Common Law Studies

 

Ruben Alvarado 

Copyright © 2003 Ruben Alvarado

 “Que la révolution a commencé par la déclaration des droits de l’homme, et qu’elle ne finira que par la déclaration des droits de Dieu.”[1]

uch ink has been spilled explaining the rationale of opposition to the US and its “coalition of the willing” in the war against Iraq. Much of that effort has been wasted. That China and Russia would oppose the war was to be expected; for them, such affairs are mere bargaining chips in ongoing efforts to neutralize the influence of the US on the world stage. Furthermore, in Russia’s case significant economic interests were at stake. The same of course holds true for France. And Germany is riding on a wave of anti-war sentiment that would not brook any breach of the peace no matter how inherently justifiable.  

What the pundits have missed is that the issue goes far deeper. The Iraq war is merely the latest in a series of events bringing to light an agenda on the part of France and Germany, an agenda which those of us who over the years have followed the development of the European Union (EU) have seen wax in strength and coherence; but to which the world at large has been oblivious. Yes, the Franco-German axis wishes to establish itself as an alternative power to the US, but more than this: it wants to establish itself as the supreme power in the world. And why does it want to do this? Because it is possessed of a moral vision by which it believes the world should be ruled – and it sees the US standing squarely in the way of the realization of this vision. 

The moral vision of the Franco-German axis can be summed up in two words: universal jurisdiction. Universal jurisdiction – legal sway extending across and into every nation, usurping and supervening national sovereignty – is the solution to the crises, the conflicts, the insuperable problems seen the world over. All these problems are global in scale, they believe, and therefore require a global solution, imposed on a global scale.

This is why France and Germany in particular are so staunchly opposed to US-led efforts to keep the peace in the world. France and Germany harbor an alternative vision of world peace – attained not through the concerted efforts of nation-states, but through world government. The United States, the supreme sovereign nation in the world today, would rather maintain a world-order of nation-states, and it is willing to maintain that order through its own efforts. That is the conflict, and it is being waged across the board.

The focus of these efforts is the United Nations. A doctrine is now abroad, and has gained astonishing currency – that the UN is the supreme arbiter of the affairs of nations, that it must decide on all matters of war and peace, and that its decisions are final. The UN has gained a moral status among the nations of the world that cannot be gainsaid. It is the withholding of UN approval for the war of Iraq that has sparked such a high degree of opposition worldwide to the US-led coalition. 

These developments are behind the yawning divide separating America from Europe, also visible in initiatives ranging from the Kyoto Protocol to the newly-established International Criminal Court (ICC). Seventy-odd nations have signed on to the ICC, the most pointed example of universal jurisdiction yet to make its appearance. Its first judges have already been elected. The nations of the EU not only have signed on but are actually making participation a sine qua non of respectability and belonging. Behind this cover, the Franco-German axis is pursuing the identical strategy of arm-twisting and incessant needling they used to such effect to form the EU in the first place. At the level of the EU, it was Great Britain that was the focus of odd-man-out tactics; at the level of the UN and of world government, it is the US. Any tactics to discredit and isolate can and will be used to achieve the goal. 

So it should be no cause of wonder that the Franco-German axis, the leading force within the EU, opposes US foreign policy at every turn. For it sees the US as the biggest obstacle standing in the way of making world government a reality. They are shocked – shocked! – that anyone, even the world’s only superpower, could conceive of opposing their plans to establish their vision – ostensibly, justice rather than power – at the heart of the world order. 

Aye, there’s the rub. For in the eyes of many, the European effort to make the world safe by ridding it of sovereign states is the expression of the ideal of replacing power with justice as the decisive principle of international affairs. A recent article by Robert Kagan[2] makes the case that this effort to replace power with justice is simply a strategy dictated by weakness: like lesser powers throughout history, Europe is now relying on appeals to international law and human rights as a substitute for the exertion of brute force in international affairs. But this analysis remains unconvincing, for Europe, although lacking in military strength, has plenty of economic and diplomatic clout to throw around. Europe is not eschewing power in this instance; in fact, it will require a great deal of power to establish of the kind of international judicial regime it and its allies seek. The replacement of national sovereignty with global hegemony cannot help but be realized through the use of force, though it be non-physical.

Is the issue really justice versus power? Is it a question of superpowers like America acting in disregard of principles of right simply because they have the power to do so? In this way of thinking, the problem at bottom is simply sovereignty itself. National sovereignty stands in the way of a universal order of justice. Countries with power will act with impunity, like it or not – and those without power, which harp on the need for justice in international relations, would act the same way if they had power. This view is widespread, but it is fundamentally flawed. For it entirely overlooks the history of the development of international law out of the original law of nations, which first provided flesh and bones to the fledgling international order of early modern times.  

The history of this development is crucial to understanding the current divide between Europe and America. It is also crucial to understanding the greater conflict beyond passing policy issues. For this issue will not go away. In fact, it is this conflict that in the long run will be more determinative of world peace and world order than even the threat of terrorism.  

The story revolves around the twin poles of human rights and the definition of sovereignty. Tracing it out pays handsome dividends, for it explains the motive forces driving current events. 

agan puts forward the either/or of a Kantian or a Hobbesian world order: the Kantian order, standing for universal peace, provided by the establishment of a world government; and the Hobbesian order, a war of all against all, the current situation of independent sovereignties. What he did not mention was that the vision of a world order governed by universal law but policed by national sovereignties was not the vision of Thomas Hobbes but of the true father of international law, the Dominican priest Francisco de Vitoria, in whose lectures on the Indies this order of law and sovereignties first took definite shape.[3] Vitoria refuted the claims to universal jurisdiction propounded by champions of the Holy Roman Emperor on the one hand and the papacy on the other, instead arguing that the nations of the world, rather than being subject to any a priori universal jurisdiction, were sovereign in their own right and under no obligation to submit to foreign rule. What binds the nations is not overarching sovereignty but an overarching set of principles enshrined in the jus gentium, the law of nations.  

These principles Vitoria summarized as rights of communication. They include freedom of trade; freedom of movement – open borders, freedom of the seas, freedom of domicile; freedom to spread the Gospel. These are the basic rules which, he argued, bind nations to each other and which they cannot get out from under, which establish peaceful communication, the indispensable condition for civil society lived for the sake of citizens rather than rulers.

The Vitorian law of nations is therefore more than simply a law governing international (read: inter-state) relations. It is much rather a law over nations, a law binding them, setting forth relations both between the nations and within the nations themselves. Peter Stanlis correctly underscores this point when he writes of the international and constitutional law of nations as two sides of the same coin.[4] The Vitorian jus gentium spawned two major developments: the doctrine of the freedom of the seas, and that of limited, popular sovereignty; the former best exemplified in Hugo Grotius’ Of the Freedom of the Seas, the latter in Johannes Althusius’ Politics.[5] 

These doctrinal positions were not advanced in a vacuum; they did battle against formidable opponents, themselves taking their stand ultimately in the grounds of absolute sovereignty centered in “the king that could do no wrong.” For these thinkers, sovereignty was an all-encompassing power, the source of all law. There was no law binding the sovereign, all such higher law partook of morality, not legality proper. The premier exponent of this viewpoint was the French polymath Jean Bodin, whose Six Books of the Republic is considered the founding document of the modern concept of sovereignty. 

It is no coincidence that this conflict between constitutionalism and absolutism, between freedom and hegemony, progressed in tandem with the major conflict of the period, the war of religions sparked by the Protestant Reformation. It was the wars of religion in France and the resultant upheavals they caused that had led Bodin to develop his path-breaking treatise. It was at this time as well that the crucial step was taken, not only beyond Europe’s wars of religions, but to modern human-rights-based international law, the legal order to be effectuated by universal jurisdiction. The conflict between Vitoria and Althusius on the one hand and Bodin on the other led to the emergence of a third way, personified in Grotius himself.  

Grotius provided a new outlook on the origin and legitimacy of sovereignty. Such was required in the wake of devastating religious warfare: the consensus was that an alternative foundation to sovereignty had to be established in the place of religion, of “divine right.” The theocratic root of legitimacy was insufficient because it could not command universal consent. Rather than the continuation of religious warfare, what was needed, it was thought, was to supersede religion in public life altogether. This alternative foundation was discovered in the doctrine of natural rights. It was a doctrine that promised release from the need to agree on absolutes; but in doing so it opened the door to a radically different form of confrontation. 

History has assigned the status of “Father of International Law” to Grotius, and not entirely without reason. Although he was not the father of the notion that it is the nations, not the Roman empire, that are sovereign – that honor goes to Vitoria – he was the first to wed this notion of national sovereignty to the idea of natural rights. In fact, he pioneered the very notion that natural rights function as the source of sovereignty. And in so doing he provided the alternative to divine right that the age seemed to be demanding. 

The nuts and bolts of Grotius’ theory will be developed further along in this discussion; for now it is enough to note that in making this move Grotius spawned a plethora of followers who continued the development of this core idea until it gained ascendancy in the Enlightenment. Some went in the direction of Thomas Hobbes, justifying absolute sovereignty on the basis of an unconditional surrender of original rights; but most ended up in convoy with John Locke, establishing sovereignty as a grant from its original holders, the citizens, which they might revoke at any time it might suit them. 

So governments existed at the pleasure of their citizens, and might be disbanded at their whim, should their original rights, the rights they possessed in the state of nature, be infringed by this artificial institution. And what if the government refused to disband? Why, in that case there was Locke’s “appeal to heaven” – a call to arms – to force the issue. Bad governments had now had notice served.  

Theory became practice in France, where the received institutions of the Ancién Regime fell afoul of the natural rights ideology, tried and convicted on the charge that the French social order bore little resemblance to the state of nature. As such, it deserved abolition, and the sentence was carried out with verve. The monarchy, the aristocracy, the church, all were put to the sword and the torch, to make way for The Rights of Man and Citizen, which now surely would come to bloom with the removal of these offending institutions. 

But this did not take place. Rather than citizens blossoming into their roles as preached in the theory of natural rights, French society descended into chaos, and was only saved by the emergence of a full-fledged dictator who not only established absolute government but took a step that no previous monarch had ever done – impose a nationwide law code, outside of which there was no law. 

Thus did the doctrine of natural rights begin to bear its unintended fruit. There were those, such as Edmund Burke, who laid the blame for these fruits at the door of the doctrine itself. But there were others who took a different tack. The problem, to their minds, was not natural rights per se; it was the definition of those rights.  

In the original formulation of natural rights, private property stood central. Locke’s triad of life, liberty, and property rang true with every one of its proponents. Grotius, the original developer of this framework, characterized it as the expression of strict justice, the kind of justice which could be enacted in law and enforced by the state, as opposed to a broader category of justice which partook of a moral rather than a legal character. Rights of liberty, authority over one’s household, property and credit, and self-defense, were natural and formed the basis of what it was the state was there to protect. Grotius accurately characterized these rights as expressions of commutative justice, following the Aristotelian and Thomistic tradition; the broad category of justice he termed distributive justice, which he thus removed from the state’s purview. As he explained it, “For a long time many have considered this [distributive justice – RCA] to be part of law in the actual and strict sense, even though the latter actual law is of an entirely different character, resting as it does on the notion that what is another’s is left to him or transferred to him.”[6] 

With this decisive move, the novelty of which Grotius was fully aware,[7] a great swath was cut through the received legal and political tradition. The distinctive medieval constitution, overseen in its development by the cooperative effort of kings and the church, incorporated substantial elements of distributive as well as commutative justice: in fact, the two formed part of the same coin. Aquinas gave definitive shape to this dual form of justice when he introduced Aristotle’s ethical teaching to the church, and so to society at large. But this formulation depended upon shared values, an agreement as to ultimate reality; and when this was lost, the system of justice upon which it was based began crumbling. Grotius, in his zeal to provide a common ground for law agreeable to all, sheared the distributive element out of the legal system, thus leaving the commutative element freely standing. This was possible because commutative justice “presupposed a minimum of criteria, all of which on the horizontal, secular plane, regarding human nature as such, not theology, not dogma.”[8] 

Grotius thus distilled natural rights in their classic form, but only at the cost of going massively in hock to the future. For distributive justice would not remain in abeyance forever. Like a ghost from the dead, it would return, only in a form wholly other than in its original, Christian-classical shape.  

Property could not remain the cornerstone of the enlightened blueprint for long, for property yielded inequality. And, when push came to shove, inequality could not be tolerated; not even liberty was worth this price. In this manner, liberty yielded pride of place to equality in the pantheon of enlightened values, and natural rights were reforged on the anvil of political will. For a new set of priorities were arising in the wake of revolution political, social, and industrial.  

Natural rights in their revised form no longer emphasized liberty and property, but rather solidarity and “stakeholding.” No longer was it enough to affirm a right to pursue happiness and reap the rewards; what now became primary was the notion that man qua man, created in the image of God (this helped greatly to convince those recalcitrants who still held to religious faith), was entitled to a certain level of existence, a certain standard of living, simply by virtue of his existence. 

The idea took much longer to put into practice than to take the high ground theoretically; Bismarck got the ball rolling with his universal pension scheme, which also demonstrated the vote-buying power of welfare politics. His lead was followed throughout Europe, welfare politics forming a solid buttress for the neo-mercantilist, protectionist policies already being pursued. 

Rights now had come to signify entitlements to largesse: distributive justice had made its triumphant reappearance on the political stage. Conflict was the result, in that the two forms of rights, the original commutative form and the resurgent distributive form, were incompatible: the one negated the other. One cannot argue both for a right to property and a right to redistribute property without entangling oneself in interminable inconsistencies. What happened then is that rights theory became subtly remodeled: rights became interests.[9] Where rights are absolute claims that cannot be gainsaid, interests are relative, can be balanced, can be weighed against each other. But what this means is that a higher authority is needed to make the decisions as to which interest is to prevail. It means that private law has to give way to administrative law. It means that commutative justice gets swallowed up by distributive justice. Once again, the holistic order of justice was mutilated to accommodate a political predilection: with the earlier natural rights theory it was commutative justice that subordinated distributive, now it was distributive justice that trumped commutative. 

Consider what this means. The original natural-rights agenda promised to establish a social order in which individuals could act freely as independent agents without subordinating their lives and estates to an absolute authority, returning to the extended family-order of the medieval manor. But what happened is that this natural-rights theory, in eliminating the Christian-classical distributive background against which commutative justice had developed, simply prepared the way for a new form of social subjection in which all property, all estates, were subordinated to a common distributing authority ruling not on the basis of rights but interests. The circle was complete.  

The welfare state is built on the legitimating framework provided by these rights theories. And now we have looming ahead of us the prospect of a global welfare/police state dispensing total justice, against which there can be no appeal, for national sovereignty will have been sacrificed on this altar as well. 

Human rights ideology is the driving force behind the notion of  universal jurisdiction.                                                           

Is there an alternative to this ideology? The answer is yes; but that alternative is unpalatable, in view of the underlying prejudice in favor of human rights – which is the reason why this ideology remains so popular in the face of its manifest unworkability.[10] But this alternative needs to be explored, and once the true underlying issues are examined, perhaps it will come in for a reappraisal. 

uch a reappraisal must needs begin with Edmund Burke, the founder of the modern conservative movement, the launcher of the first effective attack on the natural rights school of thought. It was his counterattack against the French Revolution that caused the scales to fall from the eyes of so many of the latter’s sympathizers, for the first time generating substantial argument against what hitherto had become virtually received wisdom.  

Burke argued that natural rights were unsuitable to found civil society because their abstractness could not be translated into workable practice. “These metaphysic rights entering into common life, like rays of light which pierce into a dense medium, are by the laws of nature refracted from their straight line. Indeed, in the gross and complicated mass of human passions and concerns, the primitive rights of men undergo such a variety of refractions and reflections, that it becomes absurd to talk of them as if they continued in the simplicity of their original direction. The nature of man is intricate; the objects of society are of the greatest possible complexity; and, therefore, no simple disposition or direction of power can be suitable either to man’s nature or to the quality of his affairs.”[11] 

Natural rights could not be used to call received historical institutions into question. There was too much of a disparity between abstract ideas of what rights pertain to man in a so-called state of nature and what rights he might enjoy in a concrete, historically conditioned society. Rights are the product of historical growth in terms of the advancement of culture. It is useless to talk of which rights ought to pertain to a hypothetical individual; we can only speak of what rights pertain to citizens and subjects of actual regimes, what institutions exist which uphold and support those rights, what constitution and legal order has developed in which these rights are framed. The correct approach to such issues is not abstract philosophizing or “metaphysics,” as Burke put it, but a basic acceptance of received institutions, especially in the context of Western civilization, in which the common law and institutions of Europe have grown on the basis of Christianity. The principle to be applied is that of prescription. 

Prescription is a concept originally derived from Roman law, being one of the modes of acquiring landed property (the comparable form of acquiring movables is called usucapio). What it concerns is how title is acquired to property absent the transfer of a title deed. What is required in that case is possession for a statutory period of time, usually 30 years.  

The significance of this is the allowance of the acquisition of a right without having to point to a definitive act whereby that right was acquired – under certain conditions, time alone is enough to establish rights. 

This principle came to be applied in the English common law in the criterion of “time out of mind” to justify the possession of rights – thus, immemorial usage, custom extending back into the mists beyond memory.[12] The significance of this for Burke is that prescription provides a historical origin to rights as opposed to a natural origin. Burke took his stand on the English constitution to cut off the natural rights ideology at its root. Christopher Brooke, a leading member of the House of Commons 150 years before Burke, put it this way: “We hold our privileges by prescription and prescription is inheritance.”[13] 

But Burke did not restrict this conception to England. He viewed this prescriptive constitution as a part of what he called the common law of Europe. This is how he could argue against natural rights in the context of the French Revolution, maintaining that the French could have returned to their indigenous, historically conditioned constitution and revitalize it rather than throwing it overboard. The argument from prescription held for all the countries in Europe which had grown out of the common root of Latin Christianity. 

In the argument from prescription, therefore, we have not simply a principle from the English common law; we have a principle which forms the heart of what was the common law of Europe. And it is this principle which may guide us to an alternative approach to the source of law that can solve the conflicts inherent to the human-rights paradigm. 

If we go back to the beginning, if we go back to the sources on which Grotius relied to develop his natural rights theory, we plunge into the classical and scholastic legal tradition of early modern Europe, the world of this common law of Europe, the ius commune: a corpus of Roman law, canon law, feudal law, law merchant, covering both private law and public law, the cradle of which was Italy but which spread throughout the Latin West to the point of being officially “received” in the Holy Roman Empire of the German Nation. Every legal system in the West, even England’s, was decisively influenced by this overarching body of legal doctrine. 

The theories of rights which have so come to dominate Western political thought were originated in this matrix. Blow-by-blow accounts of that development can be found in such works as Richard Tuck’s Natural Rights Theories and Brian Tierney’s The Idea of Natural Rights.[14] The upshot is that the notion of subjective rights accruing to people as expressions of universal human nature was then developed.  

Subjective rights are more than mere external imputations – they are expressions of a power inherent in human beings. Witness their description by one of the ablest theorists of these rights, the 19^th century German statesman and philosopher Friedrich Julius Stahl: 

By virtue of man's personality... the sphere assigned to him by the ethical power of law is of necessity his own ethical power over against others, a power residing within him. This is ethically bound to him – not simply God or conscience or the legal order with relation to him – he is not merely the object of others’duty but the cause of it.... Rights in the subjective sense are therefore the ethical power that a man has over against others in the sphere assigned him by, and by virtue of, the legal order.... Rights in the subjective sense, i.e., the rights of man, are due him in all his positions in life; and because they are a power residing in the person, they construct a true center around which the entire external world (things, actions of others etc.) is ordered as controlled object, and according to which the content of legal norms is often determined.[15]

It took some time for this doctrine to gestate; it was not until Fernando Vazquez de Menchaca, the great Spanish jurist of the 16^th century, took the crucial step of equating iura with dominia, rights with property, that it was completed.

The equation of rights with property was crucial because it made the possessor of rights, the person, a dominus, a lord, empowered to deal with the world about him. Dominium in the tradition of the ius commune is an absolute power to deal with an object, a ius utendi et abutendi, a right to use or abuse, however the owner, the dominus, thinks fit. Vazquez’s object in extending dominium to rights in general was to secure for all rights the same kind of protection from state power that strict dominium enjoyed. “Considering that, in accordance with the dominant view of jurists of that time, state power could not interfere with the dominium of individuals without cause, this extension of the definition of dominium was urgently needed if one desired to preserve other rights from state interference as well.”[16] But it also extended to rights the concept of dominium as a relation of expansive lordship of men over their world. Vazquez’s innovative definition of subjective rights thus accomplished two complementary goals: it made rights-bearers into power-holders, and it restricted the power of the state over those rights and their bearers.[17]

The equation of rights with property paved the way for Hugo Grotius’ new approach to law and government, enshrined in the original natural-rights doctrine. For property is preeminently the subject matter of commutative justice; by restricting justice to the maintenance of each in their rights, Grotius established the basis for the de-theocratized social order his times were demanding. And in fact Grotius was heavily dependent on Vazquez for his own innovation.

Vazquez himself took an entirely different tack when it came to presenting a vision of the social order in terms of this new doctrine of rights. For he did not speak of a state of nature in which individuals came together to erect a government in order to preserve them in their rights, as did Grotius and his followers. Instead, Vazquez followed the classical, Stoic doctrine of a “golden age” in which all were free and all was held in common, followed by a sort of “fall” (though Vazquez, unlike others, did not directly mention the biblical teaching of the fall of Adam in this regard) when the nations introduced dominium, dominion, expressed in the institutions of property and slavery. Thus rights as legal positions held by persons over against others and over against the state made their entry later on in history – and were not there in the beginning.

So how did rights arise? Vazquez devotes the entire second volume of his magnum opus, the Notable and Frequent Controversies, to his answer: prescription, the importance of which cannot be overstated, he says, because “if one examines with care the frequent practice of the courts one will find nothing more in use than the matter of prescription, considering that it is virtually the only hope and proof and the treasury both of all property and all rights of the human race; or if one investigates as well the rights and state even of kings, princes and emperors, one encounters them safeguarded in mere prescription and the extended passage of time, as if in some most bounteous and secure treasury.”[18] Prescription is the source of property and of rights; without it, nothing would be secure, no legal order would be possible. “[Vazquez] supplemented the doctrine of inalienable individual rights with acquired rights; both spring from the same root, the doctrine of prescription, and in the final analysis refer to natural-law criteria. These individual rights could only develop and maintain their existence on the basis of the general doctrine of natural law and in the climate of the constitutional state.”[19]

Realizing the significance of this appeal to prescription as the basis of rights, Vazquez stipulated that prescription operated only on the level of national law, not at the level of international law. Rights were thus the creature of sovereignty, and by no means could be made to be the source of sovereignty. The rule of law, the constitutional state, preceded rights and provided the background against which they could arise.

Vazquez’s ground-breaking doctrine of rights made them to be the product of prescription, thus originating in the lapse of time; the product of sovereignty, because prescription only operates at the level of national law; yet nevertheless enjoying the protection against state interference or abolition that property rights in the strict sense enjoy. It is thus historically conditioned, gradually developed rights of which Vazquez speaks, prescriptive rights, rights as inheritance rather than natural endowment. And it is against the background of Vazquez’s doctrine that Grotius developed his own theory, which he took, as has been shown, in an entirely different direction.

The doctrine of the prescriptive constitution was a viable force on the early-modern political scene, in that it was the outgrowth and expression of the medieval constitution with its reciprocal rights and duties, its plethora of associations, its many concurrent jurisdictions. The medieval constitution demonstrated a fantastic capacity to generate rights; but this was because at its foundation was a clear conception of justice and law, rooted in nature and nature’s God. The medieval constitution adhered to Stahl’s conception of subjective rights, that they form “a secondary principle of the legal order alongside the first and absolute principle, the purpose of life-relations. As a secondary principle, they are always based on the latter. Their content and extent are derived from it and the coherence of collective rights of collective persons lies in that higher principle.”[20] Thus rights did not exist prior to the law nor to the state; their existence in fact depended on the prior existence of law and the state. This is the world-historical significance of feudalism: that it provided this framework and platform upon which a constitution of reciprocal rights and duties between sovereign and subject might arise.

The emergence and ascendancy of natural-rights doctrines unsettled this received constitutionalism. Again, Grotius was the pioneer here. His treatment of rights required him to explain deviations from the original condition of life, liberty, and property in the state of nature; and he did so by resorting to the notion of the tacit contract, arguing that where subjection existed, it was because in the mists of time agreements had been made to surrender those rights and enter into these arrangements of subjection.[21] The principle of inalienability introduced by Locke placed a keg of dynamite under this theory by de-legitimizing such transactions. Assuming Locke’s theory, where conditions of subjection existed they were in principle unjust and thus intolerable. Rousseau drew the obvious conclusion: “Grotius denies that all human power is established in favour of the governed, and quotes slavery as an example. His usual method of reasoning is constantly to establish right by fact. It would be possible to employ a more logical method, but none could be more favourable to tyrants.”[22] Thusly did first Grotius, then Locke, and finally Rousseau pave the way for the full-scale condemnation of the received historical constitution and the ascendancy to the moral high ground of the human rights ideology.

atural rights likewise provided the legitimation of the novus ordo seclorum known as the United States of America, but in an entirely different manner than with the French Revolution. For the American revolutionaries were not interested in overthrowing the received order; they were interested, rather, in maintaining their received institutions, customs, and laws in the face of an overweening British monarchy and parliament. The American revolutionaries were trying to secure their historic, prescriptive rights as Englishmen; and no less a proponent of prescription than Edmund Burke regarded them as such.

But undeniably there was more to the American revolutionary movement than prescriptive rights. The natural rights based theory originating in Grotius had here borne significant fruit: “Many of the Revolutionary patriots believed with Thomas Dickinson that liberties do not result from charters; charters rather are in the nature of declarations of pre-existing rights.”[23] Historical rights were therefore confirmations of pre-existing natural rights rather than being acquired and therefore precious heirlooms. Grotius had triumphed over Vazquez.

It is instructive in this regard to compare the first of the American revolutionary documents, the Resolutions of the Stamp Act Congress of 1765, with the Declaration of Independence. The former declares “That his majesty’s subjects in these colonies, owe the same allegiance to the crown of Great Britain, that is owing from his subjects born within the realm, and all due subordination to that august body, the parliament of Great Britain,” and, concurrently, “That his majesty’s liege subjects in these colonies are entitled to all the inherent rights and privileges of his natural born subjects within the kingdom of Great Britain.” Here there is no trace of a claim derived from natural rights; all rests on historical rights, acquired rights. But the matter is entirely different once we reach the Declaration itself. “The actions of that monarch were [there] declared to be in violation of the inalienable rights of man; they had as their object the establishment of an absolute tyranny over the states. No mention was made… of the rights of Englishmen.”[24]

Yet, although both the American and the French Revolution partook of the elixir of inalienable natural rights, the underlying constitutions which they established are of a fundamentally different sort. Post-revolutionary France had put paid to its feudal past; America, on the other hand, had carried out “a conservative counter-revolution.”[25]

The French legacy can be summed up as the paving-over of the Old Regime and the establishment of a system emanating wholly from the center; although the latter might well be viewed as an inheritance, for this was precisely what the French monarchy had expended so much effort to attain.[26] And while the new French Civil Code included substantial elements of received legal tradition, both Roman and customary, it firmly established the principle of law being a creation of the sovereign and having no existence outside the promulgated code. The revolutionary principle is thus that of absolute sovereignty, vested in autonomous man; it is what I have elsewhere characterized as the Civil Law approach to law and government.[27]

The American legacy, on the other hand, truer to the original Grotian than the later Rousseauian form of natural rights, maintained continuity with the past and in fact revered that past, while marrying it to a theory that put paid to certain elements of that past – the theocratic inheritance, the public role of the church, the divine right of kings. Thus the American system maintains the Common Law tradition, albeit in an inherently unstable compound that ever threatens to fall apart, as witness the contemporary phenomena of political correctness and culture war.

For the theory of natural rights constitutes nothing other than a Trojan Horse in the body politic. Without a standard of reference outside of natural rights, the law, the judiciary, political action become nothing other than competing visions of what those natural rights should be. Every expansion of government intervention into previously sacrosanct areas of private action – the realm of private law – has been sanctioned by an appeal to someone’s or some group’s rights. I repeat: the regime of rights then becomes not a regime of rights at all, but of interests, and private law becomes subverted by administrative law.

We now are witness to the audacious attempt by proponents of the human-rights vision to establish a world government to impose by force a certain vision of rights, informed most emphatically by the Civil Law tradition, which will convert the entire world into an administrative department. Thus what is now taking shape is a conflict between that tradition and its mortal enemy, the Common Law tradition. But the contemporary champions of the Common Law tradition are hampered from the beginning by the common root they share with the Civil Law tradition, which is the basis in natural rights, human nature, a horizontal, a secular measure, excluding appeal to that which is truly transcendent.

It was Plato who laid the finger on this fatal flaw, when in The Laws he contrasted Protagoras’ dictum man is the measure of all things with his own: God is the measure of all things.[28] It was the glory of the Christian moral-theological tradition that it was able to integrate the two forms of justice that both Plato and Aristotle identified, distributive and commutative, in a fruitful synthesis that produced not only constitutional government and liberty under law but also free-market economics, laying the foundations for both Adam Smith and the Austrian school. This was a tradition carried forward by both Catholic and Protestant scholars[29] but which ran aground on the shoals of unbelief. It was the tradition that sustained the idea of justice that underlay and provided sustenance to the medieval growth of rights and reciprocal government.[30]

Stahl most clearly identified the rights-generated conflict, emphasizing, while recognizing the legitimate claims of those “rights of man,” the need to maintain the fear of God as one of the two principles of the social order.

This is therefore the shadowy side of recent times along with its higher worth: that it only seeks man while being loosed from what stands above man. Of the two parts through which the law is fulfilled – you shall love the Lord your God above all things, and your neighbor as yourself – it has arbitrarily picked out the second while ignoring the first, it has demolished the first of the two tables of the law while proposing to establish only the second. This is however contrary to the eternal ordinance. No building can stand when one removes the foundation, no tree can live when one lays the ax to the roots. The task of the times is therefore not the ongoing one-sided advance of humanity and the rights of man, but the restoration of the fear of God as the energetic principle in both hearts and public institutions, while in it and through it preserving humanity and the rights of man. This is the union of the truth of former times with contemporary times. It gives the testimonies of the one and the other principle their pure shape and their complete meaning and value.[31]

If we recognize this, we recognize that there is built into the creation an order which cannot be trifled with, which ordains among other things that it is nations, not individuals and certainly not imperial impositions, that are sovereign, and that this sovereignty is to be used to enforce the law rather than to create it, and that the nations have the right and duty to assert and defend their sovereignty precisely because of this divine command to enforce the law. If this system of multiple sovereignties is eliminated, then the law will become the monopoly of a single sovereign voice, outside of whose jurisdiction there is no appeal. In this regard, the biblical story of the Tower of Babel (Genesis ch. 11) stands as a warning to the ages.

This is what it means to recognize the category of distributive justice as a fundamental building block of the legal order along with and complementary to commutative justice. Distributive justice entails making and enforcing value judgments. It entails recognizing certain institutions as expressions of the creation order, with their own particular, created structures that cannot be remade to suit taste or desire. The family is the prime example of this: try as one might, one cannot efface the reality that families are first and foremost husband-wife-children. It is a fact rooted in biological reality, although even such plain truths cannot stand in the way of determined human-rights judiciaries to remake reality as it suits them.[32] Ultimately, distributive justice rests on a confession of faith, on a vision of reality, the world, nature, grace. It was precisely for this reason that the grand attempt was made to do without it, to soldier forth solely on the basis of commutative justice; but man does not live by liberty and property alone, and the vacuum was filled by redistributive “social” justice and human-rights ideologies that make a mockery of the rule of law.

What must be recognized is that the Founding Fathers of the United States, in throwing in their lot with the natural-rights theories that reigned in the 18^th century, opened the door to the conundrum we now face in staving off a human-rights global hegemony. Appeals to natural rights have been made in judicial decisions throughout the history of the Republic, thus making an appeal to such rights a part of the warp and woof of its legal tradition.[33] The genie has been let out of the bottle; the inexorable logic of human-rights theories has now produced a most virulent strain, and every fiber of the national will be required to divert it from its totalitarian course. In the end, though, there can be no relief from this particular malady until a fundamental change takes place in that most sensitive of all areas of public debate: the way we view religion in public life. For this situation is part and parcel of the naked public square.[34] As de Bonald put it: “The Revolution began with the declaration of the rights of man; it will not end until the declaration of the rights of God.”