Wednesday, December 10, 2008

Human Rights Day

Today is the 60th anniversary of the signing of the Declaration of Universal Human Rights.

Got nothing very interesting to say about it, but it hasn't been very widely publicized so I thought I'd do my little bit.

If anyone wants to debate what a right is or if they exist, go wild. I will just point out that a Declaration is a performative speech act, akin to wedding vows, that creates a state of being (or hopes to) by virtue of being produced.


raft said...

got to say i'm with bentham on this one: “ the child of law: from real laws come real rights; but from imaginary laws, from laws of nature, fancied and invented by poets, rhetoricians, and dealers in moral and intellectual poisons, come imaginary rights, a bastard brood of monsters.”

that doesn't mean we shouldn't have those legal rights, but it depends (on utility, etc).

TGGP said...

I've said it before and I'll say it again: Buy this book!

mtraven said...

OK, I will. But I suspect it will be lost on me -- whatever concept of rights I might have, it isn't the libertarian natural-rights kind that it seems to be flaming against. See the original post. Natural rights may be a myth; but what about unnatural ones?

Michael said...

Raft is correct. A 'right' is something its possessor enjoys at law, because he is party to a contract, or owner of a freehold, or some such thing. Absent law upon which it depends (extant under a sovereign jurisdiction that is both formal and effectual) a right can scarcely be said to exist.

The Declaration of Universal Human Rights may be a 'performative speech act' and may be admirable, but it cannot be compared to wedding vows, which bring about a real contract, and have enforceable consequences. "Globaloney" does not have enforceable consequences and will not in the foreseeable future.

mtraven said...

You are, as usual, wrong. The Declaration of Human Rights is incorporated by reference in the UN Charter, which is binding on signatory states. This does not mean, of course, that all these rights are immediately and everywhere implemented. Far from it. But it means they have the force of law, albeit a rather weakly enforced form of law. See here for more.

Taking a vow of marriage until death do you part does not actually mean that you will be married until death do you part, either. It indicates an intention. It is a public stake in the ground.

Michael said...

Treaties - including the United Nations charter - can be made, and can be unmade, by the sovereign powers signatory to them.

Do you seriously suppose that if the United States were to withdraw (secede) from the United Nations, the Secretary-General of the U. N. would send troops in to compel this country to remain part of the U.N., as Lincoln did when the southern states seceded from the Union? If not, the U.N. charter is meaningless as law. Law must be effectually enforceable if it is to be worthy of the name.

Marriage is a contract sanctioned by a sovereign authority. License to marry is granted by that authority, and the marriage ceremony (including the vows) is the act by which the contract is formally concluded. The exact words of the ceremony can and do vary, but the contract has uniformly enforceable consequences within a given jurisdiction, as all valid contracts do. We can witness marriage contracts being enforced every day. The same cannot be said of globaloney.

mtraven said...

Treaties of course can be unmade. So can any law. But until they are unmade, they have the status of law. This does not mean the UN will come in and force the US to behave; it means that the apparatus of US law is (in theory) committed to upholding and enforcing the Declaration of Human Rights because we are signatories to the appropriate treaties. It's not that complicated, but I guess you are too ensnared by a top-down authoritarian model of law and governance to grasp the nature of voluntary commitment.

There are obviously many ways in which marriage vows differ from signing a Declaration of Universal Rights. I was trying to point out some of the similarities.
Although on thinking about again, there are more similarities than I thought. The aspects of marriage that are enforceable by the coercive power of the state are the least interesting things about it; If that was all there was too it, the parties involved would just draw up a contract and skip the cake and flowers. It is not the legal contract that makes a marriage; nobody I know got married because they wanted the state to enforce a relationship.

The UN Declaration of Human Rights, also, does not depend on coercive force for its meaning and power.

Michael said...

Law, however, does depend (among other things) on coercive force for its meaning and power. Absent that ingredient the recipe is not complete.

The marriage ceremony is an historical remnant of a time when contracts required more than a signature.

In Roman law there were four kinds of contracts: verbal, literal, real, and consensual. In a verbal contract the agreement was confirmed by a solemn interrogation summing up the terms of the agreement (the 'stipulatio') and a reply assenting to those terms, which added obligation to the pact. The literal contract was an agreement confirmed by an entry in the books of account of one or both of the parties. A real contract was an obligation resulting from the delivery of a specific thing to which the agreement related. A consensual contract required no special formality and simply resulted from mutual assent to a transaction.

In the early medieval period, before the revival of Roman law, marriages were mere consensual contracts without the requirement of special ceremonies. A man and a woman simply agreed to be married. There was not even a requirement that their agreement be witnessed. Because of the great potential for abuse such a practice posed, the church - which regarded marriage as a sacrament - came to insist that marriages take the form of a verbal contract in which the stipulatio and its assenting reply (the vows) were spoken before witnesses. This is the origin of the modern marriage ceremony.

If 'the aspects of marriage that are enforceable by the coercive power of the state are the least interesting things about it,' I suggest you tell that to the homosexual activists in your state.

No one now prevents homosexuals from living together by mutual consent, or even from having a ceremony to acknowledge that consent with cake and flowers but without legally binding consequences. It is, rather, those very consequences - 'aspects of marriage that are enforceable by the coercive power of the state' - that interest them most, and the benefits of which they are eager to obtain. Whatever you may think of their cause, it is clear that they correctly understand these aspects to constitute the essence of marriage.

mtraven said...

Your point about homosexual marriage is somewhat valid (for a change). The legal nature of marriage is very important if you can't have it.

What I meant was, marriage (or pair-bonding if you prefer) predates the state and predates law, and the fact that the state has stuck its nose into this primal human activity is secondary to its more fundamental nature (but not unimportant). Marriage was defined by personal attraction and social custom long before the state came along to regulate it. I don't consider the legal covenants of marriage to be its "essence" and I feel sorry for anyone who does.

Of course, now that marriage is controlled by the coercive power of the state, various interests will feel a need to change the rules in their favor. That's the way things work. Homosexuals have been forming committed long-term relationships for awhile now, what they now want it the legal rights and social recognition. Here's some testimony from a gay anthropologist on what those motivations feel like.

The best solution to this particular social problem is to split apart the concepts of civil partnership and religious (or otherwise) marriage, let the state manage the first part in way consistent with antidiscrimination laws, and let churchs or individuals decide what they want to allow under the label "marriage". That's probably not going to happen. This post goes into this position in more detail.

Although, on thinking back to the original subject of this post, the right thing for gay couples to do is to say, the hell with what the state says, if we say we are married we are married. Some do this, in a more or less public and organized manner, but if this was my issue I'd say direct action to take back the meaning of marriage from the state would be better than trying to get court cases and ballot propositions. Of course, that doesn't get you the right to be on your partner's health insurance.

Michael said...

We were, as I recall, discussing law and what constituted it. Cohabitation certainly predates the existence of laws and states. But is it 'marriaqe"?

The United Nations at least pretends to be a state-like, legal institution. If marriage is a natural institution antedating states and laws, then neither the U.N. nor any of its works and ways can be compared to it. If it is a legal institution, then we must return to the question of effectual enforcement, which marriage at law has and which the U.N.'s lofty proclamations ultimately do not.