C. Enlightenment Philosophy

The enlightenment emphasised legal principles that were of decided importance for the American independence movement and the French revolution and whose usefulness perpetuates even today: Every human is born free, there are inherent human rights to life, freedom and ownership[57]. These rights find their deposition in the American and French declarations of human rights of 1776 and 1789.

Johannes Althusius followed the opinions of the journalists which arose during the French civil wars. These journalists drew the revolutionary consequence of an active resistance against despotic rulers straight from the principle of public sovereignty. Althusius created the right to resist with inherent freedom[58].

Along with Althusius, Hugo Grotius must also be named as the creator of the rational natural law doctrine and the developer of the systematic study of international law. He stated in his “De belli ac pacis libri tres“:[59] “if it is so that humans are entitled to freedom by nature, according to natural law, human infrastructure is preceded by it.” According to Grotius’ view, there are no slaves in nature. It cannot however be said that slavery could never be allowed.

In England during the 17th Century both thinkers, Thomas Hobbes and John Locke made a lot of noise in the world. For Thomas Hobbes, natural law was not an embodiment of Norms as the natural-law thinkers had argued since Plato and Aristotle, but a “freedom of every person, his own power according to his will for the preservation of his own nature i.e. to begin his own life and consequently to do everything which he regards, with his own reasoning as the most suitable means for achieving his purpose”[60]. Hobbes taught that, in their natural state, humans are free; everyone has a right to everything even to the body of another[61]. Everyone has the capability to make arbitrary conventions from their strengths. However, because all humans have the same capabilities, a “bellum omnium contra omnes“[62] exists within a natural situation.

Differentiated from Hobbes is the concept of natural status according to John Locke who is recognised as the actual creator of modern enlightenment philosophy. He concerned himself in a basic way with the question of the limits of state power and contributed, along with John Milton, to the creators of the classical freedom rights[63], the right to life, freedom and ownership. In his writings “Two Treatises of Government", Locke presumed that humans were free by nature. It is a state of “complete freedom”[64], which is not however a “situation of anarchy”[65]. Humans have, in this situation, an uncontrollable freedom which they may direct over themselves and their possessions; they do not however have the freedom to destroy themselves or other creatures which happen to be in their possession if it does not necessitate a nobler purpose than mere self-preservation. The natural freedom of humans lies free from every higher force on earth, not to be subjected to the will or legislative force of humans but it must simply have natural law as a directive[66]. John Locke influenced the Virginia Bill of rights and the American Declaration of Human Rights with his thinking[67].

On the European continent a basic meaning of freedom was approached in the philosophies of Benedict Spinoza[68]. He supported his claim based on the independence of reason from theology on the natural rights of humans, to judge everything freely and to extract consequences from these decisions.

In Germany the influential philosophers and jurists Samuel Pufendorf, Gottfried Wilhelm Leibniz, Christian Thomasius und Christian Wolff represent the thesis of the natural freedom of humans. According to the lessons of Pufendorf all humans have equal freedom from birth[69]. Human dignity is granted to all people in equal measure, everyone is to respect and treat his fellow man equally[70]. From this natural-law equality follows the natural-law freedom of all humans because, since nature created all humans equal, they must also be regarded as being free by nature[71]. Slaves in nature, as the teachings of Aristotle suggest, do not exist[72]. Also according to Pufendorf’s views, humans originally lived freely and equally in stateless conditions[73]. However this condition – contrary to Hobbes theories – was more peaceful[74] because it was evenly controlled by the law of nature[75]. At the latest since Pufendorf, modern natural-lawyers do not refer, with reference to the construction of natural law, to a divine origin of natural rights.

The divine creation order is neutralised according to Pufendorf: It is „related to humans… a complex made from reason, impulse and environmental condition “[76]. Accordingly natural law is no longer the result of a divine order but the result of rational consideration due to an anthropologically determined reason and the instinctive structure of human beings, including its specific environmental conditions. The norms of Natural law are no longer a part of the eternal divine law (the lex aeterna) „but a rational construction of reason on a basis of human drive and rationality”[77].

Leibniz said in his writings «Meditation sur la notion commune de la justice» that, even if he were to admit that there was, from a natural-reason point of view, a right of slavery between humans, another, stronger right would oppose the abuse of this right[78]. It is this „the right of the souls gifted with reason, which are inalienably free by nature and therefore the law of God, who is the highest ruler of bodies and souls and it is under this ruler masters are fellow citizens of their slaves because in the realm of God they enjoy civil rights just as their rulers do“[79].

The philosopher and jurist Thomasius supplemented the doctrine developed by Pufendorf on the obligations of humans[80], to do this, he took aside some of these original obligations that were identified as “inherent” by Pufendorf and which he only vaguely mentioned. With this, Thomasius tied natural rank with supervening rank and speaks of inherent rights “iura connata“, and acquired rights, the “iura acquisita“[81] Thus, for the first time, the term „innate right “ was used although the idea of an innate right existed before Thomasius[82].

Christian Wolff differentiated, like Thomasius, between “iura connata“ and “iura acquisita“. According to the view of Wolff, the inherent obligations of all humans are equal[83], because all humans are by nature equal[84]. If however all humans had the same rights, the result would be that no-one would have a right over another. If he were to have a right over another, it would have to be valid for the other person as well. Because this would be pointless and possibly immoral, no-one can, by nature, have a right over the behaviour of another[85]. Wolff concluded from this[86] that “the independence, in regards to behaviour, from the will of others, or the accommodation of his behaviour according to his own will is named ‘freedom’ (libertas). Therefore humans are by nature free.” As a firm establishment of the freedoms given to humans, Wolff developed an entire system of individual inherent rights. He was, with this, the actual creator of a catalogue of human rights.

The French writer and philosopher Jean-Jacques Rousseau is regarded as a man who paved the way to the French Revolution. In his writings he talks about the idea of the social contract[87]. For him, the foundations of society are freedom and equality. The first book of his works on the social contract begins with the sentence: «L'homme est ne libre, et par-tout il est dans les fers.» He says[88] that relinquishing his freedom would mean relinquishing his humanity, human rights and even his obligations. Such a relinquishment would be incompatible with the nature of humans.

Date: 2015-02-16; view: 840