Are Human Rights Natural?

The idea of human rights is probably the only possible basis for a peaceful order in the modern world. Nevertheless, the formulation of these rights and most of juridical and political thought over them suffers from an excessively individualistic understanding – in concordance with the Enlightenment tradition in which they originated. This is the source of difficulties with their enforceability etc.

Our contribution aims to show, that the idea of human rights is by far not as self-evident or „natural“ as we might be inclined to believe. As experience shows, beyond the limits of the area of their origin, they often meet with misunderstanding and rejection, which has been exploited in various ways by totalitarian regimes. The idea of human rights cannot be firmly rooted, if we don“t acknowledge that they are primarily not individual and „subjective“ rights (which we are unable to say where they came from), but obligations and self-limitations towards others. Thus, the „right to live“ is really anyone’ obligation not to kill, not a subjective right of each individual, which e.g. a fatally ill person could claim for before a court.

We try to show how the idea of human rights – as one of the top achievements of Western culture – can be simplified and clarified, as soon as we connect them with the social reality of man. Such an understanding of Human rights could be of considerable help in the trans-cultural discussion about this extraordinarily important political issue.

 

 

The idea of universal human and civil rights is one of the top achievements of the western culture. It is so great-hearted that a Jeremy Bentham could have considered it to be anarchical and pernicious.[2] Nevertheless, it is no exaggeration to say it is the sole common basis of political thought in the modern world, perhaps the only possible one. Despite all the difficulties and failures to introduce and implement it, this idea must be the pillar of any present effort to achieve world peace, government of justice, and also of any serious discussion of these questions among people who do not belong to the same cultural background. It is amazing to see the respect it has achieved. Even people who are absolutely unable or unwilling to accept the idea, dare not question it directly, but opt for various dubious interpretations, trying to dilute and limit it. Still, they can use to their great advantage the essential incongruities the concept presents. For a better understanding, a glimpse at history might be of help.

 The idea that every human – merely because he/she is a human – is at the same time an individual person of his/her own rights, stems from the Christian conviction that all humans are equal before God. Every individual has to carry his/her life on as to achieve personal salvation and to this end he or she needs a fair amount of freedom. This is why there runs from the Middle ages on a struggle of West European townspeople („citizen classes“) for more freedom: each human has certain freedoms, the rulers are not allowed to limit, but are even bound to defend. Until then, the idea of society had been that of a stable, „organic“ and collective whole.[3] All members had their place within an established hierarchy of subordination and superiority, a hierarchy settled once and for all, and sanctified by a supernatural authority. The new classes searched for another basis of social organization, which would allow their political rise, too. The first step towards citizen emancipation from the power of an arbitrary ruler was to put forward the notion of the individual citizen, as the safest means to set some limits to the extraordinary rise of the ruling power.    

 To enjoy civil liberties, not only was it necessary for some sort of acceptable social order to be established, but it was crucial that this desirable achievement be independent of the monarch’s will. People wished enforceable rights, not a ruler’s privileges.[4] From the 15th century on, the ruling power in Europe presented two distinct characteristics. First, the power grew continuously, for example due to military and administrative progress. Second, it became concentrated in one pair of hands only, as the rulers had successfully eliminated the aristocracy both from its intermediary function and out if its previous local power. Furthermore, the monarchs managed to untie the knots of the spiritual power of Church and religion, which used to press them hard all of the Middle Ages. Only with the growth of wealth, technical possibilities and bureaucratic administration could rulers achieve an effective and widespread suppression of existing liberties the townspeople had previously gained.

 The problem was to find an unshakeable legal ground which would set limits to the ruling power and, therefore, be independent of it. The idea which promised to meet the purpose best was the old Roman concept of „natural law“, explained in the Gaius reader as “that, which was taught to everybody by nature”. Since this law originated in nature, human hands cannot shape it, not even crowned hands; it is therefore stable and unalterable.[5] The notion of its universality has developed only gradually, more as a consequence or a supporting argument for the irreversibility of this order.[6]      

 As the founding fathers of the American and of the French revolutions in the Enlightenment period set out to explicitly formulate the universal human rights, they had to meet several rather contradictory requirements:

  • to establish a safe, firm, unalterable guarantee
  • to limit the ruling power effectively
  • to reach general social agreement on an individual basis; hence
  • to exclude any religious authority as conflictive.[7]

The safest and most effective way to do this was to make a „declaration“; in other words a simple, formal, solemn announcement of an indubitable fact. Unlike tendencies to interpret civil liberties as a privilege bestowed by a monarch, authors of declarations go back to „nature“.[8] Human beings are granted these rights by „nature“, that is „from birth“. We receive them at the same time as life; therefore we are „born free“ and already in possession of them.[9]

 On the other hand, all the previously existing ’pecial“ rights or privileges are hence put outside the law, with the only exception of property and proprietary rights. Some of the first constitutions, in their effort to reinforce the concept of general and equal rights of citizens, went even further. For example, early French constitutions manifest intolerance close to jealousy towards any other concepts which would claim human loyalty, and thus compete with the theory of inborn rights of every human being.[10] The emphasis on equality on the one hand made it possible to give these rights a firm philosophical foundation (Kant) and on the other greatly broadened the basis for a social consensus, although the meaning of the words „man“ and „citizen“[11] continued to broaden for another hundred years at least.

 The exceptional ideological and social achievement of American and French Enlightenment thinkers has progressively gained amazing respect. When the political situation was ripe, the Declaration was also approved by the United Nations; in western civilization the idea of some „universal constitution“ was beginning to emerge. Though never properly clarified, the theory of the „natural“ origin of these rights was so appealing, that it has undoubtedly contributed to the general acknowledgement of the Declaration. By the same token, it has become the subject of perpetual disagreement and diverse interpretations. Understandably so, as it not only collides with various traditional views on society and with the very idea of state sovereignty, but also leads to the unresolved question of what authority could enforce these laws; even outside the state sovereignty, if necessary. 

 The theory of the natural origin of rights was somewhat suspect from the very beginning.[12] The suspicion strengthened once the Europeans learned more about the social patterns of distant non-European societies. There, it was evident that „nature“ had taught different things to different cultures, many of them quite incompatible with European notion. Little by little, it has become clear that these alien notions cannot be simply dismissed as some sort of degenerate perversities of other civilizations, but that the same habits might well have been quite common in Europe only a few centuries ago. At any rate, people with any substantial understanding of reality could not reconcile the idea of a helpless, newborn baby, totally dependent on parental care, with that of an independent holder of universal rights and liberties.[13]

 Another essential problem concerns the enforceability of these rights. The situation is quite clear, when it is the state or a particular institution that are to be kept within limits. But what about, let’ say, the very first right, the right to live? Can a person suffering from advanced leukaemia file charges against an unknown wrongdoer? Whom is the person starving to death supposed to prosecute? What about earthquake or flood victims? Charge the State?[14] That would make us return to a completely different idea: of a society, which delegates the care for well-being of all to an absolute monarch. Once the crops are bad, it is then possible to bring the ruler down; as we know used to happen in several old cultures.

 Moreover, there are questions of a more practical character. It certainly is fine that everyone enjoys the right of education. But who is to dispense it; for instance, who is to pay the teacher? Members of an ethnic minority have the right to use their language. People of the Navajo tribe „have the right“ to speak their language in the heart of Prague; the same way our fellow countrymen can do, let’ say, in Arizona. However, language is not used the way shoes are, but generally it is employed to address someone. The unfortunate Navajo certainly enjoys this undeniable right, but what for? The right to use a minority language can mean but two things: that all people can speak to themselves as they please or a commitment of the surrounding majority society to try to understand the speaker. The difference is considerable.

 With the implementation of universal human rights during the last half century, sufficient experience was accumulated to put down a brief and certainly incomplete list of items, which even today are not regarded by all as self-evident. These ’hortcomings“ of the Human rights concept (or rather of their definitions articulated during the Enlightenment period) were invariably misinterpreted by European totalitarian regimes, whose aim it was to divert attention from the regime’ endless violation of rights, in a way at least partly acceptable to the public. Without any claim to be exhaustive, only to materialize the idea, let me suggest several points, which demonstrate the gap between the theory of universal human rights and „public opinion“, European public opinion probably included. 

  • All declarations put human freedom first. Is this really the most important article, the condition that matters so much? Or as the Communists used to put it: “what do we need freedom for if there is nothing to eat?” – Logically, concerns about one’ living and safety would come in the first place of importance; rather than freedom, without which it is still somehow possible to live.[15] 
  • The freedom of conscience, speech and expression. The common objection to these was already voiced long ago. According to one legend, the sultan who is said to have set fire to the library of Alexandria declared: either a man speaks the truth, in which case he does not need any particular freedom; or he does not, in which case it should not be granted.[16]
  • The idea that private property is inviolable and ’acred“ is more or less accepted in the few richest societies of the world. Elsewhere, the notion comes up against a much more natural theory: property is to be used to make a living; and if it does not serve this purpose, the person has no right to it.[17]
  • The strict idea of the division of power is remarkably effective against abuse, but far from being natural. Power, that is our power, is undoubtedly good and correct – otherwise it would not rule here. Why then should it limit itself?[18]
  • By the same token, the rule of law, the very principle that law applies even to the state power, obviously restricts the power. Why so, if the power is good? And if it is not, to limit it in this way is not enough. Who does the restriction serve and who benefits from it?[19]
  • The presumption of innocence, in other words the principle which requires that a person be considered innocent until found guilty by due process. Yet, how is it with a person who was caught red-handed? Is not this simply promoting criminals at the expense of honest people?
  • The general right to vote, which gives power to „the street“, to irresponsible individuals, who are not even sure whom they vote for and why. The ancient polemic of Plato against the „government of masses“ appears rather more „natural“ than the incredibly liberal and optimistic approach of democratic societies.[20]
  • Parliament as a useless „talking-shop“, which at our expense wastes time instead of dealing with public matters promptly and effectively. When it comes to public opinion polls, no parliament can compete with governments, however incompetent.
  • The lawful opposition, which appears to a „normally“ reasoning person close to suicide. Why nourish a viper in one’ bosom, cultivate an adversary, possibly an enemy? Being against, what are they there for?[21]

 We could go on broadening and deepening the survey at will, updating individual objections. A glimpse at newspapers or internet discussions, even in the richest and best developed countries, confirms it all. And elsewhere?

 In the background, there is a hidden and a very deep conflict between two concepts of man and society. Western town civilization has come up with and pushed through the originally Christian idea, that at the beginning of the society there is man, an individual, a person, which needs freedom – no matter even if he should misuse it. And where the individual does not have priority yet, he must get it without delay. On the contrary, all other societies, old and new, regard man first of all as a member of a group, tribe, nation, clan or family at least. To them, group coherence and loyalty come before the individual, which means also before the individual’ rights.[22] The „individual position“, and with it the idea of universal rights and liberties, are these days coming forward everywhere in Europe and among the city elite all over the world. Yet, the idea is generally regarded as anything but „natural“ by all the others. 

 I believe that the concept of human rights is tenable only if we strip it of the bits of fiction, necessitated by the period and place of origin. What used to be a plus, strengthening the theory against the ruling hegemony, has become a minus today, and might even have dangerous consequences. Let’ take for example the preconceived notion that children, if left to them selves, will grow into good citizens, because they were simply born free. Or, that also in other areas it is best to let „nature“ do what it wants to do „it self“ and wait for the results. Yet another preconception is that a good order in society can be established as a result of conflict among clashing varieties of selfishness,[23] not to mention the one that our rights (or my rights) are self-evident to the point that they can never be seriously threatened.

 To begin with, we need – in my opinion – to accept without reserve that all rights, human and civil rights included, are an achievement of culture and society. To regard them as an extremely complex, subtle and remarkably perfect result of thousands years of effort of countless people and their institutions, which certainly does not make them arbitrary, on the contrary.[24] They are the result of many ingenious choices,[25] bitter lessons and experience, an unswerving quest for justice – which we do not really know what it is, but we feel very well where it is missing. As a product of culture they can be in vigour only as long, as the corresponding society is not merely using and respecting them, but as well able to reproduce them by the means of a sensible education.[26]

 Second, we should not forget that any true right is always a right towards somebody else, from whom it can be perhaps claimed. Any true right or claim is at the same time an obligation of somebody else. Thus even the state and its laws cannot work as a sort of perpetuum mobile, granting rights without imposing the corresponding obligations. “To define the rights of one side without imposing duties to the other is to break the most fundamental postulate of the law.” (Pospíšil 1997:51) Malinowski, too, characterizes the rules of law by the fact that they define at the same time “the duties of one person and the rightful claims of the other.” Authors of the first French Declaration, trying hard to be very close to the „natural“, felt that rights have to be accompanied by corresponding obligations – and they said so in the preamble. Later versions somehow quietly failed to mention obligations. In my opinion, they were wrong.

 Let’ go back to the right to live. Taken reasonably, the phrase “everyone has the right to live” cannot mean anything else than an absolute prohibition to take anybody else’ life. Strictly considered, we should not even say “I have the right to live” (as obviously I do not have any), but we should know that we do not have the right to anybody else’ life – that is what „the right to live“ means. „The right to live“ is a right of the others, in other words, my obligation. Safety, liberty, property – all these are in fact other people’ rights, which result in my limitations, or obligations.[27] Only in a society which has accepted all this, one can after some time live with the feeling that we all have our own, individual and civil rights – and take it for granted like the air we breathe. But, attention: only as long as this social agreement is maintained. Until I start to worry that others enjoy freedom beyond measure, which threatens my safety. Any terrorist attack hits exactly this weak spot and only brave societies can resist the pressure.[28]

 We have shown what was the meaning of the natural origin and inalienability of the human rights. But to believe that we are born with them as we are with nose or eyes would be a dangerous oversimplification. How is it possible that at a mere crossing of the frontiers of a non liberal state – as Cuba or Northern Korea are – the supposedly inalienable rights disappear, as if left on the other side of the frontier? Do they come from the government as Bentham thought? In addition, there are states with good legislation, but too weak to be able to protect the rights of their citizens. By the way, as the experience of the post-communist states shows, no government is strong enough to do so against the will of their fellow citizens. According to Marcel Gauchet, what is at stake “are not individual rights, but relations to the others, (…) objective relations among people in a society” (1989:58). Thus, it seems to follow that the human rights can come neither from nature, nor from the state and its legislation only, but at the end from the others, from our fellow-citizens. The other people are the only ones who can “give” me my human rights in the most literal sense – as far as they consider it their duty; the state is there merely to intervene against individuals who don“t accept this obligation; nothing more and nothing less.[29]

 At first sight, it might appear that the definitions based on rights and duties are exactly symmetrical and that there is no significant matter-of-fact difference. I believe not. Each of them stresses something different. The definition of rights concentrates on the „person entitled“ in the sense of civil law, whereas the question of the „person under obligation“ is left aside. But for the enforceability of these rights, it is the obligation side which is decisive. In cases, where the determination of the person under obligation is not as obvious as it is in an individual property lawsuit, there is a common tendency to consider the state as the generally responsible body. There are many cases to support this statement, not confined to social rights. It is not well known that according to law, the obligation to take care of safety and public order concerns all citizens; not only the police, as we might be inclined to think. This transfer of an important obligation from society and citizens to the state might be a better testimony of the ’tate in charge“ phenomenon than the frequently debated question of taxes and redistributions. If this substantial relation had not been defined as „the right to safety“ but as an obligation instead, it is quite likely that the shift would not have happened so easily.

 Understanding subjective rights as obligations towards others could bring solutions to questions, otherwise hard to solve, of the rights whose ’ubjects“ are not legal persons or under age. I will not go into the problematic of the legal protection of small children, which is beyond the scope of the present article. But now to one of the complex legal problems, collective minority rights: if they are seen as ’ubjective“, it is hard to define the ’ubjects“ or legitimate speakers. On the other hand, as obligations towards others they could be defined quite easily. The situation is similar with the puzzle of „animal rights“, which obviously can be formulated only as human obligations (of breeders, transporters, butchers, etc.). It is even more visible in the case of the „rights of nature“, which may sound fantastic to a law expert, but which is, nevertheless, something that no society can ignore today.

 ***

Nevertheless even in this interpretation, which deduces the (subjective) rights from mutual obligations and not in the inverse, there remains the question, where is this general obligation – and with it the idea of universal human rights – coming from. Obviously, with this question, we are leaving the realm of right and entering the domain of the pre-juridical, where the symmetry of rights and duties is no longer valid. We are in the search for the first roots of the whole building of law, and as we have seen, they will be more probably of the nature of obligations or debts, rather than individual rights.

One important strain of juridical and political thought, leading from Hobbes, Grotius and Rousseau up to John Rawls, seeks the source of law and rights in the social contract. This might appear as a clever solution, unless one realizes that a contract itself is juridical notion and thus presupposes the existence of law.[30] In the hypothetical state of war obviously no contracts can be closed, because nobody can be trusted. The other weakness of the social contract theory – even if merely hypothetical as with Rawls – is that it covers the participants of such a contract only, the citizens, whereas all the others, the alien and foreigners, are not covered by it. The rights it might legitimate are thus rather civic than human.

A completely different way has been opened by the philosopher Hans Jonas, a pupil and critic of Heidegger. Against the dangerous modern optimism, which tries to establish all thought on human society on utopian “hopes”,[31] Jonas puts forward human responsibility, the sole possible limitation of the growing power of humans over nature and people and of its abuses. Instead of the question of the origin of rights, he poses a more fundamental question: where is the unconditional human obligation, on which all the societies actually stand, coming from? Such a fundamental and non-reciprocal obligation is according to Jonas the responsibility of the mother or of the parents, the obligation to care for their children. (Jonas 1985)

 The obligation to care for a continuation of the lineage or family has been in all the ancient societies one of the most serious and the unconditional bonds of kinship have been probably the first organizing principle of human societies. They are namely linked to the “care for offspring”, which is for the neo-Darwinists the decisive criterion of “natural selection”: who has neglected the offspring, died out. Something like a care for continuation can be seen on the plants, on their flowers and seeds, whereas with animals we usually speak about the instinct of reproduction. This is as sexuality extremely strong among humans too, yet humans are able to master and to cultivate it.[32]

 The cultural regulation and the fundamental re-shaping of human sexuality, e.g. in the social support of durable family, in the prohibition of incest and in the rules of exogamy and endogamy, leads to a gradual broadening of unconditional obligations towards a broader kinship, not more exclusively consanguineous. The French sociologist Georges Davy (1922) tried to follow up in the rich ethnological material the extremely complex and sinuous way from strict consanguinity over obligations to a larger kin up to the idea of “one’ word” and a binding contract.[33] His old idea has been almost forgotten, but it has been recently and rather surprisingly renewed from another side. Many of the contemporary neurobiologists seem to agree, that the human morals have biological and even physiological roots and some of them even wish to rehabilitate the old idea of human nature.[34]

 However, these considerations would exceed the frame of this contribution. Nevertheless, they seem to corroborate the opinion that the rules controlling human action, however thoroughly culturally and socially transformed, do have their very deep roots in the distant past of mankind. Thus, they seem on the one hand to have a remarkably universal common core, on the other that they are firmly anchored in the very substance of humankind. With some license, we might perhaps say, that at the difference of human rights, which are not natural, human obligations probably are.

 (Conference on Ethics, FSV UK, Prague 2001) 

 

Literature

Aquinas, Thomas: Summa theologica (STh). Roma 1925.

Aristotle: The Nikomachean ethics. Cambridge (Mass) 1990.

Barret-Kriegel, B. 1989: Les droits de l´homme et le droit naturel. Paris.

Bentham, J. 1816: Anarchical fallacies. oll.libertyfund.org

Davy, G. 1922: La foi jurée. Paris.

Gauchet, M. 1989: La révolution des droits de l´homme. Paris.

Hegel, J. W. F. 1820: Grundlinien der Philosophie des Rechts.

Hume, D. 1740: A treatise of human nature

Jonas, H. 1985: The imperative of responsibility. Chicago.

Kant, I. 1797: Metaphysik der Sitten. Stuttgart 1995.

Kriegel, B. 1998: La Cité républicaine. Paris.

Locke, J. 1690: Two treatises of government. Cambridge 1988.

MacIntyre, A. 1984: After virtue. Notre Dame (Ind.).

Pascal, B.: Pensées. Éd. Brunschvicg. Paris 1996.

Pospíšil, L. 1985: The ethnology of law. New Haven.

Wilson, J. Q. 1996: The moral sense. New York.

Notes:


[1] Prof. Jan Sokol, Ph.D., Faculty of Humanities, UK Prague. sokol@fhs.cuni.cz

[2] His pamphlet Anarchical fallacies was not published until 1816 in French, during the royal restoration after the fall of Napoleon. Significantly, there is no mention of the American declarations, but the contents of the French one is characterized as follows: „People, behold your rights! If a single article of them be violated, insurrection is not your right only, but the most sacred of your duties.“ As to his argumentation, we shall consider it carefully; at this moment, let us remark that Bentham sees the human rights obviously as „subjective rights“ only. – I am indebted to my colleague, Dr. Jakub Čapek, for drawing my attention to this article of Bentham.

[3] This is true even for the ancient Athens, where freedom meant merely the possibility to participate on its government.

[4] The classical expression of this struggle is the Two treatises of John Locke (1690). A modern reader might be surprised by the amount of space Locke gives to his polemic against the „paternal power“, in particular in the First treatise. For him it is a polemic against the absolute authority of a despotic ruler, which has been usually deduced just from the husband’ power over his wife and children; in other words, according to Locke, the ruler is not a father.

[5] This purpose was precisely seen (and abhorred) by Bentham: „That these rights can not be abrogated by government“ (Bentham 1816:4).

[6] We cannot demonstrate the development here in detail. Remember the slow process by which the political rights (for example the right to vote) became gradually more and more widespread in the past two centuries. 

[7] On the history of the idea of human rights and of their philosophical justifications see Barret-Kriegel 1989; Kriegel 1998.

[8] In this context, the word „nature“ might have been an allusion to the idea of natural law, defined by Hobbes as a general rule, discovered by reason and prohibiting anything which would destroy human life or the means for its preservation. The traditional meaning was the scholastic natura, i.e. the essence, that which makes a human to be human or a fish to be fish. The reference to „nature“ has been thus rather ambiguous.

[9] This notion was already introduced by the Roman idea of an „inhibited person“, for example of a small child which can nonetheless be an heir. – The older Declaration of Virginia says still „Man is created free”. According to Locke, man is born free in the same sense as he is born reasonable, though to the full use of these capabilities he needs some 20 years more (1690, § 61).

[10] For instance, in some of these constitutions the aristocracy is excluded from society, as well as „anyone, who swears allegiance to another community”, an obvious allusion to religious communities.  

[11] The term was long applied only to an independent male taxpayer. The French constitution (1795) explicitly excludes servants and employees, members of religious communities, and even the illiterate. The Norwegian constitution (1814) excludes members of monastic orders and the Jews, who were not considered loyal members of society.

[12] See for example B Pascal , Pensées. Editions Brunschwicg, 93 : J“ai grand peur que cette nature ne soit elle-même qu“une première coutume, comme la coutume est une seconde nature.  (I am quite afraid lest nature itself might be nothing but first custom, as custom is second nature.)  – For Bentham natural rights are „rhetorical nonsense”, according to MacIntyre no such thing can exist and to believe them is like to believe in unicorns and sorcerers.

[13] „All men are born free? All men remain free? No, not a single man: not a single man that ever was, or is, or will be. All men, on the contrary, are born in subjection, and the most absolute subjection– the subjection of a helpless child to the parents on whom he depends every moment for his existence. In this subjection every man is born–in this subjection he continues for years–for a great number of years–and the existence of the individual and of the species depends upon his so doing.“ (Bentham 1816:3) – „All men born free? Absurd and miserable nonsense!“ (Ibid.)

[14] Many traditional societies considered the ruler, or deities, responsible for natural catastrophes.  Even Goethe told Eckermann, that he had lost his faith in God after the earthquake in Lisbon.

[15] This was the belief on which the social agreement of „real socialism“ was founded. It collapsed when the classes of influence realized, that the moment had come when they couldn“t do without freedom any more.

[16] Problems connected with abuse of the freedom of speech in commercial presentations of violence and pornography need to be mentioned here. Can a TV program be still considered as the „free expression“ of its owners and creators? And what about the rights of their viewers, especially if there can hardly be any „free competition“ involved? Universal rights do grant freedom of speech, it is granted to everybody. Do they, by the same token, put the rest of us under obligation to listen?  

[17] The defense of the property right caused great difficulties to Enlightenment thinkers, as it can not be based on an agreement and can hardly be derived from the notion of equality. Locke derives the right to the common usage of land from Creation, the right to individual appropriation from human work (1690, §§ 32-40). Kant and Hegel, in particular, consider the right of property to be the fundamental right. Whereas Hegel defends it in the limited sense only, Kant maintains that it is „a postulate of practical reason“ that we can put other people under obligation „they would not have otherwise“ to refrain from using the things at our disposal, because we had got hold of them first. (Metaphysik der Sitten, I. 1. § 2, Akad.-Ausg. p. 247)

[18] According to J. S. Mill, « no idea is in such a sharp contrast with the general tendency of meaning and practice“ as the idea that the power of the state and of the majority has to be limited. Mill shows very well, how the striving for direct participation of citizens on the government can lead to the opinion such government be by definition good and thus not to be limited. 

[19] Kant, together with Aristotle, maintained that to avoid arbitrary rule, it needs to be the rule of law, not of majority. This idea never gained much support in society, nor Herakleitos“ wish that citizens should defend their laws with more ardor than their city walls. People probably felt otherwise. 

[20] A number of older constitutions deny the right to vote to a bankrupt or – in contemporary wording – to an employee of a foreign company. Today, people with double citizenship can vote, never mind that they do not even pay taxes in the country of the vote. In some countries convicts can vote. The fathers of first French constitutions would feel a shiver run down their spines and Burke might shake his head in disbelief.

[21] On the other hand, the legal or constructive opposition consequently loses some of its credibility, which is the source of living to all „fundamental“ or permanent oppositions. They actually promise to voters to never participate in any government. This is the dilemma of the communist parties in the post-communist countries.

[22] An interesting remnant of the older conception is the general conscription, the duty to engage one’ life for the profit of the whole group. As long as conscripts celebrated the beginning of their military service, they de facto confirmed this group understanding. The motives behind the present tendency to replace „the most honorable duty“ by a professional army are not purely economic, but also testify to the advanced erosion of the social point of view.

[23] Previously quoted Pascal says: C“est ma place au soleil. Voila le commencement et l“image de l“usurpation de toute la terre. („This is my place in the sun. – That is the beginning and the image of usurpation of the whole earth.” Pensées, 295)

[24] „The principles of justice may well be artificial, but they are not arbitrary.” (Hume, Treatise I.2.)

[25] In particular of the above mentioned and typically „western“ conviction that the freedom of anyone is advantageous for all the others too – even if it might be abused, because „the good is more diffusive than the wrong“ (Thomas Aquinas, ST II. I. 81.2, sed contra).

[26] Bentham came to the same conclusion: „It is for education to do what can be done; and education is, though unhappily the slowest, the surest as well as earliest resource.“  (1816:19).

[27] „Justice is the good of others” (Aristotle, Nikomachean Ethics 1134b5)

[28] As e.g. the German society at the time of the Baader – Meinhof terrorist attacks in the seventies; the parliament eventually declined to restrict civic liberties by exceptional legislation.

[29] Bentham seems to reserve the word „right“ to things, which are not only enforceable, but actually enforced. This might make the difference: does one enjoy the right to property if he is not robbed (which is my opinion), or only when the thief who robbed him is punished? In the second case, the punishment stems indeed from the government.

[30] „Contracts came from government, not government from contracts“ (Bentham 1816:8).

[31] Jonas´ The principle of responsibility is a polemic response to an influential book by E. Bloch, The principle of hope.

[32] The strongly developed human sexuality, with its permanent sexual attractiveness, orgasms, secondary sexual signs etc. promotes the stability of pair relations, in other words of parental obligations.

[33] On this way, there are various rituals of „fraternization“ with blood exchange between non relatives, up to the common meal, which establishes a sort of physical, reliable kinship too. 

[34] Cf. James Q. Wilson, Michael S. Gazzaniga etc. – „The beginning of law has been prepared by nature; something then, being useful, became the usage and things by nature prepared and by the usage well tested were eventually confirmed by law and religion“ (Cicero, quoted by Thomas Aquinas, STh II.1.91.3).