The Concept of Human Rights by Jack Donnelly

Author:Jack Donnelly [Donnelly, Jack]
Language: eng
Format: epub
Tags: Political Science, General
ISBN: 9781000704730
Google: Dve-DwAAQBAJ
Goodreads: 3613425
Publisher: Routledge
Published: 1985-01-01T00:00:00+00:00

Reason, History and Political Restraint

Still another alternative to human rights is presented by prescription, the view that a people’s past usage and customs provide authoritative political guidelines, including an authoritative distribution of political rights and duties. This strategy for restraining the state, associated particularly with Burke, differs fundamentally from the others we have considered so far. Rather than rely on ‘external’ checks, such as utility or natural law, Burke attempts to integrate the ruler into a constraining web of prescriptive practices. Thus, like human rights institutionalised as constitutional rights, Burke builds limitations on the state into its very structure. But where human rights shares with natural law and utility a fundamental reliance on reason, Burke rejects reason in favour of history.

Burke argues that sovereign and subjects are coordinate parts of the state, and thus neither may legitimately alter the form of government or the distribution of rights and duties (1869:III, 257–8; IV, 161–2). The organic conception of the state and society that this implies will be addressed, in a rather different context, in Chapter 5. Here I want to stress the essential historicism of Burke’s theory.

Natural rights theorists view the government as possessed of duties to the people, not rights (other than a right to remuneration for services rendered) (see, e.g. Paine 1945:1, 379; Priestley 1791:29; Rous 1791a:67–8). The ruler, for Burke, however, is not an employee removable at the discretion of the people, but a contracting party, with rights as well as obligations, including a right to rule. This right, Burke argues, cannot be revoked for anything short of malfeasance of the very grossest sort (1869:III, 266 ff.; IV, 161–2, 429).

None the less, the sovereign is restricted in what he may legitimately do. Although he is, as sovereign, literally neither responsible nor accountable to anyone (1869:III, 267), his power is not unlimited or arbitrary; like all power, it remains under the guidance of justice, morality and right reason and must be guided by considerations of prudence and what is right — but not abstract and general rights (1869:111, 257). The most important limit on the sovereign’s power, however, is prescription.

For Burke, all political titles rest on prescription, the established usages of a people. ’All titles terminate in prescription’ (1869:VI, 412), including, and most particularly, the title to rule.

Our Constitution is a prescriptive constitution; it is a constitution whose sole authority is, that it has existed time out of mind … Prescription is the most solid of all titles, not only to property, but, which is to secure that property, to government. (1869:VI, 94)

Society and government — and of course rights as well — are, for Burke, historical products; they are not created by plan, but evolve in response to social wants and needs as they emerge in the historical experience of a people. Therefore, established institutions and practices represent the record of successful incremental adjustments, compromises and reforms, and thus deserve special respect and protection.

Prescriptive title, for Burke, is ‘a deliberate election of ages and generations’ (1869:VI, 95), an

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