In my previous post, I wrote about the postwar restitution efforts in Germany and Japan, comparing and contrasting the efforts at the time and the fruit they bore. In this post, I want to write about the effect of World War II on Anglo-American jurisprudence, the philosophy of law – which I claim was the result of an Anglo-American understanding of rights coming into contention with the German understanding of rights in the act of subduing German military aggression.
In his chapter on ‘the truths of liberalism’ in his book, ‘how to be a conservative’, English philosopher Roger Scruton writes of the UN Declaration of Human Rights, which is unquestionably the most influential work of jurisprudence in the postwar era. Having trained for the English Bar, Scruton writes of how the first 21st Articles of the Declaration conform to the Anglo-American tradition of jurisprudence up to that time. This is because they define rights as a right to non-interference, which, as Scruton writes, is the Gold-standard bulwark of Anglo-American civilisation against decay and is in fact the foundation of the consent of citizens to their government’s exercise of authority.
The 22nd Article of the Declaration, however, shifts the tone significantly – imposing rights claims upon both government and individual without any legitimate moral basis according to the jurisprudence of Anglo-American society – claims to economic, social and cultural rights in order to protect individual ‘dignity and the free development of his personality’. The provenance of these claims however is not hard to find. The moral philosophy of German, Immanuel Kant, suggests that the highest form of morality is to be valued for who one is rather than what one does. In this view, it is conceivable that my right to life can lay a legitimate claim upon your duty to help and protect me. Moreover, it was the Unified German nation in the 1870s under von Bismarck that introduced the first welfare system – imposing a positive duty upon governments to provide for their citizens basic goods and services.
It is not a very big jump of logic then, once the logic of Hegel and Marx, which considered groups of society able to impose claims upon others for welfare is included in the mix, to see that Anglo-Americans engaged in the rebuilding of Germany after World War II would have come into a vastly different way of doing things. The most intimate act of international interference by Anglo-Americans in rebuilding Germany according to their worldviews, would have led them to question the legitimate boundaries of their own jurisprudence. If non-interference is the core element of Anglo-American citizen-state relations: how does this principle translate when millions of Anglo-American citizens have just sacrificed their lives for their state’s existence? Moreover, how do these citizens make sense of their own interference in another state with comparable civilisational inheritances, but with no principle of non-interference?
This, it appears to me, was a clear breach of cultural standards and a situation that the principle of non-interference was not enough to make sense of. This is because the principle of individual liberty that Anglo-American jurisprudence upholds is dependent upon the notion of individual sovereignty. For all intents and purposes, Individual Sovereignty now had very little practical relevance as the desperation brought on by war led to the decay of respectability that Anglo-Americans had laid claim to. The war effort was an unquestionably noble act, which nevertheless, our nations did not allow any claim to the spoils of war beyond that of justice for the Jewish nation and restitution for Europe. With justice now the by-word, liberty was a luxury that scholars of jurisprudence overlooked. The result is now the dog’s breakfast of Human Rights legislation and in popular culture, fuels the growth of a litigious culture. This is all because we have lost faith in the notion that all that is required of a good citizen and a good government is not to interfere in the private space of sovereign individuals; which is a notion that allows one to maintain dignity and self-worth without imposing claims upon others’ benevolence.
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