The Immutable Laws of Mankind: The Struggle For Universal Human Rights

546 Pages·2012·2.31 MB·English

by  Alastair Davidson (auth.)

The Immutable Laws of Mankind

Alastair Davidson
The Immutable Laws
of Mankind
The Struggle For Universal Human Rights
“Democracy is two wolves and a lamb voting on what to have for lunch.
Liberty is a well armed lamb contesting the vote” (Benjamin Franklin, 1738?)
Alastair Davidson
Monash University
Melbourne, Australia
ISBN 978-94-007-4182-9 ISBN 978-94-007-4183-6 (eBook)
DOI 10.1007/978-94-007-4183-6
Springer Dordrecht Heidelberg New York London
Library of Congress Control Number: 2012938226
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For Kathleen

Acknowledgments
It has become a fashion to thank everyone met in the corridor and to redouble one’s
gratitude to the great, often seen afar at an academic conference. As “the sere and
yellow leaf”, I owe an enormous debt to hosts of men and women, teachers and
colleagues, who taught me history, sociology, political theory and law over more
than fi fty years. I will, however, despite that debt, only name one because it has
become clear to me the enormous debt this book owes to his in fl uence. Norberto
Bobbio was more than a teacher, a colleague and a mentor. He was an inspiration.
When, about fi fteen years ago, I became fascinated by universal human rights, I was
drawn back to his work on the subject.
My interest in human rights was aroused after Peter Leuprecht, then head of
the Commission for Human Rights at Strasbourg, arranged for me to spend some
time observing how the European Court of Human Rights worked. It was one
in-house cyclo-styled paper by his deputy Pierre-Henri Imbert that really started
me on the quest that led to my writing this book. The paper introduced me to an
European way of looking at human rights – so different from the stuff taught in law
school. It made clear how human rights connected with my Left political af fi liations;
how they added to my earlier scholarly interest in citizenship and cross-cultural
communication, and, how I had to return to that tradition if I wanted to understand
what he and others were working for at Strasbourg. Each step took me away from
human rights as law and political theory to their history and sociology. This led me to
Marc Agi, whose work and suggestions about the contribution of René Cassin and
the origin of universal human rights in the French Revolution led me to ferret around
in the Archives nationales and Bibliothèque nationale in Paris. I am duly appreciative
of their help. Going back to France also led me to ask Michel Troper to comment on
my work. He wrote reams of thoughtful criticism. I do not think he liked what I had
written and I have tried to meet his valuable comments.
The other source of universal human rights identi fi ed by Pierre-Henri Imbert was
the Christian and, more broadly, the religious tradition, in which the source of
universality lies in a belief in a submission to the absolute other of the godhead. To
resolve knotty problems concerning that tradition in Latin America, I turned to
Emma Martinell at the University of Barcelona who, with one list of suggested
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viii Acknowledgments
readings, almost clari fi ed my confusions about communication across difference
embodied in the term malinchismo . Two years, fi rst at the Human Rights Program
of the Institute for Advanced Study, Princeton and, then, as Wallenberg Professor of
Human Rights at Rutgers University, allowed me to put all my preliminary ideas
together, stimulated by colleagues who came to the problem from different disciplines
and perspectives. I particularly appreciated Matt Matsuda’s support at Rutgers.
Writing a book is a lonely business, punctuated by discussions with this or that col-
league. My dear friend, Boris Frankel, read and re-read drafts and subjected them to
the needed critical correction from a sociologist on the Left. An anonymous reader
for Cambridge University Press, which did not want this book, made invaluable
comments and sustained me in my approach by directing me to the work of Peter
Blickle. After another false start and a period of feeling checked, I met, and read the
work of Gregorio Peces-Barba Martinez, chancellor of the Carlos III University of
Madrid, and his team, whose combination of socialist politics and erudition in human
rights history con fi rmed in me the belief that I was on the right track in writing a
victims’ history. We met, by the way, at a conference in honour of the 100th anni-
versary of the birth of Norberto Bobbio, closing a circle in my itinerary. Kathleen
Weekley provided her incisive comment and editorial skill over ten long years of
talk, discussion and dispute when the rest of the world had gone to bed.
Finally, I would like to thank Thomas Geisen, without whose help this book
would not have seen the light, becoming another manuscript left “to the gnawing
criticism of the mice”.
Obviously, all errors of fact are mine. For my judgment, I am indebted to all those
people for what I learnt from them. I hope that I have not betrayed them in any way.
Alastair Davidson
Contents
1 A World Without Rights ......................................................................... 1
Everyday Life in the Middle Ages ............................................................ 1
Apocalyptic Horseman I: Famine ............................................................. 2
Apocalyptic Horseman II: Plague ............................................................. 6
Apocalyptic Horseman III: War ................................................................ 8
The Mafia World of the Middle Ages ....................................................... 13
Human and Beast: Worlds of Similitude................................................... 19
Asking Questions: The Courts and Torture............................................... 25
A Myopic World: Humanity Stops at the Stile ......................................... 30
Germs of an Idea: Universal Humanity .................................................... 33
Pie in the Sky ............................................................................................ 38
Justice Is Nowhere .................................................................................... 43
Conclusions ............................................................................................... 44
2 Eyes Turned Heavenwards ..................................................................... 45
Continuity and Change ............................................................................. 45
The Reformation and the Individual ......................................................... 47
The New Social Contract .......................................................................... 50
A National-Popular Rule of Law .............................................................. 53
The Common Law .................................................................................... 56
The Dutch Model ...................................................................................... 58
The British Version ................................................................................... 64
Belonging to the Church ........................................................................... 69
The Bill of Rights...................................................................................... 72
The First Milestone ................................................................................... 73
Hobbes ...................................................................................................... 77
The Popular Sovereign or the Sovereign People ....................................... 78
No Rights for Those Who Not Belong to the Nation ................................ 80
Sectaries and Other Dissidents .................................................................. 84
Rights in International Spaces: Grotius .................................................... 88
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