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Lecture 19

HREQ 2010 Lecture 19: March 13

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Human Rights and Equity Studies
HREQ 2010
Paul Brienza

-the relationship between human rights and international law -the central focus is on how we justify human rights in international law -what does international law say about human rights? -can international law become normative and enforceable across borders? -informs judges how to behave when it comes to certain issues -there are differences and similarities -one of the claims of international law is that there is a basic primary law, a moral one, underneath it, which should motivate judges and others when thinking about human rights -there is a normative component to human rights: in the tradition of common law and international treaties and conventions, there is an emergent and developing moral theory as well (not separate from, but rather, grounded in international law) Kant’s Moral Theory: -this is a starting point -Socrates: ancient Greek philosopher -asked questions that forced people to look at what their own positioning and morality was -he came up with this idea of a constant testing and questioning of ourselves -constant interrogation of our own premises that we should not be so secure in our own judgments -Kant tries to build a modern theory of moral and legal theory: the legalities of morals (interrelated) -Socrates argued that humans should critically question others in order to determine the best moral position -we must also question ourselves consistently and constantly -Kant can be considered the “father” of modern human rights theory by talking of the need to ground morality on a strong and solid foundation -morality must be based on the ‘primacy of reason.’ -reason is what is common and best in humanity: allows us to ‘step out of ourselves’ and our limited point of view to grasp morality as it should exist for all humans -Kant: the problem with most people is: 1) Tend to be very emotional: make decisions on the basis of emotions and passion 2) Most people think only of themselves: how do you get out of yourself? If you are making moral and political decisions on the basis only of what is good for you, then a problem arises -reason solves this problem -if you are committed to reason, you are committed to something beyond yourself -some people may do the right thing and act morally because there are a set of rules that come from their religion -you do this because God wants you do: you take account of God and what God wants -Kant states that what that is essentially about is reason, about being able to take a perspective that is not simply self-centred, but imaging thinking about things from the point of view of all other people or generally, the general notion -Rousseau: specific vs. general will -in a democracy for instance, most people vote out of their specific will (expectations of politicians: this is a selfish motivation which undermines the democracy) -general will: taking that position on the basis of what you think is the good of society -deontological versus Utilitarian (specific moral theory) (consequentialism: you take actions for that result) -the means justify the ends -utilitarians make a similar argument: social policies, political decisions, etc., should be chosen, promoted, and instituted on the basis of the greatest good for the greatest number..immoral acts might be necessary (there is a purpose: the moral good) -deontological thinkers (Kant): it is always wrong to do things that are immoral -is it right and moral to lie? -Kant: fundamentally, people must behave consistently and morally (something that one must commit themselves to, which is made on the basis of reason) -law is reason without passion -according to Kant, morality must be based on the understanding that every human must be seen as “an end in itself.”: humans are ends in themselves: they are not means to an end -in other words, we must not treat people as means to an end, and if we do so, we often abuse the sanctity of the human person -states, societies, and laws, have the duty to treat human beings as ends in themselves: the protection of each human being is a moral end in themselves -the “Categorical Imperative.”: imagine that your behaviours could be turned into universal law ^-we tend to always make an exception for ourselves only and not others, and thus, there is inconsistency and immorality there ^-we are not universalizing our actions: if we thought about it as a law that applies to everyone, we might think about it differently -at some reason level, we know what we’re doing is wrong, but choose to ignore it and hope no one notices: acting as if our actions are universal laws -the Kingdom of Ends: the relation between human rights and law becomes more apparent: imagine a society in which every human being is an end in themselves (what would it look and be like?) -fundamentally, he would say that it would be a better society because everyone would treat everyone else as an end in themselves and would take their morality seriously as something universalizable -questions about Kant’s morality and practicability: is Kant’s morality practical? -influence on modern moral theory—i.e., Rawls. -Rawls develops a series of modern theories of 20th century and he argued that Kant’s premises could be applied to modern society and that many of our legal systems are premised on these notions -the legal system that we have, at least in its legal practice, doesn’t say to us that “you can do this because you’re this kind of person or that we’re going to ignore what you did based on your connections” -ideally this isn’t supposed to happen: reason and morality is on the basis of our legal system (there is a basic moral premise) -Kant’s ideas and theories is in a sense a natural law theory: reason is something that is given to us by our nature or by God and that in being moral we are drawing on that source -others will state that there are traditions, as these moral premises are to be found in a tradition -they would ask how traditions develop a particular notion of rights -for instance, 4000 years ago in Ancient Egypt, there was no Charter of Rights..why is that? -Kant might state that they did not come to this moral realization, but others state that the concept was not there yet (common law) -common law does not emerge out of nothing or out of one person’s minds but rather develops through centuries of interactions from judges, lawyers, and philosophers, who contributes to what common law is Ancient Sources of International Law: -ancient cultures came to the notion that society could best be stabilized in and through a public and available law -there was a move from sacred law to public law ^-what this means is that those with power tend to want to keep laws secret and those without power want laws to be public and widely known -when you look at the development of laws, you see that when it is religious and sacred law, when the elites state that the law comes from God, it is a way to control this -however, as time goes on, people realize that these laws only benefit the elites -the development of public law: that is because the fundamental idea there is promulgation -in the old ways in Ancient society, what they tended to do what put laws in public (carve them on the stone and put them in the public square so that people could see them) -they was a step to a society based on laws (everyone has access to that law and thus, debate and question what that law means) -this is seen in the development of Roman law -Jus Gentium: Roman law dealing with “foreigners” and the provinciae or provinces..given that much of their empire was comprised of foreign people, they needed this particular law, which was the law of peoples (Jus Gentium) -how do you manage people? -they had the notion of Jus Gentium (a separation of the law that was practised in the city of Rome, but became the Roman Empire as something else) -the Romans in expanding out into the world that they conquered, decided that they needed a law to deal with foreigners for all the places outside of Rome where Roman citizens might not be and where it wasn’t clear if their laws would apply, and given that their Empire was made up of much of this foreign group of people living outside the actual city of Rome, they needed a law of the people (jus gentium) -eventually this law was extended across a large empire between many people and cultures -Rome was simply one city in the Mediterranean world, which was very diverse many trace the first source of international law to the Roman Empire -they needed a way to deal with that diversity, and thus, came to the term jus inter gentes -Jus Inter Gentes: Literally, the “law between peoples.” This is based on treaty and negotiation between Rome and the subjects of that empire nd -therefore by the early 2 century (200 AD), one could speak of a law of the empire, the “public international law.” -they needed a common grounding for how to manage this vast empire, and thus, developed legal principles -a universal set of laws was required -eventually, members of the empire had a “right of citizenship” which extended to all -this meant that all within the empire, who were citizens, had a set of rights that could be protected through court procedure -the law was the same across these broad stretches of territory -these jurors/judges, in trying to develop this law, come up with a series
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