Amrericam ,eivish Periodical eeirter

CLIFTON AVENUE - CINCINNATI 20, OHIO

Friday, August 3, 1945

THE LEGAL BASIS FOR AN
INTERNATIONAL BILL OF RIGHTS

DETROIT JEWISH CHRONICLE and Th. Ls al Chronicle

was assailed, probably for the ural rights did not prevent the tions. Treaties of a humanitarian
same reason, by those French au- incorporation in the next hundred character were concluded for pro-
thoritarians who saw in the sup-

posed materialism of the doctrine
By
' the subject, without which we of natural rights a threat to re-
DR. HERSCH LAUTERPACHT cannot ope to overcome the ligious and spiritual authority
seemingly insurmountable diffi- I and clamoured, as Lamennais did,
A Plan to Ensure "the En- (Titles w h lc h confront any for a Declaration of the Rights
thronement of Human Rights" scheme for an International Bill of God instead of a Declaration
of the Rights of Man. of the Rights of Man. It drew
for All Men
upon itself the condemnation, in
Fundamental Rights
With Article 68 of the United
terms of finality congenial to
The Constitution of Virginia
Nations Charter providing for
philosophers, of the idealistic
the setting up of a commission of 1776, the American Declara- school of philosophy, in Germany
"for the promotion of human tion of Independence, and the and elsewhere, which saw in the
rights" in the new world or- French Declaration of the Rights State the highest end and the ul-
ganization, there is naturally of Man and of the Citizen were timate value. It came in for cas-
widespread interest in just how the first constitutional instru- tigation and merciless dissection
that will be accomplished. Dr. ments of modern times to pro- at the hands of those who, not
Lauterpacht., Well-known Profes- claim that the natural rights of without reason, identified the ad-
sor of International Law at the man were, as such, part of the vocates of natural rights as de-
University' of Cambridge, has fundamental law of the State termined opponents of social
prepared a- blueprint for an and that their protection was the progress in so far as it could be
International Bill of Rights in reason for its existence. Since achieved by the regulative action
flls new book, "An Interna- then, the theory of natural law, of the State. Herbert Spencer
tional Bill of the Rights of which had always been the main was not alone in invoking nat-
Man." The following article by inspiration, if not the conscious ural rights against what he called
one of the foremost authorities instrument, of the doctrine of the meddling legislation and against
on international law, a former rights of man, has suffered an the right o fthe State to tax the
professor at the Hague Acade- eclipse in a century dominated citizen for social services. In
my for International Law, is by the historical and analytical fact, there was repeated in the
published by special permis- trends of jurisprudence.
nineteenth century the perplex-
The theory of the rights of ing spectacle, which had been
sion Of the Columbia Univer-
sity Press. The Lauterpacht man was itself assaulted from witnessed before, of natural
study was ,:written under the highly diverse quarters. It was rights and natural law being in-
auspices of the Committee on Macke(' by those who were voked on behalf of both progress
Peace and Postwar Problems frightened by and hated the great and reaction, on the side of both
of the American Jewish Com- revolutionary movements which stability and change. But these
mittee,
porclaimed the rights of man. It vicissitudes of the theory of nat-
--
—The Editor.

The International recognition
and protection of the rights of
man is, in strict judicial logic, in-
dependent of any ,doctrine of nat-
ural law and natural rights, In
fact,. it might be' argued—and it
has actually been maintained
that the main reason •for the sig-
nificant and revolutionary inno-
vation implied in an Interna-
tional Bill of the Rights of Mar
is the realization of the utter in-
adequacy of the notion of nat.
'oral rights to protect effectively
the rights of man. The need, it
would appear, is not for a contro-
versial theory, but for specific
rules of law and effective legal
remedies.
One explanation of the dry
scorn and acid vituperation which
Bentham poured upon the Decla-
ration of 1789 was the belief
that it might prove a useful in-
strument in the hands of those
anxious to find in a high-sound-
ing phrase an easy substitute for
positive means of remedial legis-
lation. Some of the recent at-
tempts to revive the doctrine of
natural righti, apparently con-
ceived as a satisfactory alterna-
tive to reforms in internal and
international law, may serve as
a reminder that the contingency
is by no means hypothetical. It
might seem, therefore, that the
prcitagonists of an International
Bill of the Rights of Man would
do well to steer clear of any elu-
sive and illusory conceptions of
the law of nature and natural
. rights.

Law

To

of Nature

do that would be to mis-
judge alike historical experience
apd the essential requisites of a
durable and effective protection
of th,i human rights. The law of
natur e and natural rights can
nevci he a true substitute for the
positive enactments of the law
of the society of States. When
so treated they are inefficacious,
deceptive, and, in the long run,
a brake upon progress. But while
they are bound to be mischievous
When conceived as alternatives to
ehai:ges in the law, they are of
abiding potency and beneficence
as the foundation of its ultimate
validity and as a standard of its
itParaximation to justice.
Moreover, to eliminate the
ideas of natural law and natural
• rights -
from the consideration of
,the protection of the rights of
man is to renounce the faculty
of understanding their growth in
the course of history and their
association with that law of na-
Cons which is now to become its
ultimate physical sanction. Final-
'ly, to discard, in this context, the
:idea s of the
law of nature. is to
deprive ourselves of that inspira-
tion which lies in the continuity
of legal and political thought on

. ;
f

Page Mrs.

years of what hitherto had been tecting the individual in some
merely natural rights of man as specified spheres. But the funda-
part of the constitutions of prac-
mental claims of human person-
tically all States in the world.
ality to equality, liberty and free-
There were tangible indica- dom against the arbitrary will of
tions, expressed in a manner the State remained outside the
more eloquent than theoretical orbit of international law save
controversy, that the coming pe- for the precarious and contro-
riod was to be one of triumphant versial principle of humanitarian
assertion of the rights of man. intervention.
But this was not to be—for the
reason that the rights of man Results Well Known
were given a foundation no more
The results of this sefl-im-
solid or secure than the law of posed limitation of the law of
the sovereign State. They were nations are well known. They are
denied the protection of that le- expressed, by most compelling im-
gal order which by virtue of its plication, in one of the three sol-
universality and of its potential emnly proclaimed purposes of
supremacy over the State would the first and the second World
alone be capable of safeguarding Wars. These objects have been
them against the tyranny of ab- not only to repel an aggressive
solutism and the arbitrariness of will for world domination but to
majority rule. The sovereign build an international system of
State, in an exclusive and un- security. The third major object
precedented ascendancy of power, of the first World War was, in
became the unsurpassable bar- the words of President Wilson
rier between man and the law of who, to a degree higher than
mankind. The human being be- most statesmen of modern times,
came, in the offensive, but wide- possessed the gift of expressing
ly current, terminology of the the enduring ends of humanity
experts, a mere object of inter- "to make the world safe for de-
national law. But even that was mocracy," that is, we may say,
an overstatement of the existing to render it a secure habitation,
position. In fact, the individual for the fundamental right of man
became only to an imperfect de- to be governed by rulers chosen
gree the object of the law of na-
(Continued on Page 14)

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