JUSTICE, RIGHTS, and JURAL RELATIONS a Philosophy of Justice and Its Relationships
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JUSTICE, RIGHTS, AND JURAL RELATIONS A philosophy of Justice and its relationships By D. O. Humphris-Norman 1 Justice, Rights, and Jural Relations PREFACE This book is a philosophical investigation into the background of Justice, the Law, and the ever increasing application of so called “rights”. It is my contention that failure to understand the underlying philosophies involved has led to confusion. In order to understand and separate the blurred lines even between law and justice we have to appreciate that the philosophical inputs are quite different. The diagram Fig 1 in chapter 2 sets it out pictorially. Here the reader will see that the type of State we have, which creates our legal system, stems from the relevant political philosophy. However the system of Jurisprudence is governed by the relevant Philosophy of law. Justice again is quite different in that it is based on the Philosophy of Morals and Ethics. In order properly to understand the concept of RIGHTS, around which modern Western civilization is beginning to revolve, it is necessary to understand fully the concepts both of JUSTICE (Morals & Ethics) and of JURAL RELATIONS (a relationship brought about by the activation of the law). A right, or what most people conceive of as a right, is something which should be enforceable against others or even against the whole of society. It is its enforceability which makes it a right. If we aren‟t entitled to try to enforce it by law, it isn‟t a right. Moreover to be a fully blown right there has to be someone against whom it should be enforceable. For example I have a right to the £100 which Jones owes me but regrettably I have no right to nice weather. Now the relationship with the other party or body (for I can have rights against a company or the State) is the Jural Relationship. And these, as we shall see, depend for their creation on the activation of a Law. Rights have to a) have a philosophical justification and then b) be created in law in order to become enforceable. They do not just appear or hang about like the Cheshire cat in Alice in Wonderland irrespective of either their morality or enforceability. But what then gives rise to the claim that something should be a right? Some philosophers have tried to base the validity of claims to certain rights and the laws establishing them upon the idea that there is a body of „natural‟ law. This has led to endless disputes with Legal Positivists who in effect maintain, that the only Law is that created by the relevant law making authority. These problems have not until now been resolved. However I have taken an entirely different approach which I believe can lead to a rapprochement (see Chapter 5). 2 I maintain that the claim that something should be a right is in fact founded on a moral claim for Justice. Thus until the triple relationship, (i.e. the connection between rights, justice, and jural relations) is properly understood it is not possible to form really rational judgements concerning the subject. Unfortunately the growth of the „Rights Industry‟ has been swept along on a tide of emotionalism rather than logic. Rights have been declared in esoteric generalizations such as a right to Freedom of Speech, a Right to Life, etc. and anyone who breaches these risks being branded as being in breach of Human Rights and possibly even an International Criminal. In fact it is the generalization of these so called rights, which is extremely popular amongst libertarians, politicians and worst of all lawyers, who at least ought to know better, that leads to terrible confusions and inconsistencies, most of which result from a lack of understanding of the whole philosophical basis and logical arguments upon which claims may legitimately be founded. At the moment the tide of emotionalism sweeps logic into the gutter. What is forgotten is that every right involves a corresponding restraint. Even the most basic right, my right to be sitting where I am, is only available by virtue of denying the same right not only to every other human being but to all other forms of life, both animate (I cannot share this space with a tiger) and inanimate (nor can I share it with a pile of bricks). Thus to the extent that I exercise any right of mine, so I affect others. As to whether the effect is just or unjust is of correlative consequence. The case against the over simplification of rights is that it results in confusion, over complication, and an exponential increase in litigation. For example, the most generally cited „Right‟ is of the simply stated „Right to Freedom of Speech‟. Does this include the right to enter an overcrowded building and shout “Fire”? If not, then we have to say “Yes there is a right to freedom of speech but it doesn‟t include the right to shout „Fire‟....or to make public State secrets in wartime...or to give away your company‟s commercial secrets....or to give away secrets you have promised to keep etc., etc.”. - though the last case illustrates the legal maze one gets into when “Freedom of Speech” plus “The public‟s right to know” (another generalised right) are used to try to overrule a clearly undertaken and ostensibly binding contract. In this way the rule of law can be, and is being, totally sabotaged leaving us in a morass of uncertainty and litigation. Even the results of this litigation will only stand until the next so called right is brought in to undermine it. It is absolutely vital, if one wants to talk about „rights‟ with any authority, to understand just what a “right” is. Of course we say the French and the Germans are lucky, they have two words for „right‟. What we should be saying is, how fortunate we are, for in 3 fact in English there are six words covering the concept, but as usual we are too lazy to use them. Now the six fold classification was actually first set out years ago by Professor Wesley Newcomb Hohfeld, a Professor of both Yale and Stanford Universities and a generally acknowledged genius. Unfortunately, as is sometimes the case with geniuses, there was a drawback. Besides being a genius he was reputed to have complete contempt for those who didn‟t immediately understand him, plus a short fuse, which no doubt made asking questions hazardous. On top of that, he had a penchant for illustrating his points by reference to exceedingly complicated cases in the field of the law of Trusts (which field of itself along with Tax Law and Patent Law leaves even above average students reaching for a cold towel to wrap round their heads). No wonder then that his work, published under the thrilling title of “Fundamental Legal Conceptions as applied in Judicial reasoning” although deferentially treated, was not altogether avidly followed in the mass market. Nevertheless, we must gird up our loins and take a fresh look at what he told us (albeit minus the trust cases) because what he had to say is of extreme importance to our understanding. It is also essential that we understand where and how these rights originate. How do they arise? And what are their effects? Well in the first instance they do not arise from the Law - this is just the means of putting them into effect. They arise from Society‟s idea of what is just or fair. But this faces us with another problem. That which is the law, is fixed until altered by Parliament, but that which we consider fair changes. In the first place it can differ widely between different societies, and worse still if we look back we can see that it changes within the same society at different times. For example in some States it is considered just that a man may have more than one wife, in our society it is deemed criminal. In Rome, and even in England at one time, slavery was considered quite just, now it is definitely not. It is at this stage that one begins to realize that these all important rights are not quite as simple or necessarily as fundamental as the libertarians would have us believe. To enforce a right we have to have a law, and this imposes that strange creature the „jural relation‟ upon us. Again the whole subject of Jural Relations was brilliantly analysed by another genius, Albert Kocourek. Unfortunately in the case of this genius, while his logic was exemplary and he has no record of being difficult, he was an absolute perfectionist. He analysed every conceivable jural relation and in doing so introduced about seventeen pages of new defining terms. These include such delights as „Allophylaxis‟, „Biactive integral conflict‟, „Endophylactic relations, and „Heteromeral relations‟ all of which no doubt severely restricted his reading public (if indeed it didn‟t paralyse them). Nevertheless to understand our subject we have, at least, to dip our toe into 4 these waters, though we don‟t have to drown in them. Once we understand the relationship between the law, justice, and rights it is possible to clarify our thinking. A confusion stems from the fact that emotionally it has been sought generally to treat Freedoms as Rights. The truth is, as a philosophical analysis shows, Freedom is a state. As a state it does not, and cannot per se, involve a jural relationship, whereas a proper right does. In practice this means that we are asking, both legally and philosophically, the wrong questions.