Publication details
Rights and Their Interpreters: To Be a Moral Role Model in Modern Judiciary
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| Year of publication | 2024 |
| Type | Appeared in Conference without Proceedings |
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| Description | In After Virtue, Alasdair MacIntyre famously compared belief in human rights to belief in witches and unicorns. In Ethics in the Conflicts of Modernity, he further clarified his position on rights. This book also contains a fascinating portrayal of U.S. Supreme Court Justice Sandra O'Connor, who was supposed to interpret and apply the rights enshrined in the Constitution, which have their origins in the philosophical discourse about natural rights. In my paper, I will first try to identify the best conception of natural and human rights so far within the Thomistic-Aristotelian tradition. This will then enable me to evaluate the thinking of another distinguished judge – Vladimír Čermák, a former Justice of the Constitutional Court of the Czech Republic. He was a moral role model for many people in the judiciary, the academe, and in the public life of Brno, my hometown. Scholars belonging to a particular tradition of moral enquiry debate about the best interpretation of particular aspects of that tradition. Representatives of the Thomistic-Aristotelian tradition have been quarrelling over a considerable span of time about their assessment of the modern phenomenon of natural and human rights. The attempts of Jacques Maritain to connect natural law with natural rights are well known, and the work of John Finnis and the so-called new theory of natural law is widely debated. However, I believe that the most convincing understanding of the phenomenon of right and (natural, human) rights is offered by the scholars reinvigorating classical juridical realism, such as the French legal historian Michel Villey, Spanish legal theorist Javier Hervada, and, currently, Rome-based Croatian scholar Petar Popović. In the first part of my paper, I will argue that their approach is particularly useful for understanding rights and their interpreters (judges), which will allow me to better evaluate Čermák´s work. In the second part, I will recount Čermák´s story, his upbringing, education, and his experience in the legal professions during communism. Although he lived a rather limited social life in this period, Čermák managed to influence a group of judges who had a great impact on the judicial system after the breakdown of the communist regime. He also wrote his great theoretical work on democracy during this time. Since I have already analysed his theory elsewhere (cf. Studies in East European Thought), I will only assess the most relevant parts of his theory for understanding the juridical phenomenon from the point of view of the Thomistic-Aristotelian tradition. Despite certain flaws in Čermák's approach, his thought offers several points of contact with this tradition. Moreover, I will try to situate his work in a more complex narrative of his life, which took place within a particular historical and political context, i.e., communism and the transition to democracy. By analogy with MacIntyre's discussion of Sandra O'Connor´s professional life, I will attempt to outline the strengths and weaknesses of Čermák's role as a judge and a moral role model in modern judiciary. |
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