If I have ever as wholeheartedly commended a piece of scholarship as I do colleague Craig Stern's piece, Human Rights or the Rule of Law -- The Choice for East Africa? (download here), I cannot recall it. In short, Stern identifies two important insights--"rights" are inviolable and concept of the rule of law is not interchangeable with rule by law--and applies them to the legal and political realities of Anglophone East Africa. For what it's worth, based on my observations, the legal/political reality of India is much the same.
Stern begin the human rights part of his piece by looking to the modern human rights movement. Beginning with the 1946 Universal Declaration of Human Rights, he observes that the post-WW II expression of human rights includes many "positive" rights such as rights to education, housing, and health care. The unchecked (and seemingly uncheckable) growth of such rights contrasts sharply with the relatively few "negative" rights enshrined in Enlightenment-era statements such as the English Bill of Rights, the American Declaration of Independence, and the French Declaration of the Rights of Man. These documents, reflecting a modern twist on the notion of rights developed in the Medieval and early-modern Christian West, were directed against State interference with individuals and, to a lesser extent, associations. They were not directed at allocation of State resources in favor of social goods.
I labored over this point in my lengthy series of posts drawn from Nick Wolterstorff's book, Justice: Rights and Wrongs. In other words, negative rights are trump cards that can be played against State action. Rights thus understood are not claims that the State do anything for me except ensure our rights are protected.
Stern deftly demonstrates the topsy-like growth of positive rights in subsequent United Nations conventions and post-colonial constitutions. What's the big deal, one might ask? If a few rights are good, aren't more better?
The problem with treating, say, a "right to adequate housing" as a right becomes clear when we consider its implementation. Even under the best of circumstances, the economies of East Africa cannot implement such a positive right. The failure generally to turn positive rights into reality goes on to undercut the notion of rights as a whole. In other words, if, notwithstanding a nation's constitution, pragmatically there is no right to a decent home, then, pragmatically, there will be less political commitment to constitutional negative rights like freedom of speech. Everything--trump cards and regular playing cards--is up for grabs in the hurly-burly of political compromise.
The necessary politicization of unobtainable positive rights eventually undercuts the fundamental negative rights. Indeed, this is precisely the point I made in my piece, Looking for Bedrock: Accounting for Human Rights in Classical Liberalism, Modern Secularism, and the Christian Tradition (download here).
Stern goes on to advance his thesis by considering the reallity of what legal comparatists call the "penetration of law." To what extent does "law" actually effect the lives of citizens? In other words, how great is the gap between law on the books and law in action? Unsurprisingly, the greater the gap, the greater the public mistrust of a polity's legal system and with that goes trust in the very concept of the rule of law. Corrupt law makers and corrupt law enforcers undermine public confidence in law as a means of justice and retreat to personal and ethnic supra-legal enforcement of self-defined rights becomes increasingly understandable.
Stern's piece is an even-handed and thoughtful critique of East Africa's contemporary rights-saturated reality. The notion of rights must be kept analytically distinct from the notion of social goods for with the collapse of the former into the latter peoples everywhere run a risk of losing both.
Stern begin the human rights part of his piece by looking to the modern human rights movement. Beginning with the 1946 Universal Declaration of Human Rights, he observes that the post-WW II expression of human rights includes many "positive" rights such as rights to education, housing, and health care. The unchecked (and seemingly uncheckable) growth of such rights contrasts sharply with the relatively few "negative" rights enshrined in Enlightenment-era statements such as the English Bill of Rights, the American Declaration of Independence, and the French Declaration of the Rights of Man. These documents, reflecting a modern twist on the notion of rights developed in the Medieval and early-modern Christian West, were directed against State interference with individuals and, to a lesser extent, associations. They were not directed at allocation of State resources in favor of social goods.
I labored over this point in my lengthy series of posts drawn from Nick Wolterstorff's book, Justice: Rights and Wrongs. In other words, negative rights are trump cards that can be played against State action. Rights thus understood are not claims that the State do anything for me except ensure our rights are protected.
Stern deftly demonstrates the topsy-like growth of positive rights in subsequent United Nations conventions and post-colonial constitutions. What's the big deal, one might ask? If a few rights are good, aren't more better?
The problem with treating, say, a "right to adequate housing" as a right becomes clear when we consider its implementation. Even under the best of circumstances, the economies of East Africa cannot implement such a positive right. The failure generally to turn positive rights into reality goes on to undercut the notion of rights as a whole. In other words, if, notwithstanding a nation's constitution, pragmatically there is no right to a decent home, then, pragmatically, there will be less political commitment to constitutional negative rights like freedom of speech. Everything--trump cards and regular playing cards--is up for grabs in the hurly-burly of political compromise.
The necessary politicization of unobtainable positive rights eventually undercuts the fundamental negative rights. Indeed, this is precisely the point I made in my piece, Looking for Bedrock: Accounting for Human Rights in Classical Liberalism, Modern Secularism, and the Christian Tradition (download here).
Stern goes on to advance his thesis by considering the reallity of what legal comparatists call the "penetration of law." To what extent does "law" actually effect the lives of citizens? In other words, how great is the gap between law on the books and law in action? Unsurprisingly, the greater the gap, the greater the public mistrust of a polity's legal system and with that goes trust in the very concept of the rule of law. Corrupt law makers and corrupt law enforcers undermine public confidence in law as a means of justice and retreat to personal and ethnic supra-legal enforcement of self-defined rights becomes increasingly understandable.
Stern's piece is an even-handed and thoughtful critique of East Africa's contemporary rights-saturated reality. The notion of rights must be kept analytically distinct from the notion of social goods for with the collapse of the former into the latter peoples everywhere run a risk of losing both.
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