implied values are conceived, interpreted and applied in law as objective criteria independent of the persons in­ volved in a given case . This is simply a description, not yet an argument, but it contradicts the wrong description of an alleged “post­metaphysical era” . Ontologi­ cal arguments are submitted by legal philosophers from many countries, who devel­ oped theories of supreme principles, values and rules of justice that are prior to any human choice and that are not at the disposition of the legislator . The Brazilian author Miguel Reale can again be named here, 59 together with a number of Ger­ man60 and American authors . Wellman defines the grounds of moral human rights as “morally relevant facts that exist independently of our social practices or moral convictions” .61 Dworkin and Finnis endorse the philosophical possibility to ascer­ tain the truth, or objectivity, of moral judgements; they insist that arguments pro and con the truth of a moral judgement have to be moral arguments .62 There are various methodological approaches to an ontological cognition of morals, the most prominent ones are: (i) hermeneutics, (ii) phenomenology of (objective) morals, and (iii) modern theories of natural law . d. Hermeneutics and phenomenology of good and evil. (i) The hermeneutic method (Dilthey, Gadamer) teaches the understanding of texts with the genuine methods of humanities as opposed to the methods of natural sciences that are unfit for this purpose . Herme­ neutic methods are suited to understand and describe moral phenomena . They lend themselves for subjectivist or ontological theories . (ii) Phenomenology originally des­ 57 58 59 60

61

62

Kant, Immanuel . Prolegomena (note 49), preface 255–264; id ., Grundlegung der Metaphysik der Sitten (Foundation of the Metaphysics of Morals), 1785, preface 387–392; horn (note 17), no .330, 333 . Philosophy of Law (coll . essays vol . IV, 2011) 97 . reale, Miguel . Filosofia do Direito, 19th ed ., 1999, 3rd print 2002, 481 et seq .; liMa, Moreira . 10 Oreg . Rev . Int’l Law 77, at 95, 2008 . coing, Helmut . Grundzüge der Rechtsphilosophie (Outlines of a Philosophy of Law), 5th ed ., 1993, chap . IV; Kaufmann, Arthur in Kaufmann/Hassemer/Neumann Einführung in die Rechtsphilosophie und Rechtstheorie der Gegenwart (Introduction to Legal Philosophy and Legal Theory of Today), 8th ed . 2011, 143–146; horn (note 17), 417–422; Schapp, Jan . Freiheit, Moral und Recht (Liberty, Morals and the Law), 1994; dreier, Ralf . Rechtstheorie 18 (1987), 372; haSSeMer, Win­ fried . Festschrift (Liber Amicorum) Maihofer, 1988, 185 . The Moral Dimensions (note 1), 85 and also 41 et seq . Similarly taylor, Charles . Sources of the Self: the Making of the Modern Identity, 1989, 14 . The most prominent systematic ontological approach is provided by FinniS, John . Human Rights and Common Good (coll . essays vol . III) 2011, 7; id ., Natural Law (note 23) . dworKin, Ronald . A Matter of Principle, 1985, 171–7; FinniS, John . Human Rights and Common Good (coll .essays vol . III), 2011, 25 .

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ignates an attempt to overcome cognitive subjectivisms63 and to define moral phe­ nomena that we experience in the “life­world” 64 as a reality that exists independently of our feelings or moral convictions . This way, the German philosophers Scheler and Hartmann described and analyzed substantive ethics of values (materiale Wertethik), declining Kantian formalism .65 The perception of moral values has emotional ele­ ments (“feeling of values”), but this supports and does not dominate the rational cognition and analysis of those values . The descriptive and analytical aspects of moral phenomenology have been enriched by modern empirical and analytic work of moral psychologists that finds a remarkable cross­cultural uniformity in the ontogenetic evo­ lution of young peoples’ moral conscience (Kohlberg), “a universal moral grammar” of each child despite persisting cultural variations (Hauser) .66 The phenomena of immorality and unjustness, as the counterpart of the good and just, have their own strong evidence complementary to the evidence of moral goods, values and rules . The substance of moral human rights can be understood best when we look at the evils those rights were designed to cure . The legal history of hu­ man rights explains these rights as normative responses to a certain unjustness, e . g . the suppression of religious belief or taxation without representation in parliament . The main subject of classical moral philosophy was the problem how man can overcome “evil”, i . e . his own inclination for wrongdoing, and what efforts he must make in this respect through reason (sapientia, prudentia) and self­control (temperantia) . This phil­ osophical position of morality according to reasonableness67 (logos, ratio) was en­ riched and transformed by the Christian ideas of human freedom, sin and grace .68 “Post­metaphysical” philosophy has gradually lost sight of the problem of the evil .69 63 64 65

66

67 68

69

Edmund Husserl, in his earlier work, adopts an understanding of “phenomenology” that is di­ rected against the psychologism of his time and towards objectivism; Logische Untersuchungen (Logic investigations), 1900/01 . Later on, he returns to Kantian subjective approaches . “Lebenswelt”; Husserl introduced this ambiguous notion in phenomenology . Scheler, Max . Der Formalismus in der Ethik und die materiale Wertethik (Formalism in ethics and the substantive ethics of values), 2 vols, 1913, 1916 . See also hartMann, Nicolai . Grundzüge einer Metaphysik der Erkenntnis (Outline of methaphysics of cognition), 1921; id ., Ethik (Ethics), 3 vols . 1926 . Scheler’s approach was used in legal philosophy by coing . Grundzüge der Rechtsphilosophie (Outline of Legal Philosophy) 5th ed . 1993 . Kohlberg, Lawrence . The Claim to Moral Adequacy of a Highest Stage of Moral Judgment, J. of Philosophy, vol .70, no .18, 1973, 630–646; id ., Die Psychologie der Moralentwicklung (The Psycholo­ gy of Moral Development) 1995, 345; horn, Norbert . Introduction (n .17) no .411, 412; haUSer, Marc . Moral Minds, 2006, 429 et seq et passim . The critics of Kohlberg give more emphasis to the emotional aspects and cultural environment of moral decisions and acts; hoFFMann, Martin L . Empathy and Moral Development, 2000, 3; nUSSbaUM, Martha . Emotionen and der Ursprung der Moral (Emotions and the Source of Morals), in edelStein/nUnner-winKler (eds), Moral im sozialen Kontext (Morals in Social Context), 2000, 82 et seq . On Platon and Aristotle in this respect, see FinniS (note 23), chapt . xiii .3 . Schapp, Jan . Freiheit, Moral und Recht (Freedom, Morals and Law) 1994; id ., Metaphysisches und nachmetaphysisches Denken (Metaphysical and post­metaphysical reasoning) 1997, in: Schapp, Jan . Über Freiheit und Recht (On Freedom and law), 2008, 117, 123 et seq .; KobUSch,Theo . Die Entdeckung der Person. Metaphysik der Freiheit und modernes Menschenbild (The discovery of the person . Metaphysics of freedom and modern idea of man), 2nd ed . 1997, 23 et seq, 44 et sec . For a historical overview, see horn (note 17), 5th ed ., 2011, §§ 10–16 . Schapp (note 68), 125 . On the problem of the evil, ricoeUr, Paul . Philosophie de la volonté (Phi­ losophy of Will), 2 vol, 1950/60, especially part II on the symbolism of evil (English translation 1967) .

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e) Human rights as natural rights. The quest for an ontological approach to human rights as moral rights inevitably leads to the great European tradition of natural law .70 This tradition has survived until today in various forms . Since the time of enlightenment, however, it was accompanied by a fierce critique (supra III .1 .c) to the effect that, for many today, natural law means something irrational and below scientific standards . Remarkably, the moral prestige of human rights remained unaf­ fected by this critique . The survival of natural law as a subject of philosophical and practical curiosity can be explained by its perennial core idea that there are goods, values and rules prior to human choices and suitable to guide the making and prac­ tising of law . Modern proponents of the idea of natural law since the mid­20th century eschew the ambiguous notion of ‘nature’71 and prefer to focus on human reason .72 They furthermore reject the historical concept of a complete system of rules of natural law .73 Instead, they assume the existence of supreme objective ra­ tional values (goods) and principles of justice that, though invariable in their core ideas, need to be adapted to varying situations that do not allow such a system .74 A renowned proponent of such modern theory of natural law and natural rights, John Finnis, undertakes an ontological approach based on human reason in a revised understanding of the classical moral philosophy of Aristotle and Thomas Aquinas . A reasonable human conduct is oriented towards the pursuit of a limited number of basic goods such as life, freedom or knowledge that are self­evident and not reasona­ bly questionable . The pursuit of these various and sometimes conflicting goods can be structured by principles of practical reasonableness (right or wrong) .75 As a result, universal rules of morals can be found, including rules of justice and individual basic rights . Some of those basic moral rules are a part of Christian tradition, such as the Golden Rule or the last six of the Ten Commandments . Practical moral rules of rea­ sonableness are to be worked out for the unlimited number of individual situations and moral conflicts . Such a flexible natural rights theory, based on the evidence of basic goods and of rules of reasonableness (rules of justice) to be applied in the pur­ 70 71

72 73

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Arthur Kaufmann, in KaUFMann/haSSeMer/neUMann (note 60), 27, and historical survey, 26– 147; horn (note 17), nos . 401–421, and historical survey, no .221–390 . This ambiguity of the notion of nature (physis) is found already in classical Greek philosophy . Roman law absorbed the stoical double meaning of the nature of man as (a) rational (naturalis ratio) and (b) animality (quod natura omnia animalia docuit); Horn, Introduction (note 17) no .271 . coing (note 65), chap IV, III .2; FinniS (note 20), chap . xiii .1 p . 374; horn (note 17), no .374– 382 . Critical on the dogmatism and abstractness of natural law theories in the 17th–mid­20th cen­ turies BöcKenFörde, Wolfgang; KaUFMann, Franz­Xaver . In böcKle/böcKenFörde . Naturrecht in der Kritik (A critical appraisal of Natural Law), 1973; coing (note 65); horn (n .17), no . 403; reale, Filosofia do Direito, 482, no . 185 . Arthur Kaufmann, as cited (note 60), and Naturrecht und Geschichtlichkeit (Natural Law and His­ toricity) 1957, 8, 16 et seq .; coing (note 65), chap . iv; horn (note 17), no . 402–414; Kühl, Kristian . Rückblick auf die Renaissance des Naturrechts nach dem 2 . Weltkrieg (Looking back on the Post­WW­II Renaissance of Natural Law), in: Giessener Rechtswiss. Abhandlungen, vol . 6, 1990, 331 . Furthermore, reale, as cited, 482, can be named here, and among the Anglo­Amer­ ican authors FinniS (note 23); id ., Human Rights and Common Good (Coll .Essays Vol . III) 2011; george, Robert P . In Defense of Natural Law, 1999; dworKin, Ronald . Taking Rights Seriously, 1977; wellMan (note 1), 41 et seq ., 81; taylor (note 48) . FinniS (note 23), chapt . III–V .

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suit of such goods, offers a rational philosophical foundation of human rights that, in the classical tradition, would be called natural rights .76 f) Ascertaining moral human rights beyond subjectivism Moral values and rules are understood and ascertained by the individual through intuition and reasoning . Intuition helps us to build up moral experience (supra III .3 .d) and initiates its rational reflection . This reflexion must be balanced and use all reasonably available arguments for and against . 77 Moral evidence of goods or values has an emotional element of attraction that may be amplified by the contrary element of indignation at an unjustness to be cured (conscience) . These and other emotional elements (contrary inclinations), however, can be controlled by reason . Moral evidence and intuition are the starting point for an ontological reasoning of morals . There are few logical operations involved . Both the basic values and the rules of reasonableness, to cite Finnis, “are not inferred or derived from anything”, not from speculative principles nor from facts .78 Moral values and rules are perceived as intersubjectively valid or true . Commu­ nication of various kinds, education and learning, play their roles . Since Plato wrote his dialogues, we know the merits of a discourse as an argumentative procedure for the (“maieutic”) finding of the moral truth, not to forget the internal dialogue of the individual that weighs different arguments . Substantive arguments are required . Communication is needed for the social acknowledgement of such values and rules . Here, the theories of discourse have their instrumental place . The history of the human rights shows the dynamics of the social learning pro­ cesses concerning the basic moral values and principles involved . This movement started when the political emancipation from autocratic political systems was at stake . This epoch gave particular weight to the “autonomy” of the individual as a citizen, a view we today would express less forcefully in consideration of our respon­ sibility for the common good . Moreover, inconsistencies in the historical move­ ment had to be overcome . The equality of all men was proclaimed, but originally not conceded to women and not to Indians and blacks . Property was protected, but the social protection of workers was only much later taken into account . This learn­ ing process will go on and promote the further development of most human rights, perhaps put less emphasis on or skip some others . 4. hUMan perSon and hUMan dignity a. Freedom and human dignity. It is widely held that the basic human rights to free­ dom and equality dwell in the dignity of man as a person . This dignity can be ex­ plained by human freedom . Freedom is the solid core of human personality . It 76 77 78

On the qualification of human rights as natural rights horn (note 17) . no . 381; id ., Festschrift (Liber Amicorum), Schapp, Jan . 2010, 267, 271 et seq ., 279, 281; FinniS, Natural Law, chap . VIII .1, 274 . wellMann (note 1), 41, describes it as a “wide reflective equilibrium”; a similar approach is used by brieSKorn (note 1), 159 et seq ., and FinniS, John . Human Rights and Common Good (Coll . essays vol . III, 2011), 7 . FinniS (note 23), 33, 34 .

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confers to persons the dignity of self­direction and of being responsible agents .79 Human dignity is another expression for the immeasurable value of human person­ ality (Kant) .80 This basic value of human dignity and the rights of freedom and equality that follow from it, are – at least in our days – strongly self­evident, and this can be seen as one further step in the rational foundation of human rights .81 b. Religious and intercultural aspects of human rights We can end here our quest for such foundation . Though the classical texts on hu­ man rights name God as the final source of those rights, we may eschew such further explanation,82 taking into account widespread agnosticism . There is, however, “an awareness of what is missing” also among agnostic philosophers . As Habermas puts it, key notions such as human dignity, morality and ethics, freedom and emancipa­ tion cannot be totally understood by people of the Western culture unless they know their own Christian religious tradition .83 In fact, the ideas of personal freedom and equality of all men as the leading ideas of the human rights movement have their roots in Christian tradition .84 On this basis, Christian theology early devel­ oped the concept of the human person as a moral being (ens morale) vested with freedom and thus vested with dignity .85 This person is later on seen as vested with individual (“subjective”) natural rights . These rights became the leading political idea of enlightenment and found their way into the declarations of human rights . What do Christian roots mean today? Habermas holds that “modern reason will only learn to understand itself, if it clarifies its position to the contemporary religious consciousness that has become reflexive” .86 In western societies, where believers and agnostics have to discuss issues of public morality and law making in common, rules of mutual tolerance and respect must be adopted so that the seman­ tic potential of religion is not lost .87 – Besides, philosophical ideas have only a limited impact on the mentality of societies . Also in secularized Western societies, a morality based on religious belief in God can contribute to the building of a men­ tality of society that supports the rule of law and the respect of human dignity and of human rights of others .

79 80 81 82 83 84 85 86 87

FinniS (note 23), chapt . X .4 . Kant, Immanuel . Grundlegung zur Metaphysik der Sitten (Foundations of Metaphysics of Morals), 1785, 428; FinniS (note 23), 225 . brieSKorn, as cited; FinniS, John . Human Rights and Common Good (Coll . Essays vol . III), 7: the identity of a person with interests “that are truly intelligible goods … is the ontological founda­ tion of its human rights” . FinniS, (note 23), 49, not excluding that such further explanation is available, 371–410 . haberMaS, Jürgen . Nachmetaphysisches Denken (Post­metaphysical Reasoning), 1988, p . 23; id ., in: reder/SchMidt (eds), Ein Bewusstsein von dem, was fehlt (An awareness of what is missing), 2008, 26, 29 et seq . Schapp, Jan . Freiheit, Moral und Recht (Freedom, Morals and Law) 1994, 25–79 . KobUSch (note 68), 23 et seq . haberMaS in reder/SchMidt (note 83), 29 . Habermas, in reder/SchMid (note 83), 29–34; haberMaS, Jürgen; ratzinger, Joseph . Dialektik der Säkularisierung: Über Vernunft und Religion (Dialectics of Secularization: On Reason and Reli­ gion), 2012; KNAPP, Markus . Glaube und Wissen bei Jürgen Habermas (Faith and Knowledge with J . Habermas), Stimmen der Zeit 4/2008, 270–280 .

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In the worldwide discussion on human rights, we must take into account cul­ tural and religious differences . The optimism that those boundaries can be crossed, is supported by empirical and analytical psychological findings (supra III .3 .d) . Re­ markably, the idea of human rights, despite its visible Christian roots, appears to be also attractive to men and nations of other cultures, who may, in their own religious tradition, find elements that support the ideas of human rights .88 For a worldwide success of human rights, this is crucial . iV. ConCluding RemaRks Human rights represent a strong movement towards the building of a worldwide consent on the moral foundations of law and political systems . The moral prestige of human rights helps their implementation in a world that is full of violations of human rights through unjust political regimes, corrupt authorities and many other causes . The moral philosophical foundation of human rights, however, remains controversial, and some progress in this matter is highly desirable, for human rights as political ideas, legal principles and moral rules will, on the long run, lose their momentum if such foundation is not available . Legal positivism has little to con­ tribute in this respect . Utilitarianism, influential from the beginning of the human rights movement, in a way can still support this movement, because the appeal to human self­interest is a powerful political argument . The moral deficiencies of util­ itarianism, however, make it unfit as a moral philosophical foundation . This foundation can only be found in human reason . Discourse theory strives to promote a reasoned discourse; it defines practical reason, however, in a strictly formal way and refuses to engage in substantive moral arguments . This is far away from a philosophical foundation of human rights . To fill this gap, Alexy identifies some human rights as a priori principles of the discourse . Preferable to this still formalistic approach is an ontological approach on the basis of a broader and real­ istic concept of human reason that is unimpressed by the argument of a “post­met­ aphysical era” and the empiricist self­mutilation of moral human reason . Basic hu­ man values can be reasonably discerned and rules of reasonableness and justice for the attainment of those values can be found (Finnis) which every reasonable person can understand . This is natural law in a modern sense . Human rights are the most prominent part thereof .

88

In this sense, with reference to Confucian tradition, horn, Norbert . Festschrift (Liber amicorum) . Schapp, Jan ., 2010, 267 et seq, 282 . For a more detailed discussion, see taylor, Charles . Con­ ditions of an unenforced Consensus on Human Rights, in baUer, J . R .; bellS, D . A . (eds) . The East Asian Challenge for Human Rights, 1999, 129; Morita, Akihito . A Difference in the Concept of the Self as the Subject of Human Rights Between the West and Japan: Can Confucian Self be strong enough to exercise positive Liberty in an Authoritarian Society?, ARSP-B 136, 2013, 23–34 .

toM caMpbell, charleS StUrt UniverSity (canberra) Human RigHTs: a demoCRaTiC way It is not difficult to find fault with the legal and political workings of even the most democratic of states . Many social and political injustices and governmental ineffi­ ciencies remain uncorrected and these injustices and inefficiencies are often magni­ fied by democratic governments . Elements of the much cited ‘tyranny of the major­ ity’ are also evident in the plight of powerless minorities . Rather less visible are the often harsher oppressions inflicted by powerful minorities who are able to manipu­ late private industry and public life to their own advantage . Unfair electoral systems, inadequate information, maladministration, apathetic citizens, and short­sighted politicians, are just some of the problems that abound in actual democratic polities . Overall democracy would not seem to be a very natural phenomenon with so much in human nature and in the circumstances of politics working against it .1 It is no wonder, therefore, that we seek to reduce the shortcomings of real world democracies through various institutional devices and improvements . Many such strategies are entirely laudable . Educational development, greater economic equal­ ity, more open media, less biased courts of law, all these and more are vital to the health and efficacy of democratic government . But not all strategies for enhancing the performance of democracies, however well intentioned, can be counted as dem­ ocratic improvements . One of these questionable strategies – now almost univer­ sally fashionable – the constitutional incorporation of abstract human rights norms to empower courts to act as guardians of the procedures and outcomes of demo­ cratic politics .2 However, not only is the constitutional incorporation of human rights for the purpose of human rights­based judicial review – whether ‘weak’ or ‘strong’ – largely ineffective, it is also a democratically defective, and, if we accept that there is a human right to democracy, an internally inconsistent policy . In gen­ eral, such strategies do not, either in theory or in practice, serve to benefit either democracy or human rights . To oppose the constitutionalising of human rights norms for the purposes of judicial review is not to attack human rights as such, at least not if the focus of the criticism is on their improper and ineffective institutionalisation, which is often detrimental to the very objectives set by human rights, particularly the human right to self­determination . Nor is the critique of constitutionalising human rights judi­ cial review a criticism of the judicial review of government action on the grounds of legality in general . Indeed, the rule of law, properly conceived, is an essential pre­ condition of politically legitimate democratic government . Further, legislation de­ signed to implement human rights can be made in a form that is perfectly compat­ ible with the rule of law, so conceived . Moreover human rights Acts and human rights in general can be detached from the articulation of judicially determined limits on democratic outcomes and used, instead, to undergird more political roles within the democratic process itself . Declarations, bills, charters or conventions of human 1 2

Keane, John . The Life and Death of Democracy, 2009 For a classic advocacy of this strategy, see dworKin, Ronald . A Bill of Rights for Britain, 1990 .

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rights can be drafted and institutionalised to serve legislative, rather than judicial, review .3 I present these contentious views principally in the constitutional contexts of the United Kingdom and the (British) Commonwealth,4 especially Australia, my adopted home . This is done in the hope that they will be of interest to those from other jurisdictions, and rather different political circumstances . Of course, these debates take place in the shadow of the United States model for ‘constitutional de­ mocracy’, which includes a constitutionally entrenched Bill of Rights with ‘strong’ judicial review, that is, following Marbury v. Madison 1 Cr . 137 (1803), courts having the power not to enforce legislation that they deem to be in conflict with the Bill of Rights . In the United Kingdom, under the Human Rights Act 1998, there is a much weaker, and constitutionally unentrenched, version of this judicial review in which it is technically possible for Parliament to reject or ignore a finding of the courts that an act of Parliament is ‘incompatible’ with the European Convention on Human Rights .5 A rather stronger, entrenched, version exists in Canada where a court deci­ sion that legislation is in conflict with the Canadian Charter of Rights and Free­ doms (1982) can be nullified only by further legislation that is passed ‘notwithstand­ ing’ this incompatibility .6 Australia, a country whose representatives were closely involved in drafting The Universal Declaration of Human Rights (1948), is an inter­ esting exception to this constitutional trend 7, and I conclude this paper by drawing your attention to its recently enacted Human Rights (Parliamentary Scrutiny) Act 2011, which has features that approximate to the idea of a primarily political rather than a primarily judicial human rights act .8 3

4 5 6 7

8

The literature on this topic is, of course, enormous . I draw heavily on the work of Jeremy Wal­ dron, especially The Core Case against Judicial Review’ Yale Law Journal 115, 2006; bellaMy, Richard . Political Constitutionalism: A Republican Defence of the Constitutionality of Democracy, 2007 and Mark Tushnet, Taking the Constitution Away from the Courts, 2000) . For my own recent work on this topic see Tom Campbell, Parliamentary Review with a Democratic Charter of Rights . In: caMpbell, Tom; ewing, K . D . and toMKinS, Adam, eds, The Legal Protection of Human Rights: Sceptical Essays, 2011 . hirSchl, R . Towards Juristocracy: The Origins and Consequences of the New Constitutionalism, 2004 See hiebert, J . L . Parliamentary Bills of Rights: An Alternative Model Modern Law Review 69 (2006), 7; gearty, Conor . Principles of Human Rights Adjudication, 2004; Kavanagh, Aileen . Constitutional Review under the UK Human Rights Act 1998, 2009 . See gardbaUM, S . The New Commonwealth Model of Constitutionalism, American Journal of Comparative Law 49, 2001, 707 . Australian historical ‘exceptionalism’ with respect to human rights institutionalisation provides an illuminating experimental control against which to test comparative claims that human rights judicial review makes a significant difference to human rights outcomes . It also provides an opportunity to consider novel approaches to human rights institutionalisation in the light of persistent critiques of human rights judicial review . See galligan, B . and Morton, F . L . Austra­ lian Exceptionalism: Rights Protection without a Bill of Rights . In: caMpbell,Tom; goldSworthy, Jeffrey; Stone, Adrian (eds), Protecting Human Rights Without A Bill of Rights, 2006; . byrneS, A .; charleSworth, H .; and McKinnon, G . (eds), Bills of Rights in Australia: History, Politics and Law, 2009 . There are also human rights acts on the UK model in the state of Victoria and in the Australian Capital Territory . In 2009 a government initiated consultation process which received more than 35,000 submissions, concluded that ‘An Australian Human Rights Act that is broadly consistent with the Victorian and ACT legislation could provide a resilient thread in the federal quilt of human rights protection’ (Commonwealth of Australia 2009) . Its recommendations

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i legalism, demoCRaCy

and

Human RigHTs

Communicating the case for preferring political to judicial functions for the speci­ fication of human rights is fraught with conceptual pitfalls . Nowhere is this more evident than in disputes over the analysis of ‘the rule of law’ and the associated terminology of ‘legalism’, ‘legality’, and ‘law’ itself .9 However, in the sort of norma­ tive jurisprudence undertaken here,10 which seeks to commend morally preferable forms of law and government, we are not tied down by claims about the ‘correct’ meaning of these contested terms, but are free to stipulate the semantic analyses which make for the clearest expression of a morally preferred position . My selected definition of ‘democracy’ centres on equality of political power . That comes later . First, I develop a normatively motivated definition of ‘the rule of law’ that comes from a legal positivist tradition, not in its analytical or empirical modes, but as part of a normative approach, which I call ‘ethical (or normative) legal positivism’ .11 Ethical positivism draws on formal or ‘legalistic’ versions of the rule of law to express the view that government ought to be conducted through laws which, whatever their content, are general in their categorisations as well as reasonably specific, clear, consistent, practicable, and prospective, and, importantly, are – as far as possible – ‘amoral’ or ‘exclusive’ of explicit moral terminology, so that they can be understood and applied without drawing on the moral opinions of citizens, ad­ ministrators and courts .12 I refer to this conception of the rule of law variously as ‘formalist’, ‘political legalist’ and an aspect of ‘ethical positivism’ . Reasons for adopting this legalistic conception of the rule of law are not con­ fined to democratic ones . Indeed such legalism can be seen as a necessary feature of all efficient government whatever the nature of its goals .13 There are, however, a range of democratic reasons for adopting this type of legalism as a political norm . Here I deal with two of these democratic rationales . The first is based on the impor­ tance of individual and collective autonomy, the second is based on effectiveness

9

10 11

12

13

were not implemented . Instead, as part of an Australian Human Rights Framework, the Human Rights (Parliamentary Scrutiny) Act 2011 was enacted . From an enormous literature, I draw your attention to raz, Joseph . The Rule of Law and Its Vir­ tue, Law Quarterly Review, 1977; waldron, Jeremy . The Rule of Law: An Essentially Contested Concept?, Law and Philosophy 21, 2002, 137; taManaha, Brian . Z . On the Rule of Law: History, Politics, Theory, 2004; binghaM, Tom . The Rule of Law, 2010 . For which see dworKin, Ronald . Justice in Robes, 2006, 140–87; weSt, Robin . Normative Jurisprudence, 2011; and priel, Dan . Description and Evaluation in Jurisprudence, Law and Philosophy 29, 2010, 633 . Originally formulated in caMpbell, Tom . Ethical Positivism, Archives for Philosophy of Law and Social Philosophy, 1987, 67; later, in caMpbell, Tom . The Legal Theory of Ethical Positivism, 1996 . See also MaccorMicK, D . N . The Ethics of Legalism, Ratio Juris 2, 1989, 184; and . waldron, Jeremy . Normative (or Ethical) Positivism, in coleMan, Jules . ed, Hart’s Postscript, 2001 . In the terminology of contemporary legal positivism this is a form (in this case a normative form) of ‘exclusive’ legal positivism (see RAZ, Joseph . Practical Reason and Norms 1975 . The best known modern approximation to this position is to be found in FUller, Lon L . The Morality of Law, 1969 . Fuller is classified as a procedural natural lawyer rather than an ethical positivist . See caMpbell (note 11), 32–36; also SchaUer, Frederick Playing by the Rules: A Philosophical Examination of Rule-Based Decision-Making, 1991 . See hart, H . L . A . The Separation of Law and Morals, Harvard Law Review 71, 1957–8, 593 .

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with respect to the fulfilment of democratic ideals . This framework is then applied to the institutionalisation of human rights .

(a) aUtonoMy and the rUle oF poSitiviSt law Some of the reasons given for insisting on political legalism derive from the ways in which enlarging the scope of the autonomy of the individual requires legal subjects to have advanced knowledge of what is forbidden, required or facilitated by law, together with a guarantee that, beyond the legally specified types of conduct, citi­ zens are legally free to act as they choose . This powerful combination of increased autonomy arising from the opportunity of avoiding government sanctions, and the freedom to act where no legal prohibitions are in force, can, in theory, be enjoyed and valued under any form of government, and has been so valued prior to the emergence of our current democratic consciousness . However, the sort of auton­ omy deriving from political legalism is of a piece with, and is enhanced by the au­ tonomy which is manifest in having a share in the making or endorsement of the laws in question . Both the negative liberty to do what is not required by law and the positive liberty to play an equal part in the making of the laws to which we are sub­ ject are based on the value of autonomy, both for its own sake and in order to pro­ mote the protection and furtherance of individual interests . The individual auton­ omy facilitated by the implementation of legalism as a political ideal, is further en­ hanced for those within a democratic jurisdiction in which they have a say in the collective adoption of such laws as apply to them . All these aspects of the promotion of individual autonomy in and through law presuppose the attainment of legalism in the making of law, and also accuracy in its application and administration, both of which require that there be legal rules that meet the stated criteria of generality, specificity, clarity, consistency, stability, practi­ cality and amoral terminology . Thus, when citizen subjects have that sort of politi­ cal choice on offer, we can hold that they are exercising something approaching to a controlling choice concerning the rules that bind and empower them . Electorally based political processes which involve choosing between formalistically good alter­ native laws promote individual autonomy through collective choice to the extent that there is agreement on the specific content of what is selected . In democratic polities, the rule of legalistic law has the further function of serv­ ing as a tangible focus for the retrospective assessment of the performance of gov­ ernments . This occurs when the focus of political debate is on the legislative achieve­ ments and recommendations of competing political actors and organisations . Here the function of the rule of positivist law is to serve as a basis for promoting demo­ cratic accountability through the popular critique of, and ultimate electoral control over, the enactment of the laws that govern members of that polity . To serve this democratic function legislative manifestos and enacted laws must have a clarity and precision that makes them amenable to rational criticism and endorsement . It is not enough that electorates can choose governments, they must also be able to exercise significant control over these governments, and this can be achieved in part through their popular accountability of their legislative actions as well as the predicted and actual outcomes .

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This combination of the democratic functions of the rule of positivist law re­ quire a particular view of the separation (rather than the division) of powers, accord­ ing to which elected governments through legislatures make laws, and courts apply them, as they get them, to particular circumstances . This separation of powers ena­ bles governments to be held accountable for these laws and their outcomes, some­ thing that can only take place if the laws in question can be and are accurately im­ plemented by bureaucracies and courts . Fully accountable government requires an operative political constitution in which elected governments make the laws of the jurisdiction while courts are confined to the application of those laws in the light of their findings of fact in particular cases . The demands this puts on the formal qual­ ities of legislation and the adjudicative capacities of courts are difficult and far reach­ ing, but, these formalist goals are inseparable from the liberties served by the auton­ omy advantages of democracy .14 The extent of their fulfilment is directly propor­ tional to the realisation of the autonomy advantages of a well functioning democ­ racy . The practicalities that require working modifications to this ideal type of dem­ ocratic law, particularly where courts are in practice faced with legalistically feeble law, do not affect the fundamental ethical force of this model of ‘democratic posi­ tivism’ . (b) deMocratic eFFectiveneSS and the rUle oF poSitiviSt law A second standard reason given for preferring the rule of positivist law is the effec­ tive implementation of government policies . Successful control of citizens and ex­ ecutive and the facilitation of cooperative agreements is most effectively done when it is possible to approximate to the uncontroversial identification of the conduct required or enabled . Especially in large scale societies, if the instruments of political policy are to have any degree of precision then the communication within rule­gov­ ernance must be appropriately precise . More particularly, within pluralist societies with their diversity of moral and political views, there is good reason to adopt an ‘exclusive’ form of ethical positivism whereby laws should not contain abstract moral terminology, on the grounds that this would not provide sufficiently clear guidance as to what is required or enabled . This second, efficiency, rationale also applies to most forms of government, and not just democracies . Effective democracy requires legalistic law, but so does effec­ tive dictatorship . It can be argued that effectiveness is of value only when the out­ comes are desirable and that democracies tend to provide better outcomes than other political systems . However we cannot take such superiority in the outcomes of democratic systems for granted at this stage in the analysis . Nevertheless, I do assume that there is a particularly strong case for political legalism in the promotion of democratic efficiency . Because of the complexity of democratic process in large scale societies there are many characteristically longer links in the chain of command than in monarchic or 14

The standard argument against the political legalism of ethical positivism is that it is simply not feasible either in terms of legislation or adjudication . How far this is the case is clearly highly contentious but the disputes are normally about the extent to which it is possible to approxi­ mate to ideals of legalistic legislation and formal adjudication .

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oligarchic polities . As a result, an often repeated objection to democratic govern­ ance is that, for all the paraphernalia of elections and civil freedoms, citizens actu­ ally have very little control over what their governments do . To deal with this we must look to a particular type of governmental efficiency which relates to the com­ munication of intent from electorates to governments and legislatures, then to ad­ ministrators and courts and then back to subjects, a communication that is required if democratic process is to be in any substantial degree the implementation of the people’s actual choices . One problem is to see how this can work in modern repre­ sentative systems, where elections are often not seen as choices of the laws but as choices of governments . Only in a direct democracy are the people directly in­ volved in making the law . In that perhaps preferable but currently impractical mode of democracy, there is a direct connection between democratic law­making and maximising agreement through the choice of formally good laws . Perhaps we cannot have such success in the case of representative government, where the most we can hope for is democratic efficiency as applied to representative law­making assem­ blies . Yet it cannot be enough that there is the making of legalistic law within the process of representative assemblies of law­makers . Whatever their source, legalistic laws do serve some of the autonomy goals, and there are therefore good reasons for voters to select law­makers who are committed to legalism, but, for genuine elec­ toral competition, there must be detailed manifestos, which give a clear indication of the promised legislative programs, and some substance to the role of representa­ tive as delegates, elected to enact the laws as promised, not the ones their govern­ ment later happens to adopt . This then takes us some of the way towards the elec­ torates participating meaningfully in the selection of formally good laws . All this can be looked at retrospectively . Elections can be seen in part as en­ dorsement or rejection of laws that have been enacted, something which is assisted by the legalistic qualities of the legislation . Insofar as the election of a government is a choice made on the basis of past performance rather than future promise, the connection between indirect democracy and political legalism is easier to imple­ ment . In order to make an adequate decision about the performance of a govern­ ment, there must be a body of pre­existing precise and in other respects formally good legislation to assess . This is necessary if the voters are to hold a rationally de­ fensible view as to a government’s achievements . Hence democratic efficiency re­ quires a measure of legalistic law . (c) hUMan rightS and the rUle oF poSitiviSt law The principal arguments against human rights­based judicial review focus on its democratic deficits, in ways well itemised by Jeremy Waldron,15 and its predictable ineffectiveness, so cogently illustrated by Keith Ewing .16 Here I focus on the rule of law aspects of these basic critiques .

15 16

For instance, waldron, Jeremy . A Rights­Based Critique of Constitutional Rights, Oxford Journal of Legal Studies, 13, 1993, 18 . ewing, K . D . The Continuing Futility of the Human Rights Act, Public Law, 2008, 48 .

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On this we need to start with the recognition that human rights can be ex­ pressed through legalistic law . The formal qualities of positivist law by no means rule out the desirability or feasibility of human rights legislation . Prohibitions on torture, capital punishment, slavery and human trafficking – all of them prime hu­ man rights matters – have only manageable problems in meeting the required for­ mal standards in most societies . In other words, there can be such a thing as for­ mally good human rights legislation . Formalist objections to human rights law only arises when, in abstract and unspecific moral terminology, they are used to overturn, delay or invalidate specific legislation through an ostensibly legal but actually polit­ ical form of moral reasoning . Of course, the formal defects of the legal incorporation of abstract statements of human rights can in time be partially rectified by a continuing history of judicial decisions over many years which render the abstract terms more concrete through common law style judicial reasoning whereby general principles or value affirma­ tions are drawn upon to prompt the making of particular decisions which make them more specific in form and less directly moral in terminology .17 Broadly stated principles can always be transformed into formally better legislation through the process of case law development within the confines of precedential authority . If this is to be successful, however, it places legalistic limits on the interpretation of what started out as broadly expressed moral values, thus narrowing their scope and undermining the objective of the exercise of judicial review which is to provide a comprehensive check on democratically determined political outcomes . Moreover, the increasing mass of human rights judicial review case law has the effect of distanc­ ing the discussion of human rights from standard political discourse, thus contrib­ uting to the cumulative democratic deficit . Generating a huge corpus of case law very loosely related to the original texts of human rights affirmations exposes the fact that human rights as value affirmations constitute formally inadequate law, not fit for its purpose in a positivist court of law . Here we must confront a powerful ad hominem counter­attack much used by advocates of human rights judicial review . Their concern is that seeking to sustain a sharp distinction between the law­making roles of legislatures and the law­applying role of courts, in order to promote citizen autonomy and democratic efficiency, comes up against the problem of majority decision­making both in elected assem­ blies and in the election of members of legislative assemblies . However extensive voter participations may be, if decisions are eventually have to be made on the majoritarian principle, then democratic process does not promote the autonomy of everyone, but only the autonomy of those who happen to be in the majority on the day of decision . Democrats may fall back on the value of maximising autonomy within the range of feasible possibilities, adding, perhaps, that there is an element of autonomy, inviting respect and ascriptions of dignity, in having an equal part in the process even when lost on majoritarian grounds . This majoritarian difficulty is a major problem for the democratic case against human rights judicial review and opens the way for constitutionalising the division of legislative power and involving in this process using morally expressed and highly abstract human rights principles as the preferred way to protect the fundamental interests of political minorities, es­ 17

See walUchow, W . J ., A Common Law Theory of Judicial Review: The Living Tree, 2007 .

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pecially when these are based on distinctive and enduring social groups . Undoubt­ edly, the protection of such minorities is the strongest argument in favour of human rights­based judicial review . Here the case in favour of judicial review is that the protection of vulnerable minorities overrides the drawbacks that arise from limiting the legalistic characteristics of formally good law . One approach by the ethical positivist to the majoritarian problem is to require significantly more than a statistical majority of those voting to determine the out­ come, thereby reducing the problem of vulnerable social and economic minorities . This is, however, strongly biased in favour of the status quo and enables powerful as well as vulnerable minorities to thwart the autonomy of majorities . We are then faced with a constant flow of difficult empirical questions as to whether or not a particular law should be seen as a failure to curb the socially and economically pow­ erful minorities, or whether choosing that law is an unjustified restriction by major­ ity rule on the autonomy of social and economic minorities .18 Another approach to the majoritarian problem is to argue that minorities are protected by the required combination of the generality and the specificity of the formally good laws which make clear what are the categories of persons whose rights and duties are affected by proposed legislation . This makes it easier to identify en­ dangered vulnerable groups and thus assess the fairness of a law in this regard . In­ deed, this categorisation can be seen as an additional rationale for supporting the rule of positivist law . The argument is that formal justice, that is treating like people in like situations alike, requires having rules that are clear about the categories of persons involved as well as their treatment .19 Yet, clarifying group categorisations offers no guarantee there will be no serious discriminatory impact of the legislation which makes explicit potentially discrimina­ tory group categorisations . Indeed identifying clearly those whose rights and duties are affected in a piece of proposed legislation can be seen as providing opportunities for self­interested and uncaring majorities to benefit themselves . Although dependant on the outcomes that occur in particular societies, the majoritarian problem does seem to open the way for justifying at least a form of human right­based judicial review that is confined to the protection of vulnerable minorities through a separation of legislative powers that is limited to fulfilling this function . Here the burden of proof shifts to the critic of human rights judicial re­ view, for it has to be shown either that there is a better and more democratic way of dealing with the majoritarian difficulty, or that there is no solution to the problem that will not increase the democratic deficit of judicial review . How this burden of 18 19

Another line of argument is that systems set up to protect vulnerable minorities tends to be captured by powerful minorities . See nichol, Danny Business Rights as Human Rights . In: caMpbell et al (note 3), chapter 11 . Extending this line of thought, the formal justice rationale for legalism can be seen as part of what may be called a ‘moral form’ justification along the lines that moral rightness is best ex­ pressed in rules that capture the Kantian methodology whereby maxims adopted for morality and hence law must meet the test of universalisability . Rule utilitarians think in similar terms where the answer to that question depends on the predicted outcomes of general adherence to the maxim incorporating rule . If we want law to be morally justified then this is a methodology to mimic in law­making and if we want people with different moral views to know what the maxim or rule requires, then this is best expressed in clear and non­moral terms .

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proof might be met requires turning our attendion to normative views as to what constitutes and what justifies democracy . ii maRkeT CHoiCe

oR

PubliC disCouRse?20

Markets and deliberation provide the bases for two currently contesting normative theories of democracy . Simplifying the contrast, we may identify, at one extreme, the market theory, deriving from James Mill21, Jeremy Bentham and Joseph Schum­ peter22, which sees electors as consumers who collectively ‘purchase’ a government in order to meet their own needs or desires, a theory which may be represented, on the basis of one person one vote, as the purported equalisation of power in a polit­ ical market . At the other extreme, is the participatory or deliberative theory which conceives of democracy as a form of community decision making on the basis of deliberation between those involved or affected by the outcome, on the basis of arguments relating to public rather than private considerations . Versions of this are to be found in the work of Jurgen Habermas23 and Ronald Dworkin24 . Market theories provide an economic­style analysis of democratic choice and process, principally in representative systems . They are theories of choice and pref­ erence which assume the self­interestedness of participants . Deliberative theories are those contemporary forms of participatory theories that stress the role of inclusive debate as to the content of the mandatory common good, traditionally associated with direct democracy . They are theories of discussion, consensus, and sometimes the acquisition of knowledge,25 designed to achieve compromise, social justice and stability, whilst also ameliorating the majoritarian defects of democratic polities . Deliberative theories purport to provide either a pragmatic or an epistemological basis of consensual government . They have communitarian and civic elements which seem more attractive than the rampant individualism and factionalism of the market alternatives according to which democracy is about buying and selling can­ didates or parties or elites so that as many people as possible get what they want .26 As part of the project of relating democracy and human rights through the me­ dium of legalism, we might be expected to favour the more attractive, because more civilised, deliberative theory . Indeed, legalism, as the selection of formally good law, is closely associated with deliberation . The choice of general but empirically specific rules is an intricate matter which calls for reasoning that is akin to moral debate . However, common experience stands in the way of theorising democracy dom­ inantly as a civilised debate about the common good . Were it indeed so, our major­ 20 21 22 23 24 25 26

This part is developed from caMpbell, Tom . Legal Positivism and Deliberative Democracy, Current Legal Problems 51, 1998 . Mill, James . The Liberty of the Press, Encyclopaedia Britannica, 5th edn ., 1982 . SchUMpeter, Joseph . Capitalism, Socialism and Democracy, 1950 . haberMaS, Jurgen . Moral Consciousness and Deliberative Action, 1990; and Between Facts and Norms, 1997 dworKin, Ronald . Law’s Empire, 1986 cohen, Joshua . An Epistemic Concept of Democracy . Ethics 97, 1986, 26 . gUtMan, Amy; thoMpSon, Dennis . Democracy and Disagreement, 1996; bohMan, James; rehg,Wil­ liam (eds) . Deliberative Democracy, 1997; and nino, Carlos . The Constitution of Deliberative Democracy, 1996, and dryzeK, John; nieMeyer, S . Foundations and Frontiers of Deliberative Governance, 2010 .

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itarian problems would be largely resolved but, alas, it is not . Democracies generate a good deal of debate but not much of it passes as an impartial consideration of the common good . Overwhelmingly what we have is a struggle for power served by self interest masked in public language and mitigated only in part by an element of good will to all . In these circumstances, the discourse analysis of democracy has the se­ ductive characteristics of a dangerous political trap, for if deliberation is the essence of democracy then there is indeed a case of the out­sourcing human rights to an unaccountable but articulate elite uncorrupted by the pressures of electoral politics . These fears are confirmed in the comments of the republican philosopher, Philip Pettit, who notes that the deliberative turn points to the ‘depoliticization’ of democ­ racy,27 in that the capacity to conduct genuinely impartial and informed moral de­ bate on the public good is a relative rare phenomenon not readily found in ordinary voters and even less amongst politicians who are dependent on their votes . While it is evident that in moral­and political reasoning we should prefer logical thinking, value the sharing of knowledge, and engage in respectful discussion from an impartial point of view, this does not overshadow the fact that able, informed and articulate person have their own moral and political biases which affect their political outlooks . The views of the articulate and educated persons are not neces­ sarily to be trusted over those of other citizens, given the overt and implicit assump­ tions of self­interest that apply to all political discussion . The basic insight of the market theory is that, in politics at least, self­interest dominates and mechanisms must therefore be put in place to bring about an artificial harmony of interests whereby those who covet and enjoy political power are required to persuade a ma­ jority of citizens that they have or will act for their benefit . On this account, the best normative grounding of actual democracy is that, in reasonably homogenous socie­ ties with a modicum of education and civic freedoms, the interest satisfaction of most people is reasonably well promoted, although usually not well distributed, and this to an extent which is not bettered by any other political system . On this view, democracy is an electoral process, a mechanism that is first and foremost a protec­ tion and advancement of the interests of as many people as is practicable . Democ­ racy is there to counter the inevitable advantage of those non­vulnerable minorities who would otherwise hold overwhelming political and economic power . In this way, market theories present a picture of a robust and fairly reliable system whereby electorates can pressure and persuade governments to do good things they would not otherwise consider . These benefits, it is argued, should not be endangered by reducing the power and scope of the vote within the political process . Even so, does market democracy require the rule of positivist law? Does the market model require legalism? Is it not enough to elect governments which, after 27

pettit, Philip . ‘Depoliticizing Democracy’ . In: beSSon, Samantha; Martin, Jose Luis (eds), Deliberative Democracy and Its Discontents, 2006: ‘… if deliberation is really supposed to rule in public life, then there is no option but to depoliticize public decisions in various ways . Does this mean that the cause of public deliberation tells against the ideal of democracy? Yes, if democracy just means empowering the collective will . No… if it means empowering public valuations: more specifically, empowering those considerations that people countenance as relevant to decisions on public policy… As war is too important to be left in the hands of the generals – deliberative democracy is too important to be left in the hands of the politicians . No democratization with­ out depoliticization’ .

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due internal deliberation, settle on some perhaps vaguer than necessary laws, leave it to administrative and judicial officials to settle the details as they go along, after, that is, their due deliberation . And then let the voters assess the outcomes retrospec­ tively? Legalistic law may not then be such an important feature in the exercising of the sort of control over elected governments that can effectively protect and pro­ mote the people’s interests . This takes us back to the reasons for thinking that the market power of the po­ litical consumer is enhanced by what might be called the good labelling of the products on sale and the where­with­all to analyse the benefits of the performance in terms of what the label promised . Doubtless there are more and less efficient political markets and such systems do not work well with insufficient knowledge and the absence of genuine competition, in just the same way as efficient economic markets require the availability of information and equality of opportunity amongst manufacturers and retailers . Is this taking the marketing analogy too far? Are there not major difference be­ tween shopping for merchandise and political elections? There are at least two very important differences . One is that in an election each adult person has one vote while shoppers have very unequal amounts of cash . That, at least, seems a moral one up for democratic markets . This is not the case with the second difference, which is that shoppers purchase according to their individual needs and desires while voters, what­ ever their intentions, are voting what others will get as well as themselves . One size fits all . In fact those in the minority do not get what they payed for with their vote at all . So we are back with the majoritarian issue . Can only majorities be protected against government and can only majority interests be promoted in any realistic market model of democracy? Clearly a culture of reasoned debate can mitigate ma­ jority insensitivity to minority needs and encourage a degree of altruistic preferences but, on the market theory, this will be swamped by their personalised preferences . There remains, therefore, a reasonable argument for having mechanisms to perform the equivalent of prohibiting the sale of dangerous goods, or at least goods which are dangerous for vulnerable minorities . One problem with this is that there are difficulties in identifying and agreeing on what are dangerous political goods . The normal differences of opinion between majorities and minorities extends to what is and what is not unacceptable treatment of minorities . There are clear and uncontro­ versial exceptions, such as torture, starvation, slavery . In such cases, the logic of human rights judicial review can have as much precision as a well constructed shop­ pers’ charter . We might, therefore, wish to accept a system of judicial review as long as it is strictly limited to such uncontroversial cases of egregious abuse . Perhaps a limited and carefully controlled form of judicial review on the basis of some pre­ cisely formulated human rights relevant to the protection of vulnerable minorities might do more egalitarian good than democratic harm . In my view, strong form judicial review, even when restricted along these lines, remains suspect as a divisive process, difficult to confine to its brief, and in conflict with the autonomy and efficiency arguments that I have already explored .28 How­ 28

For evidence that weak form judicial review is unstable in that it ends towards either complicity with government violations or strong form judicial review, see tUShnet, Mark . Weak Courts, Strong Rights; Judicial Review and Social Welfare Rights in Comparative Constitutional Law, 2007, chapter 3 .

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ever, the majoritarian issue may have sufficient moral weight to justify weaker forms of human rights judicial review in which parliaments have the last say in a debate in which all those affected can in theory participate . Even if democracy is primarily a matter of allocating political power so as to enable as many people as possible to protect their interests, a process for the protection of vulnerable minorities which does not significantly diminish majoritarian power might be seen as a valuable sup­ plement to self­interested political debate and decision­making . This is clearly the hope of those who favour a UK style human rights act, often referred to by its sup­ porters as a ‘dialogue’ model, based on the deliberative interaction of courts, gov­ ernment, parliaments and people in order to mitigate the majoritarian problem . In practice, however, weak form human rights judicial review has a much wider scope than the protection of vulnerable minorities against precisely delineated in­ justices . Moreover their impact overall is disappointing even in this regard . This is partly because, at the level of specificity required for formally good law there is no agreement, imagined or actual, to be had between courts, parliaments, governments and the people on the precise implications of broad statements of human rights with which they operate . UK courts are cautious about how far they go in radical interpretations of questionable legislation, and with respect to making ‘Declarations of Incompatibility’ (that is incompatibility with the European Convention on Hu­ man Rights) . Perhaps this is because anything adventurous would raise the question of constitutional illegitimacy . As a result human rights lapses on the parts of govern­ ments are often given a judicial all­clear, thus granting a spurious endorsement to perhaps dubious legislation . Further, the UK parliamentary Joint Committee on Human Rights has a ten­ dency to work by second guessing what the courts might say rather than debating human rights issues in their own terms and in their own moral voice, a practice which is even more pronounced in the executive preparation of ‘Statements of Compatibility’ (that is, compatibility with the European Convention) .29 Meantime, in the broader political consciousness, human rights appear to be taken over by the technical expertise of courts with their specialist jargon and procedures, thus remov­ ing the debate from the sort of moral discourse in which others can participate . The impression arises that human rights are legal and judicial rather than moral and political matters, so that the issues they raise should be decided in courts rather than being the responsibility of politicians and thus ultimately of the voters . Yet, the process of the rendering precise the abstract moral ideals expressed in the standard bills and conventions of rights, such as the free speech, freedom of contract, or the sanctity of life itself, so as to arrive at rules which are clear and specific enough to decide issues of defamation (in the case of free speech), duress and misleading ad­ vertising (in the case of freedom of contract), or abortion and euthanasia (in the case of life), is ultimately a matter that requires moral rather than legal reasoning . Such judgments raise competing moral intuitions and involve complex social and eco­ nomic factors for which courts are empirically ill equipped and lack moral and po­ litical authority . With respect to the main focus of this paper, when the lines be­ tween politics and law become blurred, and the separation of powers between 29

See hiebert, Janet . L . Governing Like Judges . In: caMpbell, Tom; ewing, K . D .; toMKinS, Adam (eds), The Legal Protection of Human Rights: Sceptical Essays, 2011, 40 .

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law­making and law­application breaks down, then the advantages of the rule of law, namely the limitation of state power by the requirement that it be exercised through and under the law, are seriously diminished . As a result, the hoped for dialogue between courts, governments and electorates is stultified and largely absent . Nevertheless, much of value has emerged from the deliberations of the UK Joint Committee on Human Rights as well as the processes by which government depart­ ments have addressed human rights issues while working on the Statements of Compatibility . This raises interesting questions as to whether the beneficial aspects of these processes can be retained and increased without involving courts in Decla­ rations of Incompatibility and duties to interpret legislation so as to make it com­ patible with human rights conventions .30 Putting to one side the particular com­ plexities of such a move in the context of the European Union, in which the wider court­based human rights regime has the distinctive political function of forging a cultural identity on which to base European patriotism, there are reasons for con­ templating the human rights advantages of arrangements in which human rights responsibilities are all located in the democratic process, at least until such time they are embodied in a legislated form which makes them suitable for the attention of courts . iii a demoCRaTiC alTeRnaTiVe To finish with some thoughts on a concrete example of a more democratic deploy­ ment of human rights which illustrates an alternative to human rights­based judicial review, both strong and weak, and includes a significant ingredient of deliberative politics within a dominantly market model of democracy . This is the Human Rights (Parliamentary Scrutiny) Act 2011, a statute of the Com­ monwealth of Australia which came into force in 2012 . Most Australian have not heard of it as yet and most Australian human rights lawyers do not regard it as a genuine human rights act because it lacks the mechanism of judicial review . The Australian act explicitly grants no extra powers to the courts, but it does contain other measures to be found in various weak form human rights acts, such as the UK Human Rights Act 1998 which requires executive ‘Statements of Compatibility’ (in the UK case this means compatibility with the European Convention of Human Rights) and sets up a parliamentary committee consisting of members of both polit­ ical parties drawn from both houses of parliament to scrutinise proposed and exist­ ing legislation . However, there is no requirement for Australian courts to try and interpret legislation so as to make it compatible human rights, and no power to make ‘Declarations of Incompatibility’, which, although they do not invalidate leg­ islation, trigger a process whereby Parliament may reconsider the legislation in the light of the court’s Declaration . The Parliamentary Joint Committee on Human Rights is required to undertake its scrutiny, not in relation to an Australian convention of rights but in the light of Australia’s endorsement of seven human rights treaties, on the basis of which it 30

See caMpbell, Tom . ‘Incorporation through Interpretation’ . In: caMpbell, Tom; ewing, K . D .; toMKinS, Adam (eds), Sceptical Essays on Human Rights, 2001, 79 .

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takes up questionable matters with the minister presenting the legislation and makes reports to both houses of parliament which are considered during the passage of the legislation in question . The Committee is also expected to undertake public enquir­ ies into existing legislation and other human rights matters referred to it by the At­ torney­General .31 It is unlikely that this Australian human right act will get the sort of public at­ tention that is generated when courts make declarations that legislation is incompat­ ibility with human rights thus setting up a newsworthy conflict between parliaments and courts . And, like most parliamentary committees, of which the Australian Par­ liament has many, it will no doubt be muted to some extent by party political con­ siderations . Yet the Australian act has certain interesting and potentially important features . One is that it is not confined to scrutiny and investigation of civil and political rights, which is the normal limitation of judicial review . The treaties that are covered include the whole range of human rights issues, including, for instance, the International Covenant on Economic, Social and Cultural Rights, the Conven­ tion on the Elimination of all forms of Racial Discrimination, and the Convention on the Elimination of Discrimination against Women . This is a radically extensive coverage for a human rights act which could work well in support of the United Nations human rights treaty monitoring . A second noteworthy factor is that the act is part of a human rights ‘framework’ that includes a long established independent Human Rights Commission and a wide range of human rights legislation .32 Thirdly, with its purely political functions, it need not get embroiled with the constitutional tensions which cast doubt on the democratic legitimacy of more court­oriented human rights acts which distract their scrutiny committees from moral and political deliberation of human rights issues because of their preoccupation with anticipating likely judicial findings . Finally, it puts the responsibility for the furtherance and protection of human rights squarely on the shoulders of government, civil society and individual citizens which provides a legitimate base from which to generate ef­ fective and enduring progress beyond that which can be expected from the delega­ tion of this responsibility to courts operating outside their normal expert bounds . I make no suggestion that this Australian model is superior to others or that it is suited to all polities and all circumstances . Indeed, although it is currently very active, it may wither on the vine though lack of party political support and public indifference . Much depends on how far it is noticed by the media and supported by the Australian people . But for those who are concerned with the rallying democracy in support of human rights it is certainly worthy of consideration . A final word, on the global context . Human Rights institutionalisation, despite the universal aspirations of human rights philosophies, need not and should not be a matter of one size fits all within the domain of domestic constitutions . However, there are other and distinctive challenges which arise at the level of global institu­ tions . Some transnational harmonisation of human rights regimes is a vital priority if we are concerned with global justice . And while that harmonisation must involve an effective implementation of the rule of law, at the global level, cultural diversity 31 32

For more detail see Kinley, David; ernSt, Christine . Exile on Main Street: Australia’s Legislative Agenda for Human Rights, European Human Rights Law Review 1, 2012, 58 . See Commonwealth of Australia, Australia’s National Human Rights Action Plan, 2012; also gerber, Paula; caStan, Melissa . Contemporary Perspectives on Human Rights Law in Australia, 2013 .

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is such that it is more difficult to adhere to a positivist form of law at the transna­ tional level . However, one reason for favouring the legalistic mode of the rule of law, as I have argued, is the paramount importance of the human right to self­deter­ mination, a right which I interpret as including the human right to live under and participate in a democratic system of government . This is just one of the many challenges confronting the globalisation of human rights . The danger here, which should concern us, is that, to the detriment of human rights, we will get ‘more law’ and ‘less democracy’ .33

33

Echoing the words and sentiments of dobner, Petra . More Law, Less Democracy?: Democracy and Transnational Constitutionalism . In: dobner, Petra; loUghlin, Martin (eds), The Twilight of Constitutionalism?, 2010 .

iii – Human RigHTs, demoCRaCy

and THe

CHallenged Rule

of

law

SindiSo MniSi weeKS, UniverSity oF MaSSachUSettS (boSton) ConTesTed demoCRaCy and Rule of law(s) soCieTies: THe examPle of souTH afRiCa

in

PluRalisTiC

inTRoduCTion Twenty years after the formal end of apartheid in South Africa, one of the most publicly contested issues is the role of traditional leaders and the powers that legiti­ mately accrue to these authorities in terms of customary and state law . Under the eighteen year old Constitution, customary law is recognised as a system of law equal to the common law and, hence, equally subject to the supremacy of the Constitu­ tion and its Bill of Rights . But, this has always been a contested issue . During the negotiation of the same Constitution and its predecessor (the In­ terim Constitution of 1993), traditional leaders locked horns with women’s rights activists . The former wanted customary law to finally be independent of the over­ sight of western values, which they saw the Constitution as embodying, and hence they wanted customary law to be applicable whether or not it conflicted with the Bill of Rights . The latter wanted customary law to be firmly subject to the scrutiny of the Bill of Rights . They saw the Bill of Rights as the only hope for the liberation of rural women from the shackles of patriarchy, which they saw customary law as embodying .1 The Constitution was passed with customary law being, like common law, ap­ plicable subject to its consistency with the ‘the spirit, purport and objects of the Bill of Rights’ .2 But the debate has not gone away . It has only taken a different form . These days, the debate takes place in the legislative (and sometimes the judicial) arena as laws are brought in to regulate various functions of traditional leaders ‘in terms of customary law’ . In the last ten years, this debate has come to the contro­ versy over the governance powers of traditional leaders, generally, and cooperatively with government . The Traditional Leadership and Governance Framework Act 41 of 2003 has been publicly criticised for its entrenchment of false apartheid boundaries on so­called traditional communities . Aspects of it have been litigated in provincial courts as terms of its provincial subordinate Acts are challenged . Ten years ago, the debate moved to the traditional leaders’ powers over land administration ‘in terms of customary law’ . That battle over the Communal Land Rights Act 11 of 2004 went to the Constitutional Court and the Court held that the wrong procedure had been followed in parliament when passing the legislation that gave traditional leaders extensive powers over rural people’s still insecure land rights . The Court implied that the powers given to traditional leaders in this legislation were more consonant with apartheid policy than democratic policy – but it did not specifically rule on this substantive issue .

1 2

KaganaS, Felicity; MUrray, Christina . The Contest Between Culture and Gender Equality Un­ der South Africa’s Interim Constitution, Journal of Law and Society 21, 1994, 410 . Section 39(2) of the Constitution

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Now, in the last six years, the debate has moved to the powers of traditional leaders over dispute resolution in traditional courts, ‘in terms of customary law’ . The Traditional Courts Bill (B15–2008/B1–2012) gives traditional leaders almost exclu­ sive power to hear cases between rural people living in their areas of jurisdiction . The critiques brought against this are mainly that neither the powers assigned by the Bill nor the jurisdictions that traditional leaders hold (which the Bill reinforces) are in accordance with customary law; rather, they derive from apartheid law and policy . What is mainly at issue in these legislative debates is that these laws stand in stark contrast with what was fought for by millions of South Africans . That is, they deny them freedom accompanied by full citizenship, equal rights and democratic access for all . By contrast with these laws, in the vision fought for by these millions, cultural diversity would be respected but would not be forcibly imposed on or used to define people geographically, depending on whether they were urban or rural residents . Certainly, those who were forcibly subjected to the authority of tradi­ tional leaders under apartheid would be liberated from this . Furthermore, in this vision, the law would be unified under the Constitution and all would have equal access to it . The vision held by traditional leaders was and remains different . As John and Jean Comaroff accurately portray of the traditional leader lobby in Ethnicity, Inc., The Congress of Traditional Leaders of South Africa (Contralesa) is the representative voice of ethnicity in the country . It speaks for culture, customary law, and the collective rights of indig­ enous peoples . Also for the authority of their chiefs and kings, past and present. Contralesa has long been committed to bringing about a change in the national constitution . Its ultimate objective is a nation-state that accords to traditional leaders sovereign autonomy over their realms, a nation­state that puts the dictates of culture at least on a par with, if not above, universal rights of citizens . … Meanwhile, Contralesa seeks, by whatever political means possible, to privilege the kingdom of custom. And the customary privileges of kings .3

In short, then, what is at stake in the contestation described is the very foundational terms of the Constitution: democracy and the Rule of Law . By democracy, I mean one of the core values of our Constitution in terms of which the ‘demos’ (ordinary people) have the ‘kratia’ (power to rule) – at the very least, having a robust say in how they are to be ruled by others and who those others who rule them will be . The Rule of Law is a vexed concept that, crudely defined, refers to the suprem­ acy of the law in a legal order .4 What is most important, for present purposes, is that the term points to the fact that no state action is legitimate without being man­ dated or permitted by, or if it extends beyond the ambit of, validly adopted law .5 The Constitutional Court has outlined this requirement thus:

3 4

5

coMaroFF, Jean; coMaroFF John . Reflections on liberalism, policulturalism, and ID­ology: cit­ izenship and difference in South Africa . Social Identities 9, no . 4, 2003, 6 . Emphasis added An interesting discussion arises over whether the rule of law is in fact often illegal in nader, Laura; Mattei, Ugo . Plunder: When the Rule of Law is Illegal, 2008, where, at 24, they point out that: ‘The rule of law has faithfully served plunder through history, to the point that some trace of Western conceptions of legality can be found at least at a superficial level in almost all the legal systems of the world .’ The principle is based on the assumption that all law derives from the sovereign state or its properly­empowered agents .

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Our constitutional democracy is founded on, among other values, the ‘(s)upremacy of the Con­ stitution and the rule of law’ . The very next provision of the Constitution declares that the ‘Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid’ .6

Unequivocally, therefore, the Rule of Law in South Africa at least requires that law and state practice be consistent with the Constitution . This principle forms one of the core values of the South African constitutional order . The Executive, Legislative and Judicial branches of government are expressly obliged to ensure the compatibil­ ity of their laws and conduct with the Constitution . Gordon Woodman has said that ‘those who are said to weaken the rule of state law are contributing to the rule of customary law .’7 Indeed, this is true . Yet, in the contest between state law and customary law in South Africa, it is both traditional leaders and ordinary people appealing to state law to give them what they are not getting under living and official customary law, respectively . For traditional leaders, they are appealing for authoritarian rule and rapacious powers over rural people and the resources in the land under them to be formally legislated as present day cus­ tomary law after having been largely invented by colonial and apartheid govern­ ments . For ordinary rural people, they are appealing for the freedom from authori­ tarian rule by traditional leaders in order to be able to govern themselves according to a lived form of customary law that is being undermined by the legislated versions of custom advanced by traditional leaders and supported by the state . Put differently, traditional leaders want the state to legislate a customary law that looks like official customary law under apartheid while ordinary people want the state to legislate an official customary law that looks like living customary law and (where it is inadequate) the Bill of Rights . This is all within a context in which state law has rendered itself indispensible even to debates of customary law, and only that which is concretised by legislation gives actors real power to act against the other, even if such capital is secured only at a symbolic level .8 In answering the relevant actors’ respective demands, the state must respond to several questions . What is the rightful place of pluralism in a legal system governed by the Rule of Law? Who should get to decide whether or when a culturally­based, alternative legal system applies? How far should powers under such an alternative legal system extend? Who should be given these powers, and on what conditions? Ultimately, the contestation taking place in South Africa is about ensuring democ­ racy, even if decentralised; human rights protection, even if law and society are fragmented; and the Rule of Law in a pluralistic legal order .

6 7 8

Affordable Medicines Trust and Others v Minister of Health and Others 2006 (3) SA 247 (CC) at paras 48–49 woodMan . Gordon R . Legal Pluralism and the Search for Justice, Journal of African Law 40, 1996, 160 . coMaroFF & coMaroFF (note 3); ooMen, Barbara, Chiefs in South Africa: Law, Culture and Power in the Post-Apartheid Era, 2005 .

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definiTions The conceptual challenges that arise at the interface between the legislative dis­ course and the academic discourse in which this paper is situated should be ac­ knowledged . For instance, the term ‘communal areas’ is generally accepted in policy contexts and in colloquial use . Yet, it is inaccurate when employed descriptively because there are individual entitlements to land observed even in so­called com­ munal areas .9 Similarly, the notions of ‘traditional’, ‘customary’ and ‘indigenous’ are misleading in as far as they suggest that uninterrupted consistency exists between pre­colonial normative, cultural and authority forms and those of the present .10 These adjectives are adopted in legislative and judicial discussions but are unfit for descriptive or analytical use . Aware of the conceptual tensions described, I have elected to refer to what are typically termed ‘customary’ or ‘traditional communities’ in legislation as vernacular groupings . The term, ‘vernacular’ is used in a way that coincides with its use with respect to language, and thus to communicate the fact of the relevant noun’s not being imposed from outside but being emic in its development and understanding . The imprecision of the term vernacular groupings in particular is deliberate as, in this paper, I reject the state’s imposed and fixed delimitations of macro­level – that is, traditional leader’s level – ‘community’ boundaries . This rejection is based on the argument that vernacular groupings adhere to a complexly arranged, layered and nested scheme of social organisation .11 Thus, ‘community’ boundaries shift accord­ ing to the shared interests and purposes for which sets of people identify as a collec­ tive at any one time . Nonetheless, when referring to state laws and discourse, I retain the terms ‘com­ munity’ and ‘customary law’ in inverted commas so as to be true to the prevailing language in legal and popular discourse and yet also indicate their questionability . I also use the terms traditional leader and traditional institutions, mainly because, as these entities exist in legislation, they are (according to my argument) artefacts of state invention or imagination . This paper does not attempt to establish the legiti­ macy of their existence independently of their legislative existence, only the legiti­ macy of their authority, specifically in relation to its personally, territorially and subject­matter based jurisdictional boundaries . Finally, in dealing with what the Traditional Courts Bill calls ‘traditional courts’, I prefer the wider term, vernacular dispute resolution forums . This is consistent with the fact that dispute resolution forums in the vernacular groupings with which I am concerned are not confined to – or even mostly comprised of – courts as they are understood in the civil law system or the mechanisms of dispute resolution that they use .

9 10 11

coUSinS, Ben . “Characterising ‘communal’ tenure: nested systems and flexible boundaries .” Claassens A & Cousins B Land, Power & Custom: Controversies generated by South Africa’s Communal Land Rights Act, 2008, 112 . coUSinS (note 9), 110 . coUSinS (note 9); oKoth-ogendo, H . W . O ., The nature of land rights under indigenous law in Africa, Land Power and Custom: Controversies Generated by South Africa’s Communal Land Rights Act, 2008, 95–108 .

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ConsTiTuTional design The Constitution places the legislature and courts under the obligation of respect­ ing and accommodating customary law in the South African legal system . Section 211 provides that: (1) The institution, status and role of traditional leadership, according to customary law, are recognised, subject to the Constitution . (2) A traditional authority that observes a system of customary law may function subject to any applicable legislation and customs, which includes amendments to, or repeal of, that legislation or those customs . (3) The courts must apply customary law when that law is applicable, subject to the Constitution and any legislation that specifically deals with customary law . And, with regard to the role of traditional leaders in the national order, section 212(1) allows that ‘National legislation may provide for a role for traditional leader­ ship as an institution at local level on matters affecting local communities .’ Sections 30 and 31 of the Bill of Rights entrench the individual and group rights to choose to observe and perpetuate their culture, respectively . This, however, does not put customary law’s recognition beyond contention . Subsection 7(2) provides that ‘[t]he state must respect, protect, promote and fulfil the rights in the Bill of Rights’ . And, in turn, subsection 8(1) states that ‘[t]he Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state .’ In subsections 39(2) and (3) customary law is subjected, along with common law, to development by the courts in accordance with ‘the spirit, purport and objects of the Bill of Rights’ while any customary law rights not specif­ ically stated in the Bill but consistent with it are rendered legitimate . In sections 30 and 31, the right to culture is subject to the qualification that it may not be exercised ‘in a manner inconsistent with any provision of the Bill of Rights .’ Since this condition does not accompany other rights, the words cannot be ignored; hence, these qualifications may be read as claw­back provisions . Thus, while no rights in the Constitution are absolute but subject to balance against other rights when infringement is alleged, the impression is created that the right to cul­ ture is not to be treated like them but is always subordinate to them . ‘Customary law’ (like ‘culture’) is not defined in the Constitution . The Court has decidedly held that the constitutional provisions incorporate both official and living customary law – that is, customary law found in legislation or case law (offi­ cial customary law) and that lived out and developed in practice by indigenous communities (living customary law) .12 This has therefore concentrated the problem of how to ascertain customary law and the difficulty of the potential clash between vernacular values and those enshrined in the Bill of Rights .

12

Alexkor Ltd and Another v the Richtersveld Community and Others 2004 (5) SA 460 (CC) at paras 52–4

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HisToRiCal baCkgRound: CenTRalising CusTomaRy auTHoRiTy, inVenTing PaRameTeRs of CHiefly deCision-making The vexed history of integrating traditional authorities into state law institutions dates back to the early 19th century . Not at all particular to South Africa,13 the prin­ ciple of indirect rule was the primary mechanism for this . By this means, the colo­ nial government was able to use indigenous law as the means for enforcing its own policies of control over the African population . Therein, customary forms of au­ thority and power were a foundational aspect of what the government adapted to its purposes . Until Frederick Lugard articulated and formalised it in Nigeria, in the early 1800s, the principle of indirect rule was informal in British ruled states .14 The policy was embodied by three specific institutional reforms: namely, the recognition of traditional leaders as comprising Native Administration, institution of a system of Native Courts, and establishment of Native Treasuries to which the ‘native’ leaders would collect taxes from their subjects .15 This policy took root in South Africa in the late 19th century .16 In 1846, Theophilus Shepstone introduced the policy in Natal .17 It is often presumed that there was a distinct break between colonialism and apartheid . Yet, I find accounts such as Mamdani’s, which suggest that it is not so, to be compelling . During the period after 1910’s formation of the Republic of South Africa from the four former colonies (two British­controlled, and two Afrikan­ 13

14

15

16

17

benton, Lauren . Law and colonial cultures: legal regimes in world history, 1400–1900, 2002; chanocK, Martin . Law, custom and social order: The colonial experience in Malawi and Zambia, (1985); Lugard, Frederick John Dealtry Lugard, The dual mandate in British tropical Africa, 1922; Mamdani, Mahmood . Citizen and subject: Contemporary Africa and the legacy of late colonialism, 1996; Mann, Kristin . “Richard Roberts, eds . 1991 . Law in Colonial Africa; ranger, Terence O ., and Eric J . Hobsbawm, eds . The invention of tradition ., 1983, 211–62 . Mann and robertS (note 13), 20; MaMdani (note 13), 62 . See lUgard (note 13), 193–213 for his articulation of this policy . lUgard (note 13), 211 . “I have throughout these pages continually emphasised the necessity of recognising, as a car­ dinal principle of British policy in dealing with native races, that institutions and methods … must be deep­rooted in their traditions and prejudices . Obviously, in no sphere of admin­ istration is this more essential than in that under discussion, and a slavish adherence to any particular type, however successful it may have proved elsewhere, may, if unadapted to the local environment, be as ill­suited and as foreign to its conceptions as direct British rule would be .” Mann and robertS (note 13), 20 . “In the face of African resistance to direct intervention and in the interest of containing admin­ istrative costs, indirect rule retreated from aggressive legal and governmental reform … The task of the British colonial administrator was now to reform indigenous administration from within indigenous institutions .” Also see MaMdani (note 13), 53 . Mann and robertS (note 13), 20; MaMdani (note 13), 62 . For instance, after the annexation of Natal in 1843, an 1846 British commission recommended aggregating the natives in separate locations and administering their day­to­day activities under a ‘system of justice’ that ‘should conform as much to their own law as is compatible within the principle of ours .’ MaMdani (note 13), 63, 115–6 . chUrch, Joan, The Place of Indigenous Law in a Mixed Legal System and a Society in Transfor­ mation: A South African Experience, Australia and New Zealand Law and History E-Journal: 94, 2005, 98 .

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er­ruled) indirect rule only flourished . The same is true of post­1948 when the Na­ tionalist Party took complete control and began fully formalising their policy of apartheid . The policy developed into what would ultimately become the fiction of ‘separate development’ etched into the landscape of South Africa by means of the homeland (Bantustan) system . A number of significant pieces of legislation demon­ strate (even in just their titles) the continuation and development of the colonial policy of indirect rule during this period and beyond . These include the Natives Land Act 27 of 1913, Black Administration Act 38 of 1927,18 Native Taxation and Development Act 41 of 1925, Native Trust and Land Act 18 of 1936,19 Bantu Au­ thorities Act 68 of 1951, Native Taxation and Development Act 38 of 1958 and Bantu Taxation Act 92 of 1969 .20 In brief, these pieces of legislation cover some of the most significant elements of colonial and apartheid policy and, through them, the continuity with Lugard’s threefold model of ‘native’ administration, taxation and courts is palpable . First was land ownership for the whites, restricting the majority black population to reserva­ tions that occupied only 13 % of South African territory . The reservations were later farcically called ‘independent homelands’ and the necessary structures to maintain that farce established: tribal authorities . An essential component of this was the conversion of personal affiliations to territorial ones .21 Thus, firm territorial bound­ aries were established for indigenous people that confined them to a single locale that had a narrowly defined cultural identity and put them under the jurisdiction of a government­elected or ­endorsed leader chosen for them .22 Second, therefore, was administration and authority, the latter of which was assigned to pseudo­traditional persons and structures . The legitimacy of some au­ thorities was manipulated and/or completely manufactured23 by the government whilst it was said to be sourced from custom and tradition . The institutionalisation of even those authorities who were traditionally legitimate was necessary to enable the government to use them optimally for its own purposes . Thus, all traditional 18 19 20 21

22

23

According to its preamble, intended ‘[t]o provide for the better control and management of Black affairs .’ And, the Bantu Areas Land Regulations, Proclamation R188, GG2486, 11 July 1969 . See discussion of some of these laws in Tongoane and Others v National Minister for Agriculture and Land Affairs and others 2010 (6) SA 214 (CC) at para 10–29 . See section 5 of the Black Administration Act which reshuffled tribes . The amendment of sec­ tion 12(1) (by the Native Administration Amendment Act 21 of 1943) also solidified this as it strengthened the imposed notion of a traditional leader’s authority over people residentially affiliated with his tribe (prescribed in the original iteration of the section) by articulating it as an authority that applied to the territorial jurisdiction over which the traditional leader had been given charge (‘control’) . The amended section 12(1) now read: “The Governor­General may confer upon any native chief or headman jurisdiction to try and punish according to native law and custom, any Native who has committed, in the area under the control of the chief or headman concerned, any offence specified by the Governor­General, which is punishable under native law and custom .” Section 2(7) permitted the Governor­General to ‘recognise or appoint any person as a chief or headman in charge of a tribe or of a location, and … to make regulations prescribing the duties, powers and privileges of such chiefs or headmen’ as well as to ‘depose any chief so recognized or appointed .’ See section 1 of the Black Administration Act which makes the Governor­General the ‘supreme chief ’ of all Natives in three provinces: Natal, Transvaal, Orange Free State .

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authorities were incorporated into government administrative structures to that end . If they resisted, they were demoted or displaced in terms of section 2(7) of the Black Administration Act . The critical thing to note is that, effectively, the question of the legitimacy of a chief ’s authority was moved from one of personal association and recognition by the community members to one of the technical nature of recognition revolving around land and power to administer it . The latter depended upon assignment and approval thereof from government .24 If the last requirement was met, the commu­ nity was subjected to the recognised person’s authority without being consulted . The fortunate individual who was promoted to chief, at the government’s whim, gained significant (often unilateral) powers of control and administration, over the community and its resources, that they may not have been due . The taxation of the indigenous population to service the established administra­ tion (and homeland system) was the third component of government’s policy of in­ direct rule or ‘separate development’ . Government collected, through the traditional authorities it had established, legislated taxes from traditional constituents to its cof­ fers and permitted the traditional authorities themselves to sometimes determine and collect ad hoc – and thus unregulated – taxes and levies (called ‘special rates’) . It is not surprising that, since government’s oversight of these powers was limited, the often exploitative powers it had granted to levy were themselves abused .25 Finally, while courts did not get their own independent Act, they were central . The Black Administration Act dealt with numerous substantive law issues such as marriage and succession, as well as policing . However, its most significant tasks with regard to courts26 were the creation of native commissioners’ courts27 and the ex­ plicit recognition and regulation of traditional courts . Sections 1228 and 2029 of the Black Administration Act regulated traditional courts under the respective titles, 24

25

26 27 28

29

See Matope v Day 1923 AD 397, and see especially at 404 . In this case, the court’s decision to rec­ ognise, as chief, a man who was officially registered as a headman turned on how the state had interacted with him in allowing him to purchase land on behalf of his tribe, not on recognition as such by his supposed tribe . While this is beyond the scope of the present paper, the door to the continuation of tribal levy­ ing by traditional authorities seemed to be left open by subsections 4(2) and (3) of the TLGFA in ways that are arguably contrary to sections 43 and 104, as well as Chapter 13, of the Consti­ tution . Cf . sections 8 and 9 of the Black Authorities Act, which provided for native treasuries . Another of the Black Administration Act’s significant tasks under its goal of ‘tribal organization and control’ (per Chapter II) was the provision for the ‘Constitution or adjustment of Black tribes and removal of Blacks’ (section 5) . In terms of section 10(1) . The infamous choice of laws provision in section 11(1) complements the creation of the Native Commissioners’ Courts . Section 12 originally read: (1) The Governor­General may authorize any native chief recognised or appointed … to hear and determine civil claims arising out of native law and custom by Natives against Natives resident within his area of jurisdiction brought before him … (2) The judgment of such chief shall be executed in accordance with such procedure as may be prescribed by regulation under sub­section (5) . … Section 20 originally read: (1) The Governor­General may grant to any native chief jurisdiction over members of his own tribe resident or being upon tribal land or in a tribal location within his area in respect of offences punishable under native law and custom . …

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‘Settlement of civil disputes by native chiefs’ and ‘Powers of chiefs to try certain offences’ .30 The provisions show the centralisation of the figure of ‘senior tradi­ tional leader’ in the model of traditional courts that the Act imposed, as both cus­ tomary law­maker (except as limited by statute) and arbiter . This is in contrast with the various ethnographic accounts of customary courts and the arguments that were presented by contesting litigants before the civil courts . Appeals to the native com­ missioners’ courts in civil matters and to magistrates in criminal cases were provided for . While there did exist chiefs who refused to cooperate with the state and for­ feited their birthright because of their resistance, there were also opportunists avail­ able to replace them . This corrupted the indigenous system of traditional leadership and dislocated it from the community legitimation in which it had been rooted . It also distorted culture and contributed to the unravelling of strong community so­ cial ties upon which customary law and authority depended . Traditional leaders si­ multaneously obtained assurance of power from the government and, by abandon­ ing acceptance and legitimacy afforded to them by their communities, lost assur­ ance of the authority on which the indigenous form of traditional leadership re­ lied .31 Women (and young people) were disproportionately disadvantaged by a system that privileged ‘the adult male members of the tribe’, as exemplified by section 3(1) of the BAA – the latter Act being later amended to render women perpetual mi­ nors .32 What essentially lay at the heart of the disputes that ensued in the commu­ nities in which the government had so interfered was who had the biggest say over what constituted customary law . The government etched a system of patriarchy that left it to men (and ultimately a single man in the position of chief) to determine what was traditional . It therefore eroded the existing accountability mechanisms

30

31 32

(3) In the exercise of jurisdiction conferred upon him under sub­section (1), a chief may impose a fine not exceeding two head of cattle or five pounds upon any person convicted by him of any such offence . (4) The procedure at the trial of any offence under this section the manner of execution of any penalty imposed in respect of such offence, and the appropriation of fines shall, save in so far as the same may be specified by regulation which the Minister is hereby authorised to make, be in accordance with native law and custom . … These were the original titles of these sections . The amended titles (pursuant to the Native Administration Amendment Act 9 of 1929 and the Native Administration Amendment Act 21 of 1943) were ‘Settlement of civil disputes by Black chiefs, headmen and chiefs’ deputies’ and ‘Powers of chiefs, headmen and chiefs’ deputies to try certain offences’, respectively . bronStein, Victoria, Reconceptualizing the customary law debate in South Africa, S. Afr. J. on Hum. Rts. 14 (1998), 397; chirayath, leila, Caroline Sage, and woolcocK, Michael . Customary Law and Policy Reform: Engaging with the Plurality of Justice Systems, 2005, 8 . Section 11(3)(b), as inserted by the Native Administration Amendment Act 21 of 1943, stated a new ‘customary’ law that said that: “a native woman who is a partner in a customary union and who is living with her husband, shall be deemed to be a minor and her husband shall be deemed to be her guardian .” Also see Mann and robertS (note 13), 41; chanocK, Martin . The making of South African legal culture 1902–1936: Fear, favour and prejudice, 2001, 262 . ; MaMdani (note 13), 81 describes the British native commissioner’s horror in finding that Ndebele women were liberated enough to choose who they desired to marry, without restriction, and his recommendation that the Natal Code of 1891 be applied to the Ndebele, as a restrictive solution .

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couched in reciprocal living arrangements and multilayered, symbiotic social organ­ isation . It did so whilst itself imposing ever­increasingly oppressive versions of sub­ stantive custom . The already vulnerable were left at the mercy of power­hungry or abusive chiefs who had their power – and the repressive laws and distortions that they applied – insured by the government and thus did not depend on their peo­ ple’s approval and conferral of authority . Where communities or their members felt that they had no other recourse, they used the civil courts . 33 The cases therein represent people’s competing interests and ideas of what constituted custom, as well as people’s struggle over power: who had it, and over whom else . Interestingly, what the courts perceived to be a problem of disagreement and lack of clarity in the varying, competing testimonies presented before them (according to the state’s top­down, univocal concept of law) was, in fact, an expression of the essence of living customary law and customary accounta­ bility mechanisms: that is, multivocality and negotiation . PResenT legislaTiVe ConTexT: ReinfoRCing CenTRalised auTHoRiTy, ReasseRTing Colonially-inVenTed boundaRies of deCision-making In the 1950s, Lord Hailey wrote: ‘Those governments … which have relied in principle on the use of traditional institutions are seen to have so transformed them in the process that Africans of a past generation might find it difficult to recognise them … Even though they may continue some appeal as recalling established custom, the community is constantly made aware that the sanction on which the institutions rests is no longer tradition or religion but the authority of the government.’34

The significance of this reality is not merely in historical causation that leads into contemporary and perpetual consequences, but the continuing adoption of such old (and few new) strategies by the modern day government . old inStitUtionS not Made new: the traditional leaderShip and governance FraMeworK act 41 oF 2003 The Traditional Leadership and Governance Framework Act, 2003 (TLGFA) was intended to reform governance of the former homelands in accordance with the Constitution by undoing the legacy of the Black Administration Act, Black Author­ ities Act and other legislation that formed the legal basis for apartheid . The legisla­ 33 34

chanocK (note 32), 22 . See also MaMdani (note 32) . hailey, Baron William Malcolm . Native Administration in the British African Territories (1950–53) Vol . IV 36, as cited in reyntjenS, Filip, The Future of Customary Law in Africa, 1993. The Future of Indigenous Law in Southern Africa: A Collection of Papers and Comments Presented at a Conference Held under the Auspices of the Centre for Indigenous Law, UNISA and Vista University at UNISA on 21–22 October 1991 . Joan Church (ed .) . Pretoria, Centre for Indigenous Law, UNISA, 9 . (emphasis added) Refer to the multitude of cases confirming the principle that a chief ’s mandate, authority and power derives from government recognition: Mathibe v Lieutenant-Governor 1907 TS, Rex v Kumalo and Others [1952] 2 All SA 9 (A), Mosii v Motseoakhumo 1954 (3) SA 919 (A), Monakgotla v Minister of Native Affairs 1959 (1) SA 686 (T) .

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tion has several innocuous provisions, especially at its beginning, that indicated that communities would have the option of being part of a traditional community and, similarly, have the option of withdrawing from it . Section 2 suggests an opt­in system of recognition as a traditional community under traditional authority when it states that: (1) A community may be recognised as a traditional community if it – (a) is subject to a system of traditional leadership in terms of that community’s customs; and (b) observes a system of customary law . … (2) (b) Provincial legislation … must – (i) provide for a process that will allow for reasonably adequate consulta­ tion with the community concerned; and (ii) prescribe a fixed period within which the Premier of the province con­ cerned must reach a decision regarding the recognition of a community envisaged in subsection (1) as a traditional community . This section is complemented by section 7, which provides for ‘withdrawal of recog­ nition of traditional communities’ at the community’s request to the Premier . It provides also for the ‘review [of] the position of a community or communities that was or were divided or merged prior to 1994 in terms of applicable legislation’35 (i . e . the legislation discussed above) . This review is to be done by the provincial govern­ ment concerned when requested to do so in order to withdraw the recognition of a community as a traditional community .36 The same could be done for the sake of the merger of two or more communities as permitted by section 7(1)(c) . The provisions in the early parts of the TLGFA are deceptive . If one looks at the back of the Act one finds section 28 spuriously titled, ‘transitional arrangements’ . Section 28(1) states that: Any traditional leader who was appointed as such in terms of applicable provincial legislation and was still recognised as a traditional leader immediately before the commencement of this Act, is deemed to have been recognised as such in terms of section 9 or 11, subject to a decision of the Commission in terms of section 26 .37

Section 28(3) deems ‘[a]ny “tribe” that, immediately before the commencement of this Act, had been established and was still recognised as such … to be a traditional community contemplated in section 2 …’ 35 36

37

Section 7(1)(b) of the Traditional Leadership and Governance Framework Act 41 of 2003 As it happens, communities that have applied have met with grave resistance from government . An example is the Nkaipaa community which applied to the Premier in the North West but was denied relief, after the legitimacy of the problems that gave rise to their withdrawal request was formally acknowledged, on the grounds that granting them relief would open up the floodgates . (This is according to a document titled, ‘Communication by the Office of the Premier, The Director: Traditional Leadership and Institutions’ dating 10 September 2004) . Note that the Commission on Traditional Leadership Disputes and Claims has only just com­ pleted investigations of Paramountcies and has issued a controversial decision on these . It is an incredibly long way from determining the legitimacy of the existences of senior traditional leaders (that is, chiefs) . The controversial Commission Report, titled ‘Determinations on the Position of the Paramount Chiefs’, is obtainable at http://www .info .gov .za/view/DownloadFile­ Action?id=129114 .

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In terms of section 28(4), any tribal authority that, immediately before the commencement of this Act, had been established and was still recognised as such, is deemed to be a traditional council contemplated in section 3 and must perform the functions referred to in section 4; Provided that such a tribal authority must comply with section 3(2) within one year of the commencement of this Act .38

Section 3(2) requires the traditional council to comprise 40 % elected persons39 and 60 % people appointed by the chief, and it requires that 30 % of the entire council be women (though exemption can be sought from the Premier where ‘an insuffi­ cient number of women are available to participate in a traditional council’) .40 The significance of all of these provisions is that the TLGFA permits the contin­ uation of the pre­democratic institutions . Particularly, it enables the perpetuation of tribal authorities established by apartheid legislation under the guise of democratic change . Section 28(4) initially limited the period of compliance (and hence contin­ uation) of tribal authorities to one year41 – that is, until 24 September 2005 . This created a presumption in favour of the tribal authorities continuing as traditional councils that runs contrary to the suggestion in the early sections of the Act (sec­ tions 2 and 3) cited above . More than that, however, the Traditional Leadership and Governance Framework Amendment Act 23 of 2009 (TLGFA Amendment) ex­ tended the transitional period and thus converted them into traditional councils until 24 September 2011 . Still today the former tribal authorities act as traditional councils under the TLGFA (whether transformed or not) .42 This point was acknowledged by the Constitutional Court in the case which struck down the Communal Land Rights Act (CLARA) as unconstitutional .43 In Tongoane and Others v Minister for Agriculture and Land Affairs and Others,44 the Chief Justice notes that: The Black Authorities Act gave the State President the authority to establish “with due regard to native law and custom” tribal authorities for African “tribes” as the basic unit of administration in the areas to which the provisions of CLARA apply . … It is these tribal authorities that have now been transformed into traditional councils for the purposes of section 28(4) of the Traditional Leadership and Governance Framework Act, 2003 … And in terms of section 21 of CLARA, these traditional 38 39

40 41 42 43 44

Emphasis added . Elections, in so far as they have been carried out in the Eastern Cape, KwaZulu­Natal, North West and Mpumalanga, have been a failure: people have been notified of them too late or rejected them as procedurally flawed, and not free or fair; chiefs have boycotted them because they want to appoint all council members (or they feel their authority is being undermined) or they have hijacked them and put in their own people anyway . At best, they have occurred in a perfunctory manner that has left people less than convinced of the constitutionality or legitimacy of their outcomes – that is, if their results have even been announced (which the Mpumalanga House of Traditional Leaders claimed, in a parliamentary submission in 2010, that they have not been in their province, albeit now years after they were held) . Section 3(2)(d) of the Traditional Leadership and Governance Framework Act 41 of 2003 Section 28(4) read ‘… Provided that such a tribal authority must comply with section 3(2) with­ in one year of the commencement of this Act .’ Factually, only a small minority of traditional councils have complied with section 3(2) . The problems range from elections not having been held, to their having been held under very flawed processes that do not comply with the Act or Constitution . claaSSenS, Aninka . Land, power & custom: controversies generated by South Africa’s communal land rights act . Ed . B . Cousins, 2008, 109–137 for discussion of the problems with CLARA . 2010 (6) SA 214 (CC)

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councils may exercise powers and perform functions relating to the administration of commu­ nal land .45

The Court concludes this statement with the words, ‘[u]nder apartheid, these steps were a necessary prelude to the assignment of African people to ethnically­based homelands .’46 This suggests the obvious difficulty that the TLGFA presents . By it, the legislature asks rural people to believe that these structures forming the founda­ tion of such an oppressive regime as apartheid can be reformed without more fun­ damental changes to them and the flawed (top­down and centralised) framework of rural governance that they represent . In light of the presumption in favour of established apartheid territorial and jurisdictional boundaries, section 7 requires a new reading also . It requires the whole recognised traditional community (formerly ‘tribe’) to apply to the Premier for the withdrawal of its recognition . This traps subgroups that were wrongly incorporated under traditional authorities that they did not recognise or have relationship with, as well as those who would simply wish to secede . Hence, the section is biased in favour of traditional councils and puts an unfair burden on sub­groups of commu­ nities to show why they ought to be permitted to be independent . It forces them to fight to opt out rather than allowing them to voluntarily opt in . The section is also unfair because the request for independence will only be ‘considered’ in a very lim­ ited set of circumstancess, as specified in section 7(1)(a)–(c) . These subsections per­ mit (a) an entire community to have its recognition as a traditional community withdrawn, (b) the review of ‘a community or communities that was or were divided or merged prior to 1994’, and (c) the merger of two or more recognised communities . Originally, traditional authority was not based on territorial boundaries and people were able to hold their leader accountable by dissociating from or leaving his realm if they so wished (secede), or ousting him . Given this, the present situation under the TLGFA holds people hostage within apartheid boundaries in ways that are consistent with neither democracy nor custom . They serve to benefit traditional leader elites who are embedded in the formalised system of traditional leadership that is of illegitimate origins . perpetUating colonial iMagination: the traditional coUrtS bill (b15–2008) The ways in which the TLGFA follows in the footsteps of its apartheid legislative predecessors show that it is not unusual for living customary law to be inappropri­ ately provided for in legislation . However, what it speaks to, moreover, is that this is true even in the context of attempts to bring it in line with the Constitution and harmonise it with the rest of state law and its institutions . It may be because of true misunderstanding or because of government’s attempt to pass the buck of responsi­ bility for the millions of South Africans living in the former homelands by govern­ ing them through the tried and tested partnership with traditional authorities . Re­ gardless, evidently, the assumption persistently at work is that top­down, centralised government is the way to go . 45 46

Ibid at para 24 (emphasis added) Ibid at para 25

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Fig. 1: Projected Map of Former South African Homelands, 1986, courtesy of Centre for Law and Society, University of Cape Town

The Traditional Courts Bill (TCB) is but another example of this. It attempts to provide for the regulation of customary courts as part of the state justice system.47 The TCB is meant to replace sections 12 and 20 of the Black Administration Act, which presently regulate this area, by bringing the courts in line with the Constitution. However, in adopting a model that is very much in keeping with the centralised and patriarchal framework that the Black Administration Act ingrained, it rather entrenches the flaws that these courts developed under apartheid. There are many problems with the TCB but here I will focus on only three. Firstly, it is premised on the apartheid territorial and jurisdictional boundaries objected to with reference to the TLGFA. Likewise, it additionally denies ordinary rural citizens choice in that opting out of traditional court jurisdiction is not permitted. Clause 20(c), along with clauses 5(1) and 6, of the TCB denies rural residents the entitlement to choose their forum by preventing them from opting out of their local traditional courts’ jurisdiction. In fact, clause 20(c) makes it an offence for

47

Beyond the scope of this paper is the important discussion of how government failed to consult with ordinary rural people in formulating this legislation. The details of who was consulted (namely, traditional leaders) in the drafting process are set out in clause 3.1 of the ‘Memorandum on the Objects of the Traditional Courts Bill, 2008’. This remained the same in the subsequently reintroduced Bill of 2012 (B1–2012).

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Fig. 2: Map of South African ‘Traditional Councils’, 2010, courtesy of Centre for Law and Society, University of Cape Town

anyone within the jurisdiction of a traditional court, even a passer-by, not to appear before it, if summoned. The TCB consequently undermines the consensual character of customary law. It also denies the living practice of ‘forum-shopping’ which enables people to source for themselves the forum with the greatest legitimacy and which they perceive to give them the best chance of obtaining justice. By removing this flexibility, the TCB also removes a significant power by which customary law adherents hold their leaders accountable. In other words, if a leader were illegitimate or exercised his power in illegitimate ways, people would no longer be able to show their disapproval by ignoring his court until he remedied his conduct. Secondly, in the TCB, law-making and dispute resolution power is centralised to the ‘senior traditional leader’ (namely, chief), extending the powers of an essentially undemocratic court even to the point of also permitting oppressive sanctions.48 The Bill does not provide for the role of traditional councils. And, by cen48

For example, according to clause 10(2)(g), the traditional court may issue: “an order that one of the parties to the dispute, both parties or any other person performs some form of service without remuneration for the benefit of the community under the supervision or control of a specified person or group of persons identified by the traditional court.” This provision permits that even a person who is not a party to the dispute before the court can be ordered to provide ‘free labour’.

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tralising all decision­making powers to the ‘senior traditional leader’, it distorts cus­ tomary practices on the ground which most often involve members of the commu­ nity actively participating in dispute resolution by asking questions and assisting in the deliberations toward a solution . The TCB approach to this is consistent with the Black Administration Act model of centralisation that recognised only a nominal role for the councillors, at best . Moreover, the TCB does not recognise customary courts at any level lower than the community­wide chief ’s court, which is also inconsistent with the more layered practice on the ground . Incidentally, this policy decision particularly disad­ vantages women as there are indications that decentralised power enables women greater possibilities for influencing the living customary law because women are better able to participate at lower levels of traditional courts .49 Thirdly, any order of the traditional court is final but for its being appealed to or reviewed by the Magistrate’s Court . However, appeals50 and reviews51 are very limited . Incidentally, the terms upon which one can have the senior traditional leader’s status as presiding officer revoked by the Minister, and the process by which it must be done, as set out in section 16, make it a difficult course for rural people (especially women) to follow . It compels one to go head­to­head with one’s leader, which is a difficult feat, given the nature of power differences between the parties . This sets up structural obstacles for rural people to hold their leaders accountable, even by formal means . It also gives the courts powers that are inconsistent with both those powers assigned by living law and those powers permitted by a Constitution premised on democracy and individual freedom . It therefore entrenches traditional institutions (in terms of the Act, led solely by elites) as near­autocrats in their com­ munities . HisToRiCising undemoCRaTiC deCenTRalised goVeRnanCe

in

souTH afRiCa

The growing power imbalance is indicative of government’s poor choice of govern­ ance strategy . In Citizen and Subject, Mahmood Mamdani writes: … the Africa of free peasants is trapped in a nonracial version of apartheid . What we have be­ fore us is a bifurcated world, no longer simply racially organized, but a world in which the di­ viding line between those human and the rest less human is a line between those who labor on 49

50 51

claaSSenS, Aninka, and MniSi, Sindiso . Rural women redefining land rights in the context of living customary law, South African Journal on Human Rights 25, no . 3, 2009, 491 . Also see Mnisi Weeks, Sindiso, Take Your Rights Then and Sleep outside, on the Street: Rights, Fora, and the Significance of Rural South African Women’s Choices, Wis. Int’l LJ 29, 2011, 288 . Section 13(1) of the TCB . Appeals exclude such things as an order of prohibition (i . e . an interdict) and ‘any other order that the traditional court may deem fit’ (as issued under section 10(2)(l)) . Section 14(1)(a)–(d) of the TCB . Reviews are allowed only on the basis of a traditional court’s having acted outside of the scope of the Act, lacked jurisdiction, proceeded with gross irregulari­ ty and been biased/acted with malice . Alternatively, section 16(3)(a) of the TCB permits reviews on the basis of incapacity, gross incompetence or misconduct of the presiding officer; and sec­ tion 16(3)(b) of the TCB allows that in the case of the presiding officer’s wilful or gross violation of the code established in terms of the Traditional Leadership and Governance Framework Act 41 of 2003, any person can request that the Minister revoke the senior traditional leader’s status as presiding officer .

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the land and those who do not . This divided world is inhabited by subjects on one side and citizens on the other; their life is regulated by customary law on one side and modern law on the other; … in sum, the world of the ‘savages’ barricaded, in deed as in word, from the world of the ‘civilized’ . Does not this divided world – on one side free peasants closeted in separate ethnic contain­ ers, each with a customary shell guarded over by a Native Authority, on the other a civil society bounded by the modern laws of the modern state – reflect the general contours of apartheid? Was not the colonial state the basic form of the apartheid state? Has not the deracialization of that state structure through independence failed to come to terms fully with the institutional legacy of colonialism? It is in this sense that independent Africa shows apartheid South Africa one possible outcome of a reformed state structure, deracialized but not democratized …52

What is perhaps most significant in Mamdani’s words is the illumination of the fact that what might seem a unique moment or process of what I refer to as bad govern­ ance of customary communities now is actually the mark of continuity . Namely, Mamdani captures in poignant terms that the barricading of the poorest (black) South Africans53 in enclaves of legal isolation wherein special and often imposed authorities rule indeed indicates a progression from counter­democratic colonial and apartheid policy into today’s . This historicisation of the trends that we see in present government approaches choosing traditional leadership as the preferred form of governance of ‘their sub­ jects’ is accurate . It depicts government as tendentiously entrenching the despotic powers of traditional institutions, rather than democratising them to permit the diffusion of power that both democracy and vernacular law have in common . In the words in which apartheid resistance leader, Albert Luthuli, rejected the ‘traditional’ governance system that the Black Authorities Act invented: The modes of government proposed are a caricature . They are neither democratic nor African . The Act makes our chiefs, quite straightforwardly and simply, into minor puppets and agents of the Big Dictator . They are answerable to him and to him only, never to their people . The whites have made a mockery of the type of rule we knew . Their attempts to substitute dictatorship for what they have efficiently destroyed do not deceive us .54

These sentiments resonate with some of what is captured in recent scholarship on governance . Franz and Keebet Von Benda­Beckmann and Julia Eckert, in their edited collec­ tion on the interconnectedness of governance and law as mutually structuring, help situate the government approach in South Africa within global trends by arguing that de­centralisation is often a front for centralising power . They write that [t]he centralizing drive by state agencies has been redirected to incorporate new (and old) alter­ natives or additional agencies of governance . More precisely, states rather than governing di­ rectly, now attempt to determine the shape of the constellations of governance . As Santos

52 53

54

MaMdani (note 13), 61 (emphasis added) People living in the former homelands remain the poorest South Africans according to the Stats South Africa poverty map . Also see Statistics South Africa (2008) Income and Expenditure Survey, 156, where it states that in 2005/06 the average annual income of rural households was less than a third of the urban average (R30,859 as opposed to R98,011, of which salaried income formed R14,250 relative to R66,310) . lUthUli, Albert John; hooper, Charles . Let my people go . Vol . 857, 1962, 200

140

Sindiso Mnisi Weeks stressed: “The centrality of the state lies to a significant extent in the way the state organises its own decentring …” .55

In this vein, it might be argued that government’s approach is no different from that of colonial and apartheid government: ‘de­centralised despotism’, 56 otherwise known as ‘indirect rule’ – from the top, down . Scott Burris, Michael Kempa and Clifford Shearing capture the challenge cre­ ated by decentralised government in that it can privilege elites at the expense of the unorganised, marginalised poor, denying the latter stakeholders voice and participa­ tion .57 Von Benda­Beckmann et al . also point out that ‘[s]ome of these stakehold­ ers, the less well organized and least endowed, are virtually excluded from the deci­ sion­making processes and are governed over, rather than being participants to gov­ ernance .’58 The reality of exclusion remains true for those deemed ‘subjects’ in South Af­ rica, because they are denied powers of self­government, despite the existence of a democratic Constitution . As a solution, Burris, Kempa and Shearing observe the need for all to have ‘“substantial and equal opportunities to participate directly in decisions that affect them”’ .59 The Constitution provides the opportunity for this shift in South Africa’s politics but has been shown to be an opportunity wasted whereby Mamdani’s fear of ‘deracialisation without democratisation’ is realised . I tend to agree with Pierre Bourdieu on the nature of the institutional form of law and its predisposition to silencing and oppressing those who lack the ‘capital’ the possession of which law is built around .60 Barbara Oomen calls this capital, ‘the power of definition’, which enables South African traditional leaders to largely de­ termine the form of custom that becomes crystallised as law .61 Burris, Kempa and Shearing state its exclusionary potential well: ‘policy networks, as they have so far developed, … tend to take seriously the “voices” (and by extension, the forms of knowledge of their members) [and] serve the policy interests of those members .’62

55

56 57 58

59 60 61 62

benda-becKMann, Franz; von benda-becKMann, Keebet; ecKert, Julia . Rules of law and laws of ruling: Law and governance between past and future, Rules of law and law of ruling – On the governance of law (2009), 5 . Also see Burris, Scott, Michael Kempa, and Clifford Shearing, Changes in governance: A cross­disciplinary review of current scholarship, Akron Law Review 41, 2008, 4 . MaMdani (note 13), 109; Mcclendon, Thomas . “Coercion and Conversation: African Voices in the Making of Customary Law in Natal’ .” The Culture of Power in Southern Africa: Essays on State Formation and the Political Imagination, 2003, 53 . bUrriS et al . (note 55), 14, 24, 28–29, 33, 57 . von benda-becKMann et al . (note 55),10: They also point to the fact that the decentralised and fractured organisation of the state can have ‘problematic consequences, especially for margin­ alized, poorly organized and poor sections of the population . The organization of these new governance structures is often highly unequal and dominated by powerful actors, while others are excluded . …’ bUrriS et al . (note 55), 28, 57 . This phrase is quoted from Burris, Scott, Peter Drahos, and Clif­ ford Shearing, Nodal governance, Austl. J. Leg. Phil. 30, 2005, 30 . boUrdieU, Pierre, The Force of Law: Toward a Sociology of the Juridical Field, Hastings Law Journal 38 (1987), 817 ooMen, Barbara Margreta . Chiefs in South Africa: law, power and culture in the post­apartheid era, 2005, 88–89 . bUrriS et al . (note 55), 24 von

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Traditional leaders are members of such circles in ways that ordinary rural people – their ‘subjects’ – are unable to emulate . ConClusion The historical interferences by government in vernacular groupings, described above, resulted in social resistance . Groupings that did not wish to be under chiefs who were guilty of abuses protested against this, especially during the 1980s .63 By the time that the African National Congress (ANC) government took power in 1994 and the democratic Constitution came into operation in 1996, there was the expec­ tation that the institution of traditional leadership would be either sidelined or prevailed upon by the Constitution . This expectation has not come to pass . Faced with inadequate state capacity and the collapse of local government in rural areas, the government is unable to meet the needs of rural constituents . It sees the institution of traditional leadership as its saving grace . It therefore aims to reas­ sign the roles and functions of local government to traditional institutions . In a national and international context in which the language of and felt need for ‘development’ or ‘empowerment’ prevails, the government uses the rhetoric of traditional institutions partnering with government for development and service delivery to neatly clear out a space for these partners . It thus purportedly ‘empowers communities’ by actually devolving increased power to those in the highest stratum of those ‘communities’ who already possess it and often use it at the expense of those who are weak . This process of government’s giving increasing power to traditional leaders can­ not be judged separately from the level of organisation and official recognition that traditional leaders have actively pursued and obtained . In one organisational itera­ tion of the traditional leader lobby, as described by John and Jean Comaroff, the Congress of Traditional Leaders of South Africa (Contralesa) advocates for greater autonomy and authority for traditional leaders . The post­apartheid expectation that the institution of traditional leadership might fade into near­oblivion has indeed proven incorrect . Instead, Contralesa proved a formidable force in the negotiation process around the protections that would be given to the role of traditional leaders and customary law under the Constitution .64 And while the National Women’s Coalition dissipated after its victory of having gender rights protected even against customary law practices that violate them, Contralesa has continued to remain ac­ tive – both politically and economically .65 The results of its lobbying are striking . First, as shown, the laws and policies that traditional leaders have won as a con­ sequence so far already provide space for the creation and respect of enclaves at once protected from government interference in traditional rule and assured of whatever resources and protections they may need from it . The passing of these laws is partly motivated by the popular belief within the ANC that traditional leaders 63 64 65

claaSSenS,

Aninka, Women, customary law and discrimination: The impact of the Communal Land Rights Act, Acta Juridica: Advancing Women’s Rights: The first decade of democracy, 42, 2005, 73; Mamdani (note 13) KaganaS & MUrray (note 1), 410 See coMaroFF & coMaroFF (note 3), 6–8

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control the rural vote and must therefore be appeased . This is evident even in the unconstitutional rushing of the Communal Land Rights Act through parliament just shortly before the general election of 2004 .66 Second, traditional leaders hold offices in parliament and can therefore directly contribute to the formulation of legislation and more easily lobby other parliamen­ tarians than can the remotely located ordinary rural people . The number of Mem­ bers of Parliament who are traditional leaders includes the Chairperson of Contral­ esa . He serves as an ANC member of the National Assembly’s committee on justice and constitutional development, which is responsible for the Traditional Courts Bill, and co­chairs the joint committee that considers applications for the review of the Constitution . A preliminary application heard by this Constitutional Review Committee was made in 2011 by the NHTL who sought to have the powers and functions embod­ ied in the TLGFA entrenched in the Constitution itself . The TLGFA enables na­ tional and provincial government to provide a role for traditional councils or tradi­ tional leaders in arts and culture; land administration; agriculture; health; welfare; administration of justice; safety and security; registration of births, deaths and cus­ tomary marriages; economic development; environment; tourism; disaster manage­ ment; the management of natural resources; and dissemination of information re­ lating to government policies and programmes . Consideration of this application has been postponed until further research has been completed by the NHTL for the support of its application . Evidently, therefore, we might expect the partnership between government and the institution of traditional leadership to only get stronger . When it comes to the questions that this paper set out to answer, the highly contested nature of the answers arrived at by government is self­evident . What is the rightful place of pluralism in a legal system governed by the Rule of Law? The an­ swer that the Constitutional Court has given is clear: all laws (both common and customary) are subject to the supremacy of the Bill of Rights and can only apply if consistent therewith . However, that does not stop traditional leaders from courting government’s favour in search of a practical conclusion that customary law – privi­ leging their authoritarian powers, as they understand it – is exempt from constitu­ tional scrutiny . This is why unconstitutional laws like the Communal Land Rights Act can be passed and then have to be challenged and struck down by the Constitu­ tional Court, and patently unconstitutional laws like the Traditional Courts Bill can still be proposed . Who should get to decide whether or when a culturally­based, alternative legal system applies? Again, the Constitution seems clear that customary law only ap­ plies, firstly, if it is in accordance with the Constitution (more specifically, the Bill of Rights) and, secondly, that people have a choice as to whether they wish to live under customary law – it cannot be forced upon them . However, in their determi­ nation to preserve their domains, traditional leaders are consistent proponents of legislation that segregates rural people from the rest of society that lives under state law by default and is free to choose to live under customary law if it so wishes . The state has resolved, with traditional leaders, that jurisdiction will continue to be de­ 66

claaSSenS (note 63), 45–6, 66–9

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fined according to territory (without permitting people to opt out) . This is regardless of all indications that vernacular jurisdiction is rather a matter of people opting into a vernacular grouping that together chooses to live according to rules that are evolved and shared by the relevant grouping . How far should powers under such an alternative legal system extend? Tradi­ tional leaders would seek for their powers to be limited only by customary law as they define it and thus be as expansive as they wish . Yet, ordinary rural people would seek to participate in the definition of a customary law that constrains tradi­ tional leaders’ powers and accountability measures that prevent traditional leaders’ abuse . After all, this is the nature of vernacular law . The Constitution would seem to agree, qualifying this only with the fact that the Constitution itself is the ultimate check on the extent and exercise of public power . For instance, with regard to dispute resolution, the state says that it is the ‘senior traditional leader’ appointed under apartheid laws who, at the level of chief ’s court, can decide matters . This is while most vernacular groupings in South Africa would respond that it is a people­appointed or ­legitimated leader and council, bound by the questioning and deliberations of the grouping members present to assist in re­ solving the dispute . The values of the Constitution would imply agreement that the latter is more democratic and, certainly, that no authority (not even a customary authorities) can determine the extent and limitations of its own powers . The Consti­ tution prescribes principles for limiting judicial power . And, to the extent that de­ liberations would often exclude women, the state has a duty to support women’s growing involvement in customary decision­making forums and their processes rather than simply reinforce the patriarchal practices advocated by traditional lead­ ers and rural men . This is in accordance with women’s equal rights which are pro­ tected under the Constitution . Finally, who should be given these powers under a culturally­based, alternative legal system, and on what conditions? While ordinary rural people would say that governance powers under customary law should not be concentrated in their senior traditional leaders but be more widely distributed in accordance with their living law and the Constitution so as to encourage democratic processes in their commu­ nities, the traditional leader lobby typically disagrees . Instead, it argues for unlim­ ited authority, consistent with the view of traditional leaders as autocrats and ordi­ nary rural people as mere ‘subjects’ at their mercy . Ultimately, the contestation taking place in South Africa is about ensuring de­ mocracy, even if decentralised – thus making sure that, even though vernacular law is legally respected and its governance processes recognised, it gives expression to democracy through its terms and procedures . The contestation is also about safe­ guarding human rights, even if law and society are fragmented – thus securing, for ordinary rural people living under customary law, protection from abuse and ex­ ploitation and ready access to the general laws of the land as is had by people living in urban areas . Finally, the contestation is about guaranteeing the Rule of Law in a pluralistic legal order so that the fact that multiple legal systems apply within the single order does not mean that unjust laws apply in some places or culturally­based laws are unjustly and unaccountably applied to the marginalised .

Miracy BarBosa Gustin, universidade Federal de Minas Gerais (Belo Horizonte) soCial goVeRnanCe of CommuniTies in PeRiPHeRal exClusion: fundamenTal quesTions abouT iTs effeCTiVeness 1. iniTial ConsideRaTions The term effectiveness has been used in numerous works of Applied Social Sciences. It lacks, however, a concept that allows a more direct connection with the practical sphere of the various sectors of this scientific field. Here effectiveness will be understood as the correlation between the fulfillment of predetermined goals – political or legal – and the demands and needs of particular social groups or communities in situations of exclusion or risk. The term community, likewise, has been used as a very generic and imprecise concept. Community has often been regarded as a synonym of large urban regions, of imprecise demographic groups or social strata (religious communities, and of gender, among others). To provide further arguments to be developed in this article, community must be considered as social groups which were structured around certain mutual interests and which promote a sense of solidarity capable of allowing the emergence of internal cohesion with a transforming potential in certain moments. In other words, a community is established in the history of certain social strata, but cannot be considered as corresponding to this layer in its entirety. Thus, a community may be constituted during a particular period of time and subsequently dissolve, upon meeting the interest which gave rise to it. On the other hand, other communities may become perennial by cultivating interests of a comprehensive and mediate nature. Some other concepts must be clarified before initiating a more substantive argument on the subject. Firstly, the issue is related to “peripheries” and not to a generic context. Two reasons are explanatory of this option: one of structural imprint, the other ideological. The current international financial crisis of capitalism ought not to be omitted. For this reason, the issue of international peripheries and not only those peripheral sectors that are located within the countries, especially in Brazil, must be addressed first. The situation of peripheral countries against the internationalization of relations must not be understood, at the present time, only as an economic and financial process or of broadened communication, the latter fueled by the unlimited expansion of the digital era. The process of international relations must be understood here as a succession of changes that have generated several exclusions, from the exclusion of large geographic regions and nations to the formation of large clusters of urban slums and exclusion of social groups with specific interests or communities. As stated from the beginning, community, in this article does not have a definition corresponding to a particular geographical or political area, but to a sociological concept that relates to specific relationships between or inside social groups contributing to the emergence of certain interests and thus promoting a more evident cohesion. The technological and economic patterns prevailing until the present moment and after the second half of the 20th century have led many social groups to unem-

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ployment and underemployment, to isolation in the cities and to all kinds of exclu­ sion and exploitation . We began to repeatedly think of the possibility of establish­ ing internal policies which could somehow minimize these pernicious effects of this socio­economic order on the more fragile social strata . Gradually, we began to dis­ cuss, in the academic­scientific realm and in international forums, the immediate need for public policies to materialize social governance models which would allow a closer contact between the government and organized civil society . The theoreti­ cal foundations of these thoughts revolved around the assumption that in adverse conditions and those of exclusion, when public policies enable the generation of evident social injustices, a new logic that could establish effective local responses of protection of fundamental and human rights would be inevitable . The presentation of the parameters that must substantiate this new logic of inclusion and preservation of fundamental and human rights is the primary core theme of this text . Before that, however, a first approach to the concept of social governance is essential . Social governance is defined in this article as a creative way of allocating competencies for organizations working directly with populations or segments of society who need to capacitate themselves in order to solve specific needs or de­ mands . Social governance teams must seek to build relations between groups or organizations of civil society with the State administrative spheres through an inter­ action capable of allowing the optimization of actions . For this to happen, initia­ tives that form and build new ways of conceiving the joint action of these two seg­ ments are essential . Governance must be understood as a social pedagogy of experi­ ences towards fostering learning about the forms of social action on the part of the base organizations, resulting in effective action . For these reasons, it is proposed that social governance, when dealing with communities weakened by poverty and socio­cultural exclusion, must adopt, as a primal strategy, the encouragement of social and human capital formation, acting through mixed social networks or even those of informal conformation . This must be specially carried out in the regions of greater depletion and in situations where survival with well­being is unfeasible . This action may be direct, arising from the community’s own grassroots organ­ izations, or indirectly, through State action . Either way, an action based on system­ atic surveys and interventions which allow the strengthening of the actions of these organizations (governmental or nongovernmental) is indispensable . That is why the formation of networks will allow greater strengthening of these places where social governance is accompanied by the formation of social and human capital . These social networks connected with the constitution of social and human capital may allow an emancipated role capable of fostering the transformation of traditional behaviors that brought along with them a context of exclusion for part of these groups or communities .

2. wHaT

To

CHange

and in

wHaT diReCTion?

When referring, in this text, to the regions of social exclusion one must not merely think of economic statistics in relation to rates of poverty/deprivation (above 40 %), by only considering family income . These regions have other social and environ­ mental factors that make this a more severe condition . The survival in household

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clusters, generally in slums, the lack of basic services such as access to sewage, drink­ ing water, garbage collection, supply of electricity in households and public roads, exposure to high levels of violence and lack of public security, make these poverty rates, according to income, more severe . The fragility of the Brazilian economic recovery has been evident . Since the late 90’s the income per capita of the population has been practically stationary . In lar­ ger cities, statistics show that income concentration has either intensified or remai­ ned unchanged . Self­sustained development in Brazil has been a recurring theme . It has followed international trends and fed the financial character of valuing wealth in the country with a contraction of public spending, especially in the sectors of maintenance of well­being and sustainable development of underprivileged com­ munities . Welfare programs which, somehow, disguise the actual needs and de­ mands of the impoverished population are encouraged . One should not forget that the so­called basic needs are directly related to the principle of material equity . Thus, public policies, especially when considering the possibility of social governance, should define as a first­order human imperative the capacity to equally access goods and services . Without fulfilling minimum human needs, not only are fundamental and human rights breached, but also, the possibi­ lities are drastically reduced of forming a society which can equally deliver the avai­ lable goods to those who need them most . These challenges will be raised evermore as a result of capitalism’s international financial crisis . There is no way to avoid re­ thinking the guidelines of the international economy and the most viable alternati­ ves to minimize highly perverse effects for all . These alternatives are undoubtedly of a location­based nature . Generic social inclusion “formulas” will no longer be pos­ sible . It is quite apparent that in peripheral countries such as Brazil, there is apathy in relation to effective changes that can restore social welfare and foster greater human dignity through alternatives of social development . This hopelessness undermines the morality of a vaunted political agreement between the State and society, thereby deteriorating the maintenance of democratic relations and solidarity with respect to the reasonable functioning of a sustainable economy and governance structure . This is a challenge which requires modern administrations capable of selecting, with po­ litical lucidity, the social actions which are priorities for sustainable and participa­ tory development . The old model of social welfare policies has been exhausted, along with the preaching about a minimal State . Through the demonstrations, reasons and concepts so far exposed, it is believed that a methodology for the establishment of effective social and human capital, to reduce social exclusion (including that which is derived from poverty and indi­ gence), may gradually reverse in part the negative social development of this scena­ rio . This methodology can be connected to the formation of social networks to strengthen this type of public policy . Welfare policies alongside a wide array of po­ pulist strategies and detachment from the more serious socio­cultural problems are governmental ways of hiding the reality of our present society .

148 3. soCial goVeRnanCe and soCial and Human CaPiTal of soCial and eConomiC inClusion

Miracy Barbosa Gustin as

alTeRnaTiVes

We can infer from the above, that economic development should not be discon­ nected from the community’s social organization and from its cultural forms of changing its own way of understanding and performing these transformations . That is, economic development cannot happen by itself, as a supernatural being that dictates the rules and norms of a society, but as an element of partnership for the development of society as a whole . The final document of the “Regional Conference on Social Capital and Pov­ erty”, held in Santiago, Chile, at the ECLAC headquarters in 2001, brings important information on the relationship between social capital and poverty, which is worthy of further analyses . A methodology of social and human capital, the core topic of this article, and whose proposal arose from the field experience of several projects of the “Poles of Citizenship” Program of the Federal University of Minas Gerais Law School will be presented below . One of the products of the Conference was the discussion on the best concept of social capital . Initially, it was argued that the concept should come from different disciplines, as an approximation of the connections between economic relations and social relations in a single system and to identify, according to this milestone, the social forces that interact with developmental processes . The alluded document works with the synergy between social and economic re­ lations with the understanding that their effects may contribute to improve policies against poverty . The final concept of social capital was synthesized in the following terms: “Social capital is the set of rules, institutions and organizations that promote trust and cooperation between people, communities and society as a whole .” It should be noted that the members of the Conference concluded that social capital is a paradigm which is not restricted to traditionally conceptualized social capital . It refers, however, to the complex system of human society, ranging from a community of local interest, to a neighborhood, a region or even a national society . The document concludes that, firstly, it is critical to invest in the organizational capacity of the poor . And this should be made in two levels: the micro level, which invests in the creation of associations and, the macro level, working on changing regulations and laws to support and maintain the associative activity . About the usefulness of social capital, the document shows that one of the causes of poverty is exactly the destruction or loss of support networks of individu­ als and families . It should not be understood, however, that social capital is the ex­ clusive patrimony of the poor . The document reiterates the need to enhance the capabilities of the poor to form their own social capital, without paternalism . It is essential to understand that the application of a properly formulated concept of social and human capital helps to understand the reproduction of social inequali­ ties, or rather, the performance of roles that have traditionally been overlooked, such as: the role of education, social relations, family, and encouragement of soli­ darity and friendship, among others . At the end of the document it is stated to be important to debate on social capital because it is a social intervention alternative which enables the understanding of the reasons why some anti­poverty programs have been successful and others have failed .

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4. a meTHodology

of

foRmaTion

of

soCial

and

Human CaPiTal

The internationalization of relationships, while encompassing layers of the intellec­ tual, political, and economic elites and the middle classes of society, is also a phe­ nomenon which causes significant exclusions and which distances, ever more so evidently, the poorest layers of society from the other sectors . At the current inter­ national moment, having access to computers and all mechanisms of the digital era is a privilege of some, but it also marginalizes many neglected segments of society . This current phenomenon is not restricted to the peripheral countries; the de­ veloped countries have also been affected by the expansion of credit, unemploy­ ment, and the increasing flexibility of labor relations . However, it is the peripheral countries, of the so­called Third World, who are suffering the impact of these rela­ tionships, either because they are not prepared for the effectiveness of more proac­ tive social policies, or because they have accumulated, historically, large social seg­ ments of poverty and indigence . In our country, the deepening of basic needs is evident, i . e ., there is a lack of access to housing development (households provided with access to potable water, electricity and sewage, and regularized property) . It is not only this, there is also an impossibility to be inserted into a sustainable environment (sidewalks and land­ scaped streets, preserved urban streams, houses with legal distance from neighbor­ ing houses, etc .), a growing disarticulation of access to goods and services (public transport in the neighborhoods of greater poverty, garbage collection, quality edu­ cation and health services, sports and leisure areas, among others) . All of these factors put at risk large urban social segments of lower income­gen­ erating potential and result in high rates of unemployment or underemployment . A multitude of manifestations of violence become apparent, ranging from the domes­ tic scale to the societal one in addition to the risks and damages caused by the lack of delivery of basic needs . All these factors of human degradation have been witnessed and experienced in practice, by the members of the “Citizenship Poles” Program of the Federal Univer­ sity of Minas Gerais Law School, who have worked for more than sixteen years in the slum clusters or areas of the city of Belo Horizonte . The areas in which the program operates or has served (“Aglomerado Santa Lúcia”, “Aglomerado da Serra”, “Jardim Felicidade”, “Vila Acaba Mundo” and townships of “Médio Vale do Jequit­ inhonha”), correspond to 190,000 residents . All problems and basic needs of these populations in extreme poverty led the program to look for alternatives to minimize or overcome the risks and hazards that affect daily these social groups . Unemployment and deterioration of life of all kinds, households in areas of imminent collapse, sexual exploitation of children and ado­ lescents, hunger or lack of minimum nutrients for healthy survival are risks and hazards that affect the conditions of citizenry and dignity of the residents of these localities . The Poles Program has tried several socio­economic development and inclusion alternatives for these impoverished groups and currently performs with the proposal of formation of mixed social networks and human and social capital ventures . These methodological approaches are structured based on three thematic elements: citi­ zenship, subjectivity, and emancipation .

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Citizenship is conceptualized as the democratization of relationships to sustain diversity . This diversity can be ethnic, religious, gender­based, or socio­economic, among others . Citizenship can be constructed and performed either in domestic or in productive or political­community spaces . The most important assumption of this theory is the core principle of rescue of the community, which, in turn, should assume both horizontal and coextensive relations, stimulating the development of interpersonal and collective skills . Subjectivity, according to the theoretical axis, must be understood as the ability of self­understanding and the responsibility of the individual with respect to him(her)self and to the social environment, demonstrating creative competence that allows the expression of an autonomous and critical personality in judging the development of their community . Emancipation is understood as the ability of groups of continuous reassess­ ment of social, political, cultural and economic structures in their surroundings . The purpose of this reassessment is the expanding of legal and democratic condi­ tions of their community and strengthening the organizations and associations to effect the political conditions for essential changes in the life of society for their effective inclusion in the broader social context . Considering the needs, demands and damages of these locations and the theo­ retical and methodological core of the Program, the following conjugation was fi­ nally chosen: constitution of social capital with the formation of mixed social net­ works . Based on the experience of the Program in places of social exclusion, social and human capital were conceived as the existence of relations of solidarity and trust among individuals, groups and collectives, including the ability to mobilize and organize the community, reflecting a sense of responsibility of the population in defining its own direction and insertion of each member as part of a whole . These subjective elements manifest themselves in concrete gains on solving their problems, as they allow greater access to rights and thereby improving the quality of life and wellness . The community starts to act as an understanding and participatory subject in its social environment, rather than a mere beneficiary of assistance­based policies . For these reasons, the actions of this methodology exceed the scope of emer­ gency actions, though sometimes they are necessary . The mechanisms of action and the results must be permanent and rooted in the daily life of the communities, through the revision of social practices, to promote social mobilization and grass­ roots organization . Practices that reinforce solidarity and the emancipation of indi­ viduals and groups are prioritized . One of the key goals to be gained from the formation of social and human capital in a given community is essentially its emancipation. In other words, the community is capable of dialogue, exerting influence and action by intervening in government decisions and/or the community itself . The community must see itself as a social actor capable of acting in solving its own problems based on the organi­ zational relations and solidarity, minimizing damaging social and economic reitera­ tions . Moreover, the community must act incisively to propagate its own interests . The methodology is sustained from a connection between theory and practice and is structured on the concepts of citizenship, mutual understanding, stability

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and social emancipation . It is therefore a qualitative strategy that prioritizes contact with collective problems and itself arises from collective action, i . e ., one must pri­ oritize actions, discussions and team decisions, especially in unison with the social network, by methodologically controlling inter­subjectivity and inter­disciplinarity . The results should be processed in and by communities, forming a virtuous circle of revising social practices, mobilization and grassroots organization, encouraging community citizenship . Coupled or parallel to the activities of observation and listening, deliberative­ar­ gumentative procedures should be used to bring understanding to the situation, by involving all members and partners of the social situation where the intervention takes place, adopting the social network and all its partners – whether public or private – as the foundation . As such, case studies, meetings, discussions, trainings, seminars, informal conversations, or any other procedure that is fundamentally di­ alogical should be used by involving the largest number possible of members and community leaders . It is therefore a real pedagogical movement to transform the situation in view of the constitution of social and human capital in an emancipatory sense . The effectiveness of this methodology in emancipating social and human capi­ tal relies on two independent values and three other values derived from the first ones (dependent) and an intervening value, which may or may not occur . The independent values or the ones that are most relevant are inter-comprehension and stability . Without the presence of these elements human capital can­ not be reached, whether in low­income communities or in other medium or high social stratum . Inter-comprehension must be built or detected in light of the existing inter­re­ lationship and identification between the subjects and/or groups or collectives, from the experience of a shared history of problems, risks and demands . These subjects build relationships of mutual assistance, both in an organized fashion or individually (informal support network, support in situations of risk, ability to mo­ bilize, etc .) . Inter­comprehension thus involves relationships that vary in both the sense of solidarity and in the sense of organization, and that exhibit different inten­ sities . From inter­comprehension we can trace the resulting derivatives and their constituent elements, namely organization and solidarity . Stability is the other independent value, and its constitutive element is the access to rights . It is believed that the latter will be provided by social policies or by other means of civil society itself that should enhance population stability allowing it to remain in their own place of residence . When the population enjoys stable conditions it tends to maintain a relationship of conservation and quest for contin­ uous improvements of the external environment and of their own home where it resides . In addition, it gets involved in creating sustainable options for community development . The feeling of belonging to the community motivates the achievement of im­ provements in individual and collective life and wellness . It is also understood that the access to rights to health, education, leisure, land tenure, sustainable housing, as well as income generation, is essential for fostering continuous relationships that contribute to population stability where it resides, improving the place and making it more fertile for the constitution of social capital .

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Based on what has been said so far, we can deduce the need for conditions of spatial, temporal, social and economic sustainability . The latter, provided by the joint action of mixed social networks or even informally constituted networks . The Popular Cooperatives Project which is undertaken by the Program, works with professional groups (communities of interest) already in place or in training, and that are in the process of organizing themselves to generate their own income, as a means of overcoming unemployment and underemployment and the various types of exploitation . When well organized within the parameters of the solidarity econ­ omy, this co­operative association of production allows for autonomous and stable income generation . The intervening element, which supports both stability and mutual comprehen­ sion, may not occur in all communities . It occurs, however, more often in the social structures of greater poverty, such as in settlements of extreme exclusion . This vari­ able consists of the existence of medium and large kinship communities . These communities are made up of families drawn together by the need to guarantee their own security and survival . These kinship communities, despite the term, are often formed by people that are aggregated by the phenomenon of “ritual kinship” for example . Through the religious act of baptism, the children’s godfathers and god­ mothers “adopt” these members into their extended families, despite the fact that they are not blood­related . These families really take on the form of natural and informal networks of relationships that maintain both stability and mutual compre­ hension in the community . Land settlements or any other type of government ac­ tion should not break down this type of social structure that, after all, is capable of providing stability and solidarity in action for the establishment of social and hu­ man capital . This methodology, which is based on the experience of the Citizenship Poles Program, and developed in areas of social and economic exclusion, should enable: a) opportunities that make possible individuals and groups to acquire skills for effec­ tive reduction of risk, serious hardship or suffering and thus increase their potential for interactive and creative activity, based on the precondition of autonomous ac­ tion; b) creative learning and innovation of the human being, allowing the person, based on the condition of increasing autonomy, to be able to transcend a vision of a singular community discourse and the normative limits of a particular language standard, enabling a process of emancipation of human beings, despite its harsh life conditions . Based on the expansion of democratic relations, the person is able to unravel and understand the various forms of exclusion and violence in the contem­ porary world; c) situations of creating social networks that strengthen these commu­ nities in carrying out solidarity and inter­comprehensive actions . 5. THe imPoRTanCe of mixed soCial neTwoRks foR THe effeCTiVeness of Human and soCial CaPiTal and soCial goVeRnanCe It is understood that the method of emancipating and/or increasing social capital must be interconnected with the creation of mixed social networks . These networks have great value to carry out actions of social governance . Therefore, one could not present a methodology without the indispensable complement of the effective con­

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stitution of social capital, to not only accomplish its own goals, but also to be able to respond to the demands and needs of the population towards greater harmony, stability, coexistence and empowerment of its organizations . As such, the immediate object of action of social governance should be directed towards communities which may or may not be represented by the third sector, and not society as a whole, which has traditionally been conceived as a set of individuals according to their biological and anthropological definition . These nonprofit organ­ izations and public entities should be involved in networks of mixed composition in a process of communication and inter­comprehension, thus reducing the com­ plexity of the social demands and needs. These networks, which provide the means of forming social and human capital, are created by both interpersonal relations and by family, community or institu­ tional clusters . As such, the proposed methodology stresses the notion that net­ works have an important role in forming human and social capital . Nevertheless, networks are not seen as a new type of association . These networks must also in­ clude the components of autonomy and empowerment and should be of mixed type, that is, consisting of local organizations, State administration, and legitimate community leaders . Frequently, the creation of these networks relies on informal processes such as during conversations in bus queues, through neighborhood con­ tacts, within and outside family relationships, etc . These spaces will inevitably favor the development of communities . The basic building blocks that are required for the formation of these networks are the existence of a set of social organizations motivated by public and collective goals . This can be understood as a political intention that assumes the formation of new collective action and of new actors, grouped with strong solidarity . This social organization often results in ethically and politically strengthened collective sub­ jects with different identities and social relations of solidarity, which emancipate from a strictly local sphere of action to regional, state and even national ones . The scale of engagement will depend on the goals they pursue and on the level of auton­ omy and solidarity of its members . Needless to say, that the foundations of social networks are rooted in a tradition of high social cohesion, legitimate leadership, high educational level, and promi­ nent position in society, among other positive elements . These foundations can be identified as strong social ties . However, some studies define that weak ties are the ones that turn actions of a network more effective in communities of exclusion . Hence, the question of how to conceive the importance of social networks in envi­ ronments of extreme poverty and exclusion, when we know that it is precisely here that the ties that integrate networks are extremely weak? For this and other reasons we suggest mixed social networks, or rather the combination of strong and weak social ties, as a means to make interventions sustainable enough in order for the network to be able to form human and social capital . The need for networking arises due to the fragility of bonds existing in peripheral communities .

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6. final ConsideRaTions The search for alternatives in the obtainment of access to fundamental rights in places of extreme exclusion (‘favelamento’) and peripheral communities, demands that, people that live in these social and cultural spaces be seen, through an uplifting and emancipating educational process, as subjects of their own history . We must establish a process where people become actors aware of their exclusion and of their risks as well as of their ability to identify and seek possible solutions . Only then, can adversity be overcome (or at least minimized) so that they can enjoy self­govern­ ance, able to manage their own interests . The poverty and misery of almost half the Brazilian population, denies the ex­ istence of fundamental rights for all and, above all, shows that the application of these rights is unequal and unfair . The discourse that human rights are equally ap­ plicable to all and that they are constitutionally guaranteed as fundamental rights seems to conspire not only against statistical evidence, but also against the visible and unquestionable current injustices in our country . Poverty and human degrada­ tion are evident and public policies seem to keep ignoring them . Poverty, indigence, unemployment and underemployment, exploitation, lack of housing for all, amongst other numerous violent injustices and manifestations of human degradation endanger relations and the democratic rule of law . Despite of all these challenges, the redemption of these rights and the restoration of the Rule of Law is still possible, at least in part, as long as excluded populations that live in ex­ treme poverty become aware, through social governance and the formation of social capital and solidarity economy, that they can strengthen their organizations and their social networks . All of this will also enable sustainable socioeconomic devel­ opment . Perhaps then, it will be possible to assign effectiveness to what has been previ­ ously stated, that social governance should be considered as a means of conferring competencies to organizations that work directly with populations or social groups who need to build capacity to respond to specific conditions . For these reason, teams that work towards the establishment of social govern­ ance must seek to build relations between groups and civil society organizations with administrative spheres of the State, at all levels, to allow the optimization of actions . As such, governance must be understood as a social pedagogy of life expe­ riences and as a collective process of grass­root organizational learning about the forms of social action that result in effective actions . Ignoring this dimension of social governance will inevitably lead to failure of the program, resulting in one il­ lusion that is more technical .

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a rc h i v f ü r r e c h t s - u n d s o z i a l p h i l o s o p h i e

–

beihefte

Herausgeben von der Internationalen Vereinigung für Rechts- und Sozialphilosophie (IVR). Die Bände 1–4 sind im Luchterhand-Fachverlag erschienen.

Franz Steiner Verlag

ISSN 0341–079x

86. Hirokazu Kawaguchi / Kurt Seelmann (Hg.) Rechtliche und ethische Fragen der Transplantationstechnologie in einem interkulturellen Vergleich 2003. 180 S., kt. ISBN 978-3-515-08132-0 87. Rolf Gröschner / Gerhard Haney (Hg.) Die Bedeutung P. J. A. Feuerbachs (1755–1833) für die Gegenwart Tagung der Deutschen Sektion der Internationalen Vereinigung für Rechts- und Sozialphilosophie vom 15.–16. März 2002 in Jena 2003. 240 S., kt. ISBN 978-3-515-08193-1 88. Arend Soeteman (Hg.) Pluralism and Law I Justice. Proceedings of the 20th World Congress of the International Association for Philosophy of Law and Social Philosophy in Amsterdam, 2001 2003. 203 S., kt. ISBN 978-3-515-08327-0 89. Arend Soeteman (Hg.) Pluralism and Law II State, Nation, Community, Civil Society. Proceedings of the 20th World Congress of the International Association for Philosophy of Law and Social Philosophy in Amsterdam, 2001 2003. 193 S., kt. ISBN 978-3-515-08362-1 90. Arend Soeteman (Hg.) Pluralism and Law III Global Problems. Proceedings of the 20th World Congress of the International Association for Philosophy of Law and Social Philosophy in Amsterdam, 2001 2004. 217 S., kt. ISBN 978-3-515-08446-8 91. Arend Soeteman (Hg.) Pluralism and Law IV Legal Reasoning. Proceedings of the 20th World Congress of the International Association for Philosophy of Law and

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Social Philosophy in Amsterdam, 2001 2004. 195 S., kt. ISBN 978-3-515-08503-8 Christian Hiebaum / Peter Koller (Hg.) Politische Ziele und juristische Argumentation Symposium der Internationalen Vereinigung für Rechts- und Sozialphilosophie vom 11.–12. Oktober 2002 in Graz 2003. 142 S., kt. ISBN 978-3-515-08284-6 Jan C. Joerden / Roland Wittmann (Hg.) Recht und Politik Jahrestagung der Deutschen Sektion der Internationalen Vereinigung für Rechtsund Sozialphilosophie vom 26.–29. September 2002 in Frankfurt an der Oder 2004. 184 S., kt. ISBN 978-3-515-08458-1 Philippe Mastronardi (Hg.) Das Recht im Spannungsfeld utilitaristischer und deontologischer Ehtik Vorträge der Tagung der Schweizer Sektion der Internationalen Vereinigung für Rechts- und Sozialphilosophie vom 15.–16. November 2002 in Luzern 2004. 170 S., kt. ISBN 978-3-515-08366-9 Aleksander Peczenik (Hg.) Justice Proceedings of the 21st World Congress of the International Association for Philosophy of Law and Social Philosophy in Lund (Sweden), 12th–18th August 2003 Volume 1 2004. 218 S., kt. ISBN 978-3-515-08483-3 Yasutomo Morigiwa / Fumihiko Ishiyama / Tetsu Sakurai (Hg.) Universal Minority Rights? A Transnatioal Approach. Proceedings of the 5th Kobe Lectures. Tokyo and Kyoto, December 1998 2004. 126 S., kt. ISBN 978-3-515-08504-5

97. Svein Eng (Hg.) Law and Practice Proceedings of the 21st World Congress of the International Association for Philosophy of Law and Social Philosophy in Lund (Sweden), 12th–18th August 2003 Volume 2 2005. 213 S., kt. ISBN 978-3-515-08524-3 98. Kenneth Einar Himma (Hg.) Law, Morality, and Legal Positivism Proceedings of the 21st World Congress of the International Association for Philosophy of Law and Social Philosophy in Lund (Sweden), 12th–18th August 2003 Volume 3 2004. 183 S., kt. ISBN 978-3-515-08513-7 99. Günther Kreuzbauer / Silvia Augeneder (Hg.) Der Juristische Streit Recht zwischen Rhetorik, Argumentation und Dogmatik 2004. 166 S., kt. ISBN 978-3-515-08480-2 100. Ulfrid Neumann / Winfried Hassemer / Ulrich Schroth (Hg.) Verantwortetes Recht Die Rechtsphilosophie Arthur Kaufmanns. Tagung vom 10.–11. Mai 2003 in München 2005. 188 S., kt. ISBN 978-3-515-08580-9 101. Kurt Seelmann (Hg.) Menschenwürde als Rechtsbegriff Tagung der Schweizer Sektion der Internationalen Vereinigung für Rechtsund Sozialphilosophie vom 25.–28. Juni 2003 in Basel 2004. 175 S., kt. ISBN 978-3-515-08591-5 102. Zenon Bankowski (Hg.) Epistemology and Ontology Proceedings of the 21st World Congress of the International Association for Philosophy of Law and Social Philosophy in Lund (Sweden), 12th–18th August 2003 Volume 4 2005. 195 S., kt. ISBN 978-3-515-08707-0 103. Carsten Bäcker / Stefan Baufeld (Hg.) Objektivität und Flexibilität im Recht Tagungen des Jungen Forums Rechtsphilosophie in der Internationalen Vereinigung für Rechts- und Sozialphilosophie im

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September 2004 in Kiel und im April 2005 in Hagen 2005. 213 S., kt. ISBN 978-3-515-08743-8 Robert Alexy (Hg.) Juristische Grundlagenforschung Tagung der Deutschen Sektion der Internationalen Vereinigung für Rechts- und Sozialphilosophie vom 23.–25. September 2004 in Kiel 2005. 251 S., kt. ISBN 978-3-515-08640-0 Philippe Mastronardi / Denis Taubert (Hg.) Staats- und Verfassungstheorie im Spannungsfeld der Disziplinen Tagung der Schweizerischen Vereinigung für Rechts- und Sozialphilosophie vom 12.–13. November 2004 an der Universität St. Gallen 2006. 255 S., kt. ISBN 978-3-515-08851-0 José Juan Moreso (Hg.) Legal Theory / Teoría del derecho Legal Positivism and Conceptual Analysis / Positivismo juridico y análisis conceptual. Proceedings of the 22nd World Congress of the International Association for Philosophy of Law and Social Philosophy in Granada, 2005 Volume 1 2007. 263 S., kt. ISBN 978-3-515-08910-4 José Rubio Carrecedo (Hg.) Political Philosophy / Filosofía política New Proposals for New Questions / Nuevas propuestas para nuevas cuestiones. Proceedings of the 22nd World Congress of the International Association for Philosophy of Law and Social Philosophy in Granada, 2005 Volume 2 2007. 239 S., kt. ISBN 978-3-515-08911-1 Andrés Ollero (Hg.) Human Rights and Ethics / Derechos humanos y Ética Proceedings of the 22nd World Congress of the International Association for Philosophy of Law and Social Philosophy in Granada, 2005 Volume 3 2007. 323 S., kt. ISBN 978-3-515-08912-8

109. Nicolás López Calera (Hg.) Globalization, Law and Economy / Globalización, Derecho y Economía Proceedings of the 22nd World Congress of the International Association for Philosophy of Law and Social Philosophy in Granada, 2005 Volume 4 2007. 321 S., kt ISBN 978-3-515-08913-5 110. Josep Aguiló-Regla (Hg.) Logic, Argumentation and Interpretation / Lógica, Argumentación e Interpretación Proceedings of the 22nd World Congress of the International Association for Philosophy of Law and Social Philosophy in Granada, 2005 Volume 5 2007. 206 S., kt. ISBN 978-3-515-08914-2 111. Marcel Senn / Dániel Puskás (Hg.) Gehirnforschung und rechtliche Verantwortung Fachtagung der Scheizerischen Vereinigung für Rechts- und Sozialphilosophie vom 19.–20. Mai 2006 an der Universität Bern 2006. 171 S., kt. ISBN 978-3-515-08963-0 112. Annette Brockmöller (Hg.) Hundert Jahre Archiv für Rechtsund Sozialphilosophie (1907–2007) Auswahl 14 bedeutender Aufsätze von Kelsen, Radbruch, Luhmann u. a. 2007. 330 S., kt. ISBN 978-3-515-09100-8 113. Horst Dreier / Eric Hilgendorf (Hg.) Kulturelle Identität als Grund und Grenze des Rechts Akten der Tagung der Internationalen Vereinigung für Rechts- und Sozialphilosophie vom 28.–30. September 2006 in Würzburg 2008. 374 S., geb. ISBN 978-3-515-09101-5 114. Jochen Bung / Brian Valerius / Sascha Ziemann (Hg.) Normativität und Rechtskritik Tagungen des Jungen Forums Rechtsphilosophie in der Internationalen Vereinigung für Rechts- und Sozialphilosophie im September 2006 in Würzburg und im März 2007 in Frankfurt am Main 2007. 269 S., kt. ISBN 978-3-515-09130-5

115. Marcel Senn / Dániel Puskás (Hg.) Rechtswissenschaft als Kulturwissenschaft? Kongress der Schweizerischen Vereinigung für Rechts- und Sozialphilosophie vom 15.–16. Juni 2007 an der Universität Zürich 2007. 220 S., kt. ISBN 978-3-515-09149-7 116. Annette Brockmöller / Eric Hilgendorf (Hg.) Rechtsphilosophie im 20. Jahrhundert 100 Jahre Archiv für Rechtsund Sozialphilosophie 2009. 207 S., kt. ISBN 978-3-515-09285-2 117. Marcel Senn / Barbara Fritschi (Hg.) Rechtswissenschaft und Hermeneutik Kongress der Schweizerischen Vereinigung für Rechts- und Sozialphilosophie vom 16.–17. Mai 2008 an der Universität Zürich 2009. 258 S., kt. ISBN 978-3-515-09155-8 118. Bart C. Labuschagne / Ari M. Solon (Hg.) Religion and State From separation to cooperation? Proceedings of the Special Workshop “Legal-philosophical reflections for a de-secularized world” held at the 23rd World Congress of the International Association for Philosophy of Law and Social Philosophy in Kraków, 2007 2009. 209 S., kt. ISBN 978-3-515-09368-2 119. Martin Borowski (Hg.) On the Nature of Legal Principles Proceedings of the Special Workshop “The Principles Theory” held at the 23rd World Congress of the International Association for Philosophy of Law and Social Philosophy in Kraków, 2007 2010. 182 S., kt. ISBN 978-3-515-09608-9 120. Friedrich Toepel (Hg.) Free Will in Criminal Law and Procedure Proceedings of the 23rd and 24th World Congress of the International Association for Philosophy of Law and Social Philosophy in Kraków, 2007, and in Beijing, 2009 2010. 122 S., kt. ISBN 978-3-515-09320-0 121. Marcel Senn / Bénédict Winiger / Barbara Fritschi / Philippe Avramov (Hg.)

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Recht und Globalisierung / Droit et Mondialisation Kongress der Schweizerischen Vereinigung für Rechts- und Sozialphilosophie, 15.–16. Mai 2009, Universität Genf / Congrès de l’Association Suisse de Philosophie du Droit et de Philosophie Sociale, 15–16 mai 2009, Université de Genève 2010. 196 S., kt. ISBN 978-3-515-09673-7 Imer B. Flores / Uygur Gülriz (Hg.) Alternative Methods in the Education of Philosophy of Law and the Importance of Legal Philosophy in the Legal Education Proceedings of the 23rd World Congress of the International Associaction for Philosophy of Law and Social Philosophy “Law and Legal Cultures in the 21st Century: Diversity and Unity” in Kraków, 2007 2010. 114 S., kt. ISBN 978-3-515-09695-9 Sascha Ziemann Archiv für Rechts- und Sozialphilosophie: Bibliographie und Dokumentation (1907–2009) 2010. 434 S., kt. ISBN 978-3-515-09719-2 Jan-Reinard Sieckmann (Hg.) Legal Reasoning: The Methods of Balancing Proceedings of the Special Workshop “Legal Reasoning: The Methods of Balancing” held at the 24th World Congress of the International Association for Philosophy of Law and Social Philosophy (IVR), Beijing, 2009 2010. 205 S., kt. ISBN 978-3-515-09723-9 Edward Schramm / Wibke Frey / Lorenz Kähler / Sabine Müller-Mall / Friederike Wapler (Hg.) Konflikte im Recht – Recht der Konflikte Tagungen des Jungen Forums Rechtsphilosophie in der Internationalen Vereinigung für Rechts- und Sozialphilosophie in Tübingen und Göttingen 2010. 308 S., kt. ISBN 978-3-515-09729-1 Kristian Kühl (Hg.) Zur Kompetenz der Rechtsphilosophie in Rechtsfragen Tagung der Deutschen Sektion der

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Internationalen Vereinigung für Rechts- und Sozialphilosophie vom 24.–26. September 2008 in Tübingen 2011. 140 S., kt. ISBN 978-3-515-09816-8 Stephan Kirste / Anne van Aaken / Michael Anderheiden / Pasquale Policastro (Hg.) Interdisciplinary Research in Jurisprudence and Constitutionalism 2012. 267 S. mit 2 Abb. und 2 Tab., kt. ISBN 978-3-515-09941-7 Stephan Ast / Julia Hänni / Klaus Mathis / Benno Zabel (Hg.) Gleichheit und Universalität Tagungen des Jungen Forums Rechtsphilosophie (JFR) in der Internationalen Vereinigung für Rechts- und Sozialphilosophie (IVR) im September 2010 in Halle (Saale) und im Februar 2011 in Luzern 2012. 315 S., kt. ISBN 978-3-515-10067-0 Bénédict Winiger / Matthias Mahlmann / Philippe Avramov / Peter Gailhofer (Hg.) Recht und Verantwortung / Droit et responsabilité Kongress der Schweizerischen Vereinigung für Rechts- und Sozialphilosophie, 11.–12. Juni 2010, Universität Zürich / Congrès de l’Association Suisse de Philosophie du Droit et de Philosophie Sociale, 11–12 juin 2010, Université de Zurich 2012. 206 S. mit 6 Abb., kt. ISBN 978-3-515-10066-3 Thomas Bustamante / Oche Onazi (Hg.) Global Harmony and the Rule of Law Proceedings of the 24th World Congress of the International Association for Philosophy of Law and Social Philosophy, Beijing, 2009. Vol. 1 2012. 133 S., kt. ISBN 978-3-515-10081-6 Thomas Bustamante / Oche Onazi (Hg.) Human Rights, Language and Law Proceedings of the 24th World Congress of the International Association for Philosophy of Law and Social Philosophy, Beijing, 2009. Vol. 2 2012. 192 S., kt. ISBN 978-3-515-10082-3 Yasutomo Morigiwa / Hirohide Takikawa (Hg.) Judicial Minimalism – For and Against Proceedings of the 9th Kobe Lectures.

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Tokyo, Nagoya, and Kyoto, June 2008 2012. 99 S., kt. ISBN 978-3-515-10136-3 Thomas Bustamante / Carlos Bernal Pulido (Hg.) On the Philosophy of Precedent Proceedings of the 24th World Congress of the International Association for Philosophy of Law and Social Philosophy, Beijing, 2009 Volume 3 2012. 144 S., kt. ISBN 978-3-515-10150-9 Matthias Kaufmann / Joachim Renzikowski (Hg.) Zurechnung und Verantwortung Tagung der Deutschen Sektion der Internationalen Vereinigung für Rechts- und Sozialphilosophie vom 22.–24. September 2010 in Halle (Saale) 2012. 184 S., kt. ISBN 978-3-515-10180-6 Carsten Bäcker / Sascha Ziemann (Hg.) Junge Rechtsphilosophie 2012. 214 S., kt. ISBN 978-3-515-10268-1 Ulfrid Neumann / Klaus Günther / Lorenz Schulz (Hg.) Law, Science, Technology Plenary lectures presented at the 25th World Congress of the International Association for Philosophy of Law and Social Philosophy, Frankfurt am Main, 2011 2012. 173 S., kt. ISBN 978-3-515-10328-2 Winfried Brugger / Stephan Kirste (Hg.) Human Dignity as a Foundation of Law Proceedings of the Special Workshop held at the 24th World Congress of the International Association for Philosophy of Law and Social Philosophy in Beijing, 2009 2013. 267 S., kt. ISBN 978-3-515-10440-1 Philippe Avramov / Mike Bacher / Paolo Becchi / Bénédict Winiger (Hg.) Ethik und Recht in der Bioethik / Ethique et Droit en matière de Bioéthique Kongress der Schweizerischen Vereinigung für Rechts- und Sozialphilosophie, 11.–12. Mai 2012, Universität Luzern / Congrès de l’Association Suisse de Philosophie du Droit et de Philosophie Sociale, 11–12 mai 2012,

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Université de Lucerne 2013. 226 S., kt. ISBN 978-3-515-10436-4 Tetsu Sakurai / Makoto Usami (Hg.) Human Rights and Global Justice The 10th Kobe Lectures, July 2011 2014. 167 S., kt. ISBN 978-3-515-10489-0 Bernhard Jakl / Beatrice Brunhöber / Ariane Grieser / Juliane Ottmann / Tim Wihl (Hg.) Recht und Frieden – Wozu Recht? Tagungen des Jungen Forums Rechtsphilosophie (JFR) in der Internationalen Vereinigung für Rechts- und Sozialphilosophie (IVR) im September 2012 in Münster und im April 2013 in Berlin 2014. 206 S. mit 3 Abb., kt. ISBN 978-3-515-10806-5 Axel Tschentscher / Caroline Lehner / Matthias Mahlmann / Anne Kühler (Hg.) Soziale Gerechtigkeit heute Kongress der Schweizerischen Vereinigung für Rechts- und Sozialphilosophie, 7. Juni 2013, Universität Bern 2015. 139 S., kt. ISBN 978-3-515-10907-9 Daniela Demko / Kurt Seelmann / Paolo Becchi (Hg.) Würde und Autonomie Fachtagung der Schweizerischen Vereinigung für Rechts- und Sozialphilosophie, 24.–25. April 2013, Landgut Castelen, Augst 2015. 216 S., kt. ISBN 978-3-515-10949-9 in Vorbereitung Júlio Aguiar de Oliveira / Stanley L. Paulson / Alexandre T. G. Trivisonno (Hg.) Alexy’s Theory of Law Proceedings of the Special Workshop “Alexy’s Theory of Law” held at the 26th World Congress of the International Association for Philosophy of Law and Social Philosophy in Belo Horizonte, 2013 2015. 187 S., kt. ISBN 978-3-515-11043-3 Annette Brockmöller / Stephan Kirste / Ulfrid Neumann (Hg.) Wert und Wahrheit in der Rechtswissenschaft 2015. 113 S., kt. ISBN 978-3-515-11053-2

Modern societies often claim to be democracies in order to enjoy greater legitimacy. Still, to understand the concept of democracy and how to justify it, the definition of it as self-determined is not sufficient. A complex understanding has to take into account ideas of rule of law as well as human rights. Sometimes these three concepts compete with each other – particularly in societies with a pluralistic approach to what “the good life” should be, such as societies which are made up of distinct cultural backgrounds.

This book presents a concept of democracy that encompasses at the same time the ideas of rule of law, human rights and self-determination. It contains the main lectures of the XXVI World Congress of Philosophy of Law and Social Philosophy, hosted by the Internationale Vereinigung für Rechts- und Sozialphilosophie at the Universidade Federal de Minas Gerais (Brazil) in July 2013.

www.steiner-verlag.de Franz Steiner Verlag

ISBN 978-3-515-11130-0

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