In Search of a Solid Foundation for Universally Binding Legal Human Rights
A distinction between moral order, political order and legal order
The moral order
By now, we should be able to characterize moral orders. Moral orders are not by any kind of necessity social or organizational, but they are possibly so. Such an order is by necessity practically rational. A moral order is one in which persons respect each other, or equivalently, treat each other with dignity or as end-in-themselves. There is no reason to say that the moral obligations in a moral order are either all positive or all negative.
The economic order
The economic order is the order of production, distribution and of consumption. As such, it is an order concerned with the transformation of our environment. This order arises out our limited powers over the environment and out of a certain sense of rationality where people realize that, if they properly coordinate their efforts and powers, they can modify the environment in such a way as to make it more conducive to the satisfaction of their needs and wants as it emerges from their finite natures. As such, the economic order can be said to be the order of "material" choices in front of a felt scarcity of resources flowing from the finiteness of our powers over our environment. The economic order exists by necessity in an organizational form when it arises in a societal context (because it can arise in an asocial context as was demonstrated when we explored the case why human beings enter social relationships). Production and distribution, when these processes take place in a societal context, require the organization of human interactions for the benefit of the accomplishment of non-individual and organizational purposes. These purposes are the transformation of matter in order for the final results of the transformation to be used by individuals to fulfill their needs and wants (in consumption).
The rational political order
The rational political order can be said to be at the confluence of the moral order and of the economic order. As we have previously said, political communities are organizations which have as a purpose the mutual commonwealth of all contributors of the organization. It is now time to discover what is understood by the word commonwealth when taken in the context of the rational political order. First of all, the word commonwealth can be taken to mean the wealth, or the sum of assets whether material or financial of a given entity or of a society. Since the rational political order is an economic order, it follows that the rational political order seeks to increase the material wealth of a given organization.
However, we have said that rational political orders are also moral orders. What can "commonwealth" mean when it is taken in a moral context? We could first attempt to translate "commonwealth" by "common benefit". It should be here noticed that we have adopted a deontological approach to morality so that we are unable to use "benefit" in the sense of "good consequences". What then could moral benefits be? We could attempt to say that moral benefits are the resultant (though not in terms of consequences) of maxims of action that follow the moral law. In fact, this is the course of reasoning we will follow.
If we follow this course of reasoning, then we should explicitate the organizational manifestation of persons following the moral law. We have said that the moral law requires us to treat other persons with dignity or to allow them to self-determine. We also said that the moral obligations stemming from the moral law could be hierarchised. It follows from the requirement to treat
other person with dignity that, in a rational political community, persons act in such a way as to not interfere with their mutual freedom, or ability to self-determine. It follows from the connotation of the word "commonwealth" (as being a common good) that the moral obligations that the person living in those rational political community include either positive moral obligations or moral obligations that are coherent with the economic requirement of the order.
With what has been set out above, we can examine why the state of slavery is an apolitical state of affairs though it is an economic state of affairs. The relationship master-slave is clearly organizational. It is clear that both master and slave are human beings and it follows from the meaning of the word "slavery" that the interactions of the two human beings are structured. In the word "slavery" is also contained an non-individual purpose for the interaction of the two persons : the material welfare of the master. This purpose is non-individual because whether or not the system of slavery is effective does not depend on the masters appraisal of his material benefits in that system but can be evaluated on an objective, non-subjective, basis. The economic
motive of the relationship is clear on the one hand (of the master) but not on the other hand (of the slave). It is clear in as much as slavery is aimed at the material welfare of the master ; however, it is not so clear from the slaves side. We can explicitate the slaves economic benefits as such : the very idea of an efficient system of slavery (considered either from the master or the slaves side) requires that the slave has incentives to partake in the organization (and not rebel). Consequently, the system must provide the slave with what he needs in order to fulfill (at least minimally) his needs and wants. Now, slavery is not a political order because it is not a moral order. It is clear that the maxim of action "submit yourself to another human beings needs,
wants and caprices under all conditions without being able to voluntarily back away from that submission" cannot pass the Universalizability test and is consequently immoral. As we have said previously, the state of slavery is not a rational political state of affairs.
The rational legal order
The legal order is simply a political order in which there exists authoritative directives. As such, the directives of a political orders are liable to all the limitations that we have previously said that authority is liable to. Also, the legal order is necessarily an order where laws are positive laws. Laws in that system are authoritative in as much as they are made by political organizations which have authority.
It would be interesting to compare a rational legal order with a rational political anarchy. In a rational political anarchy, all the requirements for the existence of a rational political order are fulfilled but persons do not use authority in their organizations. One would object that the person in that kind of anarchy are in a situation where they are unable to settle disputes and, consequently, a de jure irrational situation prevails. However, such is not the case because there is still an objective moral law to settle disputes ; there is only no recourse to "governments". On the contrary, the rational legal order uses authoritative commands (presumably knowing the limitations of authority). It should be noticed here that there are many particular laws (made in such rational legal communities) that are, in fact, more specific than the moral law requires. The only condition made on these laws in a rational legal order is that these laws not violate directly or indirectly the moral law.
The rational foundation for Universal legal human rights
The proper foundation for Universal legal human rights is that the legal rights be moral in the sense that the legal rights follow from positive or negative moral obligations in a given rational legal order. We have said that the laws made by rational legal communities are often more specific than what the moral law requires. Consequently, every rational legal community will be forced to specify in laws what are the rights accorded to individuals in their communities. For example, in a community, individuals might have a legal right to do a (which is an overspecified right from the point of view of morality, i.e. the moral right relating to a gives more leeway to other individuals to satisfy their obligation than the legal right a gives them leeway to satisfy their obligation relating to the legal right a of an individual) while individuals in another rational legal community do not have that specific legal right but rather another legal right b (which is also overspecified from the point of view of morality). Rights can be part of a positive legal order in as much as they are part of authoritative command systems.
|| Next Page ||
Previous Page ||