First steps in hyperspace
Posted by Nick
Submitted by James Ressel
Not long ago I started a blog entitled Law, Culture & Ideas (http://lawcultureblog.wordpress.com/). However, as soon as I posted my first article I came to dread the expenditure of time and energy that will be needed to feed the voraciously hungry virtual baby now growing in hyperspace. In this post I will try outline some of the ideas underlying the blog, its rationale and plans for the future.
I was seduced into preparing my first ever post arose by Ana Franca’s article published in the New Statesman on 27 June 2013. In her article she discussed the way that the elected government used its overwhelming majority in parliament detrimentally amending the constitutional protection for basic rights and freedoms, such as freedom of expression. Her article mentioned the consequences of the amendments to the Hungarian constitution and wrote that the President’s “[o]pponents say he is divorcing Hungary from the rest of democratic Europe. Apart from exerting tight control over the arts sector, Orbán has criminalised homelessness, reserved for himself the right to elect university rectors and approved a law requiring students who accept state scholarships to stay in Hungary” (http://www.newstatesman.com/politics/politics/2013/06/can-free-expression-survive-hungary).
The article reminded me of other stories occasionally reported in the press here describing the consequences following the rise of one party determined to pursue its own political agenda to the detriment of social fabric legitimated on one reading of the way democracy operates – which is the domination of the minority and alternative opinions and views. Similar arguments are currently being discussed in Egypt following the removal from office of the elected President.
I wondered whether there were any theoretical implications and historical precedent for the Hungarian phenomenon. The historical precedent is the experience of the demise of the Weimar Republic and the Nazi takeover in 1933.
The legal theoretical question that arises is the connection drawn between legal positivism and the development of totalitarian regimes ultimately to the detriment of human values and freedoms. Very briefly, legal positivism proposes that judicial application and interpretation of law binds the judges to the laws passed by parliament and consequently the judges are precluded from considerations of values and ethics extraneous to statutory law and the words of the statute, often expressed as a literal non-contextual interpretation of law. It follows from this that legal positivism could excuse the attribution of legal responsibility for war crimes and crimes and against humanity, arguments rejected at the Nuremberg trial in 1946.
For detailed discussion of this point see: Lon L Fuller, “Positivism and Fidelity to Law – A Reply to Professor Hart” Harvard Law Review 71 (1957-58) and Stanley L Paulson “Lon L Fuller, Gustav Radbruch, and the “Positivist” Theses” Law and Philosophy 13: 313-259, 1994
Or to put it broadly, the question revolves around the scope and limitations on democracy in particular whether a democratic mandate coupled with legal positivism ultimately facilitates totalitarian regimes and in fact can lead to the end of democracy, or is there an implicit duty on law to express and enforce foundational moral ideals and values, for instance values and fundamental principles articulated in aspirational documents such as the European Convention on Human Rights and expressed in international legally binding documents such as the Treaty on European Union.
Yet, the contemporary politico-legal landscape in Europe is very different from the picture in 1933. We now have the European Union, which as I seek to argue in the post, acts if not as a guarantor than at least as an alert night watchman drawing attention to attempts by apparently democratically legitimate governments to derogate from its obligations under Article 2 of the Treaty on European Union. Under Article 2 “each member state affirms the founding values of the Union and … agrees as a condition of membership of the Union, to “…respect human dignity, democracy, equality, the rule of law…“ Thus [I argue] the basic ‘European common values’ are values of the rule of law and democracy underpinned by the respect for fundamental human rights and freedoms as enshrined in the Charter of Fundamental Rights.”
In the blog post I discuss briefly the important European Parliament report which describes the constitutional changes made by the elected Hungarian government which undermine the fundamental European common vales, and principles of the rule of law, democracy and human rights, concluding perhaps too optimistically, that the existence of the European Union may save us from the Weimar and legal positivist trap.
Now all I have to do is to feed the new baby!
The idea behind the blog is to develop critical discussion and encourage interdisciplinary conversations. It aims to explore new ideas disrupting the comfort of shared ‘common sense’ and looks to ideas that challenge the overwhelming consensus of ideas and perceptions.
I would like to see discussions relating to law, society and aesthetics, justice, philosophy of law, history and politics to try to illuminate significant cultural, legal and political issues and trends and look forward to receiving your contributions.