Sovereignty and human rights
Publication day: 16/4/2009



The crooked timber of reality:
Sovereignty, jurisdiction and the confusions of human rights

by John Laughland




I.    What is sovereignty?

Sovereignty means the constitutional independence of a state. A constitution is the body of rules which govern the exercise of political authority within a legal order.  All states have constitutions:  the word does not mean only a written document but the totality of rules, explicit and implicit, according to which state power operates.  If the body of rules is, as a whole, ultimately subject to rules set by another state or organisation, then the state is not sovereign. In such a case, the other state or organisation will be sovereign instead.

The concept of sovereignty says nothing about the way power is exercised in a state:  it merely makes it possible to locate the point at which the buck stops. This is why Carl Schmitt was right to say that sovereignty is not a monopoly of power or of constraining force, but instead “the monopoly of the final decision.”  Sovereign states can be powerful or weak. Heads of state can have many powers or few; they can be circumscribed by law, tradition, the legislature and the judiciary or they can be unfettered.  The state can be federal, confederal or unitary.  However, all states have rules for distinguishing officers of the state from ordinary citizens, and all states therefore have rules for wielding political power.  All states have mechanisms by which conflicts are resolved authoritatively.  It is not possible to escape from the logic of sovereignty:  all sovereign states have a point at which no further appeal is possible, just as all football games have a referee.

Sovereignty is very often confused with the discretionary power of a state’s government or head of state. Because state power has increased in the modern age, especially with the rise of democracy, it is often alleged that sovereignty is a modern concept.  This is a mistake.  Sovereign states can have executives which behave lawfully or unlawfully, morally or immorally.  But the very claim that a head of state, or a government, acts unlawfully or immorally shows the logic of sovereignty in operation:  once we know the totality of rules which govern the exercise of political authority, we can establish the lines of political responsibility necessary for any judgement about the state’s nature.  

It is sometimes said that, because of the unlawful or immoral conduct of executives, the sovereignty of the state should be limited by international or internal mechanisms of constraint.  This is a misuse of the word sovereignty, for to add new constraints on the executive is merely to change the rules by which power is exercised:  it does not compromise the sovereignty of state, unless the new rules are completely subsumed into those of another state or super-state.  By the same token, it is also sometimes claimed that, because heads of state are constrained, they are not sovereign.  This is also false.  Sovereignty is not an attribute of a particular institution within a state, such as the head of state, the parliament or the people, but instead of the state itself.

The ultimate authority of a sovereign state, i.e. the ultimate political validity of the constitution, by definition cannot be contested legally by the legal organs of that state for the very functioning of those organs presupposes the overall authority of the state.  Human Rights Acts do not constrain the state, as is sometimes alleged: they merely give the citizen new state processes by means of which they can appeal against governmental or parliamentary decisions.  This unimpeachability of sovereignty does not imply dictatorship or absolutism.  In a football game, the referee’s decisions are unimpeachable but this does not make him a dictator.  His job is to apply the rules of football.  If he takes bribes from one side and gives it unfair advantage, he is abusing his position and should be removed by the football authority.  If instead the football authority is corrupt and dismisses a good referee for not behaving corruptly, then it should be prosecuted.  If the police or the prosecuting authorities are themselves corrupt, then they should be prosecuted by the relevant authority.  But in order for there to be any such prosecutions at all, the hierarchy must culminate in an end point.  There must at some point be an unimpeachable source of authority on which everything else hangs, or else all prosecutions, and all other social conflicts, would be lost in an anarchic welter of infinite appeals and counter-appeals.  The idea that there should or can be different sources of authority within a state, without a final arbiter, is a recipe for constant social conflict.  The manner in which such matters are decisively resolved is what the concept of sovereignty elucidates.

If there is a revolution in a state, the body of rules changes as a whole.  The ultimate source of political authority is different from what it was before.  Sovereignty therefore contains a political and a legal element:  for the body of legal rules to be valid, the constitution has to be in force as a matter of political fact. It is precisely because this is a political, not legal, question, that it cannot be resolved legally, which very often means that it is resolved by violence.  When former heads of state are put on trial, this says nothing about the concept of sovereignty:  such events generally show only that the old constitution (under which they were the head of state) is now invalid and that a new one (a new sovereignty) is in force.

Treaties no more compromise the sovereignty of a state than a contract in civil law compromises the personhood of a natural or legal person. Treaties are the legal instrument by which states give themselves rights and undertake obligations. Without the concept of state sovereignty, the equivalent of legal personhood in international law, it would be impossible for states to sign any treaties at all. Transfers of executive and legislative power to a treaty organisation may be very considerable without a state ceding its sovereignty.  The European Union has great power over its member states, but they remain sovereign because EU law explicitly derives its force only from their ratification of the accession treaties.  Ultimate authority therefore clearly resides with them. Conversely, states can be subsumed into new sovereign entities while retaining powers. (These are typically eroded over time, precisely because sovereignty is alienated.) Such examples include the inclusion of Scotland into the United Kingdom in 1702 and the inclusion of the German states in the German Empire in 1871. In these cases, previously sovereign states ceased to be sovereign and the new entity became sovereign instead.

Sovereignty does therefore not mean absolutism.  Broadly speaking, absolutism rose as belief in religion weakened.  Democracies are absolutist because they recognise no authority higher than the will of the people.  The change was therefore not so much in beliefs about the structure of authority within the state, but instead principally in beliefs about the metaphysical and religious context in which the state operated.   Hobbes and Machiavelli were the first to say that the prince is above the law or the only source of it; before the age of absolutism, such a proposition would have been regarded as absurd and heretical even by people who defended sovereignty and who regarded it as obvious that the sovereign prince’s main duty was to apply God’s law. The Middle Ages, indeed, which many people today erroneously declare to have been a period in which sovereignty had not yet been established as a political principle, in fact saw the most sublime flowering of the symbolism of sovereignty and of its philosophical formulation.   


The contemporary erosion of the concept of sovereignty

In recent years, it has become fashionable to say that international law has evolved away from state sovereignty and towards the concept of universal human rights. Such statements are generally based on the confusion between sovereignty and the autonomy of the executive, discussed above.  State sovereignty, and its role as the cornerstone of the international system, is especially attacked in the name of an appeal to universal moral values.

According to this argument, the principle of state sovereignty must be set aside in favour of expedient supranational intervention, whether judicial or military, when human rights are being violated. More generally, it is concluded from this that morality alone confers certain legal rights on states or international bodies; that action and decision-making by international bodies are intrinsically more moral than the acts and decisions of individual states; and that the power of supranational institutions must therefore be strengthened at the expense of that of states.  

In other words, the claim is not always explicitly that there should be a universal jurisdiction or a world state (although this ought perhaps to be its logic implication). The argument is, rather, that the logic of jurisdiction itself should give way to the logic of universal morality. This dissolution of the logic of jurisdiction and statehood weakens the sense that all power should be wielded with clear lines of accountability, and that power carries responsibilities. The logic of statehood – and especially the implicit contract which links the unimpeachable power of the state to its duty to protect its citizens in return  - is thus denied by the alleged claims of universal morality, just as the logic of politics is eroded by the economism inherent in the post-national project of European integration.  

This project to dismantle the concept of national sovereignty as the basis of the international system started on 11th September 1990, when President George H. W. Bush proclaimed “a new world order”.  He was commenting on Iraq’s invasion of Kuwait and saying that, for the first time since the Second World War, international law would be enforced by the use of military violence.  Although the idea of turning the United Nations into a truly supranational organisation had originally been proposed by Soviet leaders – who in 1987 launched a diplomatic offensive in favour of “global interdependence” and “a system of collective security”  – the language and ideology of supranationalism and “global security” were quickly integrated into the foreign policy philosophy of the Western powers, especially the United States.  The confusion between military action (inter-state war) and police action (the use of the military to enforce international law, as if it were municipal law within a state) has persisted until the highly oxymoronic “war on terror” was proclaimed after 11th September 2001, when the United States formally gave itself the role of world policeman.

Since then, the confusion between domestic and foreign policy, and the emphasis on the primacy of morality over sovereignty and law, has led to an increase in the practice of international intervention in the name of universal human rights. Apart from the first Gulf War, the Yugoslav wars were met by the international community with a consistently supranational approach. Many of the structures of modern political supranationalism, indeed, were forged in the heat of those conflicts.  Paradoxically, the attacks on sovereignty which say that it consists in unfettered executive power have themselves been used to justify international institutions and Great Powers acting in ad hoc alliances in undermining legality and in strengthening their own right to take executive decisions without regard for legal process.

Although the recognition of the secessionist states (Croatia, Slovenia and later Bosnia-Herzegovina) in 1991–1992 might be interpreted as having bolstered the concepts of the right to self-determination, this recognition was in fact primarily a device for destroying the sovereignty of an existing state, Yugoslavia. (The rump Federal Republic of Yugoslavia – Serbia + Montenegro – was itself even expelled from the UN in 1992.) The new states, moreover, were themselves subject to unprecedented, unilaterally-imposed supranational and interventionist constraints which severely mitigated the value of the formal recognition of their sovereignty, in particular when ‘peacekeepers’ were sent to Bosnia-Herzegovina in 1992 and when the International Criminal Tribunal for the former Yugoslavia was created in 1993.

The Great Powers which made these decisions also changed the rules of the international organisations to which they belong in an attempt to re-write the rules of the international system.   In 1995, NATO attacked the Bosnian Serbs, in violation of its own self-defensive charter which articulated the Alliance’s commitment to protect the sovereignty of its member states, and in violation of the principle that the Security Council alone can authorise peace-keeping operations. It did so again in 1999 when it attacked Yugoslavia in the name of protecting human rights in Kosovo. (The Alliance re-wrote its own charter in April 1999, during the hostilities, giving itself “a new strategic concept”, and indeed the Kosovo war may have been waged precisely for this purpose.) Finally, in 2001, the West reacted to the Albanian insurgency in Macedonia by sending an intervention force, which is now under the authority of the European Union. These acts showed how the old post-war ethic of non-interference and de-colonisation had been dropped.

The main actors articulated their new purpose with great clarity. In a speech delivered in Chicago on 22nd April 1999, the British Prime Minister, Anthony Blair, explicitly linked political supranationalism with the economic globalisation and said that the old order based on national sovereignty had to be abandoned:

"We cannot refuse to participate in global markets if we want to prosper. We cannot ignore new political ideas in other counties if we want to innovate. We cannot turn our backs on conflicts and the violation of human rights within other countries if we want still to be secure … On the eve of a new Millennium we are now in a new world. We need new rules for international co-operation and new ways of organising our international institutions."

The manner in which the International Criminal Tribunal for the former Yugoslavia was created in 1993 showed the new system in operation. (A similar tribunal for Rwanda was created in 1994.) The ICTY was brought into being by a simple vote in the Security Council, and without any consultation with the states over which it assumed jurisdiction. Thus the secessionist states of the former Yugoslavia, which had only just joined the United Nations as new sovereign states, were unilaterally stripped of several of their key sovereign rights and duties, in particular the right and duty to prosecute war criminals. Moreover, this was done by the Security Council, an executive body which has as little right to create criminal tribunals as it has to raise taxes.

Those who created the criminal tribunal knew that they were violating existing sovereignty-based international law. In his report of 3rd May 1993, the Secretary-General of the United Nations wrote that the normal procedure would be to present a treaty for ratification bringing the statute of the court into force.  However,

"The treaty approach incurs the disadvantage of requiring considerable time to establish an instrument and then to achieve the required number of ratifications for entry into force. Even then, there could be no guarantee that ratifications will be received from those States which should be parties to the treaty if it is to be truly effective."

In other words, legality was sacrificed to expediency.

The creation of the ICTY also unilaterally re-wrote important parts of international law. The 1948 Genocide Convention, which had been ratified by a very large number of states, requires national authorities to prosecute people suspected of genocide. This duty was revoked, for crimes committed on the territory of the former Yugoslavia, by the Security Council’s creation of the new tribunal. Although this latter was an executive act, it had the effect of rescinding laws which had been ratified by legislatures. The creation of these tribunals also violated the principle, enshrined in numerous human rights charters and conventions, that every person accused of a crime has the right to be tried by a tribunal ‘established by law’  which the ICTY and the ICTR clearly were not.

By invoking Chapter VII of the UN Charter to create the Tribunal, the Security Council also revealed an arresting philosophical assumption. Chapter VII provides for the Security Council to take measures designed to re-establish international peace and security. By implication, the alleged violations of human rights in Yugoslavia were deemed to constitute a threat to peace. The corollary of this is the neo-Kantian view that peace can be achieved only through justice, or when everyone is subject to the same laws administered by international organisations. In fact, of course, peace can often be bought at the price of considerable injustice, such as when millions of Germans were displaced after World War II and when half of Europe was subjected to Soviet domination.

Other steps were taken in the 1990s to reinforce the power of supranational institutions and the legitimacy of supranational (universal) jurisdiction. In November 1990, the powers of the Conference on Security and Co-operation in Europe were strengthened: it re-named itself ‘Organisation on Security and Co-operation in Europe’ and acquired numerous human rights prerogatives and a right to oversee the electoral process in the newly democratic states of Eastern Europe. This raised the curtain on a decade of interference in the internal affairs of the newly liberated states, in the name of the eminently anti-statist concepts of ‘human rights’ and ‘civil society’, and prosecuted by foreign-funded unelected and unaccountable non-governmental organisations.

Supranationalism was also the motive force behind the creation of the International Criminal Court. (The Rome Treaty was signed in July 1998 and entered into force on 1st July 2002.) Although the manner of that Court’s creation was legal, in marked contrast to the ICTY’s, the underlying assumptions were the same, namely that sovereign states were intrinsically prone to commit crimes and that only international institutions could control them.  Like the ICTY, the ICC claims jurisdiction over states but recognises no duties towards those states or their peoples, thereby breaking precisely the implicit contract at the very heart of the logic of political authority.  Both courts, like the whole logic of anti-sovereignist supranationalism, beg the oldest question in political philosophy does not need , ‘Who guards the guardians themselves?’

Moral and legal universalism were also behind the detention in London in October 1998 of the former Chilean president, General Pinochet. Before Pinochet was eventually sent home on medical grounds, the British House of Lords ruled that a Spanish judge had the right to sit in judgement over the former Chilean head of state and adjudicate on what Chilean policemen had done to other Chileans in Chile. This now constitutes an authoritative ruling in international law. But few Europeans bothered to ask themselves how they would react if the King or Prime Minister of Spain were arraigned before a Chilean court for acts committed by the Spanish state.

In May 2001, Belgium announced that its jurisdiction extended to the whole world where human rights were concerned, although this law was later rescinded under political pressure. In June 2001, Slobodan Miloševic was abducted from Belgrade and delivered to The International Criminal Tribunal for the former Yugoslavia in The Hague, in direct contempt of the Yugoslav constitutional court which had ruled that no treaty on extradition existed between Yugoslavia and the ICTY. This act was welcomed by human rights activists as incoherently as they had welcomed the arrest of General Pinochet in London: they said it was both ground-breaking and also well-grounded in existing law.  
   

Sovereignty reaffirmed

All these developments show the power of the ideology of universal human rights.  In spite of them, however, other international institutions remained attached to the old principle that the international system functioned best if states did not have the right to interfere in each other’s affairs. The International Court of Justice, the United Nations’ supreme judicial body, continued to base its rulings on sovereignist jurisprudence, i.e. on recognition of the legal fact that the world is divided up into different jurisdictions each with their own rights and duties.

In 1986, the ICJ had famously ruled that there does not exist a right of intervention by one state against the other on the grounds of alleged human rights violations.   It reaffirmed these principles in 2002 when Belgium issued an arrest warrant for the former Foreign Minister of Congo for acts committed while he was in office. The court ruled that Belgium had “committed a violation of the rule of customary international law concerning the absolute inviolability and immunity from criminal prosecution of incumbent foreign ministers; in doing so, it violated the principle of the sovereign equality among states. 

Sovereign immunity, it ruled, did not mean that ministers could always act with impunity (even though the ideologues of international judicial intervention like to conflate these two near homonyms). Sovereign immunity meant only that one jurisdiction does not have rights over another, unless such rights are expressly granted.  It is therefore open to question whether international law has in fact changed an unambiguously as supporters of universal jurisdiction claim.


II.    Sovereignty and jurisdiction in the Nuremberg trials

Those who claim that state sovereignty must give way to the claims of universal morality usually adduce the Nuremberg trials to support their case. They generally make three claims about Nuremberg: that Nuremberg trials were the first occasion when the leaders of a state have been held personally responsible under criminal law for state acts; that Nuremberg was the first international tribunal, which showed the existence and validity of universal and international jurisdiction; and that Nuremberg was principally the trial of the Holocaust, and that it was innovatory in is condemnation of genocide and other human rights abuses.

None of these claims is true. Those who assert that state leaders were put on trial for the first time at Nuremberg have evidently never heard of Charles I of England or Louis XVI of France. The trials of both kings were based on the principle that there is a law higher than those of the dictates of the head of state. This is one of the oldest principles of political philosophy. Those trials did not compromise the concept of state sovereignty; they showed simply that the mechanisms for resolving political disputes within each state had changed, and that the source of unimpeachable authority was no longer the head of state but Parliament.  Constitutionally speaking, the situation was the same in Germany in 1945 as it had been in England in 1649 and in France in 1792: an old power had been defeated and supplanted by a new one.

Unlike today’s proponents of universal jurisdiction, however, whose arguments seem to be confined purely to morality and not to law, the judges at Nuremberg were greatly preoccupied with questions about the legitimacy of their jurisdiction. They emphasised that their right to try their defendants derived only from the fact that the Allies had assumed sovereign power in Germany, that country having surrendered unconditionally. It did not derive from their superior morality (although it is true this was mentioned in some of their discussions, in order to distinguish the legitimacy of the Allies’ occupation of Germany from Germany’s occupation of Poland).

This sovereignist point was made very clear in the International Military Tribunal’s Charter. Initially, it had been proposed that the Nuremberg prosecutions be brought by “the peoples of the United Nations,”  a phrase which would have lent credence to the supranationalist position of universal jurisdiction. But this suggestion was dropped. The prosecutions were instead brought by the four allied powers alone. No other states were invited to participate in the preparation or the execution of the work of the tribunal, and the suggestion made by German defence lawyers that at least some of the judges should come from neutral states was brushed aside. When the Charter of the International Military Tribunal was published, the judges said that the promulgation was itself “the exercise of the sovereign legislative power by the countries to which the German Reich unconditionally surrendered.”  This means that Nuremberg cannot be called an international trial in the sense which is meant by those who claim that judicial procedures can be enacted in the name of ‘humanity’.

Apart from the fact that they wanted to prevent tu quoque defences,  the main reason why the Allies adopted this anti-internationalist approach was jurisdictional. The judges were well aware that an appeal to morality alone was not sufficient to show that they had judicial authority.

"This universality and superiority of international law does not necessarily imply universality of its enforcement … In Germany an international body (the Control Council) has assumed and exercised the power to establish judicial machinery for the punishment of those who have violated the rules of the common international law, a power which no international authority without consent could assume or exercise within a state having a national government presently in the exercise of sovereign powers."

This last sentence is completely incompatible with the modern theory of international humanitarian law, as proclaimed by the former Chief Prosecutor at the Yugoslav Tribunal, Louise Arbour, when she proudly announced, “We have passed from an era of co-operation between states into an era in which states can be constrained.”  Nuremberg was jurisdictionally possible only because of Germany’s unconditional surrender:  German did not have a government of her own.  This means that Nuremberg can in no way be regarded as a precedent for the criminal tribunals created in the 1990s. According to the modern theory, the invocation of principles of morality is sufficient to trump national sovereignty. Even a sovereign government in full control of its territory must, it is now alleged, bow before the commands of morality and universal law when these are invoked by an international tribunal.

Nuremberg’s insistence on the legitimacy of states was no mere legal quibble. It lay at the very heart of the whole judicial philosophy of the trials, the totality of whose indictments depended, both in legal and in jurisdictional terms, on the concept of national sovereignty. The main crime with which the Nazis were charged was that of having started a war of aggression, and of having therefore violated the national sovereignty of other states by attacking them. This was the first count against the defendants and it formed the jurisdictional cornerstone for all the other charges. It was here that Nuremberg was truly innovatory, indeed unique, in the history of law.  War crimes themselves (ius in bello) had been on the statute books of European states since at least 1214.

The judges and the prosecutors seldom lost an opportunity to emphasise this. When Justice Robert Jackson rose to his feet at the beginning of the trial, the first words he uttered were, “The privilege of opening the first trial history for crimes against the peace of the world imposes a grave responsibility.”   He did not say Nuremberg was the first trial in the history of the world for crimes against humanity. He spoke as he did because he had been convinced since June 1945 that the “the crime which comprehends all lesser crimes is the crime of making unjustifiable war”.  This philosophy made its way through to the end of the trial, when the judges passed sentence on 30th September 1946. They said, “To initiate a war of aggression …is not only an international crime, it is the supreme international crime, differing only from other war crimes in that it contains within itself the accumulated evil of the whole. 

This sentiment made its way immediately into the Charter of the United Nations. On 11th December 1946, the General Assembly of the United Nations voted to adopt the ‘Nuremberg Principles’ as part of their (ultimately futile) effort to elaborate an ‘International Criminal Code of Offences against the peace of the world.  It was clearly the intention of the Nuremberg judges, as of the authors of the UN Charter, that state sovereignty should be respected and that aggressive war should be declared illegal. (The principle of national self-determination was to be given an added boost over the following decades by the worldwide project of decolonisation.)

Moreover, and most crucially, it was only presenting crimes against humanity as part of the overall crime of planning and executing aggressive that Nuremberg was able to adjudicate them at all. Nuremberg included crimes against humanity as war crimes only by showing that they were committed as part of the plan to wage aggressive war.   Crimes like racial persecution were adjudicated only inasmuch as they were deemed to have formed an integral part of the plan to wage aggressive war.  One may consider this a juridical artifice, and one may say that Nuremberg was victors’ justice or an egregious example of retrospective legislation.  But it is illegitimate to invoke Nuremberg in support of contemporary extensions of jurisdiction which the Nuremberg judges themselves were careful to rule out when they refused to prosecute any of the defendants for acts committed before 1st September 1939, the date when Germany launched the attack on Poland.  Far from undermining it, Nuremberg therefore reaffirmed the concept of national sovereignty as the cornerstone of the international system, and as the main legal bulwark against military aggression.


III.    Michel Villey on human rights

Michel Villey (1914-1988) was a French jurist whose publications include Le droit et les droits de l’homme (Presses Universitaires de France, 1983) and La formation de la pensée juridique moderne (Presses Universitaires de France, 2003).   He worked to re-establish what he saw was a lost classical and Thomist tradition in the philosophy of law.  Although he does not discuss the question of sovereignty specifically, his books enable us to understand more clearly the relationship between universal human rights and the concept of jurisdiction.  They enable us to see how the principles of national jurisdiction are quite compatible with the general principles of justice and morality, and indeed how it is the primary role of national jurisdictions to enforce such principles and make them. The apparatus of statehood is essential for the realisation of justice; it is not a bar to it.

There are two key elements in any jurisdiction: the basic legitimacy of the state organs which host the judicial procedure, and the lawfulness of those procedures themselves. Emile Benveniste, the etymologist, spends some time demonstrating that the origins of the word ius reveal that, at its deepest level - ius being related to iurare, ‘to swear’ – the concept of justice implies conformity to a rule. “The Indo-European word yous means ‘state of regularity, of the normality which is required by ritual rules’.”  Iura, Benveniste says (and Villey will concur) means literally the collection of legal sentences, i.e. the study of those things which have in fact been declared to be just.  By the same token, rex and its cognates are linked to rectus, straight, which indicates that the role of the king is to fix the rules, especially those governing rites, and to apply them truly.

Neither of these two elements, legitimacy or lawfulness, is covered when simple universal morality is invoked as a source for law or judicial action; indeed, such invocation specifically eclipses them. The suggestion that morality alone, detached from rules of the established rules of procedure, can provide legitimacy for governments to wage war to prevent human rights abuses in other states, is little but an argument in favour of vigilantism on an international scale.

The ideology of universal jurisdiction reposes on the notion that there should be sanction for crimes which “shock the moral conscience of mankind”  and that there are certain moral truths which are “right and true for every person in every society”.  Yet such statements are legal nonsense, in the literal sense that they have no legal meaning without being applied to specific cases or classes of cases within a legal procedure. Of course crimes are shocking but the role of the legal process is to establish whether crimes have been committed and, if they have, to sentence the culprits accordingly; the role of the legal system is not to issue moral condemnations but reasoned legal judgements. Judicial sentences must be applied within a particular jurisdiction by a judicial system which has the right to rule in these cases. The concept of jurisdiction, and the concept of law generally, ascribes certain rights and powers to certain judicial bodies and not to others.   The attempt to give primacy to morality alone, and the implication that undefined and borderless “humanity” is a political agent or subject, are ways in which the modern ideologists of universal human rights seek to dissolve the key sources of legitimacy, and the procedures which lie at the very heart of the notion of lawfulness itself.

Hannah Arendt was greatly impressed by the comparison the ancient Greeks made between their laws and the wall around their city-states, and by Heraclitus’ statement, “The people should fight for the law as for a wall”.  This attachment of law to a specific territory – as opposed to the doctrine that certain things are right or wrong in all times and in all places – is also elucidated by Villey, whose attempts to resuscitate the ancient Greek and Roman traditions in law help us to understand why the alternative to universal jurisdiction is not complete moral relativism, and why the concept of a specific jurisdiction (national sovereignty) is compatible with moral values (natural law).

Villey argued that the modern doctrine of universal human rights relies on a confusion between law and morality, which itself derives from developments in modern legal philosophy since Kant.  (He does not refer to Etienne Gilson but his argument recalls the main theme of The Unity of Philosophical Experience, which is that philosophers have repeatedly tried to deal with general philosophical and metaphysical problems by subsuming them into other disciplines, e.g. morality in Kant’s case.)   Drawing on the traditions of Roman law, and repeatedly emphasising the particular role of the judge and the judicial system, Villey by contrast urges that the concept of ‘a right’ should be understood in specifically legal terms. Any appeal to ‘universal rights’ is instead simply that – an appeal, not a statement of law. It is not just that so-called ‘universal rights’ in fact conflict with one another – my right to free speech might conflict with your right to privacy it is also that the notion of ‘right’ itself has no legal meaning unless it has been clearly formulated and established as a matter of legal fact by a judge. British citizens have a right to vote in British general elections; French citizens living in Britain do not.

Villey insists repeatedly in his writings that the activity of the judge is precisely to decide who has a right to what. The administration of justice is a specific activity which takes place when a judge rules on a claim between two citizens, or between the prosecuting authorities and a citizen.  Villey draws on Cicero to emphasise that justice is the promotion of equity between the competing claims of citizens: “Therefore let this be the goal in civil law: the preservation of lawful and traditional equity in the affairs and the legal proceedings of citizens.”  In order to achieve such a just distribution of goods and claims (fair share), the amount and proportion of each person’s goods and claims must be established. 

Villey urges that law does therefore not consist of commandments.  Instead, judicial proceedings are dialectical – they repose on open discussion of opposite points of view – and they conclude with a statement of fact (a sentence). They weigh up the competing claims of litigants and conclude with a decision on what the fair share is after due consideration of these claims. This is why the symbol of justice is the balance. The golden mean is sought and found after due consideration of each side. Villey writes,

"The object of particular justice is the just distribution of goods and charges within a group. It is not a ‘substance’ but a ‘relation’ - the best ordered relationship, in which one recognises the value of the order in which things are distributed between persons. The concept of right and law (droit, to diakiaon) presupposes a plurality of persons between whom a distribution of exterior things has taken place … Right is discovered by observing social reality because right is precisely this mean, the right proportion of things distributed between members of a polity."

The job of the jurist, therefore, is not the same as that of the moralist, to make men just. Instead, the judge’s role is to establish whether a certain act falls into a certain category or not, and then to say what the law provides for in the way of punishment, fine or recompense to an injured party.  The judge speaks not in the imperative but in the indicative mood. He says what is just; he does not tell people what to do. His activity is not moralistic but factual: if a man is instructed to pay a debt which he truly owes, the law does not care whether he does so purely out of fear of the consequences, and not because he gives moral assent to the ruling.

The concept of ‘the rights of man’ is incompatible with this intense legal and metaphysical realism. If a right is a specific claim granted by a judge to a specific claimant, rights cannot be universal. On the contrary, they are precisely individual and unequal, as Villey insists.  Plato deals with this in the Laws, where two types of equality are contrasted: on the one hand, there is absolute, mathematical equality and, on the other, there is that equality which gives to each his deserts:

"to the greater more, and to the inferior less and in proportion to the nature of each; and above all, greater honour always to the greater virtue, and to the less less; and to either in proportion to their respective measure of virtue and education. And this is justice, and is ever the true principle of states, at which we ought to aim … "

If people’s rights were universal then there would be no need for judges to adjudicate on their competing claims.  Given that the pre-existence of such legal conflict between citizens is the very thing which the judicial system exists to resolve – the very thing which the statement by a judge of an individual’s right in a specific case clarifies – then, legally speaking, it makes no sense to say that men have universal rights to anything. Such a claim merely begs the very legal question which the law is there to answer.  The whole purpose of state sovereignty is to have a mechanism for resolving such disputes:  as Carl Schmitt says, “When oppositions (Gegensätze) arise within a state, then sovereignty and the state itself consist in the deciding the conflict and in determining it definitively.”

To be sure, general rules which resemble universal moral precepts can be derived from the observation of individual judgements.  These we may call ‘laws’.  Such general rules, however, will not be universal in the sense urged by ideologues of universal human rights (‘true for all people in all places at all times’), for statements of allegedly universal moral truth purchase their alleged universality (which in any case is in fact a covert normative expression of something which ought to be the case) only at the cost of an abstractness which, in fact, empties them of all legal meaning.

By analogy, we know from the way human discourse functions that the meaning of general or universal statements often becomes clear only when a particular example is given. This is because the human mind discerns in the individual thing the essence which makes it intelligible and therefore capable of being generalised. Ultimately, the nature of legal judgement is the same as that involved when we make any kind of judgement, relating universals to particulars. As Alasdair MacIntyre writes, referring to Nicomachean Ethics VI vii – ix and the opening paragraphs of the Metaphysics,

"It is the ultimacy, not further to be justified, of the claim that this particular is a such and such, the comprehension of the form which is embodied in this particular, which nous provides as the counterpart to its comprehension of the universal as such. For to comprehend the form as such just is to comprehend it as embodied in particulars, including this particular."

General rules (‘debts should be paid’, ‘killing people is wrong’) are derived from observing individual cases; their truth and importance becomes clearer when they are applied to particular instances.   We might all agree that every man has a right to a fair trial, but if an individual defendant demands that his case be heard by the General Assembly of the United Nations, his claim will be dismissed. In other words, the meaning of phrases like ‘fair trial’ is clarified only by application to particular cases and practices. Villey compared civil law to the laws of natural science, saying that jurisprudence was akin to botany. Law does not consist of rules, but rules can be derived from it, through observation:  law is discovered by observing social reality.

The truth of general legal principles is therefore not threatened when exceptions are made.  There is a tendency in modern neo-Kantian reasoning to assume that particularly shocking crimes must be subject to universal jurisdiction because they are always unacceptable.  We saw about how the Nuremberg judges dismissed this claim.  But such an approach also seems to see virtue in abstraction, and weakness in any rule which might admit of exceptions.  However, it was precisely because he understood the nature of exceptions that Aquinas (on whom Villey draws heavily) specifically distinguished the truths of the natural law from the truths of geometry or mathematics:

"As far as its general first principles are concerned, the natural law is the same for all … As to more particular cases which are conclusions … from its general principles it is the same for everyone in most cases … However, in particular instances there can be exceptions …"

Such exceptions are just that: exceptions. They do not invalidate the general rule, which can remain generally valid even if not always true. It is precisely because the real application of law differs from the precepts of morality that Aquinas deals with issues like war – the basis on which most international law is constructed – not in the sections of the Summa devoted to law and government, but in those devoted to the virtue of charity and to matters of faith.   The clean lines which exist in the abstract world of geometry cannot be used to measure the crooked timber of reality.

According to the Kantian model from which the modern notion of universal human rights derives, there are said to be certain core human rights which are valid for all humans at all times and in all places in virtue of their humanity alone. The weakness of this position is that all such so-called inalienable rights do in fact admit of the very exceptions which the original claim is designed to deny.  Kantian universalism is also methodologically weakened by the fact that, as Villey urges and as everyone knows, judicial proceedings arrive at a just conclusion only when the relevant contingent circumstances surrounding each case are known – the truth, the whole truth and nothing but the truth.

The key move from the universal to the particular is precisely accomplished by the creation of particular jurisdictions and particular judicial systems whose job is to establish whether certain acts fall into certain general categories, and what is the appropriate sentence in each case. More generally, the purpose of individual jurisdictions is to promote social harmony.  Justice, says Aristotle, is “a species of the proportionate.”  It is a harmonious relationship between citizens which unites a multiplicity of things into a single order.  It is the equilibrium achieved between citizens assembled in a polis. Punitive justice is about rectifying the imbalance created by a crime, and by imposing a punishment through which the guilty man pays his debt to society. This is why Aristotle says that in both contract and criminal law, the judge is “a sort of animate justice”, for “a right” necessarily implies the existence of a judge who can adjudicate on it. 

The realisation of justice therefore requires the existence of a state, within which certain proportions are established and preserved by a functioning judiciary. Justice is therefore specifically social. For the ancient Greeks, the polis provided the public framework for the evaluation of all excellence and virtue; it was therefore the indispensable framework for the administration of justice. MacIntyre writes that just deserts are evaluated on the basis of conditions and that “the content of justice is thus defined in terms of merit and desert.”  The values which are thus publicly judged are precisely that which gives meaning and order to human life.  Political life, indeed – life in a human community - is the source of all knowledge of value: it is the mechanism by which to compare unequal things and to decide in which proportion to arrange them. Justice is specifically attached to a particular state, place and time. Aristotle writes that because a ruler is necessarily in relation to other men and a member of society, so justice is specifically a social good: a just man is specifically a man who practises his virtue towards others, while an unjust man is a man who inflicts his wickedness on others. 

Are there any inherent rights outside the political order? Do human beings have inalienable rights? The theory that they do comes from Hobbes and Rousseau, who postulated a hypothetical and non-existent state of nature. As Edmund Burke commented with reference to the French Revolutionaries and Rousseau, “How can a man claim, under the conventions of civil society, rights which do not so much as suppose its existence?”  If we say that there are rights outside or even against the state – and many philosophers, especially those attached to natural law, have defended the right to rebel against tyranny – we are in fact making normative moral statements about what should be the case, rather than indicative ones about what is legally true. The elision of Thomist natural law theory with the modern doctrine of universal human rights rests on a confusion between the Thomist view that God’s law is higher than that of the state, on the one hand, and the modern view that the edicts of international organisations are higher than those of the sovereign state, on the other. The difference between these positions is that God’s law necessarily transcends the political realm, whereas international institutions are very obviously part of it.

The moderns are tempted by the belief in mathematical certainty to make law into an exact science, rather than realising with Aristotle that it is an uncertain and prudential activity largely concerned with contingency. Contrast Aristotle’s careful and conservative statement of the nature of law with the ambitious social and political goals of those whose eyes shine with the brilliant might of moral certainty.

Whereas Aristotle and Aquinas developed their systems with due regard for the precarious nature of human reason, modern natural law theory, and especially the theory of universal human rights, casts caution to the wind and seeks to promulgate a series of abstract and universal rules which are said to have universal validity. This vision is deeply impregnated with the modern tradition of legal positivism, which sees law not as the natural proportion of social equilibrium, but instead as a series of commands issued to enforce social ends. It sees law as “a technique of repression in the service of order.”  This, Villey argues, comes from Luther’s conception of the law as purely a matter of constraint and from Hobbes’ view that law is a command.  It culminates in the positivist analogy between law and the command issued by a man with a gun, an analogy which is deeply inimical, at every level and in every way, to the Aristotelian notion of law as the promotion and description of harmony. Its moralism causes it to be obsessed with punishment and consequently, for the ideologues of universal human rights, imbued at they are with a desire for vengeance, it is as if the symbol of justice were no longer the balance but instead only the sword. 

This article was originally published in ‘The Monist’ The Monist, January 2007, Vol. 90, No. 1

 
Copyright 2009, Institute of Democracy and Cooperation