Anciently morality and religion were primary basis to govern the relationship between peoples. And there was no need to search for a law maker to enact laws that govern social relations. It was based on natural law that human relations were regulated. But, after a long and serious debate between legal scholars and philosophers it is determined that there must be a human made law to regulate human relations.
Based on this conception, law made by human beings has played an important role in the definition and protection of certain relationships, systems and institutions and in the control of individual and collective human behavior. Through the use of normative, directive and prescriptive rules, supported by varying degrees of sanctions, law has been used to create a climate of social order, the usual justification of which has been that it benefits members of society. But, the issue whether human made laws are exact machinery to serve justice and fairness to all the society is always questionable.
Rights and duties are usually acknowledged through laws made by human beings. But, should a right be acknowledged and clearly indicated by law to be considered as a human right or is it enough to simply be a human being to enjoy human rights is debatable by itself.
Therefore, philosophical questions such as: Do human rights exist apart from legislative framework? Do human beings enjoy human rights simply because they are human beings? Can law be considered as an exact mechanism to serve justice? are assessed and analyzed under this paper. Some theoretical views of well known philosophers, political and legal scholars have been reflected in the paper. And, just because state, law, justice and human rights are linked each other theories and concepts about state, law, justice and human rights are discussed in a summarized manner.
Meaning and Origin of Law
There is no short, simple and universally accepted definition of law. However, various theories of law advanced by legal theorists define law in different ways. There are four theories dealing with the meaning of law. These are natural law, imperative (positive) law, realist and marxian theories. For natural law theory natural law is constituted by justice and morality and a human law at variance with natural law is not real law at all, but merely an abuse or violation of law. Therefore, for naturalists the source of law is not a human being rather it is a super natural being that created human being also created laws for these human beings. So man is merely trying to discover these laws. For Imperative (Positive) law theory law is the command of the sovereign (legislator) and law has three main characteristics i.e. it is a type of command, enforced by sanction and laid down by political sovereign. It is simply the desire of superiors to inferiors. For Realist theory also law is the command of the sovereign but the law is made by courts not legislators. And for Marxian theory law is manmade and evolved a certain time in history (historical).
Each of these theories has their own definition of law but we can generally say that law is a set of rules governing the relationship between individuals and states. Looking into the current situations it seems that the imperative (Positive) theory is practically applicable.
With regard to the types of law different scholars and philosophers categorize law into different parts. For instance Aquinas distinguishes four kinds of law: (1) Eternal law, (2) Natural Law, (3) human law; (4) divine law.
Whatever the type of law is almost all laws of this period are made by political superiors i.e. states (the legislatures). And enactment of laws by the superior has its own spiritual basis. Meatem Selasse Wolde Meskel in this regard stated that:-
ሕግ ለሰው ልጅ አዲስ ነገር አይደለም ዓለም ሲፈጠር አብሮ የተመሠረተ ነው፣ ለአዳምና ለሔዋን እጸበለስን እንዳትበሉ ሲል ጌታችን ትእዛዝ ሰጥቷቸዋል፡፡ ንጉሥም የእግዚአብሔር እንደራሴ ስለሆነ ይኸንን ሰማያዊ ሕግ ፈጽሞ ማስፈጸምና ደግሞ ለሚገዛው ሕዝብ መልካም አኑዋኑዋር የሚስማማውን ያስተዳደር ደንብ በየጊዜው እያሻሻለ መስጠት ግዴታ ይሆንበታል፡፡ እግዚአብሔር ከሰው ፍጥረት ጋር አከታትሎ ሥርዐት መሥራቱ የራሱ እንደራሴዎች የሆኑት ምድራውያን ንጉሦች ይኸንኑ ምሳሌ ተከትለው ለመንግሥታቸውና ለሕዝባቸው እንደሆነ ሲያስረዳ ነው፡፡
The Amharic version of this may be literally translated into English as follows:
Law is not a new thing for human beings; it was created with the creation of the world. God ordered Adam and Eve not to eat the taboo plant. Since the king is an elect or agent of God he must be respect and enforce the divine rule and desirable that to enact and reenact rules from time to time for the better administration of justice. God crated law with together the creation human being for the purpose that his agent, the king, follows this divine law.
Early writer often argued that the state was based on injustice and essentially evil; the strong had imposed their will upon the weak and then had thrown the cloak of pretended legitimacy over their disregarded of the rights of the other. Hence physically powerful peoples were the “best” peoples, and the state, as power was superior to the other forms of human association and above the ordinary run of moral consideration. Whatever the case may be it is obvious that there is unbreakable tie between state and law. The writer of this paper also believes that states sometimes use laws to fulfill their interest and abuse their power. States sometimes use law as a manipulative device of achieving their wish.
Why do we need law? Is it not possible to live without law?
To answer these questions it is critical to clearly understand the state of nature and the social contract theory. Thomas Hobbes beautifully describes what life seems in the state of nature. In the state of nature primitive man lived always in the state of war, there was no security of life or property, there is always war in such society and continual fear and danger of violent death, there is no place for industry, no arts, no letters and the life of man was solitary, poor, nasty, brutish and short. To this war of every man to every man, this also is consequent; that nothing can be unjust. The notions of rights and wrong, justice and injustice have there no place. Where there is no common power, there is no law: where no law, no injustice. Forces, and fraud, are in war the two cardinal virtues… There is no government and no law to govern the interaction of the society and everyone has a right on everything without the consent of others.
As a result of this it was obvious that there was war and conflict. Just because of existence of these problems it was necessary come out of the state of nature. Primitive man soon discovered that the only way to escape from this life of uncertainty was to appoint someone to rule over them. And this was conducted through the social contract theory.
The social contract theory (ማሕበራዊውል) is formulated by Thomas Hobbes, and elaborated by John Locke and Rousseau. And according to social contract theory to come out of the state of nature social contract has been agreed on.Social contract theory (or contractarianism) is a concept used in philosophy, political science and sociology to denote an implicit agreement within a state regarding the rights and responsibilities of the state and its citizens, or more generally a similar concord between a group and its members, or between individuals. All members within a society are assumed to agree to the terms of the social contract by their choice to stay within the society without violating the contract; such violation would signify a problematic attempt to return to the state of nature. As stated by Friedmann the principle of social contract theory is found in Plato’s Republic:
“Therefore when men act unjustly towards one another, and thus experience both the suffering, those amongst, them who are unable to compass the one and escape the other, come to this opinion: that it is more profitable that they should mutually agree neither to inflict injustice nor to suffer it. Hence men began to established laws and covenants with one another, and they called what the law prescribed lawful and just.”
Other prominent figures about social contract theory John Lock and Rousseau have their own different view on the concepts of state of nature and the social contract from that of Thomas Hobbes.
According to [John Lock] the state of nature is not a state of war. It is not a brutal regime but pre-eminently social in character, governed by the law of nature, or reason. The result is uncertainty and chaos. Some means of escape must be found and it is here the social contract emerges. But this contract unlike the contract of Hobbes represent the rather “the triumph of reason than of hard necessity. Locke does not believe in the unlimited all-powerful sovereign of Hobbes.
Whereas according Rousseau, the state of nature was a golden age of freedom, free in the fullest sense of the word; but the necessities of self-preservation and the jealousies which arose after the institution of private property prompted primitive men to enter to a contract among themselves by which they surrendered their rights not to an individual but to the community as a whole for the general good of the whole. The community or the general will, however, is not party to the contract and therefore sovereign in the Hobbessian sense of the term. The actual ruler however, is a servant of the general will with certain duties imposed on him. He is thus under the contract and if he breaks this contract with the community he can be deposed. Some says primitive men have not entered to a contract or ‘articles of peace’ and did not deliberately agreed to give up their natural rights to the sovereign, but, strong and powerful individuals established their way over the weak settled them in a specified territory; the strong had imposed their will upon the weak and then had thrown the cloak of pretended legitimacy over their disregarded of the rights of the other.
One way or another the social contract is a law between those groups, individuals and citizens; and we need this law to regulate the overall interaction of peoples. Where there is any violation of this contract or law, the state is responsible in punishing violators based on the contract (law). If there is no law and state, the state of nature will come back again and only those having the physical and intellectual fitness will survive over the weakest. And just because human beings are selfish by their nature, not operating based on morality and not living for their conscience the need to have law is so essential. Meaning, if human beings are operating based on morality, fairness and their conscience, usefulness of law would be minimal and there would be no need of police, office of prosecution and courts. Therefore, we can say that life is impossible without the existence of law.
The relationship between law and human rights
The most fundamental question regarding human rights is a philosophical question about their source or justification: Where do human rights come from? A secondary question is who has the legitimate authority to enforce them? A third question is what will be the fate of human rights in the absence of law?
The history of the evolution of ‘human rights’ is associated with what may be called the natural law tradition (ሕገልቦና). The history of natural law is a tale of the search of mankind for absolute justice and its failure. Prior to the term ‘human rights’, such rights were typically called the ‘rights of man or natural rights’. The content of natural law is absolute justice and fairness, natural law is considered as eternal, universal, constant, immutable and discoverable by the rational faculty of man. Natural law being universal, it has the merit of prevailing everywhere: being eternal has its validity at all times; being constant, it is the same at all places and under all circumstances; and being immutable it cannot be changed by any power on earth. Nature is the author of this law and, such; it is based on rights reason.
Natural law, both physical and moral, was held to be “so unalterable that God Himself (could) not change it”, yet, by virtue of the axioms, it could be known through the facility of human reasons. Natural rights theory holds that rights being rationally deducible from man’s nature have their universal application irrespective of the difference of place, time and environment. Nature is the author of certain rights that have universal, rational, eternal and immutable character. Human rights belong to man by nature.
To be justified in a way that ensures that human rights are powerful and compelling, they need strong grounds. Human rights may be recognized by laws or treaties, but they do not get their justification from the laws or treaties. As philosopher James Nickel says, human rights are the conclusions of arguments. The concept of ‘rights’ originated in the context of contracts between people in which the rights of each party are specified. Coming back to the issue of state of nature there was no contract and understanding between people; and in the case of social contract there is an agreement between the people to mutually understand each other, surrender rights for mutual benefit.
Social contract theory conceives of organized societies as arising out of agreements between people who decide to cooperate in order to promote their mutual survival and flourishing. In this view, government gets its authority from the fact that people within a society agree to live under the authority of the government and by the rules which are established by that government.In Thomas Hobbes’ version of the social contract, people agreed to live under the authority of a monarch who is responsible for establishing and enforcing the laws. In this view, the rights of people are those that are established by the contract, or those that are established by the legitimate authority that is created by the contract. If rights are created by a social contract and applicable on those peoples who are party to that contract, what about those who are not party that contract? What about human rights which are vested to all human beings? These questions are critical questions that would clearly indicate the relationship between law and human rights.
Acknowledgment of human rights through laws will facilitate and create a conducive environment for proper implementation of human rights to all human beings without any kind of distinction. But failure to acknowledge human rights through laws does not affect the validity of human rights and human rights can survive without existence of law just because of the reason that they are not gifted to human beings through laws. Once the social contract is created, the rights which are specified would only apply to those people who are party to the contract, and thus would not be universal. And it is contrary to the widely accepted concept of human rights that is universal application of human rights without any kind of distinction to all human creatures even without considering whether a single individual is a party to the social contract or not. In the absence of law acknowledging human rights, human beings can logically and naturally not legally claim their human rights.
Meaning and theory Justice
There is also no universally accepted definition of justice and everyone has its own definition to justice. The word justice is derived from the Latin word “iustus” means that which is “just”, “right”, “honest”, “appropriate”, [or] “correct”. However, some peoples define justice as the concept of moral rightness based on ethics, rationality, law, natural law, religion, fairness, or equity. While others define it as a proper implementation of laws. Different philosophers and legal scholars have also come up with their own definition of the term justice. However, John Rawls the American political philosopher has formulated his own critical analysis saying theory of justice.
Like Hobbes, Locke, Rousseau and Kant, Rawls belongs to the social contract tradition. However, Rawls' social contract takes a slightly different view from that of previous thinkers. Specifically, Rawls develops what he claims are principles of justice through the use of an entirely and deliberately artificial device he calls the Original position in which everyone decides principles of justice from behind a veil of ignorance. The veil of ignorance involves a presumption of equality and equal liberty of those behind it, supportive of the egalitarian rights of individuals. Thus individuals will choose to support the lowest members of society because one might end up in the lowest position after the veil is lifted and would be equally protected. From the perspective of original position, the social contract would be formed to “guarantee a just society without scarifying the happiness or liberty of any one individual” per Rawls.
The relationship between Justice and Fairness
The distinction between justice and fairness is perhaps ambiguous. A central tenet of Rawls's arguments in A Theory of Justice was his concept of 'justice as fairness', which he formulates in order to establish a moral and ethical foundation for the distribution of the products and benefits of a cooperative society. According to Rawls, justice is what free and equal persons would agree to as basic terms of social cooperation in conditions that are fair for this purpose. This idea he calls "justice as fairness." Fairness occurs when a society insures that each citizen is treated equally in the eyes of the law and is given equal opportunity to succeed in a socially balanced life of his or her own choosing. John Rawls’s theory of ‘justice as fairness’ seeks to drive principles of ‘abstract’ justice-for perfectly just society-from agreement to a fair procedure: justice is the outcome of a decision making procedure accepted as fair.
The conditions that Rawls takes to be most appropriate for the choice of principles of justice constitute what he calls the "original position." The original position is, one might say, the appropriate initial status quo, and the fundamental agreements reached in it are fair. This explains the propriety of the name "justice as fairness": it conveys the idea that the principles of justice are agreed to in an initial situation that is fair.
Justice as fairness, Rawls said, aims to effect a "reconciliation of liberty and equality." The first principle—of equal basic liberties—says that each citizen has a right to the most extensive system of equal basic personal and political liberties compatible with a similar system of liberties for others…. A person’s chances to hold office and exercise political influence should be independent of socio-economic position. Citizens with motivation and ability to play an active political role should not be disadvantaged by a lack of personal wealth. Equal chance of competition and participation should also be given to all. Thus justice as fairness has the characteristic marks of a natural rights theory. Not only does it ground fundamental rights on natural attributes and distinguish their bases from social norms, but it assigns rights to persons by principles of equal justice, these principles having a special force against which other values cannot normally prevail. Although specific rights are not absolute, the system of equal liberties is absolute practically speaking under favorable conditions.
Each person is to have an equal right to the most extensive basic libertycompatible with similar liberty for others. Social and economic inequalities are to be arranged so that they are both: a) reasonably expected to be to everyone's advantage and b) attached to positions and offices open to all.
THE RELATIONSHIP BETWEEN LAW AND JUSTICE
After having seen the meanings and different aspects of law and justice, it would be better to assess the relationship between law and justice. Questions such as: How are law and justice connected? How do they interact? In what way are they distinct? and can law be considered as a means of serving justice? are assessed and analyzed. In answering this question and assessing the relationship between law and justice it is essential to refer to some laws and cases.
The Connection and Interaction of Law and Justice
Many people believe that there is a close connection between law and justice. The main thing that connects law and justice is the origin and foundation of law. Law is related with nature and God; and its basement is that of justice. True justice is found in nature and nature has ordered what human beings should do and not to do. And where human beings search and found this from the nature include it in their law then human law is considered as holding justice and compatible with natural order. In this respect the naturalist and positivists theory followers have their own view. That is the natural law theory followers argue that justice is the source and basement of law. Whereas the positivist theory followers argue that law is the source and basement of justice; and a rendered justice has its source from law. One way or another it can be taken that there is unbreakable tie between law and justice in terms of origin and foundation.
It is also widely accepted that justice is the result and effective implementation of law. Keeping in mind that there are some exceptional situations where there is a variance between law and justice, it is highly believed that justice is the proper implementation of law. Many people also assure the existence of justice where the law is properly implemented and government officials and everyone is standing for the effective and proper implementation the law. This aspect of nexus between law and justice can also be considered as another connection.
In terms of freedom and equality John Rawls stated that a system of government, i.e. its laws, should guarantee freedom for all and equality and accept material inequality only if it proves useful for the others. For a law to be considered as a just law and to say that a certain law is a means of serving justice it should primarily guarantee the freedom and equality of human beings.
The Distinction between Law and Justice
Legal and political theorists since the time of Plato have wrestled with the problem of whether justice is part of law or is simply a moral judgment about law. There are no universal principles by which justice or injustice can be defined other than the way in which the government has made its laws. Thus, in different societies and under different authorities, justice is different. Others who don’t like laws made by governments on the other hand argue that there is some sort of universal natural law or justice. But looking into the current practical laws and situations of our world every government has its own different laws that are assumed to serve justice.
Law made by the legislature (human made law) of every government has its own political, sociological, philosophical and historical background of the society. It is particularly prepared to solve and address problems and fulfill needs in a given society. Laws are also enacted in the interest of the strong party. Each type of government enacts laws that are in its own interest, a democracy democratic laws, a tyranny tyrannical ones and so on; and in enacting these laws they make it quite plain that what is “right” for their subjects is what is in the interest of themselves, the rulers, and if anyone deviates from this he is punished as a lawbreaker and “wrongdoer”.There are also times where law is serving as a manipulative device to oblige a society the will of government leaders.
The mere fact that a law is proclaimed or enacted as a law by a government does not mean that it is just law. And there are a number of laws that contradict with natural law and justice. For example apartheid law is a law that is against the law of nature and entitles rights based on the color of human beings. It is totally against the law of nature and justice. In addition to this there are other laws which clearly contradict with natural law. Since every law has its own political, sociological, philosophical and historical background in a given society, it will definitely benefit and harm different groups in a society and cannot uniformly serve justice to all the society.
Implementation of a law as it is written by government officials has also its own role in rendering justice. In order for freedom to flourish, people need to know what the law is and need to have confidence that officials will faithfully apply the law as it is written. If a police officer can arrest you because you have somehow violated his sense of justice and if a judge can convict you because she thinks that what you did was unjust, then you might be incarcerated for innocent behavior. There would be no predictability in such a system.
Generally, there are some instances in which there exist a variance between law and justice.
For the naturalists rights are rationally applicable to all human beings without any kind of difference of place, time and environment. And natural rights emanate from natural law. A judicial decision is only evidence of the law, the doctrine that judges always find the law and never make it, are not without an important purpose. The rights of nature are not dependent upon any moral principle or law. Positivists on the other hand believe that law is made by human beings and the law maker enacts a just law.
The relationship between law and justice is unbreakable and there is a direct relationship between the two. It is also highly believed that they are two faces of a coin. And many people consider the proper implementation of laws as a justice. However, all laws are not just laws and entitle rights to all human beings. Since every law has its own political, sociological, philosophical and historical background in a given society, it will definitely benefit and harm different groups in a society and cannot uniformly serve justice to all the society. It cannot also uniformly treat all human beings.
For example, apartheid law was not a just law in the sense that it is enacted to entitle human rights to individuals based on their race and colour. Individuals having a race and colour out of what is indicated in the law are not allowed to enjoy the rights even though they are human beings. And the law maker has just used the law as means of fulfilling its desire and the law in such case is not using as a means of serving justice.
There are also other laws that violate the natural rights of individuals. In the Ethiopian context Council of Ministers Regulation No. 155/2008 a law enacted for Administration of the Employee of the Ethiopian Revenues and Customs Authority under its article 1 empower the Director General of Ethiopian Revenue and Customs Authority to fire employees from duty without adhering to the formal disciplinary procedures whenever he has suspected the employee of involving in corruption and lost confidence in him.TheDirector General dismissed more than two hundred employee according to this law. The General only state in his decision he lost confidence in them, but he did not state how he lost confidence in them. The employee appealed to the federal civil services administrative Court; the appellant alleged that their natural right (the rights of fair hearing) is violated. The case was decided in favor of the defendant on majority vote. The employee appellant appealed to the Federal Supreme Court again the court confirmed decision of the lower court. The law simply gave a vast power to the Director and violates the natural right of fair hearing that is guaranteed under many international human rights instruments and even in the FDRE Constitution.
Tamiru Wondim Agegnehu said:
ሕግ የሚገዛው ኑሮን ነውና አስፈላጊነቱ በሕብረተሰብ ውስጥ ነው፡፡ መሠረታዊ ተልዕኮው ነፃ ፍላጎትን፣ ጥሬ ጉልበትን ገድቦ ሥርዓትን መዘርጋት ነው፡፡ የዚህ ውጤትም በሥርዓት ላይ የተመሠረተ መብትና ነፃነት ከሚያስከትሉት ግዴታዎች ጋር መፍጠር ነው፡፡
The Amharic version of this may be literally translated into English as follows:
Law regulates lives and its necessity is within the society. Its basic aim is to limit free desire and unprocessed force and create a system. The result of this is creating a system having right and freedom accompanied by duties.
Therefore, the purpose of law is not empowering excessive rights to a single individual like the power given to Director General of Revenue and Customs Authority rather to create a system having right and freedom accompanied by duties.
Finally, we can generally conclude that if laws are enacted for the interest of the whole society, it can be considered as a means of serving justice. In this sense for a law to be considered as a means of serving justice the law should in the first place indicate equal distribution of goods, opportunities, resources and rights and should not be the utility of few. And as Thomas Aquinas said the principal purpose of law should be protecting the common good. Secondly this law should be properly and effectively applicable without any kind of differentiation to all similar cases in a similar manner. But, coming to the reality there are laws that are against the law of nature and there are also instances in which there are no effective implementation of laws. In such instances it is impossible to serve justice through laws. Therefore, since law is the means to an end, the law itself should be a just law as a pre-requisite to use it as a means of serving justice.