Publisher's Synopsis
The title of this book is taken from G.W.F. Hegel and refers to the idea that philosophy cannot be prescriptive because it understands only in hindsight. The same holds true for conceptions of human rights. In these thought-provoking essays, the author examines the dialectic relationship between 'rule of law' and 'law and order,' between 'state' and 'individual,' and between 'judicial power of logic' vs. 'executive logic of power'. These dynamic contradictions are never resolved. On the contrary, they are the motor of development and they inspire judicial reasoning and the balancing of justice vis-� -vis power and arbitrariness. The Owl of Minerva is divided into three parts. The first part addresses human rights in the context of constitutional criminal procedure. It shows that the idea of impartial adversary adjudication is essentially incompatible with the function of truth-finding. Procedural safeguards in adjudication have been created because of the imbalance in power between the state and the individual. The second part examines human rights in the context of substantive criminal law. This section demonstrates that the principle of legality is in essence a question of the distribution of power between the legislature - entitled to be arbitrary because it represents the sovereignty of the nation - and the individual decision-maker, who cannot represent himself and can therefore act only on behalf of the compelling logic of the law. The conclusion drawn is that, in the end, the role of the principle of legality in substantive criminal law and that of adjudication in constitutional criminal procedure is to provide the defendant with safeguards against violation of human rights perpetuated by the inequality of power between the state and the defendant. The third section brings together three essays on human rights in the context of constitutional and international law, dealing with legal precedent, access to court, and morality of virtue vs. morality of mere duty. This book will be a welcome addition to the debate on human rights.
