Suorez F. (1612), De legibus, ac Deo legislatore in: Milford H. (ed.) .... 107; Grotius H. (1646), De Jure Belli ac Pacis (1995 edn), William S. Hein & Co., Buffalo,.
"From above" or "from the bottom u p " ? The profection of human rights between descending and ascending interpretations by Sergio Dellavalle^'"
The history of human rights is not the story of popular sovereignty. Rather, the idea that there are rights which every human being possesses for the very reason of being a human^'^ arose only after the ancient forms of popular participation in the government of the polity fell into a fatai crisis. Furthermore, the conception that rights characterise eminently the status of the citizens as an effect of their belonging to the politicai community and as a precondition for their involvement in politicai life always stood as a menace to the universality of human rights. The rejection of an abstract understanding of rights as existing merely in an ethereal space situated above democratic participation - a rejection which is the implicit consequence of their foundation on popular sovereignty - provides otherwise precisely for that radication of rights in politicai processes "from the bottom u p " , which w e miss in many forms of universalism.^'* Looking at the question from the point of view of the history of ideas, the foundation of human rights is therefore situated between two poles. The first interpretation sees rights coming "from a b o v e " , which guarantees that they are not depending on exclusive procedures of popular participation, but runs also the risk of entrusting them to opaque instances claiming to possess ethical truth. The second interpretation situates rights within social a n d politicai processes a n d presupposes participation in order to specify the form a n d content of the entitlements,^'^ at the 2 1 4 . Professor of State Theory at the Faculty of Law of the Llniversity of Turin, Italy, Senior Research Fellow at the M a x Planck Institute of Comparative Public Law and International Law in Heidelberg, Germany. 2 1 5 . Human rights are defined here as those rights to which every human is entified for the very reason of belonging to the universal community of human beings. In contrast, citizens' rights are those rights that belong only to the citizens of a specific polity. Turning from philosophical principles or general legai norms to constitutional norms binding the institutions of concrete polities, human rights take the form of fundomental rights. At this levei they meet the citizens' rights guaranteed by those concrete polities, sometimes causing confusion. To avoid misunderstondings, two elements are therefore always to be distinguished in the concept of fundomental rights: on the one hand the contents of universal human rights, on the other the exclusive entitlements of citizens. 2 1 6 . Mous I. ( 1 9 9 9 ) , "Menschenrechte als Ermàchtigungsnormen internotionaler Politik oder: der zerstòrte Zusammenhang von Menschenrechten und Demokrotie", Brunckhorst H., Kòhier W. R. a n d Lutz-Bochmann M. (eds). Rechi auf Menschenrechte, Suhrkamp, Fronkfurt-am-Main, p. 2 7 6 ; Mous I. (1992), Zur Aufklàrung der Demokratietheorie, Suhrkamp, Frankfurt-om-Main; Mous I. ( 1 9 9 5 - 1 9 9 6 ) "Liberties a n d popular sovereignty: on Jùrgen Habermas's reconstruclion of the system of rights", Cardozo Law Review 17, p. 8 2 5 . 2 1 7 . Haller G . ( 2 0 0 8 ) , "Menschenrechte und Volkssouverdnitat: Mògliche Aniworten auf eine 2 0 0 Jahre alte offene Froge", Bammer A. et a l . (eds), Rechtsschutz geslern - heute - morgen, N W V , W i e n , p. 5 4 1 .
Definition
and development
of human
rights and popular
sovereignty
in
Europe
"From
cost, however, of a limited inclusion. A sound concepHon of human rights needs both universal inclusion and democratic radication. However, it has to avoid the dangers contained therein: an abstract and sometimes even quasi-authoritarian definition of substantive rights on the one hand, and the tendency to particularism
above"
or "from
the bottom
up"?
1. The descending interpretation of human rights: the foundation "from a b o v e " 1.1. From the nomoì of the single polities to the idea of a universal nomos
on the other. For that reason, an understanding of human rights able to cope with
Following the understanding of classic antiquity the universality of human beings
the challenges of the 21st century shouid overcome the mutuai rejection of the
consisted only in their physical constitution a n d ethical dispositions. As social
two traditions a n d incorporate some elements deriving from both legacies, while
and politicai beings, on the contrary, they were members of communities of lim-
avoiding their shortcomings. The challenge will thus consist in finding a theoreti-
ited range. Neither Plato's concept of "justice" {dikaiosynè),^^^ nor Aristotle's
cal solution capable of d r a w i n g a picture of a system of rights containing at the
theory of the naturai sociability of humans^" were thought to surpass the border
some time universality and social radication in democratic processes, both within
of the single poleis.
a multi-levei model of social interaction.
the "equality within the range of the l a w " on which the praxis of politicai free-
At the some time the idea of "isonomy" [isonomia),
namely
dom in ancient Greece was b a s e d , w a s a p p l i e d only to the free citizens of the The inquiry is articulated in three steps. The first section will concentrate on the
polity, moking clear that the notion of nomos had - to begin w i t h , at least - no
origin of the foundation of human rights "from a b o v e " beginning with the decline
universal scope. Thus, the accentuation of the equality of ali humans under a n
of ancient republicanism. W h i l e pointing out the novelty of the a p p r o a c h , defi-
all-encompassing nomos,
cits will also be outlined, such as the difficulty in determining the contents of enti-
cific community, remained an absolute exception in ancient Greece as well as
against the particularity of their belonging to a spe-
tlements without the direct involvement of rights holders, or the danger that arises
in the Roman Republic, with no influence on the politicai praxis or philosophical
from instances where individuais a n d groups a p p o i n t themselves as " g u a r d i a n s "
thought.221
of an alleged ethical truth e m b e d d e d in society. To conceive the idea o f an uniimited belonging of ali humans to a g l o b a i comThe second section will begin with a change of p a r a d i g m : collocating the indiv i d u a i at the centre of society, Thomas Hobbes' politicai philosophy paved the
munity, the notion of a universal nomos was first needed. O n l y from the submission of the nomai of the single polities to a higher law couid arise the attribution
w a y for a " b o t t o m - u p " conception of human rights, now put in the hands of their
of rights not merely to citizens, but to ali humans. This parodigmatic revolution
very holders. In fact, in Hobbes' view individuais w a i v e almost ali their rights,
was introduced by the Stoic philosophy after the end of classic isonomy a n d the
alienating them to a monarch vested with absolute sovereignty. Nevertheless,
transition to broader cosmopolitan polities characterised by a strong centrolised
the seed had been sown: in the following developments of the contract theory
authority a n d a structural inequality in front of the law, such as Alexander's M o c -
- in particular in the works of John Locke a n d Jean-Jacques Rousseau - the cen-
edonian Empire or the Roman Empire. In the Stoic view not merely the physical,
trality of individuais in the conception of politicai community is intertwined with
but also the social w o r i d is ruied by only one fundomental functional principle,
a specific sensibility for the inalienability of their rights. Yet even the " b o t t o m - u p "
the /ogos.^" From this principle a general l a w is derived, the nomos,
conception of human rights of m o d e m philosophy is characterised b y two sig-
its universality was considered to build the benchmark of validity for ali positive
nificant problems: first, the exclusive concentration on human rights protection
laws of the single polities. O n the basis of the Stoic understanding of metaphys-
which in
within the borders of a single nation, reducing them to mere rights of citizens
ics a n d ethics evolved the idea of a "naturai reason" common to ali rational
and missing therefore a supranational dimension; a n d second, the danger of
beings - a n d to ali humans in particular - a n d eventually the theory of "naturai
projecting individuai rights into the sphere of an unrestrained popular sover-
l a w " , as it was expressed by Cicero;
eignty, namely into a volontà generale,
which con easily degenerate into tyr-
onny. Immanuel Kant indicated the w a y to overcome both problems, on the one hand by limiting the risks of popular sovereignty through an adequate division of powers, on the other by postulating a multi-levei conception of public law including for the first time in the history of philosophical thought a cosmopolitan public law grounded in the premises of m o d e m individualism. Nonetheless,
Kont's
proposai remained unclear, due to the ambiguity of his individualistic p a r a d i g m .
M o v i n g from his suggestions, but g o i n g beyond his parodigmatic horizon, the third section will propose a new a p p r o a c h , based on the communicative understanding of social interaction.
There Is o true law, a right reason, conformable to nature, universal, unchangeoble, eternai, whose commands urge us to duty, and whose prohibitions restrain us from 2 1 8 . Plato, Republic ( 1 9 8 0 edn), Harvard University Press, C a m b r i d g e , M a s s . , Book II 3 6 7 e ff Book IV, 4 3 2 b ff., Book V, 4 6 9 b ff. 2 1 9 . Aristotle, Polities ( 1 9 6 7 edn), Harvard Uni versity Press, C a m b r i d g e , Mass., I, 2, 1 2 5 2 a ff. 2 2 0 . Arendt H. ( 1 9 6 3 ) , On revolution, Viking, N e w York, p. 2 3 . 2 2 1 . Hòffe O . ( 2 0 0 2 ) , Demokratie im Zeitalter der Globalisierung, Beck, Mùnchen, p. 2 3 4 . In fact, the only significant exception con be found in a sentence of Heraclitus: Diels H. ond Kronz W . (eds) ( 1 9 5 7 ) , Die Fragmente der Vorsokratiker, Rowohit, Hamburg, p. 2 2 (B 14). See also Bòckenfòrde E.-W. ( 2 0 0 2 ) , Geschichte der Rechts- und Staatsphilosophie. Antike und Miltelalter, Mohr Siebeck, Tùbingen, p. 4 0 . 2 2 2 . Arnim J. v. ( 1 9 0 5 ) , Stoicorum veterum fragmente.
Definition
and
development
of human
rights
and
popular
sovereignty
in
Europe
e v i l . W h e t h e r it e n j o i n s o r f o r b i d s , the g o o d r e s p e c t its i n i u n c t i o n s , a n d the
"From
wicked
treot them w i t h i n d i f f e r e n c e . This l a w c a n n o t b e c o n t r a d i c t e d b y a n y other l a w , is not l i a b l e either to d e r o g a t i o n or a b r o g o t i o n . N e i t h e r the s e n a t e nor the
and
people
c o n g i v e us a n y d i s p e n s a t i o n for not o b e y i n g this u n i v e r s a l l a w of j u s t i c e . ^ "
1,2. Universal normativity, human dignity, and individual-based jus as conceptual preconditions for the idea of a cosmopolitan human rights protection According to the concept of naturai law, the validity criterion of positive law does not consist - as was the case in the ancient republics - in the correct application of the rules of politicai participation, but is situated at a suprapositive level. In other words, the legitimacy of legai norms does not " a s c e n d " from popular sovereignty, but "descends" from purely rational abstract principles. A first condition for the establishment of a human rights theory - namely the overcoming of the restraining identification of the nomos with the law in force within single and limited communities - was thus fulfilled. The horizon of social and legai rules had been amplified and mode able to sustain universality a n d , therefore, to encompass ali humans. In order to claim that the " d e s c e n d i n g " principles of naturai law con actually serve as a convincing foundation of human rights, however, two further elements were required: first, naturai law had to be centred on the ideal of human dignity; second, a jus had to be conceived as a description not only of an " o b j e c t i v e " law or of a set of legai rules, but also - and rather - as the definition of an entitlement (or a number of entitlements) possessed by ali humans. Neither of these elements was centrai to the Stoic vision, which was a Weltanschauung moving from an interest in discovering the essence of worId order, more than from an articulation of the existential condition of humans. Yet, some of the most relevont components of the Stoic philosophy - among these the conception of naturai law - were transfused into Christianity. In Christian thought, significantly more than before, the idea of human dignity come to the fore.'^^^ This happened particularly by describing man as imago Dei'?'^^ being "images of G o d " , humans couId be seen as holders of those rights immediately deriving from the contents of naturai law. A second step in establishing a human rights theory had been therefore undertoken. In the most sophisticated presentation of the Christian Catholic understanding of the legai system, namely in Francisco Suarez's De legibus,^^^ laws are structured on four levels, descending from the lex divina or /ex aeterna to the lex naturalis, the jus gentium, a n d the lex civilis. Though mointaining its o w n specificity, each level d o w n from the lex aeterna is 2 2 3 . Marcus Tullius C i c e r o , "The treatise on the Republic", in: C i c e r o , The politicai v/orks (1 841 Spettigue, London, p. 1 2 3 .
edn),
2 2 4 . O n the resort to the concept of "human dignity" in legai discourse, see: McCrudden C . ( 2 0 0 8 ) , "Human dignity ond judiciol interpretation of human rights", The European Journal of International tow 19, pp. 6 5 5 - 7 2 4 . 2 2 5 . Aquinas I, Summa f/ieo/og/co ( 1 9 8 0 edn), V/. Benton-Encyclopedia Britannica, C h i c a g o , I, XXXV. 2 2 6 . Suorez F. ( 1 6 1 2 ) , De legibus, ac Deo legislatore in: Milford H. (ed.) ( 1 9 4 4 ) , Se/ec«ons from three v/orks of Francisco Suarez, Clorendon Press, Oxford, p. 1.
above"
or "from
the bottom
up"?
derived from the level above, in the sense that its content, if it has to be accepted as " l a w " , cannot controdict the substance of the higher law. Rather, it has to be seen as the partici application of the contents of the superior level to a different ontological context. So the lex naturalis is that dimension of the lex aeterna which is accessible to any rational being;^^/ f|.,g gentium is that port of lex naturalis w h i c h , laid d o w n by humans in customs or treaties, gives order to their general interaction beyond the laws of the single polities;^^'* and the civil law (/ex civilis], finally, is that law w h i c h , according to the general principles of the jus gentium, orgonises social a n d politicai life within the specific contexts of single p o l i t i e s . A s a consequence of the deductive structure of the legai s y s t e m , " " no civil law, if it claims to be respected, con controdict the eternai law. Furthermore, since the latter is characterised by the paromount importance of human dignity, civil law has to be considered os legitimate only if it respects the fundomental conditions of human dignity, therefore human rights. If the condition of the centrality of human dignity in naturai law, albeit through the hardiy convincing metaphysical assumption of the direct primocy of divine law, con be seen as accomplished alreody at this early stage of development of the " d e s c e n d i n g " conception of human rights, substantially insufficient is here the fulfilment of the further condition mentioned above. In fact, the ideo of a jus conceived not only as on " o b j e c t i v e " law, but rather as an entitlement ascribed to ali humans remains, in the most favouroble interpretation, a marginai product of the Christian tradition, although some anticipation con be found in the works of the School of S a l a m a n c a . T h i s result is hardiy surprising in a conceptual legacy in which not the individuais, but the community conceived as a holon is at the centre of the philosophical understanding of society, polities, o n d law. During the following centuries, as a consequence of contamination with modem individualism, the " d e s c e n d i n g " theory of human rights amended this deficit by giving more prominence to the individuai character of e n t i t l e m e n t s . O n the other hand, further shortcomings of the " d e s c e n d i n g " understanding, which had aiready emerged in the early stoges of its formulation, con stili be found in the loter developments, giving therefore g o o d reosons to assume that they were inherent from the outset. 227.
Ibid., Il, Vff.,
p. 178
ff.
2 2 8 . Ibid., Il, XVII ff., p. 3 2 5
ff.
2 2 9 . Ibid., Ili, p. 361 ff. 2 3 0 . Ibid., Il, IV, p. 171. 23 1. Francisco de Viteria, Comentarios a la Secunda secundae de Santo Tomàs, Vicente Beltràn de Heredio (ed.), S a l a m a n c a , 1 9 3 2 ff., IMI, qu. 6 2 , art. 1, no. 5 ; Suarez, De legibus, footnote 2 2 6 , I, II, 5, p. 3 0 ; Bòckenfòrde E.-W., Geschichte der Rechts- und Staatsphilosophie, footnote 2 2 1 , p. 3 2 6 ff. 2 3 2 . Nonetheless, the ontological priority of individuai entitlements in the discourse on human rights is stili largely missing in one of the most significant ond influential strands of the " d e s c e n d i n g " conception, namely in the doctrine of the Catholic Church. The most a d v a n c e d position expressed by the Catholic Church on this issue con be found in the encyclicol Pacem in terris, promulgoted by Joonnes XXIII in 1 9 6 3 . Loter documents seem to retrieve, however, from the more for-reoching ossumptions, contained in that encyclicol, on the link between human rights, individuai entitlements, ond naturai reason; see: Redemploris Missio, promulgoted by Joonnes Poulus II in 1 9 9 0 , and Dominus Jesus, written by Joseph Ratzinger ond Tarcisio Bertone in 2 0 0 0 .
Definition
and development
of human
rights and popular
sovereignty
in
Europe
1.3. Deficits of the human rights conception "from above" 1.3.1. Prejudice and discrimination The first deficit that c o n be traced back to the very essence o f the foundation o f
"From
above"
or "from
the bottom
up"?
beings to sociability.^-'^ As a consequence of this attitude, human rights couId be understood as the universal rules governing interactions within the g l o b a i human society. The ontological assumption of a universal sociability of man was however, in its essence, not less discriminotory than the derivation of the univer-
human rights "from a b o v e " is reloted to the postulation of the divine law as the
sal rules of interaction from the law o f the Christian G o d . The substance of the
origin of naturai law a n d , therefore, of human rights. This postulation has charac-
entitlements resulting from that sociability was understood, indeed, not as the
terised the Christian Catholic doctrine of human rights from its very beginning up
effect o f inclusive processes o f deliberotion, but os the outcome of the Western
to the present. Yet if the message of salvation, a c c o r d i n g to the Christian belief,
legai a n d philosophical legacy leoding to o postulation obout the ontology of
forms the basis of the content of human rights os well as of their relevance, the
human society. Regordless of its supposed purely rational nature, this postula-
problem arises of w h a t will happen to those w h o d o not believe in that message.
tion was - coming itself "from a b o v e " o n d this " a b o v e " being nothing else but
In principle, the Christian Gospel is oddressed to oli human beings; in reality,
Western culture - structurolly biased.^^*
peoples w h o d o not belong to the Christian tradition a n d , as a consequence of the postulation of rights "from a b o v e " or even "from hleaven's g r a c e " , ore not involved in any deliberative formulation of their content, tend to be horshly dis-
1.3.2. The epistemologica! shortfall
a d v o n t a g e d . Hence, the metaphysical assertion that the lex aeterna is the source of human rights involves a high risk of discrimination e m b e d d e d in philosophical
The assumption of a universal community of humonkind, on which human rights
and legai thought. Even the most cautious a n d originai thinkers w h o shoped the
as the fundomental rules of general interaction had to be bosed, runs not just
early Christian Catholic discourse on international law a n d human rights couId
the risk o f being characterised b y Western prejudice. It is also offlicted - o n d
hardiy escape the trap of d o u b l e - d e a l i n g . ^ "
w e come herewith to the second shortcoming of the " d e s c e n d i n g " understand-
If discrimination, in the " d e s c e n d i n g " conception, is primarily rooted in the postuloted origin of human rights from the doctrine a n d dogmas of one specific religion, the first step on the w a y to the resolution of the problem consists in dissociating the ontological basis of human rights from religious beliefs. This step was undertoken very early in the history of the discourse on human rights, specifically when legai philosophers influenced by the Reformotion between the end of the 16th century a n d the beginning of the 17th century proposed to decouple the lex naturalis from the lex aeterna. A c c o r d i n g to the Protestant theology, the l a w o f G o d is only - portiolly - acces-
ing - with 0 severe epistemological deficit. Indeed, the existence o f a universal community of humonkind from which the contents of human rights are to be deduced, here presented os a factum brutum,^-*^ con hardiy be proved. Rather, it couId be seen os a perspective that con be constructed by d i a l o g u e , but this is precisely w h a t the foundation of human rights "from o b o v e " does not meon: the basis for human rights pretends here to be a given fact in its very substance, not a mere tronscendentol principle for a dialogic a p p r o a c h . For thot reason, the supporters of the " d e s c e n d i n g " a p p r o a c h to human rights hove always had difficulties when it come to a specification o f which entitlements ought to be universolly guaranteed, or to the justificotion of w h y precisely these had to be
sible through the faith o n d completely inscrutoble for the naturai reason.2^'' Thus
included while others were excluded from the universal sofeguord. W i t h this
the naturai law, being prevented from relying upon the divine law, had to seorch
shoky epistemological basis, they are forced to resort olternately to a kind of
for a new, purely secular foundation. Resorting once o g a i n to an element of the Stoic philosophy, international lawyers inspired by the Protestant a p p r o a c h collocoted the ontological basis of what they saw os the essentiol principles of the universal interaction a m o n g humans in a n ontological postulation on human nature, in particular on on alleged naturai o n d universal disposition of human 2 3 3 . See, in particular: Francisco de Vitoria, "Relectio prior de Indis recenter inventis" ( 1 5 3 8 - 1 5 3 9 ) , in: Francisco de Vitoria, De Indis recenter inventis et de jure belli Hispanorum in Barbaros, W a l ter SchatzeI (ed.), Mohr Siebeck, Tùbingen 1 9 5 2 , p. 1. 2 3 4 . Bòckenfòrde, Geschichte der Rechts- und Staatsphilosophie, footnote 2 2 1 , p. 3 8 5 ff. Martin Luther's condemnotion of reason os the "Devil's greatest whore" is well known, Luther M . , Werke. Kritische Gesamtausgabe ( 1 9 1 4 edn), Boehlous, Weimar, Voi. 5 1 , p. 1 2 6 , line 7 ff. But also in the Calvinist tradition, which w a s in general less odverse or even well-disposed to rotionalism, G o d is opproochoble exclusively through g r a c e ond faith. See Calvin J. ( 1 5 5 9 ) , tnstitutio chrislianae religionis, G e n e v a e . Being excluded from the religious context, reason couId otherwise be amended from control by the Church ond improve with less restraint in its application to secular matters.
2 3 5 . Gentili A . ( 1 6 1 2 ) , De jure belli libri tres ( 1 9 3 3 edn), Clorendon Press, Oxford, I, I, p. 10, a n d I, XV, p. 1 0 7 ; Grotius H. ( 1 6 4 6 ) , De Jure Belli ac Pacis ( 1 9 9 5 edn), William S. Hein & C o . , Buffalo, N e w York, "Prolegomino", N o . 6, 16, ond 17. 2 3 6 . O n the bios structurolly embedded from the outset in international law, see Anghie A . ( 2 0 0 5 ) , Imperialism, sovereignty and the making of international law, C a m b r i d g e University Press. The Western prejudice has been emphosised particularly within the s c x a l l e d Third-Worid a p p r o a c h to international law; see: Anond R. P. ( 2 0 0 4 ) , Studies in international law and history, Nijhoff, Leiden; Chimni B. S. ( 2 0 0 6 ) , "Third World opprooches to international low", International Community Law Review 8, pp. 3-27. 2 3 7 . The assumption of a universal community of humonkind hos characterised the a p p r o a c h to international low usually known os the "theory of the international community". For on overview of its history, see Poulus A. L. ( 2 0 0 1 ) , Die internationale Gemeinschaft im Vólkerrecht. Eine Untersuchung zur Entwicklung des Vólkerrechts im Zeitalter der Globalisierung, Beck, Mùnchen. The contents of the theory in its contemporary version ore presented in: Tomuschat C . ( 1 9 9 9 ) , "International law: ensuring the survivol of monkind on the ève of a new century", Collected courses of The fiague Academy of international /aw Voi. 2 8 1 , Nijhoff, The Hogue.
Definition
and development
of human
rights
and popular
sovereignty
in
Europe
"From
above"
or "from
the bottom
up"?
hypostatised opinio gentium,^^^ m e t a p h y s i c s , " ' ' or even to divine a u t h o r i t y . I n this w a y , the " d e s c e n d i n g " conception eventually returns, in a cyclic process, to the main deficiency of its origins within the Scholostic tradition. However, while this deficiency was then embedded in a general context of courogeous innovation, it n o w seems like a bockword-looking ottitude.
Similarly, Suarez stated that the Pope has the "jurisdiction for the correction of kings" o n d thus also the power of deposing them. The intervention of the Pope is justified both when the fauits of the monorchs concern spiritual matters, os well OS when their severe errors or tyronnicol actions, albeit regording secular matters, "constitute sins" a n d therefore a violation of the highest l a w of nature.
1.3.3. Quis custodiet ìpsos custodes? - who shouid profect us from the protectors?
tion of the problem of w h o shouid sofeguord fundomental rights. In his under-
The third o n d lost structural weakness of the " d e s c e n d i n g " conception of human
to the community.2'''" As a consequence, the community os the originai holder of
In Suarez's interpretation, however, w e find also the elements for o second solustanding, the politicai power is not given by G o d directiy to the monarch, but
rights con be briefly described with a question: w h o con actually sofeguord the
the politicai power hos also the right - in the face of severe abuse - to depose
entitlements of individuais if these are excluded from the process of their formu-
the tyronnicol king, "octing os a whole, ond in occordonce with the public
lation, in other words if the individuais ore merely the oddressees of rights ond not also their outhors? The danger of abuse by the powers in force is evident. If w e follow the principle that only volenti non fit iniuria,
no solution con be reolly
satisfying. In the history of the " d e s c e n d i n g " theory w e find many ottempts to settle the problem; not one is free from the risk of monipulotion. In the Christian tradition of the M i d d l e Ages a n d then in its Catholic continuotion the custodion of the highest l a w of G o d is the Church, in particular the Pope os Christ's representotive on eorth.^"' According to this principle, Francisco d e Vitoria osserted that a civil l a w con be concelled by the Pope if it is against the divine low.^''^
ond general deliberotions of its communities a n d leading men".^''^ These are the fundoments of the ideo of popular power. In Suarez's vision, however, this popular power is thworted by the reference to the superior authority of Christ's representotive on eorth. This constraint h a d been overcome - alreody before Suarez's works were published - in Calvinist politicai theology. According to the a p p r o a c h of the Monarchomachs, the community is vested with supreme power, unchollenged by any ecclesiostic authority, since " n o t the peoples are created for the mogistrotes, but, on the contrary, the mogistrates for the peoples".^'''^ Supporting largely the some conception, Althusius stated, a few yeors loter, that "the people, or the ossocioted members of the reolm, have the power
2 3 8 . Remarkably, Hugo Grotius gove up eventually in his seminai work De Jure Belli ac Pacis the deductive w a y to found the contents of international low, due to the insuperoble difficulties of this kind
{potestas)
of establishing this right of the reolm o n d of binding themselves to it".^'»^ This
of orgumentotion, and switched over to a descriptive presentation of the shored principles of legai
right "has as its purpose g o o d order, proper discipline, o n d the supplying of
a n d philosophical thought. See: Grotius, De Jure Belli ac Pacis, footnote 2 3 5 , I, I, XII, ond I, I, XIV
provisions in the universal association".^''^ The control over the respect of human
2 3 9 . S e e , for exomple, the orgumentative strotegy of Alfred Verdross, who, searching for a not only formai, but substontial ond therefore - in his eyes - more consistent content for the Kelsenian concept of the Grundnorm, Die Verfassung
seeks remedy in Plato's and Hegel's metophysics: Verdross A. ( 1 9 2 6 ) ,
der Vólkerrechtsgemeinschaft,
Springer, Wien/Berlin, I, I, § 1, I, p. 2 ff.; I, II, § 7 ff.,
p. 2 2 ff.; I, II, § 9, p. 3 2 . 2 4 0 . V^e find such a recourse alreody in Grotius' work (see Grotius, footnote 2 3 5 , "Prolegomena"), OS well OS in the G r i s e z School, one of the most recent ottempts to revitolise the doctrine of naturai low; s e e : Finnis J. ( 1 9 8 0 ) , Naturai law and naturai rights, Clorendon Press, London, p. 3 7 6 , 3 8 6 ff.; G r i s e z G . , Boyle J . , a n d Finnis J. ( 1 9 8 7 ) , "Practicol principles, moral truth, ond ultimate e n d s " , Finnis J. (ed.) ( 1 9 9 1 ) , Naturai law, Dortmouth/Aldershot, Voi. I, 2 3 7 - 8 9 , p. 2 7 9 . 2 4 1 . The most radicai version of the theory which osserts thot the Pope is the holder of oli sovereignty, spiritual as well os secular, hos been formuloted by Henry Hostiensis [Sumnna Aurea, 1250-1261, Servonius, Lugduni 1 5 5 6 ) . The theory, however, wos surely not conceived, at the time of its formulation, with the oim of improving universal rights, but rather of extending the range of politicai power of Christianity by chollenging the legitimacy of non-Christian rulers or even the right to exist of nonChristian communities. Following a more moderate interpretation, a moinly spiritual, albeit stili universal power w a s oltributed to the Church by Hostiensis' antogonist, Sinibaldo Fieschi, who combined 0 universal aspirotion to sovereignty by the Church with the recognition of the reoi legitimacy of nonChristian regno ( 1 2 4 3 - 1 2 5 4 , Apparatus super quinque lib[ns] decr[etalium] et super decretaiibus ( I s t e d n ) 1 4 7 7 , Lugduni 1 5 3 5 ) . Fieschi's relotively temperate understanding of the power of the Pope w a s then further limited to the exclusively spiritual authority over only Christions by the most influential outhors of the School of S a l a m a n c a . O n the limitotion of the spiritual power of the Pope only to Christions, see Francisco de Vitorio, footnote 2 3 3 , II, 3. In the School of S a l a m a n c a , the theory wos actually connected with on ottempt to oddress the question of the safeguard of universal rights, although these were yet defined from on inacceptoble unilaterolist perspective. 2 4 2 . Vitoria F. de, "Relectio de potestate ecclesiae prior", Padgen A. ond L a w r e n c e ! , (eds) ( 1 9 9 1 ) , Vitoria, Politicai Writings, C a m b r i d g e University Press, p. 4 5 .
rights seems thus to have been put in the hands of their addressees o g o i n . Yet this is not completely true, at least not with regard to politicai theology during the transition from the 1 óth to the 17th century. In the view of the Monarchomachs, there is a social order which is objectively just, thought to derive its superiority from its inherent quolity a n d therefore independently of the will of those w h o ore subject to it.2^' Similarly, Althusius' defence of popular sovereignty is based on a holistic social philosophy, in which hierorchy is considered os one of the most essentiol laws of noture.^^" In this understanding, the consent by the people is olwoys based on an ideo of substontial truth. As a consequence, the outonomy of the citizens is significantly limited o n d their involvement in the government of the polity, albeit necessory, is not seen os a sufficient condition for legitimacy. Justificotion a n d the contents of the fundomental rights stili come " f r o m a b o v e " . 2 4 3 . S u a r e z F. ( 1 6 1 3 ) , "Defensio fidei cotholicoe et opostolicoe odversus Anglicanoe sectae errores" in: Suarez, Selections, footnote 2 2 6 , VI, IV, 16. 2 4 4 . Suorez, De/eg/bus, footnote 2 2 6 , III, I, 4; Ili, Ili, 2 ; III, III, 6; III, IV, 2. 2 4 5 . Suarez, Defensio fidei, footnote 2 4 3 , VI, IV, 15. 2 4 6 . Bèze T de ( 1 5 7 5 ) , Du droit des magistrats sur leur subjects, EDHIS, Paris, 1 9 7 7 , p. 1 3 . 2 4 7 . Althusius J. ( 1 6 1 4 ) , Politica methodice digesta ( 1 9 3 2 edn) Harvard University Press, IX. 2 4 8 . Ibid. 2 4 9 . Bèze T. de ( 1 5 7 5 ) , footnote 2 4 6 , p. 3 ff. 2 5 0 . Althusius J. ( 1 6 1 4 ) , footnote 2 4 7 , p. I.
"
Definition
and development
of human
rights and popular
sovereignty
in
Europe
namely "from Heaven's g r a c e " , a n d ffieir custodions, in so far os they hove to o p p l y principles which ore thought to be inherently true, cannot be considered to be bound by deliberative procedures.
above"
or "from
the bottom
up"?
Spoin o n d Portugal, as well as, after the fall of the Iron Curtoin, in severol other countries, mony of them in E u r o p e . " ' As 0 motter of principle, the ideo thot the essentiol elements of social order
A third solution to the question of identity of the guardians of rights wos devel-
need increosed ond quolified protection does not pose ony deep conceptual
o p e d concurrently with the eloborotion of the m o d e m theory of sovereignty.
p r o b l e m s . D i f f i c u l t i e s arise, however, when it comes to specifying w h o t these
In his Six livres de la République iean Bodin osserted thot "sovereignty is thot
elements shouid contain o n d mean os well as w h o t the competences of the con-
obsolute a n d perpetuai power vested in a commonweolth".^^' Therefore, a sov-
stitutional courts ore and how they are justified.2*' The ideo thot the concept of
ereign prince is not bound by laws (legibus
solutus),
o n d the civil norms prom-
ulgoted by him, "even when founded on truth o n d right reason, proceed simply from his o w n free w i H " . ^ " Bodin concedes that the power of the sovereign moy be limited by the Estotes os well as by divine o n d naturai law.^^^ Nonetheless, both limitations ore very modest: on the one hand becouse of the marginai competences o n d the strict hierarchicol submission of the Estotes;"" on the other - more important for the question oddressed in this contribution - becouse the sovereign prince, being the secular imago of the Almighty, hos the right to interpret freely, that is, without ony seculor or ecclesiastic control, the supropositive norms. Furthermore, no effective remedy against violation is given. Put in the hands of o sovereign power, the protection of human rights is thus ot the mercy of its arbitrory will.
50"
"From
"essentiol elements of social order" shouid mean more than the guorantee of the conditions of socioi o n d politicai participation,2*2 a n d shouid constitute substontial foundation of society, rooted in history2*3 or in a n incontrovertible ethicol truth, is hordly convincing.2*'< From this point of view, constitutional odjudication cannot limit itself to the sofeguord of the framework of deliberotion; rather, it hos the task ond responsibility " t o protect the republicon s t a t e " , 2 " or to interpret the outhentic will of the people os pouvoir
constituant,
which laid d o w n the ethicol
fundoments of the community, even agoinst the deliberotions of its representotives.2** Potemolistic outcomes from this ottitude are more likely to occur in the stote-centred ond noturol-low-influenced Europeon continentol tradition than in the moinly dialogic o n d citizenship-oriented Americon republicanism.2*^ Nevertheless, in both cases constitutional courts moy see themselves os the guardians
The fourth o n d lost solution hos finally evolved from the processes which brought
of 0 fundomentol truth - an olleged truth, however, which reminds us more of
about a " d o m e s t i c o t i o n " of sovereignty. This hoppened in the domestic institu-
metophysics than of democracy.
tionol architecture, through the division of powers, o n d ot the internotionol level, through the transfer of sovereign competences with o specific impact on univer-
Similor, but even deeper problems result from the " d o m e s t i c o t i o n " of sovereignty
sal rights to internotionol orgonisations. W i t h regard to the domestic dimension,
ot the internotionol level. In order to prevent the violation of humon rights b y
the sofeguord of fundomental rights w o s first ottributed directiy to the parlio-
single stotes, these have been bound progressively b y internotionol low. Thus
mentory assembly,"^ which poved the w o y for the institutional application of those principles of o "bottom-up" foundation of human rights (to be discussed in the next section). In order to a v o i d leoving fundomental rights ot the disposai of the "tyronny of the mojority" o second onswer w o s eloboroted, consisting in the fixotion of the fundomental elements of social order in o constitutional document, o c c o m p o n i e d b y the establishment of o specific constitutional jurisdiction. This solution had been onticipated, to o certoin extent, in the Constitution of the United Stotes o n d , with even more limitations, in S w i t z e r l o n d . " * It come then to full application, ofter the end of the Second W o r l d W a r , with the establishment of constitutionol courts in Germany, Itoly, Austrio,^^^ 2 5 1 . Bodin J. ( 1 5 7 6 ] , Six livres de la république I, Vili, p. 8 5 . 2 5 2 . Ibid. p. 9 2 . 2 5 3 . Ibid. p. 91 ff.
Fronce,"^
( 1 5 7 9 edn), Imprimerie de Jean de Tournes, Lyon,
,
!
2 5 4 . Ibid. p. 9 8 ff. 2 5 5 . Tfiis solution chorocterises the English tradition from the Bill of Rights of 1 6 8 9 up to the present. 2 5 6 . The Federai Supreme Court hos no competence to review acts of the Federai Porliament. 2 5 7 . In Austria the Constitutional Court | Verfassungsgericlits/io/) wos re-established in 1 9 4 6 , resuming ond extending the competences of the Verfossungsger/chts/iof created in 1 9 2 0 . 2 5 8 . The French Conseil constitutionnel wos established in 1 9 5 8 . Its orgonisotion ond functions a r e , however, only portiolly comporoble with constitutional courts striato sensu.
2 5 9 . Bòckenfòrde E.-W. (1999), Verfassungsgerichtsbarkeit. ation, 5 2 N e u e Juristische Wochenschrift 9-17, p. 9.
Strukturfragen,
Organisation,
Legitim-
2 6 0 . However, the guorantee of the fundomental elements of social order con olso be achieved without ony particular judiciol protection, thot is without a specific constitutional court, os for exomple in the United Kingdom, Denmark, Sweden ond the Netherlonds. 2 6 1 . For 0 radicai criticism of the principle of constitutionol review, see: Bellomy R. ( 2 0 0 7 ) , Politicai constilutionalism, C a m b r i d g e University Press, C a m b r i d g e . For a defence: Wolen A . ( 2 0 0 9 ) , "Judiciol review in review: a four-part defense of legai constitutionolism", International Journal of Constitutional i a w 7 , pp. 3 2 9 - 5 4 . 2 6 2 . Habermas J. ( 1 9 9 2 ) , Faktizitàt
und Geltung,
Suhrkamp, Fronkfurt-am-Moin, p. 3 2 0 .
2 6 3 . See, os on exomple, Michelmon R ( 1 9 8 8 ) , pp. 1 4 9 3 - 5 3 7 .
"Law's Republic", The Yale Lav^ Journal 9 7 ,
2 6 4 . O n the independence of the specification of human rights from deliberotion, see Bòckenfòrde E.-W. ( 1 9 9 8 ) , "Ist Demokratie eine notwendige Forderung der Menschenrechte?", Gosepath S. ond Lohmonn G . (eds), Philosophie der Menschenrechte, Suhrkamp, Fronkfurt-am-Moin, p. 2 3 3 . O n the metapolitic origins of the concept of "humon dignity", see Bòckenfòrde E.-W. ( 2 0 0 8 ) , "Menschenwùrde und Lebensrecht om Anfang und Ende del Lebens", Stimmen der Zeit, p. 2 4 5 - 5 8 . Furthermore: Bòckenfòrde E.-W. ( 1 9 9 1 ) , Staat, Verfassung, Demokratie, Suhrkamp, Fronkfurt-am-Main. 2 6 5 . Michelmon, Law's Republic, footnote 2 6 3 , p. 1 5 3 2 . 2 6 6 . Bòckenfòrde, Verfassungsgerichtsbarkeit, footnote 2 5 9 , p. 1 1 ff. 2 6 7 . O n the tendency to judiciolisotion of politicai processes in the United States a n d G e r m a n y - ond on the dangers that con arise from it - see Miller R. A . ( 2 0 0 4 ) , "Lords of democracy: the judiciolizotion of 'pure polities' in the United States a n d G e r m a n y " , Washington and Lee Law Review6], pp. 5 8 7 - 6 6 2 .
Definition
and
development
of human
rights and
popular
sovereignty
in
Europe
fulfilling one of the essentiol constitutional tasks, international l a w hos also been interpreted as a "constitution for m o n k i n d " . H o w e v e r , given the modest stondards of legitimacy in international organisation, every executive decision token by supro-stote institutions in order to mointoin or enforce peoce o n d the respect of human rights olwoys runs the risk of being understood os - or even of being in reality - ot the service of the most powerful octors in the international oreno. Otherwise, although the role ployed by internotionol courts in guaronteeing an occeptoble benchmark for the sofeguord of human rights con hordly be overestimoted, the judiciory cannot be a substitute for a consistent legitimotion
