| Summary: | 碩士 === 玄奘大學 === 法律學系碩士班 === 100 === Many of today's social movements make use of the argument of the supremacy of human rights, without asking whether the assumption of the supremacy of human rights is right or wrong. This problem is the starting point of the entire thesis and its subsequent research. When we look at legal academic community and its discourse, we find the concept of the supremacy of human rights hardly ever mentioned. So we have to reflect upon the question, whether this is a dormant legal concept or whether it is just an emotional mass slogan.
First, the thesis reflects upon the question where any supremacy of human rights might come from. In order to do so, we first have to characterize and understand the notion of human rights.
When analyzing the definition of human rights, we find two rather distinct characteristics: first, human rights are understood as being unconditional. They hold regardless of an individual's life situation and circumstances. This is the understanding of human rights as “natural rights”. Second, because they are an unconditional “gift”, everybody should be treated in line with human rights. So general validity and moral obligation are to others are the most basic characteristics of human rights.
In a next step, historical sources of human rights are discussed. Until the enlightenment, it was assumed that human rights are granted by heaven or – in a more secular version - by nature. Therefore they are called natural rights.
So when we further deplore, what people mean when they say rights are granted by heaven, it becomes obvious that human rights have to do something with religion. So we arrive at the relationship between religion and the law: (1) from a secular point of view, a common belief will result in common values of a given group; (2) regardless of regional or particular religious beliefs, it is widely believed that there is a divine world order; (3) if there is a word of God(s), it ought to be more authoritative than any secular discourse.
Natural law, although having religious roots, discusses matters of justice, not a religious truth or eternal life; therefore it does not teach people to become saints, but merely asks for a kind of ‘good human’. Since this moral level is applicable to the general public, it possesses common features and universal validity.
Natural law is defined as natural justice, which is supposed to be an order that is inherent in nature like any physical law. In such a notion, morality and law sometimes have no distinct border. Religion puts forward moral ethics, with the ultimate goal of morality being ultimate perfection. However, in order to achieve that, natural law just asks for justice that arises when a person is trying to be a good person, not a saint. Therefore justice is part of a process of perfection, with natural law becoming a minimum standard of morality.
The first documented natural law is the Ten Commandments. Long time later, Thomas Aquinas established a system of law, based upon a Christian understanding of religion. His system includes categories such as eternal law, natural law, divine law, and human law.
After having discussed the notions of “heaven” and of rights bestowed by heaven, the thesis introduces important representatives of the natural law school and explains the development of the notion of natural rights. In the line of thought that runs from Hobbes, Rousseau, Locke, Burke, to Fichte, we see how natural rights evolve from a subsidiary concept and turn out to be an independent concept.
In the concept of natural law, justice is created by God, therefore people must comply with it, national legislation has to realize it. If justice is man-made, national legislation is the source of human rights, resulting in the possibility that human rights can be revoked by the state at any time. When looking at the relationship between natural law and positive law, positive law is supposed to realize natural law. So when positive law turns against natural law and becomes evil, it loses its quality of being law, therefore people have the right to deny it.
So the supremacy of human rights stems from their quality as natural rights; because their source is natural law, they can be characterized as supra-national legal values. On a secular level we see a similar line of argument, since it is the people that form a state, not the state forming a people, sovereignty belongs to the people and the state depends on that.
Within the realm of religion and morality, we find the notion of men being God's creatures, therefore they cannot resist their creator, but are obliged to live in accordance with divine moral ethics. Natural rights are a concept subordinate to natural law, therefore justice ranks above human rights.
Since evil laws do not possess the quality of law, they are illegal, i.e. German Basic Law expressly bestows the right to resist illegal laws to the people. It thus reformulates as positive law, what natural law doctrine says. Similarly can we perceive of revolution as a right to abolish an oppressive and unjust regime. According to Mencius, King Zhou of Wu overturned the oppressive government of Shang. Although in institutional terms, this was a minister rebelling against his feudal lord, Mencius believed that King Zhou destroyed Shang in a move of justice, therefore setting a precedent for justification of people abolishing an unjust regime.
However, the social costs of resistance and revolution are immense, even when they resort to forms of non-violent, non-cooperation resistance like Gandhi in India. It is therefore crucial, that in order to establish the goodness of the social order, positive law must apply self-discipline and restrict itself i.e. via constitutional review. By utilizing the concepts of human dignity and the supremacy of human rights, constitutional review can correct positive law that gets into conflict with natural law and natural rights.
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