Junger.txt Page:1 JOURNAL OF BUDDHIST ETHICS ONLINE CONFERENCE ON BUDDHISM AND HUMAN RIGHTS 1-14 October 1995 WHY THE BUDDHA HAS NO RIGHTS PETER D. JUNGER Professor of Law Case Western Reserve University Cleveland Buddhist Temple Religious Chairman Zen Shin Sangha Assistant Senior Leader School of Law Cleveland, Ohio 44106 junger@pdj2-ra.f-remote.cwru.edu Publication date: 18 September 1995 Copyright (C) Peter D. Junger 1995 COPYRIGHT NOTICE Digital copies of this work may be made and distributed provided no charge is made and no alteration is made to the content. Reproduction in any other format with the exception of a single copy for private study requires the written permission of the editors. All enquiries to JBE-ED@PSU.EDU. ABSTRACT The concept of human rights is a creature of the legal and political history of Western Europe over the course of the last three centuries and in particular of the common and civil law traditions. The Buddha Dharma on the other hand is universal and the teachings of the Buddha are not directly addressed to questions of political governance or of individual rights. Both the Buddha Dharma and the common law are concerned with processes; neither are concerned with abstract concepts like human rights. Such concepts have, however, had an important role in the development of the civil law, which is more concerned with theory and ratiocinations than with the way things are right here, right now. Although the Buddhist traditions are more concerned with being virtuous than having rights, many of the interests that are subsumed under the rubric of human rights are valued by those traditions, especially the freedoms of religion and expression. INTRODUCTION As has been often noted, the concept of "human rights" tends to be based on modern Western European assumptions that, to a large Junger.txt Page:2 extent, can be traced to earlier Judeo-Christian and Greco-Roman concepts; [1] assumptions that are alien to many, if not all, of the innumerable Buddhist traditions. It is not so often noted that it is difficult, if not impossible, to make sense of the concept of human rights--as opposed to some of the particular items that are lumped together under that rubric--within the common law tradition that prevails in England, in the English speaking nations of North America, in the British Commonwealth, and in other countries whose political and judicial institutions have been inherited from England, a legal tradition that can be traced back without interruption to feudal practices and that is based on centuries of judicial precedents, not on rational deductions drawn from positive legislation or abstract principles. As Eugene Kamenka has pointed out: The belief in human rights as a great moral value, a UNESCO symposium characteristically insists, is not a specifically western or Judeo-Christian contribution to the world. It is to be found in all the great moral documents of mankind, and in all its aspirations since primitive times. If the concept of human rights is to have any specific meaning, is to be seen as implying a view of man and society, this is untrue. The concept of human rights is a historical product which evolves in Europe, out of foundations in Christianity, Stoicism and Roman law with its //jus gentium//, but which gains force and direction only with the contractual and pluralist nature of European feudalism, church struggles, the rise of Protestantism and of cities. It sees society as an association of individuals, as founded--logically or historically--on a contract between them, and it elevates the individual human person and his freedom and happiness to be the goal and end of all human association. In the vast majority of human societies, in time and space, until very recently such a view of human society would have been hotly contested; indeed, most cultures and languages would not have had the words in which to express it plausibly. Of course, all human societies have had a concept of suffering and most of them have had a concept of human worth, of justice, of fair dealing, of meeting one's obligations. But the society of the great seventeenth- and eighteenth-century social contract theorists, the society of the right-and-duty-bearing individual standing in external 'contractual' association with other right-and-duty-bearing individuals, the society which the great German sociologist, Ferdinand T"onnies, called the //Gesellschaft//, [2] is a modern, European phenomenon. The Greeks, like the Chinese, saw man in a familial, social and cosmic Junger.txt Page:3 setting; and their concern was not with rights but with duties, and with balance, harmony, //moira//, //dikee// and //jus//, a balance that transcended the individual, that made society part of a great cosmic pattern and that rested on a network of obligations, not just to individuals but to forces and institutions, human and divine, that shaped and transcended such individuals. Men in pre-modern societies lived in a //Gemeinschaft// [3] that saw man as part of a social organism, a structured community based on a common religious tradition, a hierarchy of power, a network of mutual obligations that made and shaped men, rather than served them. Even in Roman law as the Romans and their immediate successors knew it, there was a concept of right, and certainly of duties--but no concept of rights. [4] The common law, like the Roman law, has a concept of right, and a concept of duty, but it has no concept of rights in general, of rights in the abstract. And the Buddhist tradition, like those of the classic Greeks and the Chinese, evolved within a //Gemeinschaft//, within a //community// of monks and nuns and householders, or, more precisely, it evolved within a community that consists of all the myriad of interdependent beings. As Masao Abe tells us: The Buddhist view of "human rights" is significantly different from that found in the Western tradition. Strictly speaking, the exact equivalent of the phrase "human rights" in the Western sense cannot be found anywhere in Buddhist literature. In the Western notion of "human rights," "rights" are understood as pertaining only to humans; nonhuman creatures are either excluded or at most regarded as peripheral and secondary. "Human rights" are understood not from the nonhuman or wider-than-human point of view but only from the human point of view--an anthropocentric view of human rights. By marked contrast, in Buddhism a human being is not grasped only from the human point of view, that is, not simply on an anthropocentric basis, but on a much broader trans-homocentric, cosmological basis. More concretely, in Buddhism human beings are grasped as part of all sentient beings or even as a part of all beings, sentient and nonsentient, because both human and nonhuman beings are equally subject to transiency or impermanency. (That nothing is permanent is a basic Buddhist principle.) If this universal impermanency that is common to both human and nonhuman beings is done away with, the problem of life and death peculiar to human existence cannot be properly resolved. Both the Buddhist understanding of human suffering and its way of salvation are rooted in this trans-anthropocentric, cosmological Junger.txt Page:4 dimension. [5] As one who aspires to follow the Buddha Dharma and who has studied and practiced and taught the common law for these last forty years, it strikes me that there is at least one reason that explains why neither of my traditions makes use of the concept of human rights: both traditions are of practices that are concerned with arriving at a goal starting from the way things are right here, right now in all of their interdependent complexity, not starting from philosophical speculations as to how things must--or should--be in a radically simpler world without much ambiguity. It is my goal in this article to explain why the //concept// of human rights is not likely to be useful in either following the Buddha Dharma or in practicing of the common law. The follower of the Dharma and the common law practitioner are both concerned with the particular, with this particular case, right here, right now; the concept of human rights, on the other hand, is so abstract and general, and so incoherent, that it is not likely to lead to right understanding, or even to right conduct, in terms of either practice. More importantly, both the follower of the Dharma and the practitioner of the common law are concerned with processes--with practices, with the flow of particular interrelated moments--in a world that is continually in flux and that has no room for unchanging absolutes like "human rights" that are deduced by a rigidly ahistorical rationality. I should make clear, however, that it is not my intent to denigrate the interest that is sought to be protected by the proclamation of any particular "human right". It would be hard for anyone in our Western society, and especially for one who tries to follow the Buddha Dharma, to oppose the protection of most of those interests. Nor am I raising objections to the use of the term "human rights" as a convenient phrase to refer to complex //desiderata// or as a rhetorical device or skillful means for advocating right conduct on the part of those who govern others, even though I doubt that talk of human rights is very skillful when addressed to those, like the vast majority of Buddhists, who are not party to the traditions of Western Europe. [6] The following remark by an international lawyer and diplomat from Thailand who received his legal training in the West, strikes me as a very sensible approach to human rights for one within the Buddhist tradition: We live in a multicultural world, where the light in which a person sees cultural values depends on the social environments to which he is accustomed. To admit the reality of such a wholesome world is a giant step toward a closer appreciation of a more tolerable concept of human rights. If we are aware that a world of distinct cultures exists and eventually accept it, we will recognize and ultimately tolerate different cultural values and therefore essentially different concepts of human rights. After all, the international Junger.txt Page:5 instruments proclaiming the Rights of Man or the International Covenants of Human Rights merely incorporate the views and concepts advocated by the authors and draftsmen of those instruments, who have invariably been trained in Western or European legal traditions. [7] It is, I trust, in this spirit that I write this article suggesting that, though followers of Buddhist traditions do value most, if not all, of the interests underlying the rhetoric of human rights, they may not have much use for the label itself, which is, after all, a product of the traditions of Western Europe and the parochial histories of that region. There is little that is wrong, and much that is right, with the Western European concept of "human rights" when that concept is viewed from within that tradition; but problems arise when efforts are made to impose that concept with all its Western trimmings upon traditions--like those of Buddhism--that have quite different concepts, if only because they have quite different histories. "HUMAN RIGHTS" AS A CONGERIES, NOT AS A COHERENT CONCEPT Although the concept of human rights is the product of recent historical processes, such rights are often invoked as if they were timeless absolutes discoverable either by rational thought or by checking to see if they are listed in various declarations of the United Nations, and in particular in that body's "Universal Declaration of Human Rights". [8] Viewed in the latter fashion, the listing of rights seems to have much in common with the list that Borges reports appeared in a Chinese encyclopedia, [9] for the "rights" listed in the Declaration seem to comprise little more than a disparate aggregation of claims, privileges, powers, and immunities that are not connected to one and other in any coherent fashion. A sampling of the various rights proclaimed by the Universal Declaration of Human Rights should suffice to make this point clear. Article 1 All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. ... Article 8 Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law. Junger.txt Page:6 ... Article 10 Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him. ... Article 16 1. Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution. 2. Marriage shall be entered into only with the free and full consent of the intending spouses. 3. The family is the natural and fundamental group unit of society and is entitled to protection by society and the state. Article 17 1. Everyone has the right to own property alone as well as in association with others. 2. No one shall be arbitrarily deprived of his property. Article 18 Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance. ... Article 21 1. Everyone has the right to take part in the government of his country, directly or through freely chosen representatives. 2. Everyone has the right of equal access to Junger.txt Page:7 the public service in his country. 3. The will of the people shall be the basis of the authority of government; this shall be expressed in periodic and genuine elections which shall be by universal and equal sufferage and shall be held by secret vote or by equivalent free voting procedures. ... Article 23 1. Everyone has the right to work, to free choice of employment, to just and favorable conditions of work and to protection against unemployment. 2. Everyone, without any discrimination, has the right to equal pay for equal work. 3. Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection. 4. Everyone has the right to join trade unions for the protection of his interests. ... Article 25 1. Everyone has a right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control. 2. Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection. Article 26 1. Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education Junger.txt Page:8 shall be generally available and higher education shall be equally accessible to all on the basis of merit. 2. Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace. 3. Parents have a prior right to choose the kind of education that shall be given to their children. Now what is one to make of this congeries of "rights"? Certainly it is apparent when one examines them, even in a cursory fashion, that many of them presuppose the existence of social institutions--such as trade unions and professional education and the United Nations itself--that did not exist at the time of the historical Buddha (or at the time of the founding of the common law, for that matter) and that clearly, however important they may be for particular persons at particular times, are not central, or perhaps even germane, to the Buddha's teachings. Some of these postulated institutions, such as trade unions or the individual ownership of "property", may not even be consistent with the organization of modern societies in accordance with Buddhist teachings. Thus, for example, the division of a community, the //Gemeinschaft//, into two antagonistic groups of "labor" and "management" does not seem to be in accord with the Buddha's teachings and the idea of abstracting //this cup// and //this field//, and so forth, into an intangible undifferentiated sort of object called "property" that is subject to being "owned" by an individual who can do with it as he wishes, quite without regard to that individual's relations with the greater community, also seems far removed from anything that the Buddha taught. It is also apparent that the language of the Declaration is a peculiar mix of vagueness and specificity, which can perhaps be explained by the exigencies of negotiating an agreement among parties who were not really in agreement about its terms, or even about the rights that it should protect, though it hardly seems appropriate in the definitive declaration of the fundamental and universal rights that supposedly are possessed by everyone, or at least everyone whom we classify as human. In particular, from the standpoint of a common lawyer, there is the troublesome vagueness about whoever it is against whom the rights listed in the Declaration are asserted, and about the specific nature of the rights. Thus it is all very well to say that everyone has the right to work, but exactly who is supposed to be the employer? And exactly what is the work that is being claimed? Of course, one can say that the rights are asserted against the state, or against society, but that does not quite make sense to one brought up in the common law tradition when there is no means of enforcing, or Junger.txt Page:9 even specifying the exact content of, those rights. One of the major maxims that have influenced the development of the common law is //ubi jus, ibi remedium//, "where there is a right there is a remedy." Although this maxim is often used to justify the creation of new remedies, it also supports the argument that the absence of a remedy proves that there is no right. Furthermore, the common law simply has no way of giving a remedy against something as vague as "society" and it has never really been able to supply remedies against the state (as opposed to individuals who purport to be acting as agents of the state). The common law, moreover, to revert to our earlier example, though it might in theory supply a remedy by which a claimant could obtain a particular job, has never had a way of enforcing a claim to "work" without reference to some particular job. From the Buddhist perspective on the other hand, considering that the absence of one's self lies at the center of the Buddha's teachings, it is difficult to imagine a Buddhist, //qua// Buddhist, according much reality to--to say nothing of clinging to--a recent, and rather dubious, mental construct like a state or a society. [10] Nor, to return to our particular example, are traditional Buddhist societies likely to be able to make much sense of the concept of a "right to work", a concept that is only intelligible within a tradition that radically divides labor from capital and the employed from the employer (and both from the unemployed) in a fashion which would be incomprehensible in any traditional //Gemeinschaft//. From a Buddhist point of view, the trouble would seem to lie not only in the illusory nature of the purported rights, but also in their implicit denial of the fact of //dukkha//, the fact of the ubiquity of suffering and of the unsatisfactory nature of all conditioned things. It hardly does for one to say to an unemployed steel worker in the United States that he has a right to work even if he does not have a job, or for one to tell a peasant tilling a rice-field in Southeast Asia that she has a right "to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control." Such claims seem more like a denial the truth of suffering than a step leading to its cessation. Surely it does not profit a man to tell him that he as a right to security in this world of impermanence, as if he could in some way avoid the consequences of sickness and old age--or even of death, which is, after all, the ultimate case of "lack of livelihood in circumstances beyond [one's] control". Although it may make us feel that we have accomplished something to declare that everyone has a right to happiness, or to its pursuit, the fact of //dukkha// remains a fact. The world of dew-- A world of dew it is indeed, And yet, and yet. .. Of course it would be nice if everyone had work, and not too much Junger.txt Page:10 of it, if everyone had enough to eat and a roof over their heads, if everyone's dignity--everyone's Buddha nature--were universally recognized. But that is not the way things are right now. And although one may--and as a Buddhist perhaps should--aspire to bring about such changes, the Buddha's teaching, as I understand it, is that one should not to cling to such aspirations, or to any other cause of suffering, including rights. From this point of view rights seem more like an incitement to clinging than a cure for suffering. [11] HUMAN RIGHTS AS THE PRODUCT OF REASON Now there may be those who will object to what I have said up to now on the ground that it is unphilosophical and rather unfair, for, after all, the imperfections in the implementation of the concept of human rights hardly proves that that concept is not a good idea. But my claim is not so much that the concept of human rights is not good, but rather that the peculiar collection of rights set out in the Declaration suggests that that concept is not coherent. Still there are those of an abstract bent who will undoubtedly argue that one can--and perhaps that one must--conclude on some as yet to be specified ground that human beings do have rights simply by virtue of being human and that the job of an ethicist or a philosopher or the sort of person who takes part in a symposium like this is to explore those grounds, or the logical nature of those rights, without worrying about the individual rights themselves. The fact that a bunch of politicians, aspiring to be statesmen, did a clumsy job of specifying those rights back in San Francisco in 1948, though regrettable, is in this view hardly significant. It should be noted at this point, however, that even if there were no other objection to this approach, the emphasis on //human// rights does not seem quite compatible with the Buddha's teachings. A Buddhist would undoubtedly be more comfortable with this argument if one were said to have these rights not by virtue of being human, but by virtue of being sentient, or even just by being. The parochialism of the Western concept of human rights is not limited just to time and geography. The teachings of the Buddha, as I understand them, enjoin me to respect the interests of others--the "rights" of others, if one wants to use that label--without limiting the others to the merely human, or to "agents" or to "persons" or to other limited groups of "right-bearers". Some Western philosophers who espouse human rights do seem at least partially sensitive to this objection: It is a mistake, in my view, to make the distinction hinge on the difference between //human// beings and others: it is not their humanity, a simple biological characteristic having no necessary moral implications, but their personality that makes the crucial difference between right-bearers and other objects. The Junger.txt Page:11 //natural personality// of nearly all human beings consists in their having a certain kind of self-awareness, a conception of themselves as initiators of actions that make a difference to the course of events. They are conceptually equipped to envisage alternative possibilities, to prefer one state to another, and to decide on a course of action intended to bring about one in preference to another. Moreover, each not only knows himself as such a person, but also distinguishes himself and his initiatives from other similar persons and theirs. This characteristic may not be confined to human beings: some chimpanzees educated by human teachers have show a conceptualizing capacity that may extend to this kind of self-conceptualization; it is possible that intelligent dogs or dolphins may have it, or be capable of learning it from human beings. On the other hand, there are some human beings who do not have it; congenital idiocy or brain damage could deprive one of it. Yet it is so nearly universal a feature of human beings that the generalization that human beings are natural persons is pragmatically reasonable, at least as a rule of thumb. A person knowing himself to be a person in a world of persons is aware that they, like him, have projects important to them, and that his actions may impair theirs as theirs often impair his. This may be no more than a grim fact of life; he may take what evasive action he can, and regret the mess when it fails. On the other hand, he may come to feel that people who understand very well what it is to have their own projects spoiled by the carelessness and unconcern of others ought to have some respect for his--and for him as their author. And he may resent their trampling on these projects without a thought, and, even more, their treating him as a mere impediment or as an instrument for their own projects, as though he had none of his own that mattered. And if his resentment were grounded in their failure to appreciate what in his view any person ought to be able to grasp in his dealings with another person, he would be supposing a general moral principle--that of respect for natural persons. This amounts to saying that any natural person is also a moral person, a bearer of rights, which constitute for any other person reasons (though not necessarily conclusive reasons) for forbearance in respect of his projects. From this basic deontological notion of respect for persons, which has nothing whatsoever to do with valuing them, derives a set of very general Junger.txt Page:12 principles ... [12] It seems to me, however, that the insistence here that one has to be a person in order to have rights, is no more consonant with the Buddha's teachings than the requirement that those who have rights have to be human, especially as the test of being a "person" seems to be that one must have a self-conscious self, a test that is difficult to reconcile with the teaching that all things are empty of self. The teachings of the Buddha give much simpler reasons to respect the desires of other beings: All beings fear punishment; all fear death. If you take yourself as the measure, you will never harm, you will never kill. All beings fear punishment; all love life. If you take yourself as the measure, you will never harm, you will never kill. If in seeking happiness you bring harm to others who also seek to be happy, in the future you will never be happy. If in seeking happiness you never harm others who also seek to be happy, in the future happiness will come to you. [13] The rational deductive approach to human rights assumes, of course, several things: in particular, (i) that the concept of rights, and especially human rights, is meaningful and coherent and (ii) that there is indeed some ground from which such rights can be deduced or upon which such rights are based. It also assumes that one can, once one has found the ground on which human rights are based, deduce by ratiocination the content of the rights themselves and, in some extreme cases, that one can, with recourse to nothing more than one's own rationality, deduce the ground itself. As an example of the latter approach, consider the following passage by Alan Gewirth: In this book, while trying to profit from the work of my predecessors, I present a new version of rational justification. The chief novelty is the logical derivation of a substantial normative moral principle from the nature of human action. Although the importance of action for morality has been recognized since the ancients, I undertake to show that the connection between them is much closer and more substantive than has hitherto been thought. My main thesis is that every agent, by the fact of engaging in action, is logically committed to the acceptance of certain evaluative and deontic judgments and ultimately of a supreme moral principle, the Principle of Generic Consistency, which requires that he respect his recipients' necessary conditions of action. To prove this Junger.txt Page:13 thesis, I have argued that the very possibility of rational interpersonal action depends upon adherence to the morality that is grounded in this principle. Because every agent must accept the principle upon pain of self-contradiction, it has a stringent rational justification that is at the same time practical because its required locus is the context of action. [14] Somehow it does not seem that many persons, or governments, would be persuaded to behave themselves by the "pain of self-contradiction", which must surely be one of the least distasteful forms of //dukkha//, and one that has, I suspect, afflicted every philosopher who has ever written, even Naagaarjuna. As Walt Whitman put it: "Do I contradict myself? Very well then I contradict myself." [15] Nor is Gewirth likely to persuade any Buddhist--even a Buddhist philosopher--that he has by pure logic discovered "a supreme moral principle", and one that no one up to now, not even the Buddha, has happened to notice. Pure logic is not the path we are enjoined to follow to reach the truth, is not the middle way. As a student and teacher of the common law I am convinced that its tradition has been perverted by a positivist, and academic, emphasis upon wrongs as opposed to rights, and I suspect, with pretty good reason, that that perversion is a consequence of the sort of philosophical abstraction that requires one to deduce what the law should be--or what it is--from some source outside of itself like a "sovereign" or the "will of the people" postulated by Article 21 of the Universal Declaration of Human Rights or some God-given concept of "natural rights" or even Gewirth's rationality. On the other hand, the "rights" that arguably make up the major substance of the common law, even as it is today, are quite unlike the nominal entities called "rights" that comprise the intention of the Universal Declaration, even if the latter represent, or disguise, aspirations and interests that fit comfortably within, and to a large part are derived from, the common law tradition. As Justice Holmes once wrote: The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. [16] From a Buddhist viewpoint, the whole idea of "grounding" the concept of human rights seems pretty problematical, if not downright perverse, especially as the major use of the concept seems to be to supply a justification for ethical, or political, prescriptions that need no justification or grounding. As I understand the Buddha's Junger.txt Page:14 teachings, one practices right actions because that practice leads to the cessation of suffering--or, better yet, one just practices them. If one "has" right views, then one knows that there is no independent foundation that supports right actions, including the action of respecting the "rights"--or, rather, the interests--of others. Pursuing and clinging to illusory reasons for doing what is right--rather than just doing it--is not following the path to the cessation of suffering. In the arising and cessation of all things that comprises this ocean of birth and death, there is no ground upon which rights could be founded, there is no ground at all. The heart--and to me the appeal--of the Buddha's teachings lies in the recognition of the interdependence, the emptiness, of all //dharmas//, in the recognition that there is, and that there can be found, no fundamental ground, no foundation, for the way that things are - //and that no such foundation is needed//. To recognize that the concept of human rights is the product of a particular time and place, without any claim to universal validity or to some Platonic other-worldly foundation, is not to justify hunger or the abuses of human rights in Bosnia, or Burma, or Tibet; rather, it is a clarifying of the mind--a seeing of things as they are--and a step, even if it is a small one, toward the cessation the suffering. Some such recognition is not, of course, limited to those who find themselves within the Buddhist tradition. For example, Richard Rorty has written: As I see it, one important intellectual advance made in our century is the steady decline in interest in the quarrel between Plato and Nietzsche. There is a growing willingness to neglect the question "What is our nature?" and to substitute the question "What can we make of ourselves?" . ... One of the shapes that we have recently assumed is that of a human rights culture. I borrow the term "human rights culture" from the Argentinean jurist and philosopher Eduardo Rabossi. In an article called "Human Rights Naturalized," Rabossi argues that philosophers should think of this culture as a new, welcome fact of the post-Holocaust world. They should stop trying to get beyond or beneath this fact, stop trying to detect and defend its so-called "philosophical presuppositions." On Rabossi's view, philosophers like Alan Gewirth are wrong to argue that human rights cannot depend on historical facts. "My basic point," Rabossi says, is that "the world has changed, that the human rights phenomenon renders human rights foundationalism outmoded and irrelevant." Rabossi's claim that human rights foundationalism is //outmoded// seems to me both true and important ... I shall be enlarging on, and Junger.txt Page:15 defending, Rabossi's claim that the question whether human beings really have the rights enumerated in the Helsinki Declaration is not worth raising. In particular, I shall be defending the claim that nothing relevant to moral choice separates human beings from animals except historically contingent facts of the world, cultural facts. This claim is sometimes called "cultural relativism" by those who indignantly reject it... Traditionally, the name of the shared human attribute which supposedly "grounds" morality is "rationality." Cultural relativism is associated with irrationalism because it denies the existence of morally relevant transcultural facts... But one need not be irrationalist in the sense of ceasing to make one's web of belief as coherent, and as perspicuously structured as possible... We see our task as a matter of making our own culture--the human rights culture--more self-conscious and more powerful, rather than demonstrating its superiority to other cultures by an appeal to something transcultural. [17] Thus one follower, at least, of the rather commonsensical American pragmatic tradition, who places a high value on human rights, does have a clear understanding of the absurdity of attempts to ground those rights on something other than "the historically contingent facts of the world", on something other than the way things are right here, right now. That something is still sadly missing in Rorty's writings, the fact that he seems to sense only flatness where the follower of the Dharma ultimately finds tranquility and joy, does not detract from the validity of his critique, but seems rather to come from the failure to recognize that the consolations of religion can be found by those who recognize the contingency and interdependency of all conditioned things, by those who grasp the fact that: "Form is exactly emptiness, emptiness exactly form." [18] HUMAN RIGHTS AS A CONTINGENT PRODUCT OF WESTERN TRADITION A SPLIT IN THE WESTERN TRADITION It is generally accepted that the concept of Human Rights grows out of Western European traditions, not out of Asia, or Africa, or the Americas before the coming of the European colonialists; thus, for example, no one claims that the concept of Human Rights is native to any of the Buddhist traditions. [19] The fact that the Universal Declaration of Human Rights is a "Western" document has led to objections by some who do not find it appropriate as a legal document of universal applicability, but who would not necessarily repudiate Junger.txt Page:16 the principles that inspired it. [20] It was for this reason that "The Declaration towards a Global Ethic" [21] adopted by the Parliament of the World's Religions in 1993 was carefully drafted so that it would not be a "reduplication of the Declaration on Human Rights." [22] It is not so often stressed that the concept of Human Rights is the product of two rather different Western traditions: the Continental civil law tradition, with strong ties to the more rationalistic practices of Continental philosophy, on the one hand, and, on the other, the Anglo-American legal and constitutional tradition, which has always seemed to me to be the German cousin to the British empiricist and pragmatic traditions. The Continental tradition is the primary source of the body of "international law" that has come to incorporate, with considerable discomfort, the concept of human rights and it is also the primary source of the of concepts of natural rights and natural law that are often claimed to be the foundation of human rights; the Anglo-American tradition, on the other hand, produced the concept of "inalienable rights" in the British North American Declaration of Independence that is often cited as the //fons et origo// of the concept of human rights. [23] In this article, I can do no more than sketch the difference between the two traditions, and this sketch should not be taken as much more than the view of someone so much a product of the Anglo-American that he simply cannot make sense out of the more abstract and "rational" arguments coming out of the Continental tradition. (I suspect, however, that it is exactly my inability to take those "rational" arguments seriously that frees me to hear the Buddha's teachings that there is no independent, persistent self and that all things are interdependent.) The major differences between the two traditions arise from their having different histories, from their being the product of different causes and conditions. At one time, however, this division did not exist. [24] After the disappearance of the institutions of the Roman Empire in Western Europe there grew up a diverse collection of kingdoms and customs, that, in retrospect, can be seen to have shared a common culture, now known as the feudal system, [25] in which political power and private rights were defined and regulated by customary relations between--not so much "individuals" in the modern, Western sense, as the holders of customary "offices". One key feature of this common feudal culture, and one that has persisted in its Anglo-American descendant, was that its customary relations--its laws--were declared, reinforced, and even established, by the judgments of courts rather than by legislative decrees. [26] Around the end of the twelfth century, however, on the European continent there was a break in this tradition, and the customary feudal law that had just grown up over the preceding centuries was replaced by the newly rediscovered "Roman law" of the late Roman empire, a law that had been dead for some six hundred years and that was ill adapted to existing institutions and ill-prepared to deal either with feudal relations or with relations between the emerging nation-states of modern Europe. One unfortunate consequence of this Junger.txt Page:17 reception of Roman law was that the law became an academic subject studied and taught by professors at the newly instituted universities, [27] rather than by the practitioners and judges of the courts of law. [28] Another was that the in adopting the law of the late Roman empire as set out in Justinian's //Corpus Juris//, there was strong pressure to also adopt Justinian's fundamental principle that "whatever pleases the prince has the force of law", a doctrine that stands firmly in the way of any effort to protect human rights and other interests from the tender mercies of the state. [29] After all, if law is not the product of the customs of the community, it has to come from somewhere, and the whim of the prince is as "rational" a source as any. In England, on the other hand, there never was much of a reception of Roman law; as opposed to the continent where the civil law based on the //Corpus Juris// of Justinian replaced the customary feudal law, in England the customary law was never abandoned--rather it gradually evolved into the modern common law. The English resistance to the adoption of Roman law does not have to be explained by some fundamental difference between the English spirit and the continental //Geist//, nor as a result of initially different word views. The simple, contingent fact was that in at least one significant respect conditions were different in England: during the reign of Henry II the law and custom common to all of England--the common law--had evolved, had been shaped by Henry's judges, into the most sophisticated and fully developed legal system in Europe, a legal system that was quite capable in its own right of dealing with the new problems brought forth by new times. The differences between the two legal systems has been summarized by a continental scholar of English legal history: For centuries, in fact until the Judicature Acts of 1873 and 1875, the Common Law of England consisted of a system of actions or legal remedies, each commanding its own procedure, whereas continental law knew general procedural rules which governed all or large classes of causes. English law prefers precedent as a basis for judgments, and moves empirically from case to case, from one reality to another. Continental law tends to move more theoretically by deductive reasoning, basing judgments on abstract principles; it is more conceptual, more scholastic and works more with definitions and distinctions. In other words it was moulded by the Roman Law of the medieval universities. It was this professors' law, marked by exegesis and commentaries on learned books and glosses, which made continental law different from the Germanic and feudal customs and laws of England. With the exception of Bracton's great law-book, we find none of it in the Common Law, where the Year Books, with their reports of court cases, were typical and utterly different from William Durand's Junger.txt Page:18 systematic //Speculum Judiciale//. In England lawyers received their training in the Inns of Court, technical colleges where they learnt their craft like every medieval craftsman, in contact with practising masters, not in universities at the feet of scholars who were apt to lose themselves in controversy. English law worked essentially within the existing feudal framework, whereas continental law incorporated a vast amount of extraneous elements, mainly of Roman origin. Consequently the feudal idea of relation was central in English, and the Roman idea of will in continental law. A final difference is the absence of codification in England. The tradition of case law and empiricism makes very poor soil for codification--the Romans, who were first and foremost practical jurists, never had a codification--but with systematic theory and logical deduction from general premises, codes came naturally on the Continent. [30] THE CONTINENTAL CIVIL LAW TRADITION In tracing the history of the concept of human rights, the civil law system of the continent is of peculiar importance because what we today call international law--the law of nations--is a product of the civil law tradition. Even in common law countries, international law is recognized as part of the civil law tradition and is not considered to be part of the common law. [31] Unlike the common law, which just grew like an English garden over the last eight hundred years, the civil law was the product of the deliberate adoption on the continent, though in different regions at different times, of the Roman law as it had been written down and collected in the //Corpus Juris// during the reign of the Eastern Emperor Justinian. Right through the early Middle Ages and up to the mid-twelfth century English and continental law belonged recognisably to one legal family, Germanic and feudal in substance and in procedure. Except for possible linguistic complications, a traveller from the Continent in the days of King Stephen would have had no problem in recognizing the rules, arguments and modes of proof in an English manorial, borough or feudal court. A century later the landscape had changed: Roman law and Roman-canonical procedure were transforming life in many parts of the Continent (and others were to follow), whereas in England a native law, common to the whole kingdom, that was--and remained--free from the substance and the procedure of the new continental fashion, had arisen. The moment when this dichotomy arose can be pinpointed exactly. It was in the Junger.txt Page:19 reign of King Henry II, when certain reforms in judicial organisation and procedure were carried out which modernised English law before Roman law entered the scene with such wide and immediate success that no need was felt in later centuries, when the neo-Roman model was available, to give up the native system... [32] On the Continent at this juncture the main modernisation of the law was taking place in the urban world, particularly in northern Italy and Flanders, where local courts of aldermen where the goal was to punish the defendant, were granted liberty to use progressive procedures and rules. Nowhere did these dispersed efforts lead to a new, unified, national or even regional law. The Church courts, manned henceforth by the learned bishops' officials, began to apply the new law from the Bolognese textbooks around 1200. About the middle of the thirteenth century the kingdoms began to follow suit ... Gradually, under the influence of the universities and following the example of the ecclesiastical courts, Roman law was transforming continental civil and to some extent criminal law, with the active help of governments. But it was the universities that created the new and modern, as opposed to the archaic and feudal law; they provided the books and the men who alone could bring about this new departure on the Continent. In Italy (north and south), southern France and eastern Spain--old Mediterranean lands--this new Roman law was already firmly entrenched in the thirteenth century. In northern France, Germanic and feudal custom resisted, particularly since it produced some original modernisation of its own, but even there in the thirteenth century the commentators of customary laws were already working with Roman law as their system of reference: they were familiar with its vocabulary, it provided their grammar and it was the universal treasure house where customary lawyers could find answers to the questions left unanswered by local usage. Gradually the courts were manned by people with university degrees. Germany resisted the spread of the civil law even longer, but when it gave in, it went further than France and 'received' the 'common written laws' //in toto//. [33] This law, which was to be found in old books, rather than living practices, was supposedly based upon, and rationally deducible from some foundation outside itself: on the whim of the prince or on the principles of "natural law" (either as revealed by God or developed in the //jus gentium//, that portion of the Roman law that had been developed and applied by the Praetor Peregrinus to disputes to which foreigners were parties.) The civil law was seen as a body of Junger.txt Page:20 principles, rules, and definitions to be found in the Roman //Corpus Juris//, and in later legislation, which supposedly is capable of resolving all disputes that come before the courts. Unlike the common law system, the judgments of civil law courts are not treated as controlling precedent, or even as being very important; what is controlling are those principles, rules, and definitions, and, if for some reason they are insufficient to resolve a case, the glosses of the law professors. Thus it was almost inevitable that in time most of the major civil law jurisdictions would, starting with the Code Napoleon, codify the civil law, so that today in most civil law countries the law appears to be the product of relatively recent legislation. One consequence of all this is that civil lawyers do not see their science as being dependent on historical processes; rather the civil law is seen as a rational, deductive system. [34] Another is that the civilians--as civil lawyers are called--tend to see the law as the product of a legislature or other external law-giver, rather than as an open-ended practice that is directed by, but not deducible from, precedents handed down within its own tradition. Thus civilians tend to be legal "positivists" who find the source of law in "positive" legislation enacted by a "sovereign", [36] or, if they cannot stomach the consequences of such a legal theory, in the commands of a higher sovereign, i.e., in the commands of God, which in turn raised serious problems since the days of the so-called "enlightenment" when God seemed to be, if not dead, at least rather far removed from the immediate world of law courts and politics and battlefields, or, for those who could not believe in God, in the unbelievable theory that civil society and law are founded or a so-called "social contract". As anyone who recognizes the interdependence of all things would suspect, the civil law did not develop into its modern form unaffected by changes in its cultural, political, and religious environment. Even a hasty and incomplete, and distorted, sketch like the one I am giving here must include some reference to the rise of Protestantism and its bloody consequences in the Thirty Years War, a war whose devastation was not felt to any great degree in England, cut off as it was by the English Channel. As the Roman law, though it developed the //jus gentium// to deal with the claims of foreigners, never developed a body of law regulating the conduct of politically independent nations, the civil law was not prepared at first to deal with disputes between states, or their rulers, nor were there any courts in which disputes could be heard. [36] Around 1625, however, Hugo Grotius, a Dutch Protestant, published a book entitled _Of the Law of War and Peace_ (//De Jure Belli ac Pacis//), which is today considered to be the first treatise on the Law of Nations, a subject that covered, among other matters, what we now know as International Law (and was once known as the Law of Christian Princes). //De Jure Belli ac Pacis//'s stature and historical importance lie less in its internal logic or the Junger.txt Page:21 durability of its normative assertions or associations than in its originality in systematically organizing the entirety of the subject. For specific content, Grotius drew heavily upon the work of earlier writers, employing all manner of legal and moral principles with which, for the most part, his audience was already generally familiar. Before him, however, no one had even attempted to unify these principles so as to establish the authority of their systematic sum, in contrast to that merely of specific principles or limited clusters of principles. The central thesis of DJBP was the then altogether revolutionary idea that nations, no matter how great their political or military power, are subject to the same principles of law as individuals, in their legal capacity, their contractual undertakings, their social responsibilities, their decisions to resort to war and their conduct of war. All human conduct was rendered measurable by its conformity to a homogeneous, inclusive natural law. A Protestant bible of international relations, some would later call it--not because it was immediately placed on the papal Index of forbidden works (although the listing is not without significance in this respect), but because it emphasized values with which Protestantism had become closely identified: individuality, personal responsibility and paternal authority within the family as a prototype for the authority of rulers of states, but with the consent of the governed as a basis for the rulers' legitimacy. Capitalist manifesto, precursor of Rousseau's Social Contract, conservator of aristocratic social prejudices--DJBP has represented each of these to one generation of scholars or another. To legal historians, at any rate, it represents nothing less than an unprecedented effort to establish, both a priori and a posteriori, a regime of universal law independent of church and empire. [37] This universal law was not, however, independent of Western, and especially Christian, legal and theological concepts, and its universality did not really extend beyond the bounds of Christendom. Grotius was nothing, if not a religious Christian, and his treatise, which covered all of the law, not just the Law of Nations, can be read as an effort to restate the law underlying the greater Christian community that encompassed, and transcended, the various national states of Western Europe that were beginning to replace the earlier feudal communities. There is much in Grotius's concept of a natural law governing the Junger.txt Page:22 greater community that would appeal to a Buddhist, but the foundations of that concept are peculiarly Christian and not easily restated in terms comprehensible to a follower of the Buddhist traditions. Even today the strongest supporters of the idea of human rights based on natural law are likely to emphasize that idea's Christian antecedents and to justify it on principles that are not easily reconciled with the traditional teachings of the Buddha. For example, what would one expect a traditional Buddhist--or even a Westerner like myself who tries to follow the Buddha Dharma--to make of this passage from Jacques Maritain's little treatise on The Rights of Man and Natural Law that bears the heading "Natural Law and Human Rights"? We must now consider the fact that natural law and the light of moral conscience within us do not prescribe merely things to be done and not to be done; they also recognize rights, in particular, rights linked to the very nature of man. The human person possesses rights because of the very fact that it is a person, a whole, a master of itself and of its acts, and which consequently is not merely a means to an end, but an end, an end which must be treated as such. The dignity of the human person? The expression means nothing if it does not signify that by virtue of natural law, the human person has the right to be respected, is the subject of rights, possesses rights. There are things which are owed to man because of the very fact that he is man. The notion of right and the notion of moral obligation are correlative. They are both founded on the freedom proper to spiritual agents. If man is morally bound to the things which are necessary to the fulfillment of his destiny, obviously, then he has the right to fulfill his destiny; and if he has the right to fulfill his destiny he has the right to the things necessary for this purpose. The notion of right is even more profound than that of moral obligation, for God has sovereign right over creatures and He has no moral obligation towards them (although He owes it to Himself to give them that which is required by their nature). The true philosophy of the rights of the human person is therefore based upon the idea of natural law. The same natural law which lays down our most fundamental duties, and by virtue of which every law is binding, is the very law which assigns to us our fundamental rights. It is because we are enmeshed in the universal order, in the laws and regulations of the cosmos and of the immense family of created natures (and finally in the order of creative wisdom), and it is because we have at the same time the privilege of sharing in spiritual nature, that we possess rights vis-a-vis other men and all the assemblage of creatures. In the last Junger.txt Page:23 analysis, as every creature acts only by virtue of its Principle, which is the Pure Act; as every authority worthy of the name (that is to say, just) is binding in conscience only by virtue of the Principle of beings, which is pure Wisdom; so too every right possessed by man is possessed only by virtue of the right possessed by God, which is pure justice, to see the order of His wisdom in beings respected, obeyed and loved by every intelligence. [38] Despite the efforts of Grotius and other continental scholars to base the civil law on a foundation of natural law the civil law tradition has had a rather spotty record of recognizing and protecting human rights. One American constitutional scholar has offered us the following description of the failings of the civil law system, a description that he considers to be grossly over-simplified, and rather unfair, but one that does a good job of summarizing the problems that the civil law tradition has had with the concept of human rights (and with the related concept of constitutional democracy). At the end of World War II, it appeared that creating and maintaining constitutional democracy were arts pretty much monopolized by those cultures that had been cohabitating with the Common Law. History since then has been more checkered. Nevertheless, a critic of the Civil Law might plausibly hypothesize that one basic reason for failures of constitutional democracy lies in that legal system. Not merely does its derivation from efforts to codify the Law of the Roman Empire taint it, but its modern reincarnation was the result of efforts by the Emperor of the French to bring order to his nation and its conquests. However facilely one transfers the system's concept of "sovereign legislator" from emperor to democratically chosen parliament, the image of sovereign legislator, whether a collective body or a single ruler, ill fits the norms of limited government. Perhaps even more damaging, the constitutionalist critic might continue, is the Civil Law's hubris: Tempted, like Adam and Eve, by pride and ambition, it tries to fill every void the deity left, eliminate all chaos, impose perfect form, and bottle up the great wind. When what has been called an "obsession for formal rules and procedures" escapes from the courtroom to wider political arenas, what its proponents claim are the system's greatest virtues become mortal sins. Orderliness, rationality, and comprehensiveness might hone effective intellectual instruments to Junger.txt Page:24 settle disputes between private citizens or issues of traditional criminal law. When, however, political leaders apply those mental sets to complex problems such as the reach of legislative power, the ambit of rights to privacy and religious freedom, or the quest for compromises among the interests of a dozen competing groups, difficulties multiply, for these sorts of issues are far less amenable, if they are amenable at all, to rule-bound solutions. The Civil Law, the critic might continue, encourages its people to undertake tasks of constitutional engineering that lie beyond human capability. As the bloody agonies of Iraqi Shi'a and Kurds reminded George Bush in 1991 in the aftermath of Operation Desert Storm, most decisions have consequences that their makers do not, perhaps even cannot, foretell. No single person or group of persons, however brilliant or methodical, can accurately predict the future or provide rules for that future. Only in the most general and perhaps even aprincipled way can political leaders hope to conquer unforeseen obstacles. The Civil Law's prompting leaders to attack the unknown with tightly reasoned logic and rigid adherence to formal rules and abstract principles is likely to be counterproductive, if not disastrous; it proliferates rather than eliminates chaos. In sum, the critic might charge, when the Civil Law infects constitutions, its mentality invites rigidity and inspires policies that are principled but impractical. Worse, the constitutional critic might continue, the Civil Law's tense commitment to order leaves judges no respectable room to maneuver when confronted by authoritarian rule. Unable to reconcile defending constitutional democracy with their role in a fixed legal system, Civil-Law judges have often become panderers to power. Not only did professional German judges form a corps of prostitutes for Naziism, but, during the Occupation, French judges offered similar services at discount prices. [39] Although the failings of the civil law tradition when it comes to protecting human interests can, at least in part, be blamed on that tradition's dependence on "tightly reasoned logic and rigid adherence to formal rules and abstract principles", that is not solely the fault of the natural law tradition of Grotius and Maritain, a tradition that does, after all, explicitly set out to protect human rights. There was another school of political thought that arouse during the sixteenth and seventeenth centuries that has been influential with the doctors of the civil law: the "realist" tradition of Machiavelli and of Hobbes Junger.txt Page:25 that leads directly to the "positivist" theories of Bentham, Austin, and Kelsen, a tradition that denies the existence of natural law and that considers law to be nothing more than the positive enactments of a state or sovereign, a tradition that lead ultimately to the conclusion that there is really no such thing as the law of nations or international law, since there is no sovereign to enforce its decrees. [40] This realist, positivist tradition, which from the beginning of this century to at least the end of the second World War was the dominant influence on the accepted theories of international law, did not have much room for a concept of human rights. Thus it is not surprising that an international lawyer would note: Apart from other considerations, two theories or attitudes stood in the way of any general recognition by international law in the nineteenth century and first two decades of the twentieth century, of the need to protect human rights. first, there was the so-called 'dualist' theory, according to which only states were the subjects of international law. Individuals, on this theory were objects but not subjects of international law, and without standing to enforce their rights before, or be heard by, an international tribunal. Accordingly, this theory precluded the recognition at international law of individual human rights. Secondly. there was the doctrine that a state has complete sovereignty over its own nationals to the extent that such sovereignty constitutes a sphere of reserved jurisdiction into which international law is not permitted to reach. This doctrine represented an obstacle to the concept of international protection of human rights, a concept which necessarily involves each state accepting a restriction of its sovereignty in becoming bound by external obligations not to deny protection to the human rights of its own nationals. [41] THE ANGLO-AMERICAN COMMON LAW TRADITION What I have said up to now about the development of the civil law is written by someone who cannot claim to know much about the matter. On the other hand, I do--or, at least should--know something about the evolution of the common law. This does not, however, make my task much easier. I am confronted with two problems. One is that knowing perhaps too much about the matter I am likely to get lost in the details. The other is more significant: because the common law is the product, not of logic, but of its own history--because the common law is in my view, the view of a common lawyer, a process, a means of accomplishing something--it is difficult to relate it to timeless, even if recently invented, ahistorical concepts like "human rights". Junger.txt Page:26 On the other hand, and this is perhaps the only justification that I can give for afflicting you with this article, it does seem to me that anyone who tries to fit the concept of human rights into a tradition that recognizes that everything in this ocean of birth and death is arising and fading away--and that places its hope for salvation in the process of following a path to the other shore--is also going to have similar difficulties with such timeless absolutes. One important point about the common law tradition, although this is not often noted in modern academic scholarship, is that, from its inception, the practitioners of the common law have been more concerned with rights than with wrongs. From the days of Ranulf de Glanville and the book named after him, from the end of the twelfth century of the Common Era to the present day, the important legal issues have almost always concerned the recognition and allocation of rights, not the rectification of wrongs. In fact, in Glanville's time, at the very start of the English common law, with the exception of what today we would classify as criminal actions, [42] the only actions known to the common law were actions based on a right. All of these actions were commenced by the plaintiff--called the demandant--purchasing a form--known as a writ--from the chancery, directing the sheriff to summon the defendant--who was often called the "tenant"--to satisfy the plaintiff's claim, and, if he did not do so, to come into court to explain why he had not done it. In none of these actions was there any allegation that the tenant had done anything wrong; all were based on the claimant's //right// to whatever it was that he claimed: a parcel of land, some cattle, a debt, an accounting from a bailiff, or whatever. In fact, the greatest of these early actions, the action to recover land held by the tenant, was commenced by a writ called the "Writ of Right". The rights asserted by the claimant in these actions, however, have little in common with the concept of "human rights", a concept that, as we have seen, was not to be invented for several centuries. The rights that were asserted in the original common law actions were always a right to get a particular thing from a particular person who was withholding it. It was not until the thirteenth century that "tort" [43] actions evolved, in which the plaintiff was able to recover the damages for as compensation for a wrong, such as an assault and battery for example, committed by the defendant. In time, for reasons that are intriguing, but simply not relevant to our discussion here, many of the earlier right-based actions were replaced by actions that were in form "tort" actions, but in actuality remained actions to recover something that the plaintiff claimed as of right, not because of a wrong. Even today, despite the ubiquity of civil actions brought to redistribute losses arising from personal injuries that are, in theory, based on the wrong of "negligence", the significant legal issues under the common law still have to do with rights, not with wrongs. Who has the right to Grandmother's ring, when Grandmother's will does not mention who is to get it? Who is entitled to what, now Junger.txt Page:27 that the building the contractor was to repair got washed away in the flood? Is the compensation received by an inventor from the sale of a patent taxable as income, or does the inventor have the right to have it treated as capital gains? Is a congregation of soft-shelled Buddhists entitled to a building permit to erect a temple in a residential area where the zoning law permits only single family residences and churches? It is issues like those, issues involving claims of right, not claims of wrong, that are central to the day to day operation of the common law system, despite the fact--or, rather, because of the fact--that most claims of right do not result in litigation. After all, if the rights are clear--if one can predict with near certainty how a case will be resolved--there is no nothing to litigate. If Grandmother had disposed of the ring in her will or if the contract had an unambiguous clause covering the destruction of the building by flood--or if there had been no flood--then there would be no reason to go to court. Established rights are generally respected; it is wrongs that are anomalous. Particular rights of this sort are not at all like the generalized abstractions called human rights and they present no problem from a Buddhist's point of view. The precepts may enjoin us not to take what is not given, but it is the local law, not the universal Dharma, that defines how a gift is to be given and who has the power to make it. [44] To the extent that human rights can be analogized to rights of this type, they too will present no difficulties for a Buddhist, who is after all enjoined to respect the claims of others whether they are called "rights" or not. The right to Grandmother's ring or to a building permit are, at this time and at this place, simply facts about the contingent, conditioned world that are not to be ignored, but equally are not to be clung too. It is not, however, common law rights of this type that have been seen as the source of the modern concept of human rights. As has already been said, the common law, unlike the civil law, is descended directly, without any sharp break, from the feudal law of the middle ages. As one continental scholar said: [D]uring my stay in England I was able to get to know the history of the common law, which is an exciting experience in itself, but has the additional charm, for a continental, of surprise at its utter strangeness. Anyone setting foot in the land of the common law may as well forget his Roman law education; what alone may help him is his knowledge of medieval feudal law. [45] Now the medieval feudal law was most definitely not a product of legislation nor was it composed of the commands of a sovereign; rather it was a body of custom governing the relations between and among all the members of a community, of a //Gemeinschaft//. This tradition--or the myth of the tradition--that the law governs the relations between Junger.txt Page:28 all members of the community and binds even the king, was of great political importance in England during the sixteenth and seventeenth centuries when it was used to counter the absolutist claims of the Stewart Monarchs. [46] It is this tradition the culminates in 1776 in the Virginia Declaration of Rights and the Declaration of Independence of the thirteen united States of America. The eighteenth century, in Europe and America, drew to its close as the century that had clearly and unequivocally proclaimed the inalienable and imprescriptible rights of man. The proclamations were not, to begin with, the creatures of Gallic enthusiasm, of a revolutionary category of reason run riot in human affairs. They were the product of sober English philosophies, English Puritanism and nonconformism, 'respectable' English resistance to absolutism and concern for freedom and toleration. They drew above all on the philosophy of John Locke and the traditions of the Glorious Revolution of 1688 ...[47] And beyond that they were the product of the English common law. [48] Despite the frequent use of Locke's writings as a justification for the recognition of the fundamental rights that were proclaimed at the time of the American revolution and are protected by the constitution of the United States, those rights themselves are--with one possible exception [49]--the result of the legal and political history of England, not of philosophical speculations. Most importantly, those rights were either rights to fair procedures in courts--for example, the right to due process or to the writ of //habeas corpus//--or simply rights to be left alone without interference by the king or parliament--for example, the rights of freedom of speech and freedom of religion. Although the recognition of both those types of rights is in the constitution of the United States is very much the parochial product of English legal and political history, they are likely to be looked upon with favor by followers of the various Buddhist traditions. Still, if only because it is a fact--part of the fact of //dukkha//--that the world is often unfair, the concept of "fairness", or of "justice", is not a central concern of those traditions, though, of course, that does not mean that fairness is not something to be desired in a government; on the other hand, it is not likely that many of the procedural rights enshrined in the constitution of the United States, such as the writ of habeas corpus, or the prohibition of bills of attainder, or the right to a jury trial in cases at common law, can meaningfully be translated to other legal systems or other political traditions. If such procedural rights are not of central concern, the right--the ability--to be left alone, the freedom of religion and speech and thought, is critical if one is to be able to follow the Junger.txt Page:29 Buddha's teaching that one should rely on oneself. In Buddhism, which is based on the doctrine of the Middle Way, neither the Buddha nor the great Buddhist sages said, "My teachings alone are true." They did not encourage persecution by religious wars, burning at the stake, massacres, or forced conversions for the sake of their own Dharma, nor did they state that all teachings are the same. In the First Suttanta of the Digha Nikaya, the Buddha said: "Make a trial, find out what leads to your happiness and freedom--and what does not, reject it. What leads on to greater happiness--follow it." This practical and sure way of distinguishing truth amid falsehood was meant by the Buddha to be applied to his own teachings as well, for he emphasized that one ought not to believe in the authority of any teachers and masters but should believe and practice the religious truth embodied by them. This is the Middle Way in action--as something practiceable, by means of which one can steer a course between blind dogma and vague eclecticism. [50] Thus any government that is in turn governed by Buddhist principles would certainly cherish and protect the freedom of thought and expression for all persons, even if it would not see those persons as the autonomous individual rights-bearers of the Western European traditions. Some of the rights set out in the Universal Declaration of Human Rights--for example, those of articles eight and ten--are procedural rights of the type that can be traced back to the Anglo-American tradition, while others--like those of article eighteen--protect the freedoms of thought and expression and can also be traced back to that tradition. More problematic is the right to own property that is set out in article seventeen of the Universal Declaration of Human Rights. That right, which arguably can be traced back to the so called "takings clause" of the fifth amendment of the United States constitution, [51] is not a product of the common law tradition, but rather of the philosophical speculations of Locke and Hobbes and other philosophical purveyors of the remarkably naive--at least from a Buddhist point of view--idea that society and government are based on some sort of social contract. Unlike the civil law, and the Roman law before it with their concept of //dominium//, the common law traditionally has made little use of any concept of "property" or of "ownership"; at common law what is important is possession, and the right to possession, and estates and other interests in land (or in goods and chattels), and there is hardly ever a reason to speak of "property". [52] Junger.txt Page:30 Although no Buddhist is likely to object to a legal system that permits one to possess a begging bowel and a set of robes, or even to possess land, the right to own property--with all of its contractarian and anti-communitarian baggage--should be looked upon with great skepticism, for it is the contractarian ideology and its utilitarian offspring, with their emphasis on individuals blindly pursuing their own selfish interests, that are largely responsible for the modern destruction of traditional communities. Moreover the modern glorification of the "right" to own property is hard to reconcile with the basic teaching that ignorant clinging to things is the cause of //dukkha//. Be that as may be, over time the rights that are the product of the Anglo-American legal tradition and are enshrined in the constitution of the United States were transformed into something much more problematic. The demand for rights in the seventeenth and eighteenth centuries was a demand //against// the existing state and authorities, against despotism, arbitrariness and the political disenfranchisement of those who held different opinions. The demand for rights in the nineteenth and twentieth centuries becomes increasingly a //claim upon// the state, a demand that it provide and guarantee the means of achieving the individual's happiness and well-being, his welfare. These two different conceptions of rights, . ..like the opposed conceptions of 'freedom from' and 'freedom to', stand in constant danger of fundamental conflict with each other--a conflict that dominates our contemporary world. [53] THE BUDDHA'S TEACHINGS Whatever may be the sources of the concept of human rights, one thing is clear: human rights are something that are asserted against governments, against the people or institutions who govern others (though sometimes they may be thinly disguised by references to empty abstractions like the "state" or the "commonwealth"). There are religions whose primary focus is on governance, or at least there is one such religion, if it is a religion: Confucianism; [54] there are religions that have nothing to say about governance at all, except perhaps to suggest that it is wise not to attract the attention of the state: Taoism, for example; there are theistic, theocratic religions like Islam that do not distinguish between religion and government; and there are theistic religions, like most of the Western versions of Christianity, that make a distinction between the governance of this world and that of the City of God. Buddhism does not, however, fall into any of these categories, although in East Asia, Buddhism and Confucianism have strongly influenced each other, so that it is easy to find statements on political themes from Buddhist sources, but almost inevitably these Junger.txt Page:31 texts are more Confucian than Buddhist. In its own right Buddhism has never, up to this century at least, developed a political theory, to say nothing of a theory of human rights. It might have been expected that, with the attention given to the conduct of the laity and the frequency of his advice in social matters, the Buddha would at some time have sketched the political construction of an ideal state: yet no thought of any reform in the existing political set-up is apparent. The warrior class (//Khattiyas//), priestly class (//Braahma.nas//), householders, //Gahapatis, Se.t.this, Suddas//, all occupied a definite status and there is no suggestion in the Buddha's Discourses that this distribution would become modified, except in cases of reference to a general promiscuity resulting from the collapse of morality. Nor does it seem that the Buddha felt the need for any such change since his teaching was designed for, and addressed to, 'a householder, or householder's son, or son of some other clan.' It seems that he attributed the success of a system to the morals of the people working it rather than to any virtue inherent in the system itself. This, surely, is sound enough, if it is taken that a community develops a system according to its own understanding of life and improves on it as that understanding improves, always assuming that no other system is forced on it from the outside against its will ...[55] The Buddha's teachings are applicable in all circumstances, in hot lands and in cold lands, in the dry season and in the rainy season, in times of plenty and in times of hunger. It is in this sense that they are universal. Do not do anything harmful; do only what is good; discipline your own mind; this is the teaching of the Buddha. [56] The Buddha's teachings have been heard, and have been followed, under myriads of different forms of government, in kingdoms and in republics, under dictatorships and under democracies. Whatever the political form may be, the four noble truths remain true, the eight-fold path remains the path. Regarding the formulation of a definite scheme of government which would last indefinitely, producing always satisfactory results solely by reason of its own excellence, it seems unlikely that any person of vision, or even any thinking person, would ever have embarked on the task. In the last two thousand years, Western Europe has worked out many types of governments, but, in the main, they Junger.txt Page:32 present a series of checks and modifications tending towards one side or the other of the principle for which the Greeks of the fifth century BC fought the Persians at Marathon and Salamis, namely, freedom of individual thought //versus// regimentation of thought. To some extent it might be considered that Plato was advocating the latter, but there is no question that the Buddha entirely advocated the former... By reason... of the importance assigned to the moral standards and outlook of man in the Buddha's teachings, one must look for a description of the qualities of the people who will operate a scheme rather than for any intrinsic virtue in the scheme itself. If the scheme is one of an autocracy such as prevailed in the Buddha's day, then one must look for political teaching of the nature that will render that autocracy benevolent; this will consist in injunctions to the kings and their proclaimed duties. Of such we have several examples. [57] But, of course, none of those examples contain any discussion of human rights, or of rights of any sort. The Buddha's ethical teachings are concerned with virtues and right conduct, they are not concerned with rights, and certainly not with rights against the state. Still it is undoubtedly true that the virtuous man--the brahmin--will respect the rights of others that are recognized by the local laws. Those rights, however, are not going to be the product of any teaching of the Buddha; rather they will be defined by the laws and customs of the particular time and place. On the other hand, the virtuous man--the brahmin--is not going to cling to his own rights. The one who takes nothing in this world which is not given--nothing long or short, small or large, good or bad--this one I call a brahmin. He is free from the very basics of desire for this world or for the next, he is the unfettered one, the desireless one--this one I call a brahmin. [58] CONCLUSION The concept of human rights is a recent product of the history of Western Europe and of the civil law and common law traditions. To a large extent it has arisen as a response to the religious wars of the sixteenth and seventeenth centuries and to the horrors--the genocide--of the second world war. The concept of human rights is also to a large extent a product of the modern philosophical and political Junger.txt Page:33 tendency to replace traditional communities with associations of autonomous individuals pursuing only their individual ends. The teachings of the Buddha, on the other hand, are timeless and adaptable to any legal or political regime. The Buddha, and the successful followers of the Buddha's teachings, having wisdom and compassion, have no need for rights for themselves. And that is why the Buddha has no rights. NOTES [1]. Thus Leonard Swidler says: Human rights, or at least the recognition thereof, are a relatively recent development in Western Civilization, that has been universalized. However, their roots reach back into Greco-Roman and Judeo-Christian cultures. (Swidler: vii). On the other hand, Ambassador Sompong Sucharitkul of Thailand, an international lawyer and diplomatist, who was educated at the Universities of Oxford, Paris, and Harvard, the Middle Temple in London, and the International Law Academy in the Hague and is a member of the International Law Commission, has written: The concept of human rights originated in the political and philosophical thinking of the past few millennia. The concept was revived in the middle ages in the Orient and in the West. The American and French revolutions have vividly expressed the concept (although limited in application). The concept has now spread world-wide and as it gains universal recognition and acceptance, it is temporarily relapsing in a country that once championed its cause. (Sucharitkul: 305). It should be noted that Ambassador Sucharitkul does not limit his concept of human rights to those that are the product of the modern Western European traditions. See, text accompanying Note 7 //infra//. [2]. //Gesellschaft// is the usual German term for a business association or company, thus a limited liability company is called in German a //Gesellschaft mit beschr"ankter Haftung//. [3]. //Gemeinschaft// is best interpreted as "community" or "commonality". [4]. Kamenka, "Anatomy": 5-6. [5]. Abe, "Religious": 202. Junger.txt Page:34 [6]. It should be noted that the Dalai Lama's frequent remarks on human rights are usually addressed to Western audiences or made in fora that have adopted Western conceptions of international law. [7]. Sucharitkul: 305. [8]. Universal Declaration of Human Rights. [9]. These ambiguities, redundancies, and deficiencies recall those attributed by Dr. Franz Kuhn to a certain Chinese encyclopedia entitled //Celestial Emporium of Benevolent Knowledge//. On those remote pages it is written that animals are divided into: (a) those that belong to the Emperor, (b) embalmed ones, (c) those that are trained, (d) suckling pigs, (e) mermaids, (f) fabulous ones, (g) stray dogs, (h) those that are included in this classification, (i) those that tremble as if they were mad, (j) innumerable ones, (k) those drawn with a very fine camel's-hair brush, (l) others, (m) those that have just broken a flower vase, (n) those that resemble flies from a distance. (Borges: 142). [10]. These concepts, which differ markedly from the more traditional concepts of a city or a polity, on the one hand, or a community on the other, are recent inventions. [T]he state--'the impersonal state' we now take for granted--dates only from the eighteenth century." (Onuf: 281) Society, as a congeries of individuals rather than a community is, so far as I can tell, an even more recent invention. [11]. From attachment arises misery; from attachment arises fear; in giving up your attachments, you will be freed from misery and fear. From infatuation arises misery; from infatuation arises fear; in giving up your infatuations, you will be freed from misery and fear. From desire arises misery; from desire arises fear; in giving up your desires, you will be freed from misery and fear. From craving arises misery; from craving arises fear; in giving up your craving, you will be freed from misery and fear. (//Dhammapada//, "Pleasure": 5-8.) [12]. Benn: 66-67. [13]. //Dhammapada//, "Punishment": 1-4. Junger.txt Page:35 [14]. Gewirth: x. [15]. Whitman: 92. [16]. Holmes: 1. [17]. Rorty: 115-17. At the end of the first paragraph of the quoted text there is a reference to the following, to my mind very sensible, endnote: Rabossi also says that he does not wish to question "the idea of a rational foundation of morality." I am not sure why he does not. Rabossi may perhaps mean that in the past--for example, at the time of Kant--this idea still made a kind of sense, but it makes sense no longer. That, at any rate, is my own view. Kant wrote in a period when the only alternative to religion seemed to be something like science. In such a period, inventing a pseudoscience called "the system of transcendental philosophy"--setting the stage for the show-stopping climax in which one pulls moral obligation out of a transcendental hat--might plausibly seem the only way of saving morality from the hedonists on one side and the priests on the other (Rorty: 244). [18]. _The Heart Suutra_. [19]. As Damien Keown points out "Buddhism is a latecomer to the cause human rights, and for most of its history has been preoccupied with other concerns." _Journal of Buddhist Ethics_ 1995 2: 4. [20]. Thus the draftsman of "The Declaration towards a Global Ethic" adopted by the Parliament of the World's Religions gives as one of the reasons for not repeating the "statements from the UN Declaration on Human Rights", that "such a declaration of an ethic would not escape the charge made especially by the Indian religions, that this was a typically 'Western' document" (K"ung: 55). [21]. The text of the Declaration appears in K"ung and Kuschel, (eds) (1993). [22]. K"ung: 55. [23]. The eighteenth century, in Europe and America, drew to its close as the century that had clearly and unequivocally proclaimed the inalienable and imprescriptible rights of man. The proclamations were not, to begin with, the creatures of Gallic enthusiasm, of a revolutionary category of reason run riot in human affairs. They were the product of sober English philosophies, English Puritanism and Junger.txt Page:36 nonconformism, 'respectable' English resistance to absolutism and concern for freedom and toleration. The drew above all on the philosophy of John Locke and the traditions of the Glorious Revolution of 1688, with its Act of Settlement and compromise, non-individual, Bill of Rights ... (Kamenka, "Anatomy": 1). [24]. This is not to say that there were not many different divisions between the various cultures of Western Europe; the claim is only that the precursor of the current division between the Anglo-American and Continental legal traditions had not yet become arisen. [25]. Tradition has it that the term "feudal system" was first used by John Selden in the seventeenth century; thus the concept of the "feudal" was developed at roughly the same time as the concept of the modern "state". See //supra// Note 10. [26]. I am under the impression that nothing very much like these feudal courts and their modern Western European descendants ever developed among the cultures of Asia where the Buddhist tradition prevailed, even at those times and places where something like the Western feudal system arose. In fact, law courts appear to be a peculiarly Western European institution that arose in the middle ages and that still persists in both common and civil law countries, but that never developed in other societies that have not adopted the common or civil law systems. [27]. Especially at the University of Bologna. The development of the universities, the reception of the Roman law, the revival of interest in Greek philosophy, and especially Aristotle, and the development of theological studies that culminate--or, perhaps, begin--with the //Summa// of Thomas Aquinas, are obviously all interdependent, and it is undoubtedly misleading to ignore--as I am doing--all but the legal developments. [28]. Even today German jurists refer to the Anglo-American common law system as a //Richterk"onigtum//, a kingdom of judges. Anglo-American lawyers, on the other hand, can hardly conceive of a system where the law is to be found primarily in the treatises of the professors rather than in the judgments of the courts. [29]. According to Thrasymachus, those with the power to ordain and enforce the laws of the land describe those who obey their laws as just subjects, and those who disobey them as unjust. The words "just" and "unjust" have no other meaning--certainly no meaning whereby a despotic tyrant or a tyrannical majority ruling in self-interest can be called unjust. With the statement that justice is nothing but the interest of the stronger, we have the origin of Junger.txt Page:37 the doctrine that might is right: those with the might to govern are the only ones who can determine what is right and wrong. The position taken by Thrasymachus is taken later by the Roman jurisconsult Ulpian for whom "whatever pleases the princes has the force of the law." Still later, Thomas Hobbes in his _Leviathan_ declares that what is just and unjust in any community is wholly determined by the positive or man-made laws enacted by those with the power to ordain and enforce them. In the nineteenth century, the positivist view is advanced by Jeremy Bentham in his _Principles of Morals and Legislation_ and by John Austin in his _Province of Jurisprudence Determined_. In the twentieth century, the positivist view is advanced by professors in American law schools who call themselves Legal Realists (Adler :1129). [footnote omitted] [30]. Caenegem, _Birth_: 88-89. (Notes omitted) [31]. Civil law, and the Roman law based canon law of the church, has always governed some areas of English law; even today one of the divisions of the High Court deals with cases of Probate, Divorce, and Admiralty, subjects that were traditionally handled by ecclesiastical or civil law courts, where the practitioners were university trained doctors of canon and civil law who took their meals at Doctors Commons, rather than the barristers who practiced in the common law courts and who ate their meals, and got their legal education, at the inns of court. [32]. Caenegem, _Judges_: 114. [33]. Caenegem, _Judges_: 117-18. [34]. The specific rules set out in the civil law codes are, of course, incapable of unambiguously resolving all the questions that may come before the courts; this problem is resolved--or at least disguised--by the inclusion within the civil law codes of "general clauses" that, in effect, instruct the judges in hard cases to do whatever is just and right. [35]. See //supra// note 29. There is, of course, no neat and necessary association between the civil law and legal positivism. The most horrifying examples of legal positivists--especially in the context of international law, and therefore of human rights--are English: Jeremy Bentham (1790-1859), the philosopher who invented utilitarianism and whose contribution to legal thought can only be explained by the hatred that he acquired for the common law when he studied it and found, as is often true of those of a philosophical bent, that he did not have the makings of a very good common lawyer, and John Austin (1790-1895)--not to be confused with John Langshaw Austin (1911-1960), Junger.txt Page:38 the founder of the "ordinary language" school of philosophy--England's first professor of jurisprudence, a would-be philosopher who could, of course, find nothing very philosophical to say about the actual practice of the common law and who is notorious for his definition of law as "the command of a sovereign." The major philosophical position that is opposed to legal positivism is that of the Natural Law school, a school with its roots firmly in the civil law tradition since it is based on either the //jus gentium// of the Roman Law or on the theological writings of Thomas Aquinas who was in turn influenced by the civil law and its Roman antecedents. [36]. If the dispute were between two Catholic princes it could perhaps have been resolved by the Papal curia, but if the dispute were between Catholic and Protestant princes there was no court with jurisdiction to decide, or even hear, the case. [37]. Gordon: 462. (Note the reference to establishing a legal regime, "both a priori and a posteriori". That is very much in the civil law tradition, but is totally alien to the common law tradition, where the legal regime is established by historical causes and conditions, not by logic.) [38]. Maritain: 64-66. Earlier in this essay Maritain made clear that his concept of natural law was derived from the Christian tradition in which Grotius is a key figure. The idea of natural law is a heritage of Christian and classical thought. It does not go back to the philosophy of the eighteenth century, which more or less deformed it, but rather to Grotius, and before him to Suarez and Francisco de Vitoria; and further back to St. Thomas Aquinas; and still further back to St. Augustine and the Church Fathers and St. Paul; and even further back to Cicero, to the Stoics, to the great moralists of antiquity and its great poets, particularly Sophocles. Antigone is the eternal heroine of natural law, which the Ancients called //the unwritten law//, and this is the name most befitting it. (Maritain: 59-60.) [39]. Murphy: 93-95. (footnotes omitted) [40]. See //supra//, note 29. [41]. Starke: 114. [42]. Called "appeals". Unlike most modern criminal cases appeals could be initiated by private parties, but even so the appellors did not normally recover anything as the result of the appeal (except the satisfaction of revenge). [43]. "Tort" is just the French word for wrong; French, or rather "Law French", was the language used in common law courts long after everyone else in England was speaking English. Junger.txt Page:39 [44]. This is a subject that is dear to my heart and is one on which I have written in the past (Junger). I fear that I tend to be interested in learning unimportant things like the form of the conveyance of the Jetavana Grove, or the legal rules governing the descent and distribution of Buddhist temples in Japan, but those are the interests of a lawyer with an unfortunate academic bent, not those of a follower of the Buddha Dharma. [45]. Caenegem, "Common Law": 165. [46]. It is still of great political importance, especially in the United States, as is demonstrated by the following footnote taken from the concurring opinion of Justice Jackson of the United States Supreme Court in Youngstown Sheet & Tube Co. v. Sawyer: We follow the judicial tradition instituted on a memorable Sunday in 1612, when King James took offense at the independence of his judges and, in rage, declared: "Then I am to be under the law--which it is treason to affirm." Chief Justice Coke replied to his King: "Thus wrote Bracton, 'The King ought not to be under any man, but he is under God and the Law.'" 12 Coke 65 (as to its verity, 18 _Eng. Hist. Rev_. 664-675); 1 Campbell, _Lives of the Chief Justices_, 1849: 272. 343 U.S. 579, 634, 655 n. 27 (1952). [47]. Kamenka, "Anatomy": 1. [48]. For the common law background of American constitutional rights, see, for example, Chafee. [49]. See //infra// Note 51 and accompanying text. [50]. Abe, "Religious Tolerance": 201. [51]. "Nor shall private property be taken for public use without just compensation." Although the ideas underlying this constitutional provision can almost certainly be traced back to Locke, the actual language seems to have been originated by the draftsmen of the Bill of Rights to the United States Constitution. [52]. In England it is still true that in theory no one, except Queen Elizabeth, "owns" land; land is just held for some period of time by tenant who hold it, mediately or immediately, of the Queen. In the United States, on the other hand, because of the nineteenth century fixation on "property" as an individual right, a fixation which closely parallels that of the late twentieth century on free markets, the institution of such feudal tenure has been abolished--except in Maryland--a fact that makes it difficult to protect the community from the predations of modern robber barons. [53]. Kamenka, "Anatomy": 5. (emphasis in original). Junger.txt Page:40 [54]. 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