Democracy's Need For Natural Rights

 If no has noticed, natural rights crop on this blog. It is the last real hold the law has on my imagination.

Reading Judith Butler's To Imagine a World After This, Democracy Needs the Humanities (LitHub) did not seem a place to gain an insight into the need for natural right. Then I came upon these passages:

Democracy is the rule of the people, but if only some people are making the laws, or debating what the laws should be, then the people are not part of the democracy, the “sans part” in Ranciere’s view, the part that has no part. The people found the state and make its laws, and the state and those laws are said to represent the will (Rousseau) or the freedom (Arendt) of the people. They have determined their polity as their own, or so the story goes.

But if political self-determination is a power that belongs only to one group and is not equally shared, then not democracy, but oligarchy or apartheid result. Democracy makes sense only if all the people participate equally in the collective democratic right of self-determination, which means that a democracy worthy of its name will refuse to abandon some people to a condition of non-participation or bar them from the practice of making a government and the laws according to which they live. The exercise of collective freedom remains legitimate if, and only if, it is equally shared.

This founding freedom is posited that is outside and before the law, characterized both by its indetermination and radical universality. That freedom is in its most initial or fundamental forms not governed by law. It makes law and so determines itself as law to vanquish that unruly freedom that we know mainly through dissent and revolution where people declare the end to that legal world, throwing off its shackles, living without a legal regime or calling for a new one. This unlocatable and an-archic founding of law cannot be rightly identified in place and time without losing its transposability, its potential for universalization.

What is posited "outside and before the law" are natural rights.

Jeremy Bentham argued against natural law, and his followers got the upper hand in jurisprudence. R.L. Austin led the Benthamite attack on the law.

...Permit me to turn now to the case against natural law, as expressed by the legal positivists -- most strongly, perhaps, by the German scholar Hans Kelsen. They regard natural law as a body of sentimental fictions; they hold that the state is the only true source of law. The views of John Austin and the Analytical Jurists are similar: all law is decreed by the political sovereign, they hold....

Except that in the United States, the Declaration of Independence bases its arguments on natural rights and most states have incorporated the Declaration into their state constitutions.

What do we get by exiling natural rights from our political discourse? A government based upon command by the politicians and obedience by its citizenry, regardless of the sovereign's infringing the citizens' rights. Oligarchy supplants democracy.

Think about it!

sch 2/20