The Sickness of Law
Speech by Jan Maria Rokita at the International Human Rights Conference, Krakow August 24-28, 1989
„Although only a few may originate policy, we are all able to judge it.” Karl Raimund Popper quoted these lines from a speech by Pericles in the introduction to his work on the open society. It is faith in the future, in the significance of evaluating policy, even the belief that evaluating policy helps to shape it as well, that seems to have brought you here to Poland–the same faith that moved us, the organizers of this conference, to invite you. Our aim in holding this conference is this: to try collectively to evaluate contemporary politics by analyzing the reasons for the current widespread violation of human rights and to debate the ways that we ordinary citizens, who do not always participate in day-to-day polities, can most effectively prevent such violations.
As one of the organizers of the conference, I would like to make three remarks on human rights: First of all, I am convinced that the only proven means of safeguarding the individual’s rights is law–which I understand to be not only a system of standards recognized by the state, but also a system of government institutions to ensure their proper and effective enforcement. Unfortunately, across vast stretches of the world, both of these systems are sick. The symptoms of this sickness are probably most conspicuous in Poland and other communist countries. Here, both the standards and the institutions designed to enforce them are nothing but vehicles for fulfilling the immediate political goals of the people currently holding power.
A parliamentary bill carries as much weight as a police order. For example, someone running a private publishing house in Poland knows government policy may change every few months: one day be can be sentenced to five years in prison, on another fined and deprived of his car, and yet on another merely subjected to [ed.: questioning?) by the secret police.
Each course of action can be justified by an appropriate paragraph of the „law” currently in force. Yet none of these practices prevents the head of state from boasting about the existence in his country of an uncensored press. Incidentally, we ourselves faced a similar situation in preparing this conference.
On the basis of different laws, our activity can be either punished by imprisonment, fines, or arrest–or it can meet with the authorities’ approval. The basic standards that determine the range of civil liberties the penal code, for example undergo significant modifications every two years on average.
Obviously, this phenomenon is not peculiar to Poland. One of the participants in an inspection carried out by the International Helsinki Federation last January in the soviet Union expressed his dismay upon finding that none of the experts in the Institute of Law and the State at the soviet Academy of Sciences not even the Institute’ s director could point to regulations governing the granting of legal status to social organizations, or to available procedures of appeal. There also exist laws without any bearing on reality, serving only to create a „superreality” of ideology and propaganda; suffice it to mention the Law of Trade Unions, which guarantees trade union pluralism in Poland while banning Solidarity.
These are only a few selected and not very drastic examples that demonstrate the sickness of law. This sickness, as I have said, seems most advanced in the communist bloc. To a lesser degree, however, it afflicts virtually the whole world. Let us only mention, on the one hand, the extreme example of the apartheid legislation in South Africa; and, on the other, the French National Assembly’s endless tampering with the electoral laws or the U.S. Congress’s bills concerning relations with Nicaragua in re cent years. These examples are part of a world-wide trend to depreciate the status and prestige of law as a stable safeguard of the individual’s rights.
Secondly, just as the establishment of the rule of law constitutes the only effective protection of the individuals rights, so the effective rule of law is inconceivable in a system that is not based on social control. People are not, unfortunately, good by nature; and everybody knows that power corrupts. Thus, the effective assurance of individual rights requires a mechanism that allows society to check over the institutions that make and enforce law–namely, the state. Of course, it is very practical and praiseworthy to launch international campaigns that bring about the pardon of a prisoner sentenced to death, the release from labor camps of, say, a hundred people, or the right of an outstanding writer to publish his works in his native country. But we must make a clear distinction between potentially temporary forms of liberalization, such as the relaxation of censorship, and the sort of systematic reform that would make the violation of human rights impossible–a distinction which Western observers all too often fail to make when assessing current political change in the East. Such reform would mea n nothing less than the creation of a lasting system of societal control over the government apparatus. In recent days, you have witnessed an important battle for just such reform here in Poland.
Thirdly, I am convinced that one of the chief psychological and legal obstacles hindering efforts around the world to broaden the sphere of social control is a superstition call the „principle of state sovereignty” one of the most firmly rooted political superstitions of modern times. It emerged toward the end of the Middle Ages, supplanting the earlier belief that law stands above the machinery of the state as well as the traditional conviction that the rights of individuals and social groups carry more weight than the authority of power centers. Bodin, the classic expositor of the doctrine of sovereignty, defined it as the breadth of the state’ s power over the law (summa legibusque soluta potestas). It has since been used as a theoretical basis for making law an instrument of government, most often by governments lacking any social legitimacy whatsoever. Today, the argument of „interference in the internal affairs of a foreign country” is the defense most often resorted to by dictatorships in international disputes. I confess-although this might be a controversial point that I was astonished to see how the efficient deposition of tyranny in Grenada brought condemnation on the u.s. government from even its closest allies. In the name of sovereignty, the civilized world closed its eyes to the mass violation of human rights that had in part provoked the intervention.
We who are striving to measure justice in politics by the yardstick of human rights agree with Karl Popper’s assertion that „the rights of human individuals must be recognized to be the ultimate concern not only of international organizations, but of all politics international, as well as national or parochial. ” This goal requires despite superstitions about the primacy of sovereignty the sanctioning of the rights of states as well as international and private organizations to inspect, supervise, intervene, and seek redress for violations of human rights. In the world divided into national states, international social movements for human rights could prove to be powerful instruments for change.
Perhaps we should consider drawing up an international convel1tion that would authorize international and national human rights organizations to act on the territory of any member country. This idea came up at a meeting of Solidarity’s Intervention and Lawfulness Commission. Maybe without waiting for government actions, social movements could create their own means to exchange information and to coordinate tactics; perhaps this conference could set such a process in motion. Finally, we should step up our efforts to pressure governments into allowing inspections of human rights’ compliance in their own countries. In this regard, we can draw from the instructive example of the Helsinki Federation’s January visit to the Soviet Union.
This essay first appeared in Uncaptive Minds, November/December 1988, pp. 29-30. Uncaptive Minds is published by The Institute for Democracy in Eastern Europe, New York.