Ironically enough, this rather unusual idea to write a piece with a jurisprudential undertone came to me after a usual walk with my anarcho accelerationist (basically Noam Chomsky gone batshit crazy) friend. He proposed that there isn’t a difference between philosophy of ethics and jurisprudence, to which I replied with an example. As an ethical philosopher I would condemn human rights violations in countries such as Saudi Arabia, however, as a jurist, I may not.
This got me wrestling with a question. Is it ethically correct for us to condemn human rights violations in societies other than ours? I have only put forth an argument and left the question unanswered.
The argument against such condemnation begins from Hart’s idea of the rule of recognition.
According to Hart, all laws in a modern (note: not primitive) societies flow from a rule of recognition, this rule of recognition is a cogent rule that does not change very easily and is a source for all other laws (somewhat similar to the Grund norm of Hans Kelsen, but very different for the substantial part). For the sake of understanding: the rule of recognition in India would be the basic structure of the constitution that cannot be amended, and forms the essence of the constitution from which all other laws flow. Another example of the rule of recognition is Article 5 of the Constitution of the United States of America, which grants power to the state to amend the Constitution.
With respect to human rights, things start getting interesting when Hart starts talking about the genesis of the rule of recognition. The rule of recognition is a social rule, unlike other rules that emanate from it (HLA Hart, The Concept of Law, Pg 115-116). What Hart means by this is that the rule of recognition attains its status because of the internal acceptance of the society of such a rule (somewhat similar to Locke’s social contract). Hart likes to explain this with the example of the game of cricket. If a bowler bowls a batsman out and the umpire declares such a batsman out, the players accept the decision of the umpire and the game continues. This acceptance and recognition of the rules of the game is essential for the existence of the game itself. If the players were to disregard-which they could choose to do- the rules of the game and the decisions of the umpire the game would never have come to exist. This is the significance of the rule of recognition. It is internally accepted by the society, and all other laws flow from it.
Therefore, if a society internally accepts the Sharia as a rule of recognition, it should not be the place of human rights activists to comment on the laws within that society. Even the right to intervention and the responsibility to protect under humanitarian law arise only when there is a situation of civil war where the citizen no more recognize the pre-existing rule of recognition and wherein the state violates ‘human rights’ (which the citizens of that state, as Hart would say, never recognized) of the citizens of that state.
Obviously, this thought comes with the presupposition that Hart was right about everything. Some (especially anarcho accelerationists) might argue that they never recognized this rule of recognition explicitly, to which the Hart and Locke may say that the same was implicit.
This is where law and ethics differ. This is why law may not always lead to justice, for justice is not the purpose of law, order is. This is why a jurist may not condemn human rights violations, as long as there is order. This is why it is ethically wrong to condemn human rights violations in other societies on ethical grounds.