In the second half of the 20th century, the growth of interest in human rights has been accompanied by a revival in natural law. Consider why this should be so, critically exploring the interrelationship between human rights and natural law; and also, by using concrete examples, critically assess ONE or TWO theories that critique human rights with particular emphasis on the grounds for such critique.
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There is an assumed correlation between what is good and what comes naturally. For example, parental affection, heterosexual love and support for the elderly are all natural concepts, and therefore, arguably, good. Anything that ignores or distorts human nature is bad.
Legislators and lawyers have referred to naturalistic arguments in the past, particularly where the issues at stake are those not already covered by legal precedent. Harris notes that the jurists who developed the law of the Roman Empire frequently made references to the nature of the case as a basis for dealing with matters not covered by previous authority. The compilers of the Corpus Juris used the word ‘naturalis’ as a tag to distinguish natural obligations from their counterparts in the Jus Civile.
More recently, in Corbett v Corbett, a judge held that a marriage between a man and a person who had undergone a sex change was a nullity because it could not fulfil the natural, biologically determined consequences of marriage. Such lawyer type references to the natural helped evolve the concept of natural law.
Classically, natural law is “right reason in agreement with nature”. It is “universal and immutable”, “unchanging and everlasting”, available at all times and in all places to those whose responsibilities include enacting and developing the law. It is a concept of justice so far as it is there to right wrongs and properly distribute benefits and burdens. It is also a higher law, in that it is superior to any law created by a political authority: it is not possible to be freed from its obligations by “Senate or People”. Natural law determines whether or not ordinary laws are morally binding on subjects. The rules of natural law are not created by anyone, but are instead discoverable by reason. Since all men have natural essences, or ends (just like in nature, to become an oak tree, for example, is an end for an acorn), knowledge of those qualities allows us to draw conclusions by rational steps about what justice requires to best fulfil man’s ‘end’. Although some natural law philosophers have cited God as the basis for the existence of these natural laws, the theory does not fail if God is taken out of the equation. Even if God does not exist, it is through that natural law would “have the same content”; and just as God cannot cause that two times two shall not be four, so he cannot cause the intrinsically evil not to be evil.
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According to Acquinas, human laws derive their legal quality and power to bind in conscience from natural law, guided by a reasoned assessment of the common good. The content of the law is deducible from the first principles of natural law, which include, for example, that one should ‘do no harm to no man’. Any apparently conflicting law is a corruption of the law and so is not binding: in the Seventeenth Century, when it was still accepted that the Courts could hold invalid any Act contrary to natural law, it was said that “even an Act of Parliament made against natural equity, as, to make a man judge in his own case, is void in itself”.
Intrinsic to the concept of natural law is the fact that humans have rights ascribed to them that they possess merely by virtue of being human. They follow directly from the necessary ends fixed by human nature, that is “from the single fact that man is man”. Schneider describes the basic human rights as “the right to existence or life, to personal freedom, to the pursuit of perfection of moral and rational life, to the pursuit of eternal good, to keeping one’s body whole, to marrying according to one’s choice and raising a family, and to free associations”.
Whilst not all would agree exactly on what set of rights follow directly from what is ‘natural’, these arguments have been used throughout history to support action taken when ‘natural rights’ have been infringed. The American Colonists justified their overthrow of British rule in 1776 on the basis that the government had impaired their rights to ‘life, liberty and the pursuit of happiness’, claiming that it was ‘self evident that man was endowed with such rights’. Indeed, that phrase is the cornerstone of the American Declaration of Independence which states: “We hold these truths to be self-evidence, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among those are life, liberty and the pursuit of happiness”. This is an adaptation of the phrase used by John Locke, who believed that “the state of nature has a law of nature to govern it which obliges everyone. And reason, which is that law, teaches all mankind, who will but consult it, that being all equal and independent, no one ought harm another in his life, health, liberty and possessions”.
During the 19th Century, natural law theory lost a lot of its influence as positivism, materialism, utilitarianism and Benthamism became dominant. In the 20th century, however, particularly towards the second half, natural law theory received new attention. This can partly be attributed to peoples’ reaction to the rise of totalitarianism: dictatorships such as those held by Hitler in Germany and Stalin in the USSR, based on terror and on mass support mobilised behind an ideology prescribing radical social change. Such dictatorships are linked to the other factor that can be attributed to the rise in interest in natural law: an increased interest in human rights throughout the world. In particular, the barbarism of the Second World War moved the United Nations General Assembly to adopt the Universal Declaration of Human Rights in 1948 which, whilst not legally binding, urged member nations to promote a collection of human, civil, economic and social rights. The Assembly called these rights part of the ‘foundation of freedom, justice and peace in the world’. These words are echoed in the preamble to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984, which has been signed by the United Kingdom, Spain and Chile and by over 100 other nations in acknowledgement of a “clear recognition by the international community that certain crimes are so grave and so inhuman that they constitute crimes against international law and that the international community is under a duty to bring to justice a person who commits such crimes”. The preamble acknowledges that “recognition of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world” and recognises that “those rights derive from the inherent dignity of the human person”.
So natural law theory has been frequently cited by lawyers and forms the basis for many of our human rights conventions and agreements. Throughout history, certain ‘inalienable rights’ have been afforded to human beings simply by virtue of them being human. As well as the American Declaration of Independence and Universal Declaration of Human Rights of the United Nations, both of which we have looked at, the English Bill of Rights (1689), the French Declaration of the Rights of Man and the Citizen (1789), and the first 10 amendments to the Constitution of the United States (‘the Bill of Rights 1791’) all contain similar references. Natural law enables us to identify which ‘basic goods’ should be fundamental and unchangeable; in contrast to positive law, which is human-made, conditioned by history, and subject to continuous change. Further, philosophers endorsing natural law theories have argued that the basic goods that natural law identifies enable us to have objective knowledge of morality: and that they are sufficiently precise to rule out many kinds of injustice.
But natural law theories have attracted much criticism from other philosophical schools of thought. Jeremy Bentham for example, states: “Right is the child of law; from real laws come real rights, but from imaginary law, from laws of nature, come imaginary rights. ‘Natural rights’ is simple nonsense: natural and imprescriptable rights, rhetorical nonsense – nonsense upon stilts”. Bentham thought that the way judges insisted upon relying on natural law to justify their decisions was merely to ward off criticism of the law: he believed that judges stretched the notion of rights to the point of vacuity, and that what they appealed to as the basis for their decisions involved no publicly assessable reasons whatsoever. For Bentham, natural law theory was no more than a cloak of mystery used to clothe the exercise of unfettered discretion; and an unwritten law based on the general dictates of natural reason was a mere metaphor and convenient fiction, where the real basis for the decisions being made remained elusive. Such an approach was inconsistent with how matters should proceed in a democratic society since, where the law is open to question, “unless citizens are able to know what the law is and are given a fair opportunity to take its directives into account, penal sanctions should not apply to them”. It is, of course, abhorrent to the rule of law that judges should be free to render decisions that reflect their personal or social biases and there is common agreement in modern times that Courts are better suited to resolving disputes by reference to what the law actually is than for getting involved in the creation of legalisation itself. “The existence of law is one thing; its merit or demerit another”; and judges are not concerned with the latter.
Bentham was a utilitarianist: he believed that the fundamental basis of morality and justice was the requirement that happiness or goodness should be maximised. There are three basic elements to this theory. We will examine the three elements in the context of a moral dilemma – the use of organs or tissue from a deceased person without the consent of their parent or relative.
The first element to consider is that the ‘rightness’ or the ‘wrongness’ of an action, which depends upon the consequences it produces. In this context, the failure to obtain parental consent, perhaps also with an element of intentional deceit in obtaining the organs or tissue, may be outweighed by the potential research benefits that may be afforded society, such as decreasing mortality rates and the potential development of new treatments for disease.
The second element establishes a claim with regard to who is to be considered when estimating what the likely consequence of the act will be. The logic behind this principle being the promotion of the aggregate welfare or the maximisation of happiness. Taking this into context, medical staff would need to balance the potential pain and suffering of the parents or relatives of the deceased at the discovery of the retention of organs, with the claim society has on the benefits that are made as a result of the retention.
The third element makes a claim as to what makes a good state of affairs good and a bad one bad. In our context, failure to use organs or tissues from a recently deceased person for research and education (regardless of parental or other consent) must be weighed against the possible benefits that such use could bring to society. Failure to use the material would be classified as being a bad state of affairs, whilst its subsequent use, regardless of how the material was obtained, would be viewed as being a good one.
This method of reasoning appears to be very powerful in comparison with natural law theory, as it requires no religious faith or explicit moral code; natural law theory in contrast would simply claim that the organs should not be used because the human has some inherent right to dignity and completeness by virtue of them being human. The medical profession sought to rely on similar principles to justify their exclusion of families from the decision-making process in the organ retention scandals brought to public attention by the Bristol, Kennedy, Redfern, CMO and Isaacs Reports. The response to this was that to exclude relatives from such decisions relating to their loved ones would undermine family autonomy, and would be “objectionable, unethical, paternalistic and reflective of a stance no longer acceptable in contemporary Western medicine”.
It is clear that natural law theories are the basis for reasoning behind our development of the law of human rights that we see today. But the use of such theory as a basis for human rights is problematic because, firstly, there is no common agreement on what is ‘good’. The basic human goods mentioned earlier that Schneider identified were not available to all persons during Schneider’s lifetime, and indeed it is not until recently that some have been secured by the law today. Schneider thought that marrying according to one’s choice was a right that humans should have by virtue of being human, but only recently by the Civil Partnership Act 2004, which came into force on 5 December 2005, same sex couples have been allowed to marry in the United Kingdom. Before that time, everyone did not have the right to ‘marry according to one’s choice’ because same sex-couples could not marry. Even now, there are some restrictions on who can get married – for example, a marriage solemnised between persons either of whom is under the age of 16 is void.
Similarly, as Bentham asserts, men are not really ‘free’ and there is no real freedom. Bentham states: “All men, on the contrary, are born in subjection, and the most absolute subjection — the subjection of a helpless child to the parents on whom he depends every moment for his existence. In this subjection every man is born — in this subjection he continues for years — for a great number of years — and the existence of the individual and of the species depends upon his so doing”. Secondly, even if certain fundamental rights can be agreed upon, conflicts arise between the fundamental rights of one person and another.
The obvious questions that arise from these issues are, how do we determine what fundamental rights should be available to all persons? How do we decide on the level of state interference that is ‘right’ when it comes to people making choices? And, where ethical decisions are at stake, how do we effectively balance the fundamental rights of one person against another? For example, with reproductive technology, couples may use screening to avoid implanting an embryo identified as having genetic predispositions towards disease. They may also select the sex of their baby, or even identify if their embryo has the right tissue match to make it a compatible donor for another family member. It is extremely difficult to decide how far the state should restrict such reproductive choices using natural law theory alone. The rights of the parents, the unborn child and the potential beneficiary of a donor, must be considered: all of which we may argue have a set of inherent rights afforded to them by virtue of them being human, but whose rights should prevail?
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Even if such choices can be agreed on now, Bentham points out that future governments may not have honesty to be trusted with the determination of “what rights shall be maintained, what abrogated — what laws kept in force, what repealed”. Similarly, future subjects “will not have wit enough to be trusted with the choice whether to submit to the determination of the government of their time, or to resist it.” There can be no agreement on the fundamental ‘goods’ and even if an agreement is reached, it may be that those in power in the future will change their decision as to what rights are inherent. It may also be that those subject to that power do not agree on the decisions that have been made for them. Because natural law makes no reference to anything (the right is just based on is inherently deducible from what is natural) and there is no real marker by which to measure decisions and laws, these cannot be immutable.
Further, even if natural law theory is successful in identifying inherent rights that we can agree on, it does not state what limits there are in enforcing morally legitimate directives. This begs the question: if a person has an inherent right by virtue of being human, how far can they go to enforce that right? The actions of Dr Martin Luther King demonstrate how far some have gone: King protested against segregation laws which he claimed violated natural law, and as a result he urged civil disobedience, which entailed violating the law. A person held in captivity might for example need to go so far as to encroach on other people’s inherent to protect their own: in order to protect their right to life and freedom, a prisoner may have to kill their captor to escape. Bedau, in fact, suggests that Bentham misses the opportunity to make a further attack on natural law theory because of this lack of reference to what a citizen should do if their rights are encroached upon, the absence of which could be viewed as a “tacit invitation to insurrection, violence and anarchy”; since it is “hardly surprising that believers in “natural and imprescriptable rights’ might use direct and violent measures in an effort to secure those rights”.
The act of citizens using violence to secure their natural rights which encroach on others’ natural rights is an issue of balancing. There are many other scenarios where balancing respective rights are a problem: abortion, for example, could be seen as the murder of innocent lives that have inherent rights as human beings. Per natural law theory, laws that permit abortion must be invalid and Doctors who conduct abortions must be murderers. Arguably then, the execution of abortion doctors is a legitimate defence of others, and perhaps also a justified punishment for their evil behaviour and violation of natural law principles. But to deny abortion is encroaching on the mother’s ‘natural’ rights of freedom and autonomy. These are arguments that are ongoing today.
Bentham proposes that the whole concept of natural rights is flawed: there are simply no such things as natural rights. Rights anterior to the establishment of government do not exist; neither do rights that are opposed to, or in contradistinction to, legal rights. The expression, according to Bentham, is merely figurative; and as soon as one attempts to give it a literal meaning, it leads to error.
As well as attacking the use of natural law reasoning by judges, Bentham gives sound logic for his disapproval of the theory. First, men who have lived without government, live without rights: and such men are part of ‘savage nations’, with no habit of obedience and therefore no government; no government and therefore no laws; no laws and therefore no rights; and consequently, no security, property or liberty against regular control.
Bentham argues that (since life without government brings unhappiness and savagery) we have a want for happiness and therefore a want for, and a reason for wanting, such rights. But “reasons for wishing there were such things as rights, are not rights; a reason for wishing that a certain right were established, is not that right — want is not supply — hunger is not bread.” In other words, simply stating that we are free because we want to be free, does not make us free.
Bentham points out that something which has no existence cannot be destroyed – and if it cannot be destroyed, it cannot therefore require anything to preserve it from destruction. So for example, freedom does not exist and so we can’t destroy it; and since we can’t destroy it we don’t need to protect it from destruction by creating and being signatory to conventions like the Declaration of Rights which he attacks. To seek to do so is dangerous because as soon as a list of those natural rights is given, they are expressed to represent legal rights; but no government can abrogate or uphold them because they are a fallacy. They are not something we can rely on because they are non-existent.
We have already examined Bentham’s alternative to natural law. Bentham’s model sees the virtue of the law expressed not in terms of morality, but instead, in efficiency: the greatest good of the greatest number, secured not by different decisions taken by different officials who rely on their own diverse judgements, but by detailed policy schemes whose complex consequences can be carefully considered in advance, laid down in detail, and enforced to the letter. Where in contrast moral tests are used to determine the law, which allow citizens and officials to disagree about what morality requires and to substitute their own judgement about what standards have been established, the consequent disorganisation will produce chaos. Applying Bentham’s logic, the law is whatever the sovereign ruler or parliament has decreed. That Ruler or Parliament, in turn, restricts individuals only so far as is necessary to enable the law to maintain every other individual in the possession and exercise of such rights; and the law is consistent with the greatest good of the community that he should be allowed. The marking out of boundaries is the job of the legislator, and should not be left to any individual, such as the judge, to make ‘occasional and arbitrary’ decisions.
But utilitarianism does not necessarily hold the answer to the shortcomings of natural law theories. Since it promotes the idea of the greatest good for the greatest number, this implies that someone should be in charge, with the authority and duty to sacrifice any one person’s property, liberty, and life, for the greater good. It also assumes that the person in charge has the capacity to make those decisions selflessly and to correctly weigh the interests of one person against another. This may not necessarily be the case; and the decisions and actions made could be as ‘occasional and arbitrary’ as those made by supporters of natural law theory. Further, because the decisions are made by those in power, the decisions will become part of the law; and so they are harder to change where they seem unjust; in contrast to natural law theory where natural law (usually in the form of human rights law and conventions) is used to challenge existing laws.
A further difficulty is that the greater good approach ignores the individual. Any one person is expendable for the greater good: and so, for example, it is difficult to make a convincing utilitarian argument that rape should be unlawful. Without a moral basis, spiritual basis or teleology for rights, there is an increased risk of materialist or secular ends justifying the means, thereby leading to disregard for individual welfare: laws made for the greater good, based on this logic alone and ignoring reference to a moral code, can be brutal to the individual. Morality is, arguably, a valuable accompaniment to the law: it judges law, and moral attitudes shape the law. Law has moral ambitions; and morality may bear on the validity of law.
Bentham’s approach has yet further practical problems, with the stance that judges and such individuals may not interfere with the law, or expand it in any way. Firstly, whilst the law may be set out in great detail, the way it is applied by each judge is not entirely certain. Judges are humans and subject to human imperfection. Secondly, the law will never be able to cover every scenario in every detail as Bentham describes. There will always be some legally unregulated cases in which on some point no decision either way is dictated by the law and the law is accordingly partly indeterminate or incomplete. In such instances, the judge has to exercise his discretion and make law for the case, by expanding the application of existing principles, rather than merely applying already pre-existing settled law.
Perhaps a better solution, although not perfect, will draw inspiration from both natural law theory and Bentham’s theories of utilitarianism. Laws, for example, believes that the search for a good constitution of rights is an exercise in moral philosophy: and necessarily involves a reflection on how people in society ought to live. As a constitution of rights exists for the benefit of individual citizens, the primary task will be to identify the essential needs and requirements of mankind. This need not be by reference to purely moral arguments, and need not ignore the needs of the individual when considering the greater good. According to Laws, it starts with the Kantian perception that the individual is an end in himself, never a means. From this, we can generate a constitutional model that prevents the human tendency to interfere with others to the extent that their ability to act autonomously is undermined. The creation of rights to protect autonomy will protect individuals from such interference. Therefore, autonomy “gives rise to rights”.
For this model to work, Laws believes that there must be an institution capable of enforcing the autonomy-protecting rights against the powerful, and especially the government. This institution, he believes, is the Courts.
Such a model for human rights does not abolish altogether the difficulties that arise from natural law theory. One still has to agree on the ‘essential needs and requirements’ of mankind. But if one assumes for a moment that not they, nor anyone else, is in a position to state what those needs really are, then the only solution is to allow every individual to decide for themselves that their needs are. Restricting autonomy only to the extent where it encroaches on other people’s autonomy will allow this. It takes away the requirement that there has to be some higher moral order and allows each individual to make the decisions for themselves. This addresses one of the fundamental flaws of natural law theory. Natural law, as we stated, assumes man has an ‘end’ and that rights should be put in place to help him achieve that end. But man does not necessarily want to achieve that end: perhaps instead he wants to terminate his life before he reaches that end. Human rights in the UK and Europe do not permit him to do so: to protect him from himself. But man is equipped with skills of reasoning, and reason, unlike natural growth, is “constituted by deliberative qualities like, reflection, analysis, prudence, principle, coherence and consistency. In a way therefore reason is precisely the opposite of a ‘natural’ quality”. Man may reason that he doesn’t want to follow what is natural, and ought to be permitted not to do so, provided his actions do not directly affect the choices of others.
This is somewhat along the lines of John Mills’ harm principle, which denotes that: “The only purpose for which power can be rightfully exercised over any member of a civilised community against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant”. Of course, no man is an island and our conduct necessarily involves interaction with others; this is what makes the model imperfect, because it is simply theoretical and not practical. The degree of autonomy we could be afforded without affecting others in our actions is minute. But it is a starting point for considering what human rights should be enforced, and it gets around some complicated ethical problems (such as that of abortion, since autonomy must be restricted to prevent the taking of life of the unborn child, who would have no opportunity for autonomy at all if it were not). Bentham’s greater good theories are not entirely redundant, as in a balancing of autonomous rights question (such as where an organ is available for transplant but the relatives will not consent), the autonomy of the live person, dead person, relatives and medical professionals will still need some form of assessment. The action permitting the greatest autonomy (i.e. the transplant taking place or the unborn life surviving) should perhaps prevail.
In conclusion, whilst we have seen a progressive inclusion in human rights into constitutions since the eighteenth century, the upholding of those rights has hardly been a success. The aftermath of the Second World War, which saw the violation of human rights on a massive scale, and the rise in totalitarianism, has spurned a growth in interest towards establishing the security of such rights. In formulating what rights should be included in various conventions, there have be
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