Treat this as a brief aside, as I would like to go back to the mainstream discussion on Gurumurthy. For other readers: this is primarily for the consumption of
@Nilgiri, and I apologise for the excursus.
"Nothing... is unchangeable but the inherent and unalienable rights of man." --Thomas Jefferson to John Cartwright, 1824. ME 16:48
The point I am making is the US founding fathers specifically did it this way (e.g if you read the federalist papers and the precise reason why having a bill of rights was opposed at that point....the body of work by Jefferson is also a very good read) because they were in the business of overthrowing a monarch and the legacy of monarchy. They went quite deeply into everything you are talking about here and the conclusion was, there are indeed inalienable rights every human has, that well predated the govt and societies that humans created.
How the courts interpret this today in practice in the US common law is another subject too of course (one example is the fact that illegal residents do indeed have rights afforded to them by the US constitution itself given they are inalienable rights) and there have been morally flawed applications definitely (the whole condition of slavery etc), but the main consequence of it I find are the 1st two amendments to the constitution that are found no place else....and both establish a level of freedom (in speech and self preservation) that I find are the two defining strengths of the US today. It is the only country with absolute free speech and the right of its citizenry to arm and protect themselves from tyrannical govt (given their rights for both predate the establishment of said govt).
So far, so good. But that was what the man said, jumping off the 40th floor, as he passed the 19th floor. There are things that I want to say about what is written above, but of that, more anon.
Both of these are nigh unthinkable from the outset in a constitutional monarchy (or derivatives of such as seen in the continental system set up by Emperor I won at Austerlitz) in practice for a reason.
Something seems to have got lost here. Could you please review this at your leisure?
"Houston, we have a problem."
Why,
@Nilgiri, are these unthinkable from the outset in a constitutional monarchy or derivatives of such a monarchy?
First, we must be very careful to distinguish between the 'continental system' of Napoleon, that being an ordinance that ruled that there could be no distinct system of commerce for the continent of Europe, and that all countries must observe Napoleon's desire to embargo trade with Great Britain, and the loose way in which I referred to the distinctive system of law called the civil law. That use was because England, then, back in the day, was unique in pursuing common law, based on case law (the two go together but are not the same), but most countries on the continent of Europe, subsequently, Asian countries as well, went by civil law, that was law defined a priori on the basis of a structured code defining the law on each aspect that the law-makers thought to be important.
Second, the distinction between the grant of inalienable human rights to themselves under the American constitution is by no means ruled out, even (theoretically) in a civil law jurisdiction, including a constitutional monarchy, except by taking a very narrow technical view. Here we need to pause to draw further distinctions, this time, between a constitutional monarchy and any other, and also between the provisions of civil law and common law.
Providing these rights under common law is not possible UNLESS AND UNTIL THERE IS SPECIFIC LEGISLATION TO THAT EFFECT, or, as has happened in India, UNLESS THE COURTS RULE THAT THE INTERPRETATION OF CONSTITUTIONAL PROVISIONS YIELD AN IDENTICAL RESULT, A SET OF INALIENABLE HUMAN RIGHTS.
So, one at a time.
In a system of common law, there was no written document stating what was the law. It was what the King decided it was, and in order to record it and serve as a guide for administrators, for those who administered the King's justice, it was recorded in the form of writs - the link to writing is clear. These writs, then, were the constituted law.
What happens when there is a disagreement on how the law is to be interpreted? Ideally, the King is asked; but when the King is moving about his kingdom staying at different places for one or two weeks at a time, that is quite difficult, especially for a questioner of the humbler sort. Therefore the system of delegated authority took over, and courts were established that decided how a law was to be applied. Each case tried served as a model and as a precedent - a vital term in common law - for other, parallel courts and for other subordinate courts. However, higher courts - as this implies, there was a strict hierarchy of courts - could, through their judgements, differ from the judgement of a lower court, and re-state the law, and such a judgement would be binding on the lower courts and on parallel courts. That embodies the concept of appeals from the judgement of a lower court to a higher court, and is a hallmark of a common law system. Theoretically, in a civil law system, the first hearing and adjudication is the last; there is no question of appeal, unless the judge at the lower level has grossly misunderstood the article of the legal code that is in question. Here the judges interpret the code; in common law, the judges interpret the body of cases that constitute the case law on the matter.
Where is Gurumurthy in all this?
Simply, that
@Nilgiri's assertion that a declaration of inalienable human rights is impossible in a constitutional monarchy conflates the status of a country living under the civil law, with the status of a constitutional monarchy, and the concept of a written constitution.
In countries under common law, all law being derived from individual writs, and thereafter by statutes, the parliamentary equivalent of writs, there can be no inalienable human rights unless the conditions put in capitals above apply: that there should be a specific statute stating that such inalienable human rights are recognised by the law of the land, or there should be a judicial interpretation of the body of statutes, that should conclude that those statutes implicitly acknowledged inalienable human rights.
In countries under civil law, however, if the code states that there are such things as inalienable human rights, there ends the matter.
Now we come to the question of constitutions - written constitutions, in the common law world and in the civil law world, and we come to a further bifurcation, between monarchies with a constitution in the common law world, monarchies with a constitution in the civil law world, and monarchies without a written constitution in the common law world, finally, monarchies without a constitution in the civil law world. Great Britain is the premier example of a monarchy without a constitution in the common law world; in fact, in light of the extent and jurisdiction of the common law system, the British monarchy is the only monarchy that can be defined to be under common law. In Britain, there is no written constitution; the sum total of statutes legislated and adopted constitute the nation's body of law. At present, there are no monarchies known that exist in the civil law world without a constitution.
Coming to those with a written constitution, there are no monarchies with a written constitution in the common law world, but there are democracies, for instance, India, Pakistan, Sri Lanka and Bangladesh on our own sub-continent, that follow common law and have a written constitution, and, of course, towering over us, in terms of constitutional precedence according to age, the United States. Almost every monarchy in the civil law jurisdiction has a written constitution: in alphabetical order, Belgium, Denmark, Japan, Luxembourg, Monaco, the Netherlands, Norway, Spain, Sweden. I hope I have not omitted any. I am confused about the positioning of the Jordan, Kuwait, the Kingdom of Saudi Arabia, and the United Arab Emirates; my inclination is to classify them under the jurisdiction of civil law, but a very special sub-category, indeed, so special that certain purists might contend that they constitute a separate category in themselves. Taking the first set first, in each of those constitutions, human rights that are inalienable may be placed within the constitution.
This needs an explanation. In each of these, the monarch is supreme, sovereign. He, or she is the embodiment of the law, BUT he or she has voluntarily ceded to his or her subjects certain rights and privileges that stem from his or her sovereign authority. The question is whether or not such ceded rights can be withdrawn at a later date. As they stem from the person of the sovereign, a succeeding sovereign obviously has the right to withdraw this concession, as he or she himself or herself has precisely the over-riding authority as the predecessor who first ceded the powers to the subjects.
It is very clearly not a practical proposition, but theoretically, Nilgiri has a point, a very narrow, technical point in asserting that a constitutional monarchy cannot be a reliable source of guarantee for the inalienable rights of human beings.
So Gurumurthy is not correct in saying all of the western world had this sole predilection to sourcing from a king's divine right (be it direct or manifested quality corollary like you elude to) transferred to state right based on Priotestant Christendom.
I have a different set of objections, actually. There is a horrible gap in the argument here. Weber's thesis was on the nature of Protestant belief, and theology, and the reasons why this theology was more supportive of capitalism than the other major theological points of view within Europe, the Roman Catholic theology and the Orthodox theology. Since we have already taken enough time on constitutional monarchy, on common law vs. civil law and such nice things, with your collective permission, we shall approach this later.
Like much else he was talking about, he ignored some of the stark objections to the rule of thumb being portrayed (to try divide everything into some sense of black and white, which is actually not a nuanced Dharmic thing to do in all honesty)....that I feel is not good to do in conversation. Still it was a good watch for me....and I agreed with lot of what he said regards to economics.
We can discuss this.
Slightly different King and prophet, but I couldnt resist!
LOL.
Most apposite; this is part of the coronation ritual of a monarch who rules without a written constitution.
