Human Rights

2.0 LEGAL POSITIVISM

Legal positivism is a mentality in legalism that the existence and content of law should
depend on social facts and not on merits.[1] It is the view that morality has no weight in the
law that is made and established as the law of the state. It should be followed and it is
supreme however immoral or unjust that piece of law or legislation is. There are several legal
thinkers who developed the idea of legal positivism, amongst them the most prominent
figures are Jeremy Bentham, John Austin and HLA Hart.

What we must keep in mind is that even positivists are divided into 2, inclusive and exclusive
positivism. Inclusive positivists are people who believe that moral constraints can be
incorporated into law according to a society’s belief. Even HLA Hart was an inclusive (soft)
positivist who believe that “the rule of recognition may incorporate as criteria of legal validity
conformity with moral principles or substantive values …”[2]

On the other hand are the exclusive positivists who believe that a legal system cannot
integrate moral restraints on legal validity. They believe in the absolute supremacy of the
positive law. One of prominent exclusive (hard) positivists was Joseph Raz who was actually a
student of HLA Hart.

3.0 NATURAL LAW AND DERIVATION OF HUMAN RIGHTS FROM NATURAL

LAW

Natural law is the direct opposite of positive law, and is what is defined as god’s law or ideal
law, which has no loop holes as in manmade law. It is law which is based on morality rather
than legality believing that any man made law which is not morally correct is not law at all.
Naturalists argue that positive law is always evolving to attain the threshold of natural law.

Some prominent figures who argued for the supremacy of natural law and morality were St.
Thomas Aquinas and Thomas Hobbes. The foundation of natural law is religious beliefs and
moral rights and wrongs as shown throughout history.

The notion of human rights, I believe, is derived from natural rights, which in turn is derived
from religious and moral beliefs. So the international bill of human rights we see today
actually is a child of natural law itself. John locke, a follower of Thomas Hobbes, and a
renowned philosopher, while writing about natural rights in Two Treatises Of Government,
has said that “men are by nature free and equal against claims that God had made all people
naturally subject to a monarch. He argued that people have rights, such as the right to life,
liberty, and property that have a foundation independent of the laws of any particular
society” [3]

This is exactly what is entrenched in the International Bill of Human rights today. So it is
logically arguable, and it is my belief that Human rights is actually natural law/ natural rights
itself, in another form, trying to impose supremacy over positive law just like in the eras
passed. Thus if natural law is not accepted as being a part of positive law, human rights can
never be truly accepted.

4.0 WHY LAW AND MORALITY CANNOT AND SHOULD NOT BE SEPERATED

The debate for the separation of moral and legal rights is a heated debate still ongoing. One
of the most remarkable statements regarding this topic was made between HLA Hart and
Lon L. Fuller, the latter stating that legal and moral rights can never be separated.

Hart argued that there should be a strict separation of law and morality, he denied that there
are universally shared necessary moral standards of legal validity and he also denied that an
individual recognizes law as good law based on morality and that individuals may do it
based on purely non moral considerations.[4]

Fuller argued that law and morality cannot be separated because they are naturally
connected. He found the connection between law and morality in the very heart of
positivism, the law makers. He gave 8 ways to fail to make a law stating that these rules are
necessary as they make an “inner morality of law”. [5]

In his Journal article Positivism and the Inseparability of Law and Morals, Leslie Green has
argued that law and morals in fact cannot be separated and instead of the mistaken
separability test he had brought into light the underlying fallibility test. [6]

Keeping the philosophers arguments aside we can take a scenario to consider what would
happen if law and morality were strictly separated. If the law making body, the parliament, if
they believed in this strict separation and if they had no sense of moral values in their society
while making law, and if they passed a legislation which is incompatible with the society
beliefs, it would cause havoc. The government that passes such a bill is destined to fall as
proved by history with Margaret Thatcher’s demise after passing the poll tax. For example if
they passed a bill allowing gay marriage in a strictly Wahhabi Muslim society, it is bound to
be met with hatred and might be taken as an insult by the society.

5.0 AMALGAMATING HUMAN RIGHTS AND POSITIVE LAW

One can say that the notion of human rights have already been incorporated with positive
law of UK after the enactment of Human Rights Act of 1998. Its entrenched nature and per
s.3 of the Act all legislation passed, have to be compatible with Individual human rights.
[7] And if any legislation is incompatible with human rights courts can declare it
incompatible under s4 of the HRA 1998 and advise the parliament to make the necessary
rectifications.[8]

This power of the HRA 1998 can be shown in the recent case of R (Royal College of Nursing)
v SSHD (2010) [9]where Schedule 3 to the Safeguarding Vulnerable Groups Act (SVGA) 2006
was incompatible with Art 6 as the listed person was denied the right to make
representations in advance of being listed. The Section 67(2) and (6) of the Protection of
Freedoms Act 2012 came into being to amend this Schedule as a result.
6.0 POSITIVE LAW: SUPREME IN UK

As we know UK is a dualist country meaning it does not heed to international laws or EU

laws. It needs its domestic laws to be enacted by the parliament for them to be legally
enforceable. This results in a supreme parliament which can bend law at whim (as can be
shown in the delay enacting HRA 1998). Even the power vested in courts by HRA 1998 in the
form of declaration of incompatibility is a toothless remedy when dealing with an unjust
legislature. Because these declarations are not authoritative, they are just persuasive, so the
parliament is does have a choice to keep the legislation as it is in spite of declaration of
incompatibility. Another thing which shows the supremacy of positive law in UK, is the Prime
ministers hinting on the repealing of the HRA 1998 without a proper backup plan. [10]

7.0 ACCEPTING HUMAN RIGHTS AS MORAL CLAIMS OR POSITIVE LAW

While analyzing the given statement I came upon two ways in which it could be addressed
and according to that I could give my opinion on the validity of the statement. Those two
ways are, that human rights could be accepted as moral claims as the statement suggests
and then we can evaluate how the separation of morality and law could affect the
acceptance of human rights. The second way is that we could claim that human rights is no
longer moral claims but positive law, and then see how the separation of law and morality
affects it.

7.1 ACCEPTING HUMAN RIGHTS AS MORAL CLAIMS

If Human rights are moral claims as the statement suggests then it is vital not to have any
separation between law and morality. If law and morality is strictly separated as the ideal
positivist suggests[11]then human rights won’t have the supremacy and power it needs to
universally protect the rights of individuals. They need to overcome any form of positive law
which clashes with it.

Human rights are normally accepted as having their basis in morality because natural rights
was derived from religious beliefs. I, believe that, both human rights and equity are children
of natural law, and for in order for them to be successful, they need to incorporated with
positive law but be powerful enough to overcome shackles of positive law. Though the
supremacy of equity is not disputed, the supremacy of human rights is.

If human rights are moral claims which has no legal validity, accepting them would be
difficult in the light of the separability thesis brought forward by Hart[12]. If legal positivism
is the right mindset and if the Human rights have no legal value, how are the rights of
people going to be universally protected? How can one accept Human rights?

For example, if a country passes horrific laws which infringe the most inviolable rights and if
there is no way it can be remedied, the world would fall into chaos. If UK passed a law which
says all men shorter than 5 ‘5 should be killed, and if the UDHR has no legal power, no
authority, how are the right to life of many people going to be protected? One might say,
the parliament would not pass such a bill, but what is stopping them from doing so? There
are no legal restrictions to a supreme parliament as in UK, the only thing restraining the
legislators from passing such legislation is just one thing. Their moral values.

In this context, I would agree with the view of Leslie Green in his article positivism and the
inseparability of law and morals[13], where he has argued at length that the separation thesis
is actually a mistake and had upheld the fallibility thesis.

7.2 ACCEPTING HUMAN RIGHTS AS POSITIVE LAW

I find it more suitable to say, that Human rights is no longer moral claims, after the passing
of the International Bill of Human rights (Universal Declaration of Human rights 1948,
International Covenant on Economic, Social and Cultural Rights 1966 and the International
Covenant on Civil and Political Rights 1966) the notion of Human rights is now actually
positive law.

The heart of this international Bill of Human rights, the Universal Declaration of Human rights
1948, which prescribes inviolable rights for humans, regardless of where they are born, has
been endorsed by most/all the countries in the world. But the problem is, dualist countries
like UK, might not endorse the Declaration into their constitution (as can be inferred from
their delay in enacting HRA 1998 and the unavailability of remedies for such issues until the
enactment of the Act).

My belief, that the notion for human rights is no longer moral claims and is universal, can be
proved by various incidents. Human rights is no longer based on religious or moral rights
and wrongs. I say this, because immorality is a subjective query, it will change from person to
person and society to society and from era to era.

For example, in a strict Muslim community it might be immoral to wear clothes which expose
a lot of skin, but in a modern rainbow society, it might be taken as a norm. For example in
USA, women would consider it immoral and against their belief to wear clothes showing their
waist, but in India women consider it immoral to show their hair thus wear clothes that cover
their hair but they don’t mind wearing Saris which expose their waist.

So if we were to consider that Human rights to be based on moral claims, it can never be
universally accepted because what is moral, is subjective. But this is not the case; Saudi
Arabia and Irans pressure to make the Cairo Declaration of Human rights in Islam of 1990, to
be accepted as the “Islamic” alternative to international human rights, during the 1993 World
Conference on Human rights in Vienna was strongly rejected by the UN Secretary General
Kofi Anna, who maintained that the human rights are universal.

Thus, as moral claims change from time to time, society to society, individual to individual,
human rights is no longer moral, as it is universal and invariable, wherever the individual is.
So I believe that through the sands of time, human rights have actually evolved into positive
law now.

Since it is positive law, the separation of law and morality proposed by positivism, no longer
has any effect on the acceptance of the concept of Human rights.
8.0 CONUCLUSION

The notion of human rights cannot be accepted without accepting the role of morality in
positive law. Because if the statement is correct and if Human rights is indeed moral claims
then morality needs to be accepted for it to be incorporated into legal systems today.

But I find it more suitable to say, that Human rights is no longer moral claims, after the
passing of the International Bill of Human rights) the notion of Human rights is now actually
positive law. Since it is positive law now, the separation of law and morality proposed by
positivism no longer has any effect on the concept of Human rights.

The other thing which must be brought into light is that even though human rights is
entrenched into the legal system of UK it is not properly followed. If it was properly followed,
how can Acts, with provisions which infringe rights of people such as section 44 of Terrorism
Act 2000 get enacted? How do they pass the scrutiny of parliament without being noticed?
The fact they make it through the parliament shows the weakness of positive law and its
failure to protect people’s rights.

The present regime of UK has been hinting on repealing HRA 1998[14] and withdraw out of
EU(though now being denied by David Cameron[15]), but this would only make human
rights lose its positive law status in UK and result in more infringement of rights. Repealing
the HRA 1998 might not be a bad idea with the proper preparations and a backup Act or Bill
of Rights which is set in stone and has much superior power than HRA 1998 (as the
declaration of incompatibility is a toothless remedy which does not enforce the parliament to
amend an incompatible legislation).

So I believe if HRA 1998 is repealed it should be substituted by a stronger Bill of Rights

which has a better remedy than declarations of incompatibility etc. And if such a bill is
passed, the legal validity of human rights would no longer be in doubt. The bill which was
withdrawn at the end of the debate on 1st March 2013, Human Rights Act 1998 (Repeal and
Substitution) Bill 2012-13, certainly lacked this forceful authority. [16]