How acceptable (mainstream/marginal) is the discussion about replacing the human rights with the natural law and to delete human rights chapters?

Question

One law professional (who holds a doctorate) has started discussion about human rights vs natural law in our country (which is an Eastern European country). She refers to the book Le Droit et les Droits de l’Homme (Right and the Rights of Man) by Michel Villey and argues that human rights are irrelevant and inconsistent and judicially almost nonsense and that they should be replaced by natural law and rights emanating from natural law. She also proposes to delete the chapters from the constitution that codifies the human rights.

I am not a law professional (I am software developer with a bit work in a computer science and I am interested in the formalization aspects of the law e.g. by ontologies and deontic/modal logics), that is why I can not estimate the common sense of her proposal rightly. That is why I am putting this question before the community of more professional people - how (academically) acceptable are such discussions and proposals? Is it the academically acceptable practice to argue about such questions or is it a marginal view?

Actually AFAK the sciences are very open to innovations and discussions. E.g. there are proposals for lab-created universes, medical research for regaining youth, computer science research about hypercomputation (going beyond the Turing barrier), etc. Scientific communities are very cautious about such topics, but still the adherence to the research standards and sound methodology (and not the theme or boldness of propositions) is the key factors that decide whether some paper is going to be accepted or not. So - I guess, that maybe law science community is ready for such discussions (natural law replacing human rights) as well?

Answer 1

how (academically) acceptable are such discussions and proposals?

Some academic somewhere has probably discussed it, and did not breach strong academic norms by doing so.

Is it the academically acceptable practice to argue about such questions or is it a marginal view?

It isn't taboo to argue such a position, but it is highly marginal and extreme. It is even more extreme in Eastern Europe (nominally in the civil law tradition) than it is in common law countries (which have more of a natural law tradition), and would be least marginal in the U.S. which has a strong natural law tradition, although it would marginal even in the U.S.

Legal positivism (i.e. the law is what legislators and the governmental process including courts and citizen ballot issues says it is), is very strong now compared to prior eras and stronger in civil law countries than in common law countries. The battle between natural law and legal positivism was mostly won by legal positivism by the late 19th century although the debate continued indifferent to the reality on the ground.

Philosophically, human rights are often viewed as an enlightened codification of natural law (which sometimes justifies its extraterritorial application), but it would be rare for someone who was a strong supporter of natural law to argue that human rights codifying natural law should be disfavored (really, that kind of reasoning is mostly seen in pre-modern Confucian legal arguments in China as part of the Eastern rule of law v. rule of man argument that tends to favor rule of man on the theory that any codification can be twisted by sneaky lawyers).

Answer 2

It is surely permissible, and in that sense "acceptable", to propose changes, even fundamental changes, to laws and legal systems. In that sense the answer must be "Yes, it is acceptable".

But as I understand the question, that is not what is being asked here. The OP is asking whether such proposals are part of the mainstream discussion or are on the legal fringe. That is harder to answer.

There is a long tradition of using or proposing to use "Natural Law" to determine what statute or constitutional law should say, or to help decide the outcome of individual cases. My understanding is that in the Anglo-american legal system, that position was more favored during the 1800s and early 1900s than it is now, Some judges, and indeed some US Supreme Court Justices, cited Natural law directly in some opinions. Others assumed views similar to Natural law, without using that term.

Indeed many of the "fundamental Human Rights" were derived, at least in part, from a natural law perspective.

In THE U.S. SUPREME COURT and NATURAL LAW (2011) by Paul Moreno, of Hillsdale College, the author writes:

The United States Supreme Court has been reluctant to argue from universal principles not announced in the Constitution’s text, or at least to do so in an articulate and systematic fashion. It has preferred to limit itself to the text of the Constitution, statutes, or treaties, wary of going beyond these texts or the intent of their framers and ratifiers. Nevertheless, the Court has on many occasions engaged in a variety of natural-law analyses.

In the broadest sense, “natural-law jurisprudence” involves a judge’s resort to a “higher law,” one anterior and superior to the written constitution. The ancient Athenians, for example, distinguished between man-made laws (thesmos) and natural laws (nomoi). The Romans, particularly Cicero, similarly argued that human law ought to be in conformity with eternal principles of “right reason.” The Institutes of the Emperor Justinian noted that slavery existed by human law but was contrary to nature. A great revival of natural law thinking took place in the high middle ages, particularly in the work of St. Thomas Aquinas. English jurists, particularly Bracton and Glanville, maintained natural law theory, distinguishing between the natural rights of the subject (jurisdictio) and the power of the government (gubernaculum).

The notion of natural law pervaded the period of the American founding. It was expressed in the Declaration of Independence’s claims of “self-evident truths” about human equality, the necessity of consent, and the right to revolution. The idea of natural law was prevalent at the Constitutional Convention and during the ratification debates, though not so much in the text of the Constitution itself. William Blackstone’s Commentaries on the Law of England (1765–69), a widely-read treatise in the American colonies, contained one typical expression of the idea of natural law. James Wilson, a delegate at the Convention, important Federalist defender of the Constitution, and Supreme Court justice, made many natural-law-based assumptions in his celebrated law lectures given at the College of Philadelphia (1790–91).

Decisions of the early Supreme Court were often forthrightly based on natural-law arguments. In Chisholm v. Georgia (1793), for example, Justice Wilson held that a South Carolina citizen could sue the state of Georgia, not just because Article III of the Constitution gave the federal courts jurisdiction in “controversies between a state and citizens of another state,” but because of what he believed to be the “principles of general jurisprudence” upon which the Constitution rested. (The decision was ultimately overturned by the Eleventh Amendment in 1795.) In the same term, the Court, interpreting both the federal and state constitutions, noted that “the right of trial by jury is a fundamental law, made sacred by the Constitution,” and that “the right of acquiring and possessing property, and having it protected, is one of the natural, inherent rights of man” (Vanhorne’s Lessee v. Dorrance). Justice Samuel Chase gave a fuller statement of a kind of natural law theory in Calder v. Bull (1798).

The purposes for which men enter into society will determine the nature and terms of the social compact. . . . This fundamental principle flows from the very nature of our free republican governments. . . . There are certain vital principles in our free republican governments, which will determine and overrule an apparent and flagrant abuse of legislative power. . . . An act of the legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority.

Chase gave as examples “a law that makes a man a judge in his own cause, or a law that takes property from A and gives it to B.” “It is against all reason and justice, for a people to entrust a legislature with such powers; and, therefore, it cannot be presumed that they have done it.” Justice Chase, an ardent Federalist and judicial activist, became more restrained after he was impeached and nearly removed when the Jeffersonian Republicans took over the government in 1801.

Something of a retreat from natural-law-based jurisprudence in the Court’s opinions is evident in the early nineteenth century. In part this retreat was a reaction to the excesses of the French Revolution, which began with intense assertions of the “rights of man.” It also reflected the Jeffersonian and Jacksonian democratic suspicion of natural law as the province of elite lawyers and judges. Thus Chief Justice John Marshall usually preferred to base his decisions only on the Constitution’s text rather than to appeal to principles of natural law found beyond the Constitution. In Fletcher v. Peck (1810), for example, he did refer to “the principles which are common to our free institutions”—the “vested rights” of a property owner, as Chase had described them. But he primarily appealed to “the particular provisions of the Constitution”—in this case, Article I, section 10, the “contract clause.”

So there is long precedent for assertions of Natural Law, and for using natural law concepts and theories in deciding legal cases. But, at least in the US, this precedent has been much less followed in the last century and more.

I am not as knowledgeable about the place of natural law in European civil law systems, and in academic theories of law in European, particularly eastern European countries. I cannot really say how much the main thrust of such discussion favors a Natural Law analysis at present.

The traditions of academic law are not really the same as those of the natural sciences (now sometimes called just "science"). The strong scientific tradition of openness to "innovations and discussions" is not as strongly marked in legal academic thought, nor in judicial opinions, to the best of my understanding. But Natural law is not a new theory in academic legal circles.

One should note that there are many flavors of natural law, which come to quite different conclusions on various points. Not all versions of Natural Law theory may be equally in fashion in any given academic community.

Answer 3

Probably a reason for why appeals to Natural Law have become less common, is that absolutely every legal or moral opinion can be supported by an appeal to Natural Law. One person can fervently believe that based on Natural Law, all private property is theft - another can be just as adamant that all taxation is theft.

A particularly clear illustration is found in Marquis de Sade's infamous novel Juliette, which may well be the most disgusting book ever written, clearly intended to shock readers with every imaginable perversion. The protagonists not only commit the most horrible acts of rape, murder, genocide and cannibalism, to name a few, but also develop a moral code that states that such acts are in fact morally right. This is clearly sophistry and not something de Sade actually believed, but in the book this is motivated by an appeal to what is 'natural', demonstrating that whether or not there objectively exists such a thing as Natural Law, it is not possible to solve any moral or legal disputes by appealing to it.

For an appeal to Natural Law to be anything more than a statement that something is right because it is right, it needs to be motivated. And then, one can ask, does the concept of Natural Law really add anything to the discussion?

Answer 4

Talk is free

You can, in most countries, propose changes to law, even radical changes. You can discuss them, publicize them and advocate for them.

The human rights based legal systems that are common in the western world are relatively recent. In most places they post-date World War II.

Other systems have predominated in the past and, no doubt, others will predominate in the future. Legal systems are there to serve the needs of society. A human rights based legal system fits well with liberal democracy. However, in human history, those have been the minority of societies.

Answer 5

Most Legal Professionals are not Academicians

The proposal is standard in certain strands of academic moral philosophy. It is probably incomprehensible / irrelevant to most legal technicians especially of the "shut up and litigate" variety. It is comprehended but opposed by adherents of legal positivism. It is primarily relevant to the subset of the legal community which seeks to change the law to being something else, which either leads on to politics (get elected, campaign for a constitutional amendment) or else to interpreting law at a high level such as the Supreme Court – in a country like the US where justices interpret and thereby create law.

The political solution depends on the existing law of the country in question – what does it take to amend the constitution? In Hungary, you follow Article S which requires 2/3 majority of Parliament – this is substantially easier than the requirement for the US which requires 2/3 of both houses plus ratification by 3/4 of the states. It is a political question (off topic for Law SE) to ask how, exactly, you persuade 2/3 of Parliament to make some amendment. You would urge other members of Parliament that "This is what the law should be", which is quintessential politics.

The judicial solution is available in common law countries where appellate courts can essentially "define" the meaning of the law, where the Supreme Court will "discover" a right that was lurking in the Constitution. In that case, you might effectively change the law by discovering "this is what the law actually is". This is done by navigating an often twisted logical path demarcated by prior Supreme Court rulings, finding that there is some leeway, and some indication that this is what the authors of the Constitution meant.

We would have to look at the details of your law-professional's proposal. "Human rights" versus "natural law" is a false dichotomy, except insofar as each expression tends to be associated with a specific package deal. The dichotomy that does exist is between the natural law and legal positivism schools, where the former school holds that proper law follows from "nature" and morality, and the latter school holds that there is no necessary relation between law and morality and that legal principles are arbitrary (I'm not a legal positivist, so I have a hard time saying what they believe: read this).

Answer 6

Natural law theory is currently being advocated for by a movement of law professors at Harvard and Oxford University, and is in particular championed by Adrien Vermeule, John Finnis, Richard Ekins and popular ideologues like Sohrab Ahmari under the term "common good constitutionalism" and "Catholic Integralism." Arguments from natural law politically in the US and UK were almost exclusively promoted by conservative Catholics until the US Supreme Court became more conservative over the last few years.

But circumstances have now changed. The hostile environment that made originalism a useful rhetorical and political expedient is now gone. Outside the legal academy, at least, legal conservatism is no longer besieged. If President Donald Trump is reelected, some version of legal conservatism will become the law’s animating spirit for a generation or more; and even if he is not, the reconstruction of the judiciary has proceeded far enough that legal conservatism will remain a potent force, not a beleaguered and eccentric view.

from Vermeule's article in The Atlantic.

This originally obscure legal position is now gaining the backing and support of the major Christian nationalist movement, globally, with Natural Law proponents receiving funding from the Claremont Institute and other conservative think tanks.

Natural Law does not follow from normative logic, but from a distinctly Catholic "logic" based on religious belief. Proponents of Natural Law see observing a particular interpretation of “natural order” in nature as a universal good. This idea of what that “natural order” means is typically inserts concepts following from Catholic ideas of hierarchy rather than anything necessitated as lawful by God. For example,the belief that men and women are complementary and serve different functions in life, so women shouldn't work outside the home. Homosexuality, for a further example, would be “against Natural Law,” because sex’s purpose, according to Natural Law, is procreation. Likewise, the beliefs that subjects should follow their rulers, children should obey their parents, and that people should not steal all are claimed to follow from an understanding of Natural Law, and that Natural Law is defined by God's word. This ideology places itself in conflict with commonly held values of equality (they endorse patriarchal hierarchy as right and natural,) and freedom, (they in believe “freedom” as in “freedom from sin.”)

Proponents of Natural Law believe the Natural Law applies to every human, regardless of whether you’re Catholic or believe in Natural Law or not. And they believe that this understanding of proper hierarchies and rational order is “written in the human heart.” In other words, according to this interpretation, all gay people “know deep down” they’re sinners, because being gay is “intrinsically disordered” (that’s what the Catholic Church means when they say “intrinsically disordered” — something done in defiance of Natural Law,) but that a gay person is “choosing” to be in denial about it. The idea is that no one can find true happiness or a “good life” outside living a life in accordance with Natural Law. The Catholic understanding of Natural Law in particular reasons that all ten commandments can be inferred from, and are natural extensions of Natural Law, and that Natural Law implies male headship through a warped idea of “biological” necessity originating in the order of creation.

Catholic Integralism in particular seeks to abolish the line between state and church, and institute religious law as the foundation of administrative and judicial law in the land.

While this view is more acceptable among conservatives, it's becoming noxious among everyone else as it's becoming known by academics and journalists to be a vehicle for justifying discrimination. And while this isn't the only kind of Natural Law out there (one could argue a natural law from reason, for example,) it is the politically relevant Natural Law discussed today.

Answer 7

Which country is actually implementing the official UN human rights?

In Europe we are already “twisting” the official UN human rights declaration to fit our needs.

For example the European Convention on Human Rights changes Article 4 from:

Article 4

No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.

To:

Article 4 – Prohibition of slavery and forced labour

• No one shall be held in slavery or servitude.

• No one shall be required to perform forced or compulsory labour.

• For the purpose of this article the term "forced or compulsory labour" shall not include:

1. any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of this Convention or during conditional release from such detention;
2. any service of a military character or, in case of conscientious objectors in countries where they are recognised,
3. service exacted instead of compulsory military service;
4. any service exacted in case of an emergency or calamity threatening the life or well-being of the community; any work or service which forms part of normal civic obligations.

This allows us to have compulsory military service (or civilian service) in countries like Austria.

Answer 8

You posit an ethical issue in regards to law. Are we in agreement that the law even concerns itself with ethics? Does the government try to persuade you not to go on killing spree when it has the law of giving murderers an overdose of anesthesia as retribution for murder or are we in a lawless state where you are free to do as you please but not free from consequence?

Human rights is an ethical concept that has its roots firmly in humanistic philosophies. It was and still is an attempt to divorce God and morality. In the case of the US and other places in the new world the original settlers fled the morality of the monarchy and the religion they represented.

In the case of the US this concept of divorcing religion from morality was not done with a anti religious vendetta but more to insure that no one religion can govern at the expense of another. The great irony is that many theologians over the years have theorized that the reason why the enterprise of religion has for the most part been successful in the US is largely to thank for this. Many people have also said if the British Secular Humanist Society had its way in the UK and the church of England was removed as the state sponsored religion then the UK would have the real chance of a massive religious renaissance.

When you say natural law it strikes me are you not just taking a rose giving it another name and smelling it? Natural law is the concept of scientific laws in pre-modern era. Before we had science we had natural philosophy, before we had scientists we had natural philosophers. If you get a PhD in physics the word philosophy will still probably stand on your diploma.

If you replace one secular theory of law with another one what have you gained? Has the new theory not exactly the same problems as the old one? That is to say if we can even get to the point were we agree that issues of law have anything to do with ethics.