1.0 INTRODUCTION
The statement which I have to scrutinise “Is the absolute separation of law and morality proposed by legal positivism an obstacle to the acceptance of the notion of human rights?” for us to evaluate this statement first we have to understand legal positivism and the roots of human rights. Then I would discuss why law and morality cannot be seperated and if seperated its adverse affects and how human rights and positive law should be amalgamated.
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2.0 LEGAL POSITIVISM
Legal positivism is a mentality in legalism that the existence and content of law should depend on social facts and not on merits.[1] It is the view that morality has no weight in the law that is made and established as the law of the state. It should be followed and it is supreme however immoral or unjust that piece of law or legislation is. There are several legal thinkers who developed the idea of legal positivism, amongst them the most prominent figures are Jeremy Bentham, John Austin and HLA Hart.
What we must keep in mind is that even positivists are divided into 2, inclusive and exclusive positivism. Inclusive positivists are people who believe that moral constraints can be incorporated into law according to a society’s belief. Even HLA Hart was an inclusive (soft) positivist who believe that “the rule of recognition may incorporate as criteria of legal validity conformity with moral principles or substantive values …”[2]
On the other hand are the exclusive positivists who believe that a legal system cannot integrate moral restraints on legal validity. They believe in the absolute supremacy of the positive law. One of prominent exclusive (hard) positivists was Joseph Raz who was actually a student of HLA Hart.
3.0 NATURAL LAW AND DERIVATION OF HUMAN RIGHTS FROM NATURAL LAW
Natural law is the direct opposite of positive law, and is what is defined as god’s law or ideal law, which has no loop holes as in manmade law. It is law which is based on morality rather than legality believing that any man made law which is not morally correct is not law at all. Naturalists argue that positive law is always evolving to attain the threshold of natural law.
Some prominent figures who argued for the supremacy of natural law and morality were St. Thomas Aquinas and Thomas Hobbes. The foundation of natural law is religious beliefs and moral rights and wrongs as shown throughout history.
The notion of human rights, I believe, is derived from natural rights, which in turn is derived from religious and moral beliefs. So the international bill of human rights we see today actually is a child of natural law itself. John locke, a follower of Thomas Hobbes, and a renowned philosopher, while writing about natural rights in Two Treatises Of Government, has said that “men are by nature free and equal against claims that God had made all people naturally subject to a monarch. He argued that people have rights, such as the right to life, liberty, and property that have a foundation independent of the laws of any particular society” [3]
This is exactly what is entrenched in the International Bill of Human rights today. So it is logically arguable, and it is my belief that Human rights is actually natural law/ natural rights itself, in another form, trying to impose supremacy over positive law just like in the eras passed. Thus if natural law is not accepted as being a part of positive law, human rights can never be truly accepted.
4.0 WHY LAW AND MORALITY CANNOT AND SHOULD NOT BE SEPERATED
The debate for the separation of moral and legal rights is a heated debate still ongoing. One of the most remarkable statements regarding this topic was made between HLA Hart and Lon L. Fuller, the latter stating that legal and moral rights can never be separated.
Hart argued that there should be a strict separation of law and morality, he denied that there are universally shared necessary moral standards of legal validity and he also denied that an individual recognizes law as good law based on morality and that individuals may do it based on purely non moral considerations.[4]
Fuller argued that law and morality cannot be separated because they are naturally connected. He found the connection between law and morality in the very heart of positivism, the law makers. He gave 8 ways to fail to make a law stating that these rules are necessary as they make an “inner morality of law”. [5]
In his Journal article Positivism and the Inseparability of Law and Morals, Leslie Green has argued that law and morals in fact cannot be separated and instead of the mistaken separability test he had brought into light the underlying fallibility test. [6]
Keeping the philosophers arguments aside we can take a scenario to consider what would happen if law and morality were strictly separated. If the law making body, the parliament, if they believed in this strict separation and if they had no sense of moral values in their society while making law, and if they passed a legislation which is incompatible with the society beliefs, it would cause havoc. The government that passes such a bill is destined to fall as proved by history with Margaret Thatcher’s demise after passing the poll tax. For example if they passed a bill allowing gay marriage in a strictly Wahhabi Muslim society, it is bound to be met with hatred and might be taken as an insult by the society.
5.0 AMALGAMATING HUMAN RIGHTS AND POSITIVE LAW
One can say that the notion of human rights have already been incorporated with positive law of UK after the enactment of Human Rights Act of 1998. Its entrenched nature and per s.3 of the Act all legislation passed, have to be compatible with Individual human rights.[7] And if any legislation is incompatible with human rights courts can declare it incompatible under s4 of the HRA 1998 and advise the parliament to make the necessary rectifications.[8]
This power of the HRA 1998 can be shown in the recent case of R (Royal College of Nursing) v SSHD (2010) [9] where Schedule 3 to the Safeguarding Vulnerable Groups Act (SVGA) 2006 was incompatible with Art 6 as the listed person was denied the right to make representations in advance of being listed. The Section 67(2) and (6) of the Protection of Freedoms Act 2012 came into being to amend this Schedule as a result.
6.0 POSITIVE LAW: SUPREME IN UK
As we know UK is a dualist country meaning it does not heed to international laws or EU laws. It needs its domestic laws to be enacted by the parliament for them to be legally enforceable. This results in a supreme parliament which can bend law at whim (as can be shown in the delay enacting HRA 1998). Even the power vested in courts by HRA 1998 in the form of declaration of incompatibility is a toothless remedy when dealing with an unjust legislature. Because these declarations are not authoritative, they are just persuasive, so the parliament is does have a choice to keep the legislation as it is in spite of declaration of incompatibility. Another thing which shows the supremacy of positive law in UK, is the Prime ministers hinting on the repealing of the HRA 1998 without a proper backup plan. [10]
7.0 ACCEPTING HUMAN RIGHTS AS MORAL CLAIMS OR POSITIVE LAW
While analyzing the given statement I came upon two ways in which it could be addressed and according to that I could give my opinion on the validity of the statement. Those two ways are, that human rights could be accepted as moral claims as the statement suggests and then we can evaluate how the separation of morality and law could affect the acceptance of human rights. The second way is that we could claim that human rights is no longer moral claims but positive law, and then see how the separation of law and morality affects it.
7.1 ACCEPTING HUMAN RIGHTS AS MORAL CLAIMS
If Human rights are moral claims as the statement suggests then it is vital not to have any separation between law and morality. If law and morality is strictly separated as the ideal positivist suggests[11] then human rights won’t have the supremacy and power it needs to universally protect the rights of individuals. They need to overcome any form of positive law which clashes with it.
Human rights are normally accepted as having their basis in morality because natural rights was derived from religious beliefs. I, believe that, both human rights and equity are children of natural law, and for in order for them to be successful, they need to incorporated with positive law but be powerful enough to overcome shackles of positive law. Though the supremacy of equity is not disputed, the supremacy of human rights is.
If human rights are moral claims which has no legal validity, accepting them would be difficult in the light of the separability thesis brought forward by Hart[12]. If legal positivism is the right mindset and if the Human rights have no legal value, how are the rights of people going to be universally protected? How can one accept Human rights?
For example, if a country passes horrific laws which infringe the most inviolable rights and if there is no way it can be remedied, the world would fall into chaos. If UK passed a law which says all men shorter than 5 ‘5 should be killed, and if the UDHR has no legal power, no authority, how are the right to life of many people going to be protected? One might say, the parliament would not pass such a bill, but what is stopping them from doing so? There are no legal restrictions to a supreme parliament as in UK, the only thing restraining the legislators from passing such legislation is just one thing. Their moral values.
In this context, I would agree with the view of Leslie Green in his article positivism and the inseparability of law and morals[13], where he has argued at length that the separation thesis is actually a mistake and had upheld the fallibility thesis.
7.2 ACCEPTING HUMAN RIGHTS AS POSITIVE LAW
I find it more suitable to say, that Human rights is no longer moral claims, after the passing of the International Bill of Human rights (Universal Declaration of Human rights 1948, International Covenant on Economic, Social and Cultural Rights 1966 and the International Covenant on Civil and Political Rights 1966) the notion of Human rights is now actually positive law.
The heart of this international Bill of Human rights, the Universal Declaration of Human rights 1948, which prescribes inviolable rights for humans, regardless of where they are born, has been endorsed by most/all the countries in the world. But the problem is, dualist countries like UK, might not endorse the Declaration into their constitution (as can be inferred from their delay in enacting HRA 1998 and the unavailability of remedies for such issues until the enactment of the Act).
My belief, that the notion for human rights is no longer moral claims and is universal, can be proved by various incidents. Human rights is no longer based on religious or moral rights and wrongs. I say this, because immorality is a subjective query, it will change from person to person and society to society and from era to era.
For example, in a strict Muslim community it might be immoral to wear clothes which expose a lot of skin, but in a modern rainbow society, it might be taken as a norm. For example in USA, women would consider it immoral and against their belief to wear clothes showing their waist, but in India women consider it immoral to show their hair thus wear clothes that cover their hair but they don’t mind wearing Saris which expose their waist.
So if we were to consider that Human rights to be based on moral claims, it can never be universally accepted because what is moral, is subjective. But this is not the case; Saudi Arabia and Irans pressure to make the Cairo Declaration of Human rights in Islam of 1990, to be accepted as the “Islamic” alternative to international human rights, during the 1993 World Conference on Human rights in Vienna was strongly rejected by the UN Secretary General Kofi Anna, who maintained that the human rights are universal.
Thus, as moral claims change from time to time, society to society, individual to individual, human rights is no longer moral, as it is universal and invariable, wherever the individual is. So I believe that through the sands of time, human rights have actually evolved into positive law now.
Since it is positive law, the separation of law and morality proposed by positivism, no longer has any effect on the acceptance of the concept of Human rights.
8.0 CONUCLUSION
The notion of human rights cannot be accepted without accepting the role of morality in positive law. Because if the statement is correct and if Human rights is indeed moral claims then morality needs to be accepted for it to be incorporated into legal systems today.
But I find it more suitable to say, that Human rights is no longer moral claims, after the passing of the International Bill of Human rights) the notion of Human rights is now actually positive law. Since it is positive law now, the separation of law and morality proposed by positivism no longer has any effect on the concept of Human rights.
The other thing which must be brought into light is that even though human rights is entrenched into the legal system of UK it is not properly followed. If it was properly followed, how can Acts, with provisions which infringe rights of people such as section 44 of Terrorism Act 2000 get enacted? How do they pass the scrutiny of parliament without being noticed? The fact they make it through the parliament shows the weakness of positive law and its failure to protect people’s rights.
The present regime of UK has been hinting on repealing HRA 1998[14] and withdraw out of EU(though now being denied by David Cameron[15]), but this would only make human rights lose its positive law status in UK and result in more infringement of rights. Repealing the HRA 1998 might not be a bad idea with the proper preparations and a backup Act or Bill of Rights which is set in stone and has much superior power than HRA 1998 (as the declaration of incompatibility is a toothless remedy which does not enforce the parliament to amend an incompatible legislation).
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So I believe if HRA 1998 is repealed it should be substituted by a stronger Bill of Rights which has a better remedy than declarations of incompatibility etc. And if such a bill is passed, the legal validity of human rights would no longer be in doubt. The bill which was withdrawn at the end of the debate on 1st March 2013, Human Rights Act 1998 (Repeal and Substitution) Bill 2012-13, certainly lacked this forceful authority. [16]
Word Count is 2524 (Excluding Contents and Bibliography)
9.0 BIBLIOGRAPHY
9.1 Table of Cases
R (Royal College of Nursing) v SSHD [2010] EWHC 2761
9.2 Table of Statutes
Human Rights Act
Section 3
Section 4
9.3 Text books
Hart, H. L. A.Concept of Law.Oxford: Clarendon, 1994. Print
Fuller, L. L.: The Morality of Law. New Haven and London 1961 ebook.
9.4 Articles
Green, Leslie, Positivism and the Inseparability of Law and Morals. New York University Law Review, Forthcoming; Oxford Legal Studies Research Paper No. 15/2008. Available at SSRN: http://ssrn.com/abstract=1136374 accessed 04th January 2014
Green, Leslie, "Legal Positivism", The Stanford Encyclopedia of Philosophy (Fall 2009 Edition), Edward N. Zalta (ed.),accessed 04th January 2014 URL = <http://plato.stanford.edu/archives/fall2009/entries/legal-positivism/>.
Tuckness, Alex, "Locke's Political Philosophy",The Stanford Encyclopedia of Philosophy(Winter 2012 Edition), Edward N. Zalta(ed.), accessed on 05th January 2014 URL = <http://plato.stanford.edu/archives/win2012/entries/locke-political/>.
9.5 Websites
Mason, Rowena. "David Cameron Eyes Human Rights Act Repeal."Theguardian.com. Guardian News and Media, 08 Aug. 2013. Web. 05 Jan. 2014. <https://www.theguardian.com/law/2013/aug/08/david-cameron-human-rights-act>.
"David Cameron Rejects EU Withdrawal Calls and Attacks Tory 'pessimists'"Theguardian.com. Guardian News and Media, 09 May 2013. Web. 05 Jan. 2014. <https://www.theguardian.com/world/2013/may/09/david-cameron-rejects-eu-withdrawal>.
"Human Rights Act 1998 (Repeal and Substitution) Bill."Human Rights Act 1998 (Repeal and Substitution) Bill. N.p., n.d. Web. 05 Jan. 2014. <http://www.publications.parliament.uk/pa/bills/cbill/2012-2013/0031/2013031.1-7.html>.
[1] Green, Leslie, "Legal Positivism", The Stanford Encyclopedia of Philosophy (Fall 2009 Edition), Edward N. Zalta (ed.),accessed 04th January 2014 URL = <http://plato.stanford.edu/archives/fall2009/entries/legal-positivism/>.
[2] Hart, H. L. A.Concept of Law.Oxford: Clarendon, 1994. Print. P250
[3] Tuckness, Alex, "Locke's Political Philosophy",The Stanford Encyclopedia of Philosophy(Winter 2012 Edition), Edward N. Zalta(ed.), accessed on 05th January 2014 URL = <http://plato.stanford.edu/archives/win2012/entries/locke-political/>.
[4] Hart, H. L. A.Concept of Law.Oxford: Clarendon, 1994. Print. P198
[5] Fuller, L. L.: The Morality of Law. New Haven and London 1961 eBook. P39-42
[6] Green, Leslie, Positivism and the Inseparability of Law and Morals. New York University Law Review, Forthcoming; Oxford Legal Studies Research Paper No. 15/2008. Available at SSRN: http://ssrn.com/abstract=1136374
[7] Section 3 Human Rights Act 1998
[8] Section 4 Human Rights Act 1998
[9] R (Royal College of Nursing) v SSHD [2010] EWHC 2761
[10] Mason, Rowena. "David Cameron Eyes Human Rights Act Repeal."Theguardian.com. Guardian News and Media, 08 Aug. 2013. Web. 05 Jan. 2014. <https://www.theguardian.com/law/2013/aug/08/david-cameron-human-rights-act>.
[11] Hart, H. L. A.Concept of Law.Oxford: Clarendon, 1994. Print
[12] Green, Leslie, "Legal Positivism", The Stanford Encyclopedia of Philosophy (Fall 2009 Edition), Edward N. Zalta (ed.),accessed 04th January 2014 URL = <http://plato.stanford.edu/archives/fall2009/entries/legal-positivism/>.
[13] Green, Leslie, Positivism and the Inseparability of Law and Morals. New York University Law Review, Forthcoming; Oxford Legal Studies Research Paper No. 15/2008. Available at SSRN: http://ssrn.com/abstract=1136374
[14] Mason, Rowena. "David Cameron Eyes Human Rights Act Repeal."Theguardian.com. Guardian News and Media, 08 Aug. 2013. Web. 05 Jan. 2014. <https://www.theguardian.com/law/2013/aug/08/david-cameron-human-rights-act>.
[15] "David Cameron Rejects EU Withdrawal Calls and Attacks Tory 'pessimists'"Theguardian.com. Guardian News and Media, 09 May 2013. Web. 05 Jan. 2014. <https://www.theguardian.com/world/2013/may/09/david-cameron-rejects-eu-withdrawal>.
[16] "Human Rights Act 1998 (Repeal and Substitution) Bill."Human Rights Act 1998 (Repeal and Substitution) Bill. N.p., n.d. Web. 05 Jan. 2014. <http://www.publications.parliament.uk/pa/bills/cbill/2012-2013/0031/2013031.1-7.html>.
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