Critically analyse the relations between the form of life and the jurisprudence of the office of the jurisprudent in the domain of human rights and development.

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Critically analyse the relations between the form of life and the jurisprudence of the office of the jurisprudent in the domain of human rights and development.

I. INTRODUCTION

Human rights development impacts on the relationship between the form of life of the jurist and the office of the jurist in a number of ways. Thus it is integral that we analyse and critique the relations between the form of life and the jurisprudence of the office in the domain of the human rights. The essay will attempt to look at this relationship within the lens of natural law jurisprudence. And whilst we could simply look at how these links are affecting the jurist it also important to look at how we can proceed within the arena of human rights development and how the relationship may change. Jurisprudence theorist such as Finnis, Simonds and to some extent Hobbes have supported the development of human rights and whilst sceptics such as Bentham may tarnish such support there is and always will be a future for global human rights.

II. NATURAL LAW JURISPRUDENCE AND RIGHTS

Human rights and development impact on the relationship between the form of life of the jurist and the office of the jurisprudent in many ways.  To understand the links between the form of life and the office in this context, it is necessary to explore the links between these concepts as developed by natural law theorists.  According to natural law jurisprudence, law is a form of regulation in which abstract, formal equality inheres.  According to natural law theorists, this social form must be tied to some kind of “form of life”.  That is, the concerns of jurisprudence are more usually shaped around the conduct and form of life of the jurist than that the active citizen.  According to Finnis, this form of life is one in which individuals are able to pursue diverse life paths, and thus their own ways of engaging in ‘objective goods’.  Simmonds further proposes that the form of law grants individuals a certain degree of ‘distance’.  Jurisprudence theories link the form of law with a form of life in which abstract individuals are able to pursue their own projects through an idealised form of liberal capitalism.  Hence there is a connection made in this sense by analysing two important aspects of the jurisprudence traditions, that of prudence, and of office.  

Natural law in practice is essentially the idea that individuals possess an innate free will that it restricted by society through law.  An ideal government for example, would protect natural law so as to ensure that each person had free will and liberty.  John Locke defined this phenomenon as ‘[t]he state of nature has a law of nature to given it, which obliges very one, and reason, which is that law, teaches all mankind who will but consult it that being all equal and independent, no one ought to harm another in his life, health, liberty of possessions.’  Locke’s basic idea was that the natural liberty of man is to be free from any superior power on earth, and not to be under the will of the legislative authority of man, but to have only the law of Nature for his rule.  As a jurisprudential theory, natural law approaches law as a form of social regulations, with its own identity.  Natural law jurisprudence views law as a form of regulation in which formal equality inheres.  The basic premise is that rights exist, which are inherent in the individual because of their rational nature, and not because of any grant of right by a sovereign.  This has the tendency for critics to argue that such a concept which can be invoked to support human rights that don’t yet exists, and can lead to indeterminacy because individuals may invoke laws to support anything they wish.

Naturalists also tie the concept of law as a form of social regulation based on rationalism to a form of life.  As noted, in Finnis, the ‘form of life’ of the jurisprudent’ is one in which individuals are encouraged to take different life paths.  Contrast Simmonds who asserts that the form of law grants individuals the distance to pursue their path. Irrespective of the law’s burden an individual’s paths is not to be decided by the will of the sovereign.  Theorists link the form of law with a form of life in which individuals are able to pursue their own ends through an idealised form of liberty.  Applied in the context of human rights, this may relate to pursuits of freedoms, such as free speech and individual liberties.  Importantly, it is also necessary to consider the office of the jurisprudent, which can constrain such pursuits of individual expression, and in essence restrict the form of life itself.  Law is tied to a form of life that is morally evaluated. Simmonds and Finnis argue that this form of life is intrinsically morally valuable, as it enables individuals to pursue their own ends though at some distance to other individuals.  Thus, the form of law is given moral value, as it is productive of individual liberty.  The form of law is also systematically morally ‘good’; and this moral value exists even when it expresses concepts thought to be immoral.  Simmonds justifies this by reference to the distance between the sovereign and the rules and regulations themselves, as the form of law supports a system of individual liberty (the form of life).  This gives rise to a ‘collateral obligation’ to obey those rules and regulations.  In basic form, when one decides whether or not to obey the law, the justice of the content of the law is not the only thing one considers.  Rather, it must be weighed against the intrinsic moral value.

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III. THORETICAL PERSEPECTIVES OF THE HUMAN RIGHTS MOVEMENT

A) Evolution of Human Rights Theories

Rising from natural law jurisprudence, the language of human rights, according to some commentators has become the ‘dominant mode of public moral discourse over the last fifty years’.  Upendra Baxi observes that this century has seen a ‘profusion of human rights enunciations on a global scale’. Human rights are characterised as evolving legal regimes, substantive moral theories, discourse theories, a body of ideas, Western colonial ideology.  Pioneers of human rights theories such as Dworkin laid the foundational principles of the discourse.  In ...

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