There are two or three ways of looking at what makes law, law. Positivism says that law is law if and only if it has been duly enacted according to the process recognized in a country (e.g. by an elected legislature). Natural law says that there are certain principles of right and wrong that are given by a divine creator or recognized and accepted because of their inherent value and correctness. A third way of understanding law combines the two approaches and sees law as evolving - there is some need for positive articulation of norms by a duly recognized authority, but also an openness to emerging or changing values that are recognized, when they appear, as inherently correct.
Natural law makes people nervous in a pluralistic society, because we do not all share the same notion of what is inherently right. For some people, there is a creator-given law against abortion, against many forms of loving sexual expression, and against women holding positions of authority. If such principles were accepted as natural law, it would harm women and LGBTQ people who find joy and freedom and rightness in their sexual expression and reproductive freedom. We could equally express as natural law the principle that sexual autonomy and mutuality, and the dignity of women are due paramount respect - but so far our pluralistic society has mainly chosen to avoid debate about such fundamental principles and instead has chosen to address such questions through a positive law approach (enacting or repealing laws) or through development of jurisprudence on equality and privacy, which I consider to be an evolving law approach.
International human rights is a creative field in which evolution can take place very quickly, with significant opportunity for involvement by civil society. The drafting and adoption of the Convention on the Rights of Persons with Disabilities took place over a five year period from the time of the passing of a resolution in the UN General Assembly agreeing to begin the process, to the adoption of the final text. The author of this blog was involved as the lead representative of the World Network of Users and Survivors of Psychiatry, and experienced first-hand how it was possible for principles based in the lived experiences of survivors of psychiatric abuse to be turned into international law. A detailed analysis tracking the principles from advocacy to final text can be found in my article, "The Emergence of a User/Survivor Perspective in International Human Rights Law," which is forthcoming in publication in a collection edited by M Schulze and M Sabatello.
I have recently become interested in indigenous concepts of law and justice, along with the field of restorative justice as an alternative to punitive criminal law and procedure. In particular, I would like to recommend the books - Justice as Healing: Indigenous Ways, edited by Wanda D. McCaslin; Returning to the Teachings, by Rupert Ross; and Thunder in My Soul: A Mohawk Woman Speaks, by Patricia Monture-Angus. From what I am learning, it appears that indigenous law is natural law, and is specific to the people whom it belongs to: it makes no claim to universal validity or to be supra-cultural, as both U.S. law and international human rights law do. Indigenous law processes seem to be based on teaching rather than legitimized coercion, and the effectiveness of teaching comes from its wisdom and the value to the learner, rather than an officially-bestowed hierarchical status in which it is easy to abuse power. I do not know a great deal and am only summarizing what I think I have learned from these readings, but I am interested in thinking about the implications for non-indigenous pluralistic societies - including the question of how to relate justly to the indigenous peoples that have unjustly had their land and people stolen by the conquerors.
Speaking for myself, I am Jewish American or American Jew (Ashkenazi/ Eastern European), a dyke, a lesbian connectionist, a survivor of psychiatric abuse and a warrior for justice and healing particularly in relation to psychiatric abuse. There are more parts to my identity that are spiritual and I do not feel comfortable sharing; it is too easy to mock or trivialize or translate into mainstream experiences that do not work for me.
Back to the purpose of this blog. I want to explore the connections and issues being raised in my readings on indigenous law and justice and restorative justice, the issues being raised by the 99% movement and its possible relations to law, and the creativity at the heart of law and the legal enterprise, that is hardly ever fully acknowledged or appreciated for what it is.
I hope that you will join me in these explorations and look forward to your comments and conversation.
