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Critical social theory enables us to see the relationship between justice and law very differently. In the older positivist worldview, justice and law were often conflated; sometimes the terms were used interchangeably. However, using the Nietzsche-Foucault method of critical genealogy, a back-trace of these two ideas reveals surprisingly disparate origins.
In the city of Rome during the Republic, Patricians would write laws (lex), ostensibly based on universal, unchanging principles. Aristotle would have classified this mode of reasoning as episteme. In practice, however, these ‘universal’ laws would tend to benefit the elites; the Patricians. This tendency that was not lost on the commoners, the Plebians. In contrast, the Plebs would occasionally make demands based on situational needs and desires. In contrast to the idealistic basis of law-writing, plebian demands emerged from the context of life in the city. They were emergent, and they were inherently urban. As grain had to be brought from further away and prices on basic foodstuffs rose, Plebs rioted for grain subsidies. They also wanted more entertainment, more diversion in the arenas. This is the origin of the disparaging elite comment that ‘all the people want is bread and circuses.’ However, Plebs also lobbied for the establishment of formal political and legislative representation, which they obtained in the form of the office of the Tribune. This eclectic list of needs and demands was called ius, which is the etymological source of the words just, justice, judiciary, and also droit, Recht, and rights. In contrast to episteme, Aristotle would have characterized this mode of thinking as phronesis, which translates roughly as ‘judgment’. It was practical. It responded directly to context.
From the Roman plebian perspective, the very idea of “codifying rights” would be considered an inherent contradiction. Codex meant books. Rich people write laws in books; laws are what harm the people. Rights come from the practices of everyday life; they cannot be pinned down, tamed, and controlled by the elites.
Through this ancient Roman-Republican lens, then, the U.S. Bill of Rights and the French Declaration of the Rights of man might be understood as…abominations? Perversions of the claims that commoners once reserved to themselves to declare their needs and desires? Possibly. In any case, that which American revolutionaries described as rights were significantly different from the Romans, because American rights tend to be negative—they restrain the government from invasion of private lives—whereas the Romans often lobbied for positive rights, like the right-to-livelihood in the form of grain subsidies.
Eleanor Roosevelt got closer to the Roman conception with the positive rights that she drafted into the Universal Declaration of Human Rights in 1948. However the United States invalidated the potential enforcement of such rights in Sei Fuji v. California (1952). Furthermore, thought the rights are claimed to be universal and implicitly timeless, they may not fit all cultures, and they have already become outdated in some ways. They are rather silent on the recognition of same-sex marriage. I admire the UDHR, but I am concerned about the fundamental assumption that it is even possible, let alone appropriate, to codify rights.