The Human Rights Act 1998

HUMAN RIGHTS: A THREAT TO LAW?

 

26(2) UNSWLJ 418

Doc. No. 2003.008

language of policy: a list of beliefs about an ideal society. 4 If a legal right is intended there is no more to be said or done – except look for it in the law books. It seems however that what is intended is more likely to be a moral right leading on to a legal right.

The human rights concept goes at least as far back as the natural law theories of the ancient Greeks. Nature to them signified the primordial element from which the universe was constructed. The earliest Greek philosophers explained the fabric of creation as the manifestation of some single principle which they variously asserted to be movement, force, fire, moisture or generation. 5 Later Greek philosophers introduced a moral element. The Greek Stoics sought to live according to nature. This required them ‘to rise above the disorderly habits and gross indulgences of the vulgar to higher laws of action which nothing but self denial and self-command would enable the aspirant to observe’. 6 The ancient Romans agreed that natura vis maxima (the highest force is that of nature). 7 Later, Judaism and Christianity substituted for the old Greek and Roman fabric of creation what might be called the Genesis version: ‘In the beginning God created the heaven and the earth’.8

Sir William Blackstone said that this meant that man, considered as a creature (one who has been created), must necessarily be subject to the laws of God his Creator, ‘for he is entirely a dependent being’. 9 Blackstone went on to say that, as man depends absolutely upon his Maker for everything, it is necessary that he should at all points conform to his Maker’s will, which is called the law of nature. 10 St Paul had said that this was made necessary because God himself wrote this law in men’s hearts. He even wrote it in the hearts of non-Jews (known as Gentiles), who were outside the Jewish law:

for when the Gentiles, which have not the law, do by nature the things contained in the law, these, having not the law, are a law unto themselves; which show the work of the law written in their hearts. 11

But how are people to discover what the law of nature requires? How else but by using their God-given reasoning powers. These will tell them that the foremost requirement is justice. St Augustine said: ‘What are states without justice but robber-bands enlarged?’ 12 St Thomas Aquinas held that natural law has a twofold application. First that there are principles of justice which are discoverable by human reason without the aid of divine revelation, even though they have a divine origin; second, that man-made laws which conflict with these principles are invalid. Lex injusta non est lex (unjust law is not law). 13 .................Next page