Shirley Richards, GUEST COLUMNIST
These were some of the questions with which Charles Malik, a framer of the Universal Declaration on Human Rights (UDHR), wrestled. "At the base of every debate and every decision [concerning the UDHR] ... is the question of the nature and origin of these rights. ... Are they conferred upon him by the State, or by society, or by the United Nations? Or do they belong to his nature so that apart from them he simply ceases to be man?" (Charles Malik, June 16, 1948).
When the Americans declared their Independence in 1776, they seemed to have no problem with their understanding of the source of rights. "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness." (Emphasis mine)
This idea of there being a transcendent nature to 'rights'' and to law, generally, was what assisted the judges at the Nuremberg trial. The judges were forced to find a law above the law when they were faced with the defence that the atrocities committed had been legitimised by the State. Thus Robert H. Jackson, American chief prosecutor and associate justice of US Supreme Court, is reported to have reasoned as follows:
"The last stand of those implicated was not that the evidence failed to convict of the acts, but that the law had failed to make the acts crimes ... . Common law depends less on what is commanded by authority and more on what is indicated by reason. The judge ... applies what has sometimes been called a natural law that binds each man to refrain from acts so inherently wrong and injurious to others that he must know they will be treated as criminal."
Martin Luther King, while in a Birmingham City jail in 1963, thinking about the nature of law, wrote a very instructive piece:
"A just law is a man-made code that squares with the moral law, or the law of God. An unjust law is a code that is out of harmony with the moral law. ... An unjust law is a human law that is not rooted in eternal and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust ... . An unjust law is a code that a numerical or power majority group compels a minority group to obey but does not make binding on itself ... . A just law is a code that a majority compels a minority to follow and that it is willing to follow itself."
One of the privileges of being human is that we are able to use our freedom to promulgate laws. The question which is always worthy of consideration when promulgating laws is how one balances the rights of an individual with the duties and obligations owed to a society?
In the past, it was thought that one of the primary duties of human society was the defence of human life. Thus, laws were passed in the interest of the 'common good', meaning that good which is common to all. The question which is implicit in the concept of the common good is: What laws and policies best promote human flourishing? Sadly, many scholars no longer operate on that basis.
What now prevails is the premise that each person is his own 'ultimate evaluative authority'. Each person is his own 'god'. In this framework, 'rights' are seen as an end to themselves. The story of the man and his son who ended up carrying their donkey comes to mind.
The late Professor Ralph Carnegie, in giving his minority report in the matter of the liberalisation of the abortion laws in Barbados in 1978, bemoaned the placing of "freedom to do what is convenient'' above the value of respect for human life. It appears that as part of this "freedom to do what is convenient" is the 'right to destroy'. This 'right' allows individuals to destroy unborn babies, to engage in hitherto unspeakable sexual practices, and to even destroy one's own life, all without regard for the common good!
If one has the right to destroy the life of the unborn, why shouldn't that right operate after birth? Who gives the State authority to limit my "freedom to do what is convenient"? Who gives the State authority to limit one's sexual choices to adults only? Why shouldn't a child have the right to participate in sexual activity? Is there then also a place for mooring human rights in natural law, that law that is above the law, those principles which "we cannot not know", lest the doctrine of human rights itself also become twisted and perverted?
These are questions Jamaica must wrestle with.
Shirley Richards is a member of Lawyers Christian Fellowship. Email feedback to email@example.com and firstname.lastname@example.org.