In a vision leaded by the vision of human history as "an unstoppable path" to the extension of rights and progress both social and economic is common the tendence to see "natural rights" (in latin "Ius Naturae") to as the postulates of Freedom in broad sense, which may be denied or distorted in practical application by governments in certain historical parenthesis but mantain their validity for moral issues at the same.
So, even when the "positive law" does not recognize them, they do not loose their value as paradigm of "pre-political issues", but are simply "hidden "in the current regulatory system, which can denie their validity in legislation and in court decisions but cannot exclude them fomr the moral common sense because their are logically preordered to positive laws and live on a different level than the legal do: that of moral or ethical common feeling.
So we could compare them to the guardian angels of freedom and dignity even in historical dark moments, are there, maybe only in the form of "wisps" that illuminate human consciousness, ready to return to be present rules as far as historical contingencies that denied them dissolve.
This could make us decline this category of "natural rights" in the individual natural rights of every man, as developed in centuries from philosophers and, in essence, joining three categories: the equal dignity of men (who carries forms of redistribution and social support necessary to maintain the balanced social tissue), civil rights (the rights of freedom, both positive and negative) and universal political rights, who are the only one to be limited in doctrine not by other freedom but by general rules of collective structure.
But what happens when the "natural law" become an ensamble of determinations that exist before "political determinations", ie where it is considered that there is an order of things (or divine nature of socio-economic) objectively and equally valid regardless of the choices of individual? A sort of "matrix" of perfect rules (obviously with religious connotation) that secular legislation to be moral have to follow. This represent a complete changing of common perspective in ""Natural law": from a corpus of rights that resist to abuse of laws and majority become an order to follow indipendently by single men choices, an order decided by clergymen and "faithful legislators".
This question may seem specious on the surface, but is exactly what the so-called "positive secularism" doctrine is trying to do, "rationalizing faith" (and so giving to faith an autoevident and rational base to follow for all, believers and no) and creating in secular legislation a corpus of "principles are not reviewable" for faithful persons and legislators, placing so democracies under the "protection" of moral issues interpeters, that this will become the real arbiters of common sense.
With the "positive secularism" the moral sense become parameter of legislative power, and the natural law becomes a perfect "imago" of what social order should be, so even if some laws following democratic choices can be (for now) far from this ideal, in this view this mean a degeneration from the high road of collective welfare (which coincides with the representation of the natural order as wanted by clergyment and followers) and then this vision actually gets into the public sphere of the determinations the concept of sin ad synonimous of wrong (to God eyes) law.
So, to illustrate, although a majority of citizens would legalize recognition of same-sex unions, that would be contrary to natural law (in christian vision) that sees men and women separate and complementary and thereforethis law would be immoral to the members of faiths that oppose this view; not wrong, but immoral and this is the focus point, because a wrong law can be changed by a majority following democratic rules, but an immoral law is an usurpation of God "potestas" and so a such law in "positive secularism" vision do not exist, and have not to be changed only, but not to apply. Thus, individual rights, when they do not fit in magisteria religious hegemony or at least the majority, would be downgraded to simple desires, and then denied, no matter what the force of these ideas in public opinion. Simply the faithful legislators shouldnt dollow the desire of their people but the determination of moral authority.
This attitude is emerging in the western world (and not only) but at the same time (fortunatly) is still fragile, as it continues to masquerade under the misunderstanding of words that means the opposite and to succeed requires further reductions in the areas of autonomy of both political and electoral decisions and at the same time an increasing in the spheres of need and fear, which leads people to depend on the goodwill of others (or government) and so to abdicate its role in the social construction of equal and inalienable rights to become supporting actors and accept the role that powerful decision makers and rank them in "order of nature" (ie in the social structure).
No comments:
Post a Comment