Commitment to natural freedom in codifications

Human Rights and Natural Law I. Natural Legislation

1. The Inalienability of Human Rights

More than ever we must engage in our writings and lectures for the untouchable dignity of every human individual – whether born or unborn, whether healthy, sick or disabled, whether young or old – and for inalienable Human Rights. The word ‘inalienability’ used in Article 1, Paragraph 2 of the German Constitution which is too seldom considered, has already played a meaningful role in past centuries. Its meaning is that Human Rights could not be waived even if society were to abandon them[1]. Human dignity and the inalienability of Human Rights are, according to Christian understanding, founded in man’s likeness to God. The underlying image of God in the Bible refers to the distinction of man as a person gifted with reason, free will and a true cultural mission. His inalienable rights are rooted in natural law and in natural statute which is unwritten.

Thomas von Aquin bound natural freedom with human dignity. For him, human dignity consisted of the fact that Man exists by nature freely and for his own sake. Thomas’ opinion is that, vis-à-vis those who do not believe in God, only rational arguments remain, which they would have to bend. The metaphysically based approach of Thomas von Aquin’s thoughts on Natural Law forms a bridge in our time: Every individual is distinguished through reason and conscience and with obligations and rights that are permanent and indispensible. In Christianity there was however that thought with an all-pervading theological foundation: the spirit of God is the one who created the world[2].

Commitment to natural freedom in codifications

In the Corpus Juris Civilis[3] we find a definition of freedom, whose natural derivation can still be heard:[4] “Libertas est naturalis facultas eius quod cuique facere libet”. Each area of the Digest and the Institutes makes it ever clearer that the authors had to start from the natural freedom of man. The sentence accredited to Ulpian is written so:[5] “Cum iure naturali omnes liberi nascerentur.“ Similar we find in the Institutiones:[6] “... iure enim naturali omnes homines ab initio liberi nascebantur.“

Many centuries later one could read in the Virginia Bill of Rights of 1776 in section 1:[7] “That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty.” In the text of the American Declaration of Independence of the 4^th of July1776 it is written that:[8] “We hold these truths to be self-evident, that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these, are life, liberty, and the pursuit of happiness: That, to secure these rights, Governments are instituted ...“. When one looks at the first Article[9] of The French Declaration of Human- and Civil Rights of 1789 one can see that it also uses the concept that man is born free and equal under the law. In this case, in contrast to the Virginia Bill of Rights, it is not a question of a law-making Act, but the publication of an ideal basis for a new community which could be built upon. The French basic rights therefore have a completely different function to that of the North American Declarations.

From the recent constitutions, the Basic Law of the Federal Republic of Germany in Article 1, Paragraph 2 has recognised “inviolable and inalienable human rights“ and with this, the positive-law Dogma of the Weimar Constitution, the idea that the state is the source of all law, was abandoned. The Federal Constitutional Court of the Federal Republic of Germany explained under the jurisdiction of Art. 1 Basic Law at the beginning of its activity in October 1951 that it: “recognises the existence of positive rights that are binding on the constitutional law-maker” and that it is responsible for measuring laws against them[10]. The case-law of the Federal Constitutional has persistently followed this view.[11]

Austrian Law anchored the natural-law quality of freedom in § 16 ABGB (General Civil Code of Austria):[12] "Every individual has innate rights which are evident through reason and, because of this, they are to be regarded as people.” According to Austrian Law, there exists a presumption in § 17 ABGB that: “What is fair according innate natural-rights, will be accepted as long as it exists, and as long as the legal constraints of this right cannot be proven”. The Swiss Federal Supreme Court as well recognizes the pre-state character of the Liberties and civil rights, where they are viewed as fundamental rights guarantees that are not explicitly mentioned in the Federal Constitution.[13]. Unwritten civil rights and liberties are, according to the view of the Federal Constitutional Court, namely given if they stand in close connection with the idea of man and the democratic system of the constitution. The image of man according to the constitution is however, not directly readable[14] but rather contained in conceptions that exist and are valid outside the constitution. The Turkish constitution of 1982[15] guarantees in Article 12 “inherent fundamental rights and freedoms which are inviolable and inalienable“. And finally the Constitution of the United Republic of Tanzania for example expresses in Art. 12 § 1[16]: “All human beings are born free, and are all equal.”

On a public international law level, the preambles of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights identify basic rights as “inalienable”. The American Convention on Human Rights, signed at the Inter-American Specialized Conference on Human Rights, San Josi, Costa Rica, 22 November 1969, clearly speaks for the pre-governmental character of the basic rights when it says in the preamble:[17] “Recognizing that the essential rights of man are not derived from one’s being a national of a certain state, but that they are based upon attributes of the human personality ...“ . The African Charter on Human and Peoples' Rights (also known as the Banjul Charter) takes on a commitment to inherent Human Rights. One can read in the preamble:[18] ” Recognizing on the one hand, that fundamental human rights stem from the attributes of human beings, which justifies their national and international protection and on the other hand that the reality and respect of peoples rights should necessarily guarantee human rights“. The anchorage of the natural-law origins of the basic freedoms in the most recent international-law conventions on human rights proves that the thesis of the pre-governmental character of the fundamental rights is not just a mere relic of past convictions.

The notion of inalienable rights that are superior to the constitution has not, however, been moved to all states. In France, which has been strongly shaped by positivism, the constituent power can revise the constitution without restrictions. This was recognised in the decision of the Conseil Constitutionnel of the 2d September 1992. It says: “The constituent force is sovereign; it is free to waive, change and to supplement constitutional regulations in the form which it considers suitable”. Furthermore, the Conseil Constitutionnel regards itself as being incompetent to examine the legal standard of a constitutional law whether this law was accepted by the normal, intended procedures[19] that are set out in article 89 of the constitution or by the disputed procedure of referendum[20].

Date: 2015-02-16; view: 770