Freedom and UN Human Rights at 75
By J.K. Baltzersen
web posted December 11, 2023
Seventy-five years ago, the world had just come out of a devastating war. The regimes of Hitler, Stalin, and Mao are arguably the worst regimes known to humankind. Peace had been around for just over three years.
The American Founding Fathers had based the founding on natural law, law that is not made but discovered. The opposite is positive law, or legislation, law made up by legislators. We see it in the Second Amendment, which does not grant the right to bear arms, but rather denies the government the authority to infringe upon the right to bear arms.
The Ninth Amendment, referring to non-enumerated rights, gives a general hint that rights don't exist because they are enshrined in the federal Constitution. The positive law of the Constitution protects rights that existed prior to their protection being added to the Constitution.
As time has passed, and the people have come to be more or less the sole legitimate source of government power, natural law has declined and the people through their referenda and representative legislatures have become the sole source of law.
So even in America. Stuart Banner in his book The Decline of Natural Law: How American Lawyers Once Used Natural Law and Why They Stopped gives an overview of natural law in the American legal system. Banner says one reason American lawyers stopped referring to natural law is written constitutions having come to replace natural law.
American libertarians and conservatives often argue that rights do not come from government but pre-exist government. On the other hand, some of the same people have a tendency – when liberals have expressed dislike for some right or rights enshrined in the U.S. Constitution – to encourage working for amending the Constitution.
While the intent may not be so, such encouragement could easily be seen as acceptance of a popular majority – in the case of constitutional amendments, a super majority – as the sole source of law.
This replacement of natural law by pure positive law, aka government made law, opens the door for tyranny by both the masses and strongmen. Government based solely on the sovereignty of the people may result in this. This was among the things Alexis de Tocqueville feared when he observed democracy on his tour of America and wrote about it in the classic Democracy in America.
In another democracy across the Atlantic, a strongman rose to power in the 1930s. While not initially winning a popular majority, he managed through an election to gather significant popular support for his own party and eventually taking over executive power through support of other parties in the Reichstag, the German Parliament.
This strongman, Hitler, created one of the worst regimes of history.
When his regime fell through defeat in World War Two, there was arguably an element of the justice of the victors, when a large number of Nazi officers were brought to trial in Nuremberg. In a sense, it could also be seen as a renaissance of natural law. Government power was taken so far in Hitler's Germany, that there was a backlash. It didn't matter that there were no positive penal codes authorizing their punishment.
Similarly, when the United Nations organization was formed and later declared human rights, one could argue this was part of a renaissance of natural law. Arguably, there is an element of positive law, i.e., the government's law, on another level.
However, the concept of human rights in the context of the United Nations is influenced by the idea that governments cannot do whatever they please. That goes for democracies as well as for more authoritarian governments.
We can argue over how effective those limits are. We can argue over whether they are the right limits. We can argue over negative rights (protection from government) vs. positive rights (claims to resources from government). We can argue over whether the limits go far enough – or even too far in some cases.
But the realization after the extreme consequences of absolute government power by the Nazi regime, that government needed at least some minimal limits to what it could do to people, we should celebrate on this 75th anniversary of the Universal Declaration of Human Rights on this December 10. 
J.K. Baltzersen is a Norwegian political commentator and writer. His work has appeared, among other places, in The Washington Times, FEE.org, and Enter Stage Right.
