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Juridical Human Rights – An Excerpt from Gret Haller’s Human Rights Without Democracy?

In Human Rights Without Democracy?, published in an English translation by Berghahn Books in December 2012, Swiss politician, diplomat, and human rights activist Gret Haller interrogates why human rights are defined in a certain manner internationally. 

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Do Human Rights really reflect the interests of the people? Can citizens in a democracy decide what human rights are? Or do we leave it up to experts and the courts to define human rights? I believe that human rights are something that the people of any given society should be able to establish democratically. Human rights are the outcome of a struggle to right what has gone wrong. To explain my view, I sketch the history of the concept of human rights that must be seen as separate from the historical development of factual rights. One of the many insights that emerge is that there is a significant difference in how human rights are understood in the United States of America on the one hand and in Great Britain and Continental Europe on the other.

 

I take a look at theory from John Locke to Immanuel Kant to explain why, from a philosophical point of view, liberty and equality need not be mutually exclusive. We need freedom and equality for all. The end of the Cold War gives us a new opportunity to see how equality can be constitutive of freedom.  The West has not yet seized this opportunity. Instead, we let self-appointed experts drawing on individual court rulings prescribe human rights for us. Taken to ever higher courts that eventually revise political decisions, we end up with citizens that are discouraged from participating in the democratic shaping of political will.

 

Gret Haller

 

In the excerpt below, Dr. Haller introduces the historical reasons that human rights have come under juridical, rather than democratic, purview.

 

The Concept of Human Dignity

           

Human dignity was an idea familiar to the ancients.[i] The concept had two different meanings: For one, it described the status of a person within society. But it also pinpointed the value of man in relation to other species, indicating as it were the intrinsic worth of the human being. At first that dignity was established on the grounds that human beings have the power of reason. Later, in early Christianity and in medieval times, human dignity came to be seen as defining man’s place within the overall framework of creation. According to the Bible, God created man “in His own image”, making human dignity something derived from “resemblance to God.” During the Renaissance, Italian Humanist Pico Della Mirandola extended that resemblance to imply that man, as a little world in himself, has all the possibilities that exist in the great world created by God and that human dignity consists in having a free choice from among all those possibilities.

With the beginning of modern times and the Enlightenment, the idea emerged that human dignity follows from man’s capacity for reason. German philosopher and jurist Samuel Pufendorf said that not only is human dignity based on the human capacity for reason, but that all people are capable of it. This made human dignity the same for everyone.

Philosophers of the sixteenth and seventeenth century began to define the individual’s concrete right to freedom based on the idea of human dignity. The labor movement in the  nineteenth century made the notion of human dignity the central concept of political struggle, demanding for workers material circumstances “worthy of human existence”, and thus adding to the concept another aspect, namely, that of what is just. While human dignity remained a philosophical distinction on which to establish human rights, it also began to spread into the realm of specific claims to rights, thereby becoming a category of jurisprudence. One example of that transition is the Weimarian Constitution of 1919. In the introduction to its passage on the conduct of commerce it states that the organization of commercial activity must comply with “the principles of equity and aim to warranting human existence worthy of all.”

In response to the unparalleled contempt of human dignity witnessed in World War Two, the preamble to the Charter of the United Nations, declared on 26 June 1945, included the passage “faith in fundamental human rights, in the dignity and worth of the human person.” The UNESCO statutes from 16 December 1945 also aim to counter the renouncement of democratic principles and to promote human dignity, equality, and mutual respect. The preamble to the United Nations Universal Declaration of Human Rights from 10 December 1948 centers on human dignity. Article 1 says: “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.”

Anchoring human dignity in this way in international documents ultimately makes it a juridical concept, without dismissing the philosophical justification of human rights.

Let us now turn to jurisprudential guarantees of human dignity as set down in national constitutions. These make clauses on human dignity a matter of interpretation by the courts. But the debate can get very controversial when such clauses are applied in real-life situations. Some reveal the inconsistencies among diverse interpretations of human dignity. Beginning in the mid-twentieth century, and increasingly over recent decades, legal debate over what is meant by human dignity has become part of discourse on how to properly articulate human rights. Since their first articulation in the late eighteenth century, the struggle to define human rights has never ended.

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Gret Haller is a lawyer, politician, and author. In 1987 she became a member of Swiss parliament and in 1993/94 was its Speaker, as well as a member of the Parliamentary Assemblies of the Council of Europe and OSCE. She has served as Swiss ambassador to the Council of Europe and from 1996 to 2000 was OSCE Human Rights Ombudsperson for Bosnia and Herzegovina in Sarajevo. The University of St. Gallen awarded her an honorary doctorate for her work in human rights. Her publications include Limits of Atlanticism: Perceptions of State, Nation and Religion in Europe and the United States (2007) and Menschenrechte und Volkssouveränität in Europa.Gerichte als Vormund der Demokratie? (co-editor, 2011).


[i] See Peter Häberle, Die Menschenwürde als Grundlage der staatlichen Gemeinschaft, in Josef Isensee/Paul Kirchhof, Handbuch des Staatsrechts, Vol. 1, §20 (Heidelberg, 1987), p. 834 ff.