Human rights are the basic right for the individual persons and as defend against the power of the states. The historical roots of individual basic rights could be traced to Kant referring to the principle of private law that one person’s freedom should be
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reconciled with another’s. Based on Kant’s idea, the protection of the freedom that a human being naturally enjoyed to pursue and increase his own well-being without harming the rights of another. Carl von Rotteck inherited this tradition and indicated that the state as a legal institution must ‘respect and protect the freedom which its subjects enjoy in every sphere of activities simply by virtue of being human beings’.
(Starck, 2001:100). In this sense, the individual life, health, freedom, honor and property must be respected during the course of daily dealing in the modern state.
This basic conception of human rights underpins that Constitution and the German Basic Law not only provide the foundation for the basic rights in the relationship between citizens and the states, but also the basis upon which norms of private law rests. The State is refrained from violating human dignity and imposed a duty to protect that dignity in Article 1 (1) ‘Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.’ (Starck, 2001:103)
Based on the investigation of moral life, Greek philosopher Aristotle articulates that the human beings posset the different power of soul as intellectual capacity, while compared of the plants and animals (Polansky, 2007:188-196). From this point of view, the unborn child is the human life which is different from plants and animals and it surely can enjoy the respect of human dignity. Furthermore, it’s a moral issue in politics. According to Aristotle, people not only to have political life, he also defines ethic life and contemplative life which are also important at public domains. People would seek goodness and it is the end of life of politics (Nichmachean, chapter 5).
In the work of Republic, Plato concerned if the city could be ruled by reason, and how the reason would perform this function. Plato might fully imply that by the nature, the rule of reason was the deeper principle of law. What is the nature of the law? To explore the nature of the law is one of the main themes in the development of Western philosophy (Jacobs, 2013). For Christian tradition, Jean Porter’s work Natural and Divine Law: Reclaiming the Tradition for Christian Ethics found that the scholastics nature, reason, and scripture were taken harmonious sources for the same moral principles rather than in some kind of tensions (Porter, 1999). Inspired by St.
Thomas Aquinas, French philosopher Jacques Maritain developed the frame of natural law systematically within the 1940s and 1960s. In his own word, he emphasized that ‘The Secunda Pars of the Summa Theologiae offers us a complete and perfectly articulated theological treatise on human conduct’ and attempted to clear the philosophical ground for moral philosophy and to establish its general design and proper procedure on the rational theory of human actions. (Maritain, Moral Philosophy:1) He defined ‘culture’ as the refinement of natural law which had conformity with what Mr. John C. H. Wu (吳經熊 Wu, 1959) found Confucianism in
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Chinese culture as well as Greek Sophism in the 5th century before Christian era(Maritain, Moral Philosophy:2).
The modern German theologian Kirchhoffer strongly attempts to show that human dignity is still a meaningful ethical concept. The human dignity is a meaningful ethical concept. From the empirical level, he argues the possibility of human dignity as the normative criterion, a multi-dimensional concept. He provides four dimensions to analyze the concept of human dignity as: existential, cognitive-affective, behavioral, and social dimensions (Kirchhoffer, 2013:15).
Furthermore, he brings the moral evaluation back into the analysis. He articulates the reasoning we might be very clear, but the modern moral philosophy has been long neglected. He explains that some human activities are not merely an action or behavior which is implied to the judgment of morally good or wrong. For example, a knife is a non-moral good thing, but while a doctor carefully uses it to cut as a surgical instrument in order to save a patient’s wounded leg, the doctor is doing a moral good behavior. But if a person uses the knife to kill someone for taking money, which does not belong to the one who is acting killing, then that person is doing a morally wrong action and he commits the crime (Kirchhoffer, 2013:16). If we apply such a simple moral judgment to the abortion on demand, while the unborn child is not abnormal and the pregnancy is not harmful to the mother, why does the law in many countries permit it? Why the law permits to destroy both the human life as well as the human dignity of the human unborn child? What is the nature of law? What is the legal theory of jurisprudence?
While the scholars articulate the human action is morally engaged we would find the roots in religions (Hare, 2015), though basically the western state model is the classical liberal model in the nineteenth century. From the perspectives of classical liberal model, the legal system tends to proclaim the protection of individual autonomy which manifests the general principle of formal equality of all citizens before the law, especially at the written constitution (Nolte et al., 2005:85).
Philosopher Philip Quinn proposes the idea of ‘Divine Command Theory’ at his creative work of Divine Command and Moral Requirements (Oxford, 1978). Now it is normally known as ‘the natural law theory’. Quinn defines the ‘will of God’ as a
‘complete reason’ on which all the moral obligations defend. Quinn does not limit the concept of divine command theory within Christianity, he leave it open to the questions of how the theological voluntarism in comparison to any case for competitors. Based on the law of prayer is the law of belief (lex oractice, lex credenda) as well as the ethics of love (agape), he further claims the tension between theological
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voluntarism and non-theological presumptions (The Oxford Handbook of Ethical Theory, 2006:65) Some philosophers such as Thomas Talbott is arguing that the genuine basis of divine command theory is obscure (Talbott, 1982: 193). Beside of the Christian theologians concerning the discussion of divine command, some scholars emphasize the multi faces of religions within Judaism and Islam such as Robert E.
Adams’s Finite and Infinite Goods (Oxford, 1999). Adams further separates the meaning between ‘good’ and the metaphysical grounding of goodness. God is supreme good but God cannot do goodness as resembling a human dose. Follow the will of God cannot automatically do goodness. To make moral decision according to moral principles is a process of moral reasoning and the essence of ethical thinking. In Summa Theologica of Thomas Aquinas, good and wise are both to God, we need carefully to discern the language we talk to God and the language we talk to human (Harris, 2002:2).
If we apply such a moral judgment to the abortion on demand, while the unborn child is not abnormal and the pregnancy is not harmful to the mother, why does the law in many countries permit it? Why the law permits to destroy both the human life as well as the human dignity of the human unborn child? What is the nature of law?
What is the legal theory of jurisprudence?
The identification between the human dignity and human beings are the main themes in ethics and moral philosophy. If people do not respect for human dignity any more, could people only rely on law the judicial system to protect the basic human rights? In the embryonic stem cell debates have been highlighted the ethical controversy of the definition what counts as human life regarding its origin and death (Williams, Kitzinger & Henderson, 2003:793). From the perspective of natural law, the nature of law is deeply rooted in the social and political traditions from Roman Empire and Athens as Cicero said:
True law is right reason in agreement with Nature; it is universal application, unchanging and everlasting...[T]here will not be different laws at Rome and at Athens, or different laws now and in the future, but one eternal and unchangeable law will be valid for all nations and for all times…(Cicero/ Keyes, 1966:211)
The modern German scholar Ernst Bloch articulates that last cannon of law was given by the collected works of Justinian. The idea of Stoic theories of natural law was introduced around 150 B.C. He articulates that ‘Man appears as a being of dignity’. Marcus Aurelius believed that everything was contained in the formula to anthropou poiein. It means that the human being is the person to be and to act. From
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this perspective, the pathos of human dignity appears in a specific form and that is the characteristic of natural law. On the other hand, the logic of classification, the trial according to definition, the law of the people (jus civile), legislative action, the procedure of law, the law of courts and etc. were also introduced by the Stoicism.
(Bloch, 1996: 18-19)
Lon Fuller claims the need of ‘inner morality of the law’ at his famous book The Morality of Law (1964, 1969, 1979). He criticizes the ‘principles of legality’, listed as
‘Eight Ways to Fail to Make Law’. That causes H.L. A. Hart engaged in the argument between legal norms and moral norms (Luban, 2007:101). Hart had given his famous facts of human nature in the positivistic viewpoints as: human vulnerability, relative equality, limited altruism, limited resources, limited understanding and strength of will. He emphasized that people are not devils but neither are they angels (Alford, 2011:31). While speaking of the natural law, Alford directly emphasizes it is all around and to put ‘feelings into the words’ and ‘the words into feelings’. To define it as humanity meant to become the best human one can be and to fulfill one’s potential as fully as possible. ‘Written on the heart’ is often used to describe the idea of natural law (Alford, 2010:3). Martin Luther King Jr. suffered the persecution while against the segregation. In the Letter from Birmingham Jail which was written in 1963 powerfully toned the simple justification of natural law:
How does one determine whether law is just or unjust? A just law is a man-made code that squares with moral law or the law of God. An unjust law is a code that is out of harmony with the moral law….Any law that uplifts human personality is just.
Any law that degrades human personality is unjust.(page 3)
In modern era, the revival of natural law connected with the revival of Kantian legal thinking around 1970s. The protection of human dignity is the primary task of the contemporary legal cultures (Fletcher, 1984). The former president of the Supreme Court of Israel, Aharon Barak proceeds to consider that the human dignity as the constitutional value which is grounded in humanity. Furthermore, he also analyzes that human dignity as the constitutional rights and articulates that the purpose of constitutional right to dignity is to realize the constitutional value of human dignity (Barak, 2015:144).
The identification between the human dignity and human beings are the main themes in ethics and moral philosophy. If people do not respect for human dignity any more, could people only rely on law the judicial system to protect the basic human rights? In the embryonic stem cell debates have been highlighted the ethical
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controversy of the definition what counts as human life regarding its origin and death (Williams, Kitzinger & Henderson, 2003:793). From the perspective of natural law, the nature of law is deeply rooted in the social and political traditions from Roman Empire and Athens as Cicero said:
True law is right reason in agreement with Nature; it is universal application, unchanging and everlasting...[T]here will not be different laws at Rome and at Athens, or different laws now and in the future, but one eternal and unchangeable law will be valid for all nations and for all times…(Cicero/ Keyes, 1966:211)
Along with the articulation of human dignity as the fundamental rights as well as the constitutional value, some scholars further extend the conception of human dignity from the moment of conception as the asymmetry and gradualist, secular conception to person already born (Plomer & Tsarspatsanis, 2013). And the state has the duty to provide protection of human rights such as human life, health, freedom and property at the constitutional level called Basic Law in Germany (Starck, 2000). Based on the respect of human dignity, the unborn child is regarded as human person and has the constitutional rights (陳愛娥，1997). By contrary, the idea of human dignity or human rights is ignored as the fundamental rights and severely criticized by the scholars of liberal perspectives (Reimann and Zekoll, 2005: 22-23).
It is important to bear in mind that the natural law is not a matter of will but reason.
Some of the laws have good justification from the moral principle, some do not. There are some moral principles and habits to be justified at the process of law making. Law has its history and is constituted within human discourse. How to evaluate or understand what is a good law as the social institution requires a strict value-free description and analyzing law-making process in analytic jurisprudence. The human goods need to be secured through the institutions of human law. Jurisprudence like any other social science aspires to be more the conjunction of lexicography with any local history. Law is labelled with many languages. The requirement of practical reasonableness to decide what law could be account as good refers to the ‘internal’ or
‘legal’ point of view, including many legal experiences in term of legal theory (Finnis, 2011).
The term of human dignity usually used as synonym of human rights in the West.
Moreover, the international human rights standards are based on the substantive conception of human dignity. Nonetheless, these two terms are quite distinct notions.
The conceptions of human dignity express particularly the inner moral nature and emphasize the political connection with the society. By contrast, human rights take its
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political senses of individual equality and entitlement against the states (Howard &
Donnelly, 1986:801-802). In the document, the International Human Rights Covenants (1966) proclaimed that human rights derived from the inherent dignity of human person. Some scholars explore it with notion of honor and self-determination.
Some scholars indicate it as the idea of charity. Some scholars investigate it within the Christian religious context. Some scholars examine it within historical and social context, like Greg Dening and Nicholas Tarling. Some scholars explore it within national and international legal theory and practice, such as Sir Guy Green, Don Chalmers, Ryuichi Ida, and Michael Tate. Some scholars trace it within the medicine and medical practice (Malpas & Lickiss, 2004: 3). The concept of human life begins at the moment of conception is the doctrine of Roman Catholic bioethics. People may criticize that the human ovum is only a zygote and reject his or her human dignity.
The invisible human zygote contains all the potentials to develop into a human fetal life if there were no any artificial or malign interference.