Brian Slattery

What is the rational foundation for the doctrine of universal human rights? Some philosophers, such as Alan Gewirth, argue that it may be discovered simply by reflection on certain essential features of the human constitution. However this approach has significant problems, achieving its ends by smuggling certain tacit premises into the argument. A better approach is one that appeals to the communal practices and traditions within which doctrines of human rights have evolved historically. It is here that Alasdair MacIntyre's work becomes relevant, because it maintains that traditions have a rationality of their own, and that all rationality is in some sense traditional. That MacIntyre himself has used these ideas to dismiss the doctrine of universal human rights only shows the extent to which MacIntyre (like many others) has misunderstood the true character of that doctrine.

Some have argued that the right of national self-determination gives every national group the power to decide for itself whether to remain part of an existing state or to secede unilaterally and form its own state. Such a theory underpins the claim that Quebec is entitled to decide on its own whether or not to leave Canada. This paper examines the main philosophical arguments for the theory and finds them one-dimensional and inadequate; they fail to take account of the full range of complex issues arising in actual cases of proposed secession. If the right of national self-determination is understood as involving a right of unilateral secession, it cannot be attributed to national groups across the board. It arises only in specific historical circumstances, usually involving oppression or other forms of grave injustice.

It is commonly assumed that Indigenous nations had neither sovereignty in international law nor title to their territories when Europeans first arrived in North America. Thus the continent was legally vacant and European powers could gain title to it simply by such acts as discovery, symbolic acts, or occupation, or by concluding treaties among themselves. This paper argues that this viewpoint is misguided and cannot be justified either by reference to positive international law or to basic principles of justice. To the contrary, Indigenous American nations were sovereign entities holding exclusive title to their territories at the time of European contact, and they participated actively in the formation of Canada and the United States. This fact requires us to rewrite our constitutional histories and reconsider the current status of Indigenous nations.

In fairy tales, villains usually come to a bad end, snared in a trap of their own making, or visited with a disaster nicely suited to their particular villainy. Read a story of this kind to children and you will be struck by the profound satisfaction with which this predictable of events is greeted. Yet, if children cheer when the villain is done in, they are just as satisfied when the hero manages to get the villain by the throat but takes pity and spares him. These tales of retribution and mercy, even reduced to their barest bones, seem to have an intrinsic significance; they strike some inner chord, resonate with something fundamental in our inarticulate understanding of the world, reveal something about the basic make-up of the world. This is not to suggest that they are 'realistic' in the ordinary sense. They do not tell us what 'really happens' in the world of experience, where the villain all too often flourishes and the innocent are trampled underfoot. Rather, fairy tales reveal to us the injustice of the human world by testifying to the true nature of justice. If we did not know that villains ought to get their comeuppance, we would have no reason to think it wrong that they often escape to enjoy their spoils. Tales of retribution and mercy speak of the reality of a world beyond the world of everyday experience; so doing, they show the world of experience in its true light. In the best sense of the word, they are 'myths': stories that, even when told in their simplest form, carry a profound inner significance.

It is often thought that the meaning of a legal provision must reside in the minds of its authors or its interpreters, or a combination of the two. Indeed, the point may seem so obvious that it scarcely needs any justification. Is there any sense, then, in the claim sometimes made by judges that a law has a meaning of its own, one that is distinct from the intentions of authors and interpreters alike? At first sight, the claim appears extravagant and self-serving. However, there is more to it than meets the eye. Drawing on an example from the world of games, this essay argues that the law makes up a “participatory order of meaning,” an autonomous order to which legal drafters and interpreters bend their minds as they create particular patterns of meaning. Ultimately, a legal order should be understood as a concrete instance of a transcendent order of justice and basic values, which in some sense lies both within and beyond the laws of a particular time and place.

The law presents itself as a body of meaning, open to discovery, interpretation, application, criticism, development and change. But what sort of meaning does the law possess? Legal theory provides three sorts of answers. The first portrays the law as a mode of communication through which law-makers convey certain standards or norms to the larger community. The law's meaning is that imparted by its authors. On this view, law is a vehicle, conveying a message from a speaker to an intended audience. The second theory portrays the law as a mode of interpretation, whereby judges, officials, and ordinary citizens make decisions about how the law applies in various practical contexts. The law's meaning is that furnished by its interpreters. According to this theory, law is a receptacle into which decision-makers pour meaning. The third viewpoint argues that these theories, while not altogether wrong, are incomplete because they downplay or ignore the autonomous meaning that the law itself possesses. This theory suggests that the law is basically a mode of participation, whereby legislators, judges, officials, and ordinary people attune themselves to an autonomous field of legal meaning. The law's meaning is grounded in a body of social practice which is independent of both the law's authors and its interpreters and which is infused with basic values and principles that transcend the practice. On this view, law is the emblem of meaning that lies beyond it. Elements of all three theories are present in H.L.A. Hart's influential work, The Concept of Law, which attempts to fuse them into a single, all-encompassing theory. Nevertheless, as we will argue here, the attempt is not successful. Any true reconciliation of the communication and interpretation theories can only take place within the framework of a fully developed participation theory. In the early stages of his work, Hart lays the foundation for such a theory. However, his failure to elaborate it in a thoroughgoing way renders the work incomplete and ultimately unbalanced. As we will see, there is something to be learned from this failure.

What is the persuasive basis for the doctrine of universal human rights - rights that pertain to all human beings, regardless of national, racial, or religious affiliation? This essay offers some reflections on the subject by considering the contrasting approaches of two thinkers: Vaclav Havel, the playwright, essayist, human rights advocate, and onetime President of Czechoslovakia; and Henri Bergson, the once influential French philosopher and apostle of creative evolution, unfortunately now often forgotten.