Human Rights – and one may say jurisprudence in general – is dealing with the fundamental tension of setting limits in order to reach universality. This means in particular being aware of the trap entailed in this constellation. Usually it is seen as “mission impossible”, left outside of the debate of the lege feranda; here it is suggested to take up Marx’ remark in a footnote in The Capital, volume I, saying:
“Proudhon begins by taking his ideal ofjustice, of “justice éternelle”, from the juridical relations that correspond to the production of commodities: thereby, it may be noted, he proves, to the consolation of all good citizens, that the production of commodities is a form of production as everlasting as justice. Then he turns round and seeks to reform the actual production of commodities, and the actual legal system corresponding thereto, in accordance with this ideal. What opinion should we have of a chemist, who, instead of studying the actual laws of the molecular changes in the composition and decomposition of matter, and on that foundation solving definite problems, claimed to regulate the composition and decomposition of matter by means of the “eternal ideas”, of “naturalité” and “affinité”? Do we really know any more about “usury”, when we say it contradicts “justice éternelle”, “équité éternelle”, “mutualité éternelle”, and other “vérités éternelles” than the fathers of the church did when they said it was incompatible with “grâce éternelle”, “foi éternelle”, and “la volonté éternelle de Dieu”?”
Still, there is the claim of some universality needed when it comes to (human) rights – finally it is the function of law to construct a hegemonic framework which than is broken down into smaller units, guided by the principle of binarisation.
With this reference in mind it should be possible to elaborate a more historicised take on HR, demanding to refer consciously to a “progressive economy”, i.e. the potentiality of a formation oriented on the interwoven matters of
- Producing goods, but more importantly producing people, relationships and available time
- Producing inclusion as condition of integrity – different to ancient societies, where slaves had been doing the work that allowed non-slaves to develop themselves in commune.
Human Rights – universally meaningful, though founded in a well understood partisanship, cum ira et studio: Hegemonies … – they follow the rule which Ovid is looking at:
In nova fert animus mutatas dicere formas/corpora — I intend to speak of forms changed into new entities.
Here you can find the recoding
of a short presentation around these questions, given on the 12th of September 2018 at the Max Planck Institute for Social Law and Social Policy.
From teaching economics at Bangor College China, in Changsha, China – some reflections had been published here earlier, and also here – I arrived now – after some interim work in France and The Netherlands – in Munich, Bavaria, a generous grant from the Max-Planck-Institute for Social Law and Social Policy allows me occupying from today a research position for the next twelve month, looking at issues around digitisation – some books I asked for are already at my disposal on my new desk. And right at the beginning, after having been giving out against orthodox economics [not so much from a heterodox, but from an unorthodox position (or was it more from an alternative orthodoxy?)], I am now wondering if – cum grano salis – heterodox thinking is needed also when it comes to law?
[scan from: Johann Wolfgang Goethe, Faust – Der Tragödie Erster Teil, mit Illustrationen aus drei Jahrhunderten, ed. by Hans Hanning, Berlin: Rütting & Loening, 1982, 2nd ed., p. 123
Teufelspakt_Faust-Mephisto, by Julius Nisle]
And much as Marx did not ‘invent communism out of the blue’, but based it in historical analysis [see in particular Engels’ Work on ‘The Origin of the Family, Private Property, and the State’] , such historical review is also most valuable in jurisprudence. A nice passage I found – in a book by St Germain, writing on the Dialogues between a doctor of divinity and a student in the laws of England – and surely not suggesting that we find the alternatives in divinity …
And so it appeareth, that equity taketh not away the very right, but only that that seemeth to be right by the general words of the law. Nor it is not ordained against the cruelness of the law, for the law in such case generally taken is good in himself; but equity followeth the law in all particular cases where right and justice requireth, notwithstanding the general rule of the law be to the contrary. Wherefore it appeareth., that if any law were made by man without any such exception expressed or implied, it were manifestly unreasonable, and were not to be suffered …
Reading this on page 45, we read already a page earlier as definition:
Equity is a right wiseness that considereth all the particular circumstances of the deed, the which also is tempered with the sweetness of mercy. And such an equity must always be observed in every law of man, and in every general rule thereof: and that knew he well that said thus, Laws covet to be ruled by equity. And the wise man saith, Be not overmuch right wise; for the extreme right wiseness is extreme wrong: as who saith, If thou take all that the words of the law giveth thee thou shalt sometime do against the law.
Part of the report presented yesterday:
The day after he formed a government, Kenny cut his own pay by 6.6 per cent from €214,187 to €200,000 along with the pay of the Tánaiste and all other ministers.
Under the Haddington Road Agreement in July 2013, Kenny’s pay dropped to €185,350 under the wide-ranging public sector pay cuts for higher earners.
Enda Kenny was speaking at the launch of the government’s Low Pay Commission which will examine the scope for increasing the current minimum wage of €8.65.
(O’Connell, Hugh, February 26th, 2015: Enda Kenny thinks he’s ‘very much’ worth his €185k salary; in: TheJournal dot ie
Development of Social Policy in Ireland 2014-15. Report to the Max Planck Institute to Social Law and Social Policy. Department for foreign and international Social Law, Munich
Rom, end of March 2015
Centrally dealing with the recent development in the area of social legislation, it focuses on poverty and exclusion and also the field of migration/asylum. In a more general perspective it provides a sound overview of the (supposed) post-austerity development, suggesting that the success is located within the tension between external pressures (Troika) and the suggested “opportunity” to restructure national policies (using the the pressure as excuse).
The price that had to be paid, had been divided between three “bearers”:
This analysis brings the analysis of legal perspectives in close connection with the political-economy and sociology of the country.
The report is written in German language.
Entwicklungen Irischer Sozialpolitik 2014-15. Bericht an das Max Planck Institut für Sozialrecht und Sozialpolitik – Abteilung für Ausländisches und Internationales Sozialrecht, München,
Rom, Ende Maerz 2015
Frühere Berichte wurden veroeffentlicht in der ZIAS
Entwicklungen Irischer Sozialpolitik 2012-13; in: Zeitschrift für ausländisches und internationales Arbeits- und Sozialrecht (ZIAS). Institut für Arbeitsrecht und Arbeitsbeziehungen in der Europäischen Gemeinschaft; Ulrich Becker/Rolf Birk; Max-Planck-Institut für Sozialrecht und Sozialpolitik/Ulrich Becker; Heidelberg: C.F.Mueller Verlag, Huehtig Jehle Rehm; volume 28; 1/2014; Heidelberg 2014; 68-94
Irish Social Policy – the Celtic Tiger without Soul (Irische Sozialpolitik – der keltische Tiger hat keine Seele); in: Zeitschrift fuer auslaendisches und internationales Arbeits- und Sozialrecht (ZIAS). Institut fuer Arbeitsrecht und Arbeitsbeziehungen in der Europaeischen Gemeinschaft/Rolf Birk; Max-Planck-Institut fuer auslaendisches und internationales Sozialrecht/Ulrich Becker; Heidelberg: C.F.Mueller Verlag, Huehtig Jehle Rehm; volume 18; 3/2004; Heidelberg 2004: 216-242 – immer nicht interessant als Hintergrund fuer die Krisenanalyse heute.
Especially, though not only with the crisis, now lasting for a long time, showing only occasionally small and deceiving glimpses of improvement, the debate on two issues is increasingly gaining momentum:
- a kind of renaissance, highlighting the importance of returning to a value basis of humane societies
- a push towards a new economic model, suggesting in different ways to leave the traditional capitalist path of equalizing development and growth.
Each issue evokes in itself major debates, for instance reflecting on what humane orientations could be and if they ever existed; or if and to which extent capitalist development assumed per se such equation or if it is only THIS capitalism that kills – so the current pope.
The aim should be to develop a cooperation that looks how to bring the different perspectives together.
One issue that came permanently up during these days – and had not least issued frequently by Hans F. Zacher had been the fact that the call for justice is not sufficient without a string backing in law. And hit shad been also an issue that guided Bernd Schulte’s long engagement on European law. The community of values is only as god and strong as it is based in law and guarantees legal rights to its citizens.