From the Idea of Natural Law to the European Convention of Human Rights Cover Image

From the Idea of Natural Law to the European Convention of Human Rights

Author(s): Radmila Kovačević-Kuštrimović
Subject(s): Law, Constitution, Jurisprudence
Published by: Правни факултет Универзитета у Нишу
Keywords: natural law; applicable law; laws; philosophy of law; the European Convention on Human Rights

Summary/Abstract: The philosophy of law was originally rooted in myths and legends which gradually gave way to religion, customs, ethics and the law. The concept of natural law (lex naturae) was first introduced in Ancient Greece. The idea of natural law was the subject matter of the Sophist philosophy, where it was perceived as a critical counterpart of customs and legal rules. Being perceived as the eternal law (lex aeterna) entailing the wisdom as the governing principle that rules the world, natural law was the cornerstone of Roman law, alongside with the idea of universalism which was assumed from the unique nature of man as a human being. Later on, this idea was reinforced in Christianity, where it was embodied in the learning that God is the creator of the eternal law which applies to all people alike and which all legal rules and customs have to be in line with. However, apart from the idea of the divine law (jus divinium), the medieval Christianity eventually generated the idea of natural laws as guarantees of the individual rights, because they perfectly corresponded with the natural characteristics of man as a human being. Natural law is regarded to be the right of individuals as perceived by the human mind. It is a modern and rational law which places man in the middle of the universe and requires equality for all. In modern times, the nature of man is perceived as “a critical standard” within the natural law theory which may be used as the (legal) ground for instituting change in the existing legislation, introducing reforms in the state administration and introducing a new system of government. Man’s nature has become a concept embodying a revolutionary charge; as such, it was the source of many radical changes in Europe in the course of 19th and 20th century. Eventually, the principles of this rational and modern natural law theory have been established as universal and generally recognized principles, which were explicitly envisaged in the Declaration on Human Rights of Man and the Citizen and the Human Rights Charter. Consequently, the principles contained in these legal documents were used as slogans in many middle-class (bourgeois) revolutions as well as in the revolutions aimed at obtaining independence or creating an independent national state. Being in accord with man’s nature, the natural law principles contained in these declarations have become the constituent part of all European legislations. However, the First and Second World War demonstrated the inadequacy, inability and insufficient capacity of national legislations to protect not only the human rights of an individual but also the human rights of entire nations, ethic and minority groups (from the holocaust). Consequently, there was the need to establish a new legal order which would be based on new natural rights, which would depart from the normative framework of national laws and which would be protected by the international community. In due course, the international community adopted a number of conventions, declarations and agreements at different levels (both regional and global); one of the most significant documents for instituting a comprehensive and efficient system of human rights is the European Convention on Human Rights and Fundamental Freedoms (1950). Although it incorporates the rights which are largely protected in national constitutions and legislations, the ultimate significance of this Convention is embodied in the “consent of the mankind” to protect human rights, irrespective of one’s nationality, gender, education, colour, language, etc. The European Court of Justice, which was established by this Convention, was obliged to protect human rights from being violated either by individuals, by State Parties (signatories) to the Convention or by the governments or rulers of a respective state. Unfortunately, practice has shown that neither the freedoms, nor democracy, nor justice (all of which have been guaranteed by the Convention) can prevent the abuse of human rights; namely, calling upon the Convention, the State Parties may do great injustice to some nations or states. Where there is use, there is a fear of abuse.

  • Issue Year: LVIII/2011
  • Issue No: 58
  • Page Range: 41-55
  • Page Count: 16
  • Language: Serbian