<br><br><div class="gmail_quote"><br><br><div>Dear Paul,</div><div> </div><div>I'm afraid I have not the time to discuss all details of your overlong mail. Nor do I deem it necessary, for as I said, I consider the whole issue a red herring. Freedom of speech fully covers the personal rights on the net, just as it does any other support. To get lost in the byzantine discussion on the nature of human rights favours those who argue that there is a legal void concerning the net, when there is none.</div>
<div> </div><div>My position does not hinge on whether human rights are transcendent and eternal or not (I'd say they are emergent legitimate aspirations), rather whether they are judiciable or not. This is the only matter that counts pragmatically. (No slave in the US for 100 years could go to court and get himself declared a "free man" - and even the Northern States had to return runaway property (though in specific cases they may have found a way out). </div>
<div> </div><div>We square off on one of the oldest controversies of constitutional law, and I'm sure neither of us has the conpetence not time to resolve it. There are those who believe in "natural law" as the source of judiciable rights and those who believe in "compact of the people". Confucius and the Chinese legalists argued over that, and the Noatic Laws were invented to cover the period between Eden and the Ten Commandments.</div>
<div>The bridge between the two positions is "customary international law", as cited in the wikipedia entry:</div><div> </div><blockquote style="margin-right:0px" dir="ltr"><p>Customary international law "... consists of rules of law derived from the consistent conduct of <a title="Sovereign state" href="http://en.wikipedia.org/wiki/Sovereign_state" target="_blank">States</a> acting out of the belief that the law required them to act that way."<sup><a href="http://en.wikipedia.org/wiki/Customary_international_law#cite_note-0" target="_blank"><font><span>[</span>1<span>]</span></font></a></sup> It follows that customary international law can be discerned by a "widespread repetition by States of similar international acts over time (State practice); Acts must occur out of sense of <a title="Obligation" href="http://en.wikipedia.org/wiki/Obligation" target="_blank">obligation</a> (<i><a title="Opinio juris" href="http://en.wikipedia.org/wiki/Opinio_juris" target="_blank">opinio juris</a></i>); Acts must be taken by a significant number of States and not be rejected by a significant number of States."<font><sup style="white-space:nowrap">[<i><a title="Wikipedia:Citation needed" href="http://en.wikipedia.org/wiki/Wikipedia:Citation_needed" target="_blank"><span title="This claim needs references to reliable sources from January 2011">citation needed</span></a></i>]</sup> A marker of customary international law is </font><a title="Consensus" href="http://en.wikipedia.org/wiki/Consensus" target="_blank">consensus</a> among states exhibited both by widespread conduct and a discernible sense of obligation.</p>
<p>The International Court of Justice (case of USA vs Nicaragua in 1989) held that the elements of an international customary law would be <i>Opinio Yuris</i> (Past Judge Decisions or works of the most highly qualified publicists) which is then proven by existing state practices.</p>
<div>A <a title="Peremptory norm" href="http://en.wikipedia.org/wiki/Peremptory_norm" target="_blank">peremptory norm</a> (also called <i>jus cogens</i>, <a title="Latin" href="http://en.wikipedia.org/wiki/Latin" target="_blank">Latin</a> for "compelling law") is a fundamental principle of international law which is accepted by the <a title="International community" href="http://en.wikipedia.org/wiki/International_community" target="_blank">international community</a> of states as a <a title="Norm (social)" href="http://en.wikipedia.org/wiki/Norm_(social)" target="_blank">norm</a> from which no <a title="Derogation" href="http://en.wikipedia.org/wiki/Derogation" target="_blank">derogation</a> is ever permitted. Examples include various <a title="International criminal law" href="http://en.wikipedia.org/wiki/International_criminal_law" target="_blank">international crimes</a>; a state which carries out or permits <a title="Slavery" href="http://en.wikipedia.org/wiki/Slavery" target="_blank">slavery</a>, <a title="Torture" href="http://en.wikipedia.org/wiki/Torture" target="_blank">torture</a>, <a title="Genocide" href="http://en.wikipedia.org/wiki/Genocide" target="_blank">genocide</a>, <a title="War of aggression" href="http://en.wikipedia.org/wiki/War_of_aggression" target="_blank">war of aggression</a>, or <a title="Crime against humanity" href="http://en.wikipedia.org/wiki/Crime_against_humanity" target="_blank">crimes against humanity</a> is always violating customary international law.</div>
</blockquote><div dir="ltr">Please note the terms "significant number of states", "consensus", "state practice" and "accepted by the international community" - these are precisely the pointers that make "human rights" closer to emergent aspirations that judiciable rights. Customary international law hardly had the time to emerge in our case, where the matter is 20 year old.</div>
<div dir="ltr"> </div><div dir="ltr">Your quote of Mrs. Thatcher is closer to my own position than yours: " Our abiding commitment to the rule of law is the very bedrock of our civilization. It is what makes all else possible, from the flowering of the arts to the steady advance of the sciences. The idea that <b><u>men must govern themselves </u></b>not by the arbitrary commands of a ruler but <b><u>by their own considered judgment,</u></b> <em>is the means whereby chaos is replaced by order.".=> </em>If we are to govern ourselves, then we have to set out the rules by which we do so, and we cannot just go to a shelf to consult a secular Ten Commandments, which is revealed to you, but is possibly not "self-evident" to me. From long experience I'm wary of any assumption that human rights are transcendent - too close to theology for my comfort.</div>
<div dir="ltr"> </div><blockquote style="margin-right:0px" dir="ltr"><div dir="ltr">[This is akin to the discussion between Aristoteles and Plato as to the reality of the "idea" - where Plato argued that the idea of the wheel is eternal and unchanging and pre-existed its invention. Aristoteles kindly asked as to whether the idea of certain body ejects was "eternal"]</div>
<div dir="ltr"> </div>
<div dir="ltr">[Karl Popper has argued at length about the "paradox of tolerance" <a href="http://en.wikipedia.org/wiki/Karl_Popper" target="_blank">http://en.wikipedia.org/wiki/Karl_Popper</a>. This matter cannot be resolved logically, for it involves a vicious paradox and self-referential statements (see Agamben on the right of exception). ]</div>
</blockquote><div dir="ltr">Economy of means remains a principle of law, and I'd tend to argue along economical lines that issues of free speech on the net is no different from paper or radio or TV, and thus already judiciable - subject to the proviso that there are not specificities requiring additional legal norms. I would not go for the revelation of a transcendent right.</div>
<div dir="ltr"> </div><div dir="ltr">Whether I'd go with the idea of a transcendent right to proselytize among the pagans, i.e. those states that are already deliquent in the general area of personal rights - is for me foremost a matter of considered judgement (including consistency).</div>
<div dir="ltr"> </div><div dir="ltr">Aldo</div><div dir="ltr"> </div><div dir="ltr">Aldo</div><div class="im"><div dir="ltr"> </div><div dir="ltr"> </div><div dir="ltr"> </div><blockquote style="margin-right:0px" dir="ltr">
<div dir="ltr">
On 10 January 2012 00:04, Paul Lehto <span dir="ltr"><<a href="mailto:lehto.paul@gmail.com" target="_blank">lehto.paul@gmail.com</a>></span> wrote:<br></div></blockquote></div><div class="gmail_quote"><blockquote style="margin:0px 0px 0px 0.8ex;padding-left:1ex;border-left-color:rgb(204,204,204);border-left-width:1px;border-left-style:solid" class="gmail_quote">
<br><br><div class="gmail_quote"><div class="im">On Mon, Jan 9, 2012 at 12:17 PM, Aldo Matteucci <span dir="ltr"><<a href="mailto:aldo.matteucci@gmail.com" target="_blank">aldo.matteucci@gmail.com</a>></span> wrote:<br>
<blockquote style="margin:0px 0px 0px 0.8ex;padding-left:1ex;border-left-color:rgb(204,204,204);border-left-width:1px;border-left-style:solid" class="gmail_quote">
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</font><p style="margin:6pt 0cm 0pt;text-indent:0cm" class="MsoNormal"><font size="4"><font face="Garamond"><span lang="EN-GB">The loose use of
the term “right” is regrettable, but it is not my own doing. A good point of
departure in understanding the quandary is the US DECLARATION of Independence,
who also speaks of “inalienable rights” </span><i><span lang="EN-GB">“</span></i><i><span lang="EN-GB">We hold these truths to be self-evident,
that all men are created equal, that they are endowed by their Creator with
certain unalienable Rights, that among these are Life, Liberty and the pursuit
of Happiness</span></i><span lang="EN-GB">:” Now these “inalienable rights” were
not enough to make slavery illegitimate in the country. It took a civil war, and
AMENDMENTS to the US Constitution for this goal to be obtained.</span></font></font></p></blockquote></div><div><div class="im"><br>The above reflects an extremely common misunderstanding concerning rights. <b>The most important and fundamental rights are most often NOT in writing</b> in things like Constitutions, and w<b>hen they are they are not laid out in any significant detail </b>whatsoever because a Constitution is by nature a general statement of principles, and lacks even a section of definitions in nearly all cases. Free speech, for example is less than a single sentence in the US Constitution's first amendment. The <u>Constitution WAS intended to, and did, protect free speech BEFORE the first ten amendments called the Bill of Rights was added</u> by amendment. <br>
<br>In fact, many people opposed the Bill of Rights on the grounds that it would lead to either (1) confusion among the people that their rights were limited to those laid out in writing in the Constitution, or (2) judicial interpretations that presumed that if a right was not listed in writing, it did not exist. Both of these were considered by all to be a great danger, but those who passed the Bill of Rights did not think they would actually happen, and to try to make sure of that they added the 9th and 10th amendments, expressly reserving to the people and the states all other rights, thus clearly showing that <b>MORE rights exist than simply those formalized and enshrined</b> in the Constitution.<br>
<br>For example, I know of no state or federal constitution that mentions the fundamental right of personal self-defense against violent attack. At least no state or federal US constitution contains a mention of this right but, like free speech before the First Amendment, self-defense has ALWAYS been held to be a fundamental CONSTITUTIONAL right that no government could pass a law to eliminate without acting unconstitutionally. <br>
<br><b>Then, just where does the right to self-defense come from??</b> <br><br>One had best hope and pray that your most important and fundamental rights do NOT come from any sovereign government, because if they do, then you are really in big trouble the second anyone comes into power that doesn't like your exercise of your rights because they will simply declare the right to no longer exist. If the most important rights come from governments, then nobody's freedom is safe and what we loosely call rights are but mere privileges subject to governmental revocation at any time. <br>
<br>Fundamental rights come from individual reason and conscience, and therefore they are <b>beyond the power of government to dispose of IN A FINAL WAY.</b> Governments can only VIOLATE rights -- and <u>they may do so for centuries</u> as with powerful vested interests/businesses like slaveholders in the USA. But even when violations of rights continue on for long periods of time it is still true that <u>Slavery was always wrong, and not right</u>, and slaves at all times had the right to be free. This is so because rights come from, to use the terms of the US Declaration of Independence, "NATURE and NATURE'S GOD" -- both of which are outside the power of any human institution to control. We can note that Jefferson chose language to create a "tent" that included atheists and agnostics (Nature) and theists (Nature's God)<u> in order to locate the wellspring of rights outside the power of government to control.</u> <br>
<br></div>Mr. Matteucci, above, assumes that Jefferson's revolutionary instrument adopted by the Continental Congress in 1776 (the Decl. of Independence)If an<i> individual </i>violates rights or the law, they <u>can be quickly brought to justice, and our ideas of rights are not challenged</u>. is somehow the same, for purposes of a rights analysis, as the US Constitution of 1789's language protecting and grandfathering in the slave trade. In fact, there was a bit of counter-revolutionary action by slaveholding states to insist that the Declaration not be followed in respect to slavery, and they succeeded in getting that language into the US Constitution. But that constitutional language did not make something fundamentally wrong (slavery) perfectly OK on every level. As was argued then, and up to and through the US Civil War, every human being has an inalienable right to be free of things like slavery, and even Constitutions fall to a clear violation of inalienable rights. <br>
<div><div class="h5">
<br><br><br>But when <i>governments or large powers</i> violate rights or the law, <u>justice can move at a glacial pace</u> - usually decades, and occasionally centuries. BUT IT DOES MOVE. Sometimes the "police force" necessary to "arrest" the law violators in the case of governments or large powers amounts to nonviolent or even military armies (as in the US Civil War). <br>
<br>When justice is moving at the above very slow pace because governments or large business interests are violating fundamental human rights, <b><u>it is all too easy to confuse the VIOLATION of a right with the NON-existence of the right</u></b>. This is the common confusion I submit is reflected in Mr. Matteucci's response, but the distinction between the two is extremely important indeed for the following reasons:<br>
<br>1. Every major figure I know of that is important in establishing freedom and democracy agrees with Jefferson's approach that the wellspring of rights is outside the power of government to LEGITIMATELY tamper with - they can only violate those fundamental rights by pretending to repeal them. To show the breadth of agreement I'll cite Margaret Thatcher, talking about both the rule of law and the wellsprings of rights:<br>
<br><blockquote style="margin:0pt 0pt 0pt 0.8ex;padding-left:1ex;border-left-color:rgb(204,204,204);border-left-width:1px;border-left-style:solid" class="gmail_quote">"Our abiding commitment to the rule of law is the very bedrock of our civilization. It is what makes all else possible, from the flowering of the arts to the steady advance of the sciences. The idea that <b><u>men must govern themselves </u></b>not by the arbitrary commands of a ruler but <b><u>by their own considered judgment,</u></b> <i>is the means whereby chaos is replaced by order.</i> Balanced by the peaceful resolution of differences, the rule of law and the institutions of representative democracy are what stand between civilization and barbarism. It is through law-governed liberty that mankind has been able to achieve so much."<br>
</blockquote><br>Indeed, the "rule of law" in free societies is fully consistent with human rights, which fundamentally and foundationally create, in the individual, an equal and individual locus of power. In 1776, for the first time in history, individuals were declared to be, in a sense, sovereign individual locuses (loci) of power worthy of respect and dignity, consisting of rights given by God or by Nature that are equal to those given to all other humans. Consistent with this, Maggie Thatcher (above) summarizes free government and notes that the considered individual judgement of each person is a critical element in replacing chaos with order based on the rule of law. The "rule of law" WITHOUT each person as an independent source of rights and power is the system of dictatorship - <u>dictators live by laws</u>, <i>which laws are nothing other than force itself</i>, but dictators don't respect human rights, and thus they become TOTAL-itarian based on their view of government power without limits. <br>
<br>Now, if sovereign states, as is suggested by Mr. Matteucci, are the only sources of law, then slavery was perfectly OK and there were NO GROUNDS in justice to change or amend the Constitution. Genocide is just fine, so long as some government votes for it. The right of self-defense can be removed from all or from certain individuals by a mere act of regular legislation, making it murder for you to defend yourself against a violent attack. Is this right? Of course, not. <br>
<br>Now I freely admit that governments or other powerful actors may appear to get away with rights violations, perhaps for a very long time, but it will NEVER make their actions right or just.<br><br>Referring to one of the oldest kings mentioned in the Bible, an American patriot wrote:<br>
<br>"<b>Even if every prince since Nimrod had been a tyrant, <u>it would not establish a right</u> to tyrannize</b>." This is because rights (and wrongs) emanate from Nature and the human conscience, not government acts.<br>
<br>Finally, even if some NON-fundamental right is in fact, or is assumed to be, NOT in existence, <b>what is the first step to gaining proper governmental recognition of such a right? <br><br>That first step is to CLAIM THE RIGHT EXISTS. </b> Thus, right now people in the USA advocate for court recognition of the RIGHT to GAY MARRIAGE. They are saying that the right exists RIGHT NOW, everywhere, but are asking for the governmental courts to recognize this right by court ruling <u>so that the right may be properly enforced</u> and recognized.<br>
<br>Because the first step in getting a new right is <u>to assert that it exists</u> (in conscience, and in justice, etc.), then with regard to <u>fundamental </u>human rights it is always wrong to say things like "I support the Right XYZ, but unfortunately it does not exist because governments haven't agreed to it or are not in fact respecting Right XYZ, so no such right exists." <br>
<br>The violation of a right does not prove the right's nonexistence. LIke ALL VALUABLE things, rights are subject to being stolen. The fact that property is stolen for years or decades or centuries never vests proper title in the thief or even in those who later possess it. It applies with even greater force to people than to property, the fact that fundamental human rights are violated or not respected by governments doesn't mean that the government is within rights and justice to enslave people, commit genocide, or deny freedom of speech.<br>
<br>Perhaps the most fundamental ethical obligation is to call the good the good and the bad the bad. With regard to fundamental human rights, our conscience is the only appropriate guide. Bowing to government acts that abuse human rights is SERVILE. Governments commit crimes too!! Big ones, in fact. When those crimes consistent of violations of human rights, we should not give cover to those crimes by thinking or saying that the rights do or do not exist on account of anything that governments say or do. <br>
<br>Fundamental rights <u>are not granted</u> by governments, they are only GUARANTEED by them (thus, some of these rights are mentioned in the written consitution for purposes of such guarantees).<br><br>As applied to the Internet, the fundamental right of free speech and communication is encountering the newish "technology" of the internet. Now, the fundamental right of self-defense against violent attack might be exercised with the "technology" of gloves, clubs, or guns. Self-defense has been recognized since the days of cave men. Now, can someone argue that the right of self-defense does not extend to the "technology" of clubs or of modern guns -- when nearly everyone else one might encounter has a club or a gun? Or does the right "expand" so to speak along with the technological changes that are adopted on a widespread basis? I think nearly all would agree that the right "expands" to the technology - or rather that the very same right may be exercised in the new technology as well. Thus, the status of the internet as "technology" is not really a dispositive distinction. We should look to whether or not most everyone else has or desires access to clubs, guns, or the internet in order to exercise a fundamental right of speech or self defense, and note that if a society chooses to have gun control for all, then the right of self-defense won't include that particular technology, because it's not widespread enough.<br>
<br>Declarations like the UNHDR are legal instruments: A declaration of war is surely a legally binding act, and a "declaration" in courts in the US is equivalent to an affidavit. One "declares" things that ALREADY EXIST independently. The mistake is to think that the form of a "declaration" means that the right does not exist at law. That's incorrect. <br>
<br>By keeping in mind the source of fundamental rights, when rights are violated, we recognize the violations as being such, and have a strong platform to argue from: Our Rights have been Violated. If we believe that only state action creates rights, then we are perpetually at the mercy of government, and when they violate our rights, we have no cause of action for justice, either in the courts, nor an ethical cause for revolution, even. We are utterly at the mercy of tyranny unless we believe that our rights are quite independent of whether governments in their corruption choose to respect them or not.<br>
<br>Paul Lehto, J.D.<br><br>PS Customary (non-written) international law is quite abundant, and it is not ratified by any kind of treaty. See <a href="http://en.wikipedia.org/wiki/Customary_international_law" target="_blank">http://en.wikipedia.org/wiki/Customary_international_law</a> <br>
<br><br><br><br> <br></div></div></div><div><div class="h5"><blockquote style="margin:0pt 0pt 0pt 0.8ex;padding-left:1ex;border-left-color:rgb(204,204,204);border-left-width:1px;border-left-style:solid" class="gmail_quote">
<font size="3" face="Times New Roman">
</font><p style="margin:6pt 0cm 0pt;text-indent:0cm" class="MsoNormal"><span lang="EN-GB"><font size="4"><font face="Garamond">The UNHDR is what
its name purports to be – a DECLARATION. Strictly speaking it has no legal
standing in international law (and even less in national law), even though the
term “right” is used therein. The declaratory character of the UNDHR is best
understood in the context of its creation. In 1948 the West was pressing for a
legal title to Art. 1-19 (personal rights), and the Soviets were doing the same
for Art. 22-25 (economic rights). The compromise is what we have now.</font></font></span></p><font size="3" face="Times New Roman">
</font><p style="margin:6pt 0cm 0pt;text-indent:0cm" class="MsoNormal"><span lang="EN-GB"><font size="4"><font face="Garamond">Conventions have
been created under UNDHR, which have legal standing for the parties.</font></font></span></p><font size="3" face="Times New Roman"></font><br></blockquote></div></div></div><div><div class="h5"><span><font color="#888888">-- <br>
Paul R Lehto, J.D.<br>
P.O. Box 1 <br>Ishpeming, MI 49849 <br>
<a href="mailto:lehto.paul@gmail.com" target="_blank">lehto.paul@gmail.com</a><br><a href="tel:906-204-4026" target="_blank" value="+19062044026">906-204-4026</a> (cell)<br><br><br><br><br><br><br>
</font></span></div></div></blockquote></div><span class="HOEnZb"><font color="#888888"><br><br clear="all"><br>-- <br>Aldo Matteucci<br>65, Pourtalèsstr.<br>CH 3074 MURI b. Bern<br>Switzerland<br><a href="mailto:aldo.matteucci@gmail.com" target="_blank">aldo.matteucci@gmail.com</a><br>
<br>
</font></span></div><br><br clear="all"><br>-- <br>Aldo Matteucci<br>65, Pourtalèsstr.<br>CH 3074 MURI b. Bern<br>Switzerland<br><a href="mailto:aldo.matteucci@gmail.com">aldo.matteucci@gmail.com</a><br><br>