When bringing social science to the study of law, understanding the role of law in the process of social change is central. The great American example of social change influenced by law begins, of course, with the end of our Civil War, the freeing of the slaves, and continues through the establishment of segregation, the attacks upon it, desegregation and the development of affirmative action. May I suggest that another very important sequence of legal and social changes is the development and recognition of human rights in the European Union since · World War 11. In the first part of the following presentation I would like to offer some observations on those two examples of law and social change over a significant period of time. Using those two examples as illustrations, I want to then reflect from a philosophical perspective on a series of concepts that I think are important in understanding the role of law in social change. In my recent book, A Personalist Jurisprudence, The Next Step, I reflected upon the interrelation between a series of concepts including the rule of law and its relation to legal protection of rights; the language and uses of rights; legitimacy; primary social goods, a concept helpful in understanding rights; horizons; crossing horizons and the use of rights to hammer on foreign horizons, or the establishment of rights across horizons; and analysis of the point of view from which statements about rights are made. In this paper, I want to offer those concepts and their interrelation from the perspective of a legal philosopher and lawyer as a possibly helpful means for analyzing the gradual establishment internationally and throughout the world of the rule of law accompanied by the advance of human and civil rights. Perhaps these · concepts also may prove helpful to social scientists as well as legal philosophers in discussing and understanding the role of law in the process of social change. That social change may include the gradual establishment of the rule of law both within individual countries and internationally. Part of my argument is that advances in the protection of individual rights also support the developing rule of law and vice versa. I want to organize that discussion around an analysis of the language and uses of rights including how rights are used in the process of social change and how the pursuit of rights relates to establishing the rule of law. What do we mean, then, by the rule of law? And how is the rule of law related to legal protection or protection by courts of individual rights? In the second part I want to address those questions. Then, in Part III, I should address what we mean by rights. How do we discern fundamental rights and why should we recognize those rights? How do rights come to be perceived as legitimate? Legitimacy, rights and primary social goods is the topic of Part III. In Part IV, I want to discuss rights, horizons and point-of-view analysis. In Part V then, I will address the language and uses of rights: rights as tools in the process of social change. Using the concepts developed in the previous discussion, I want to reflect on what we mean by, and how we use, natural law and how it might contribute to understanding and advancing human rights, the rule of law and the process of social change, which may lead to their acceptance.
Donnelly, Samuel J.M.
"Reflecting On The Rule Of Law, Its Reciprocal Relation With Rights, Legitimacy And Other Concepts And Institutions,"
Syracuse Journal of International Law and Commerce:
2, Article 3.
Available at: http://surface.syr.edu/jilc/vol32/iss2/3