Humanity and Inhumanity: State Power and the Force of Law in the Prescription of Juridical Normas

Abstract

One of the curious aspects about the history of human rights is that history has always been a problem for rights discourse; by which is meant that rights discourse has always tried to erase its own history, certainly to marginalize it. In Medieval law, rights that expressed the will of a legislator were accorded a prehistorical source in divine law, while the ancient rights and liberties of the people were often expressed to be immemorial, grounded in a mythical past that transcended history, even if carried through the vehicle of rulers and customs. With the development of the doctrine of natural rights, from the writings of late Medieval canon and civil lawyers right through to its apogee in seventeenth century political philosophy, the ahistoricism of rights was reified through the concept of nature in order to lend legitimacy to the claim of their universality, their application to all people at all times. That the subject of rights in the modern conception of human rights is the human being itself in place of nature has, through the reduction of subjectivity to a metaphysical humanism, further alienated the historical conditions of human rights from their normative claims. This paper is a preliminary attempt to analyse the problem that history creates for the discourse of human rights.