By ‘legal universalism’ I mean the Enlightenment concept which holds that certain rights (e.g., fundamental or human rights) must apply to all human beings on the basis of a strong — perhaps overstrong — assumption of homo politicus [political man]
Francesco Belvisi
The Red Gloom had long hung over the country. The sense of impending doom had spread from community to community, from church to city hall, from the humble labourers to the masters of industry, from city to state, from mother to her children, from family doctor to the once great centres of care and compassion. Now, even the halls of justice had grown silent. The family farms of the nation lay abandoned, the live stock killed and buried in great pits, the main streets of every town disfigured by countless boarded-up shops and empty playgrounds. The deliberations of the legislatures were sparcely attended, as the business of government had long ago passed on to the experts. And the whole emergence, spread and progress of the Great Despair gripping the nation had been the incidents of a single generation.
For my video, "Legal Universalism", click here
The new unelected Prime Minister, Mark Prospero, was the latest in a long line of rulers who had masterminded the contagion, a key component of which was the constitutional reform, entrenched some 30 years earlier, and which remained the source of much pride among the people. The centrepiece of the reform was a the Declaration of Fundamental Human Rights and Freedoms. Every leader since had assured the people, ad nauseam, that despite the loss of manufacturing jobs, the closure of family farms, the replacement of skilled work with service jobs, the steady decline in the standard of living and the obliteration of culture and traditions, they were all better off, because unlike some horrible places in the world, run by scary dictators, they had their fundamental rights.
No matter how stark the reality of their dismal lives, and even darker future faced by their one-and-a-half children, the people never faultered in their faith in the Constitution, thanks mostly to the talented band of illusionists that made the grand deception work like a charm. Prospero was happy, dauntless and sagacious. Now that the ranks of the unemployed had doubled yet again, with many of their number wandering aimlessly across the land, mere shadows of men, if not otherwise occupied by video games and drugs, he summoned to his presence a thousand hale and light-hearted friends from among the global elite, and with this jolly band retired to the deep seclusion of one of his many gated communities. His residence was an extensive and magnificent structure, the creation of Prospero’s eccentric yet august tastes. The residence had been amply provisioned before the recent economic downturn brought on by the full imposition of the global sustainable development objectives. The iron gates would keep out the riff raff during this round of deliberations. The mood was gay. Prospero and his guests bid defiance to the contagion sweeping the land. Their lifestyles were secure, their private jets sat waiting. In the meantime, Mark had provided for all the appliances of pleasure. The sedated masses wouldn’t awaken anytime soon, if ever. Now it was time to open the ball.
The four central characters in Prospero’s masquerade were well known. The first among them were the rich aesthetes, whose interest lay solely in fending off any kind of boredom, so characteristic of modern leisure. The aesthetes great gift to the nation was in contriving behaviour in others that was responsive to their wishes and fed their sated appetites. The aesthetes were always accompanied by their buffoons, improvisatory and ballet dancers.
Following close behind these were the therapists, the next of the four central characters in the grand, largely fake, drama, which is the modern state. The therapists prescribed care, as if it rolled off an assembly line, with sound technique and effectiveness. It was the therapist who transformed neurotic symptoms into directed enegy, mal-adjusted individuals into well-behaved, well-adjusted ones. The ends were a given, and a therapist never engaged in moral debate. Truth was displaced as a value and replaced with the most up-to-date psychological therapies and pharmaceuticals.
The third character to enter the masquerade were the managers, whose central responsibility was to direct and re-direct their department’s and corporation’s available resources, both human and non-human, as effectively as possible. The manager was the master of controlling behaviour and suppressing conflict. His ends did not need justification. His concern, as with the therapist, was with technique, transforming people and things into a finished product. The managers didn’t know it, but their effectiveness was in reality a masquerade of its own, a masquerade of social control. They had come to the right place.
Finally, the fourth character entered the ball. These were legion, all masked, in great columns moving in perfect synchronicity. The other characters and guests bowed at their arrival for these were the experts! But not just any experts. These pillars of society possessed the sacred knowledge, the managerial and bureaucratic expertise. These were the greatest magicians, illusionists and wizards of them all, for only they knew that such expertise was a mere fiction, since the kind of knowledge which would be required to sustain it did not exist. Like the clergyman lucky enough to pray for rain just before the unpredicted end of a drought, these experts could always rely on their managerial expertise producing unsystematic effects that did, often enough, coincide with the promised results, even though these results were always entirely coincidental.
Mark Prospero was delighted. With the ball ended, and the worse of the contagion burnt out, and after all the wine was guzzled and all the chicken in cream sauce devoured, he would order the iron gates open once again. His masters of illusion resumed their posts throughout the land, working their magic. These were the great traders in moral fictions, most notably in the fiction of the utility of the state’s good works and, above all, in the fiction of the fundamental rights that kept the people content and the modern state afloat.
This concludes The Masque of the Modern State, based on chapters 3 and 6 of Alaisdair MacIntyre’s classic “After Virtue”,1 with a tip of the hat to Edgar Allan Poe.
Although not directed specifically at legal universalism or so called fundamental rights, MacIntyre’s analysis of how these four characters or architypes are used in the modern, post Enlightenment, state to conceal beliefs that are in fact, pure fiction, is entirely on point here. It takes all that the liberal aesthetes, therapists, managers and experts can muster to make us believe these rights actually exist and the modern state is rational.
It has to be one of the most brilliant feats of magic ever devised, to convince themselves as well as the people, that the positive laws of our legislatures and the decisions of our judges, both organs of the state, could be controlled or restrained by mere words, these written in high minded language in documents called “Constitutions”, “Bills of Rights”, “Charters” or “Declarations of the Rights of Man”. The truth as demonstrated by the emergence of the total state throughout the West, is that these words not only fail to control the state, they are themselves tools of authoritarianism. Take Ireland, which without a written constitution preserved for centuries Ireland’s fundamental character as a Catholic nation, including an absolute unquestionable ban on abortion.
For my stream on the Irish loss of their fundamental rights, click here
What happened then when Ireland took those unwritten laws and put them in a written constitution? They turned them into man-made laws and man-made laws can be repealed. They were — and those inalienable rights are no more.
The notion of overarching fundamental or human rights is, quite simply, a fiction if not pure nonsense. To be clear, these rights have often been mixed up with pre-Enlightenment notions of natural law, as reflected in the writings of Cicero or Thomas Aquinas.2 Natural law is a term much misused and misunderstood and with multiple very distinct meanings. The traditional understanding of natural law is totally different from how the term has often been used since the Enlightenment. As MacIntyre explains, rights have to be rooted in community. The globalist project of backstopping an imaginary international world order doesn’t change the fact that the world, still, is made up of communities, people, nationalities, some of which are states. Universalism, on an international scale, presupposes something that doesn’t exist: a single, homogeneous, humanity.3 Multiculturalism and mass migration have played a significant role is removing the masque. Humanity, as we can now clearly see, is a bit more complicated than the propaganda would have us believe. “Rights”, says MacIntyre, “presuppose the existence of a socially established set of rules. Such rules only come into existence at particular historical periods under particular social circumstances. They are in no way universal features of the human condition.”4
It turns out, before the Enlightenment or even the late middle ages, coming into the world came with a welcome package that I call the “law” (the real, not the fake one). These laws you didn’t ask for came from your people or community or nation and gave you not only your rights, but also your purpose or telos. Law and morality were united. In fact, ancient Greek and latin languages didn’t even have a word for morality5 and the idea of human “rights”, as we understand the word today, didn’t exist in any culture until around 1400.6 So how fundamental were they?
MacIntyre looks to Aristotle to describe a world very different from our own world of modernity. Aristotle is just one of many who have described the old order and how much more rewarding it was to live within it. In his “Ethics”,7 Aristotle tells us about a time when man started off as he “happens to be” but was able to realize his “essential nature” through Ethics. Life had a purpose, but you would have to work at it. With diligence, you might discover that essential nature if you lived a good, ethical life. MacIntyre writes that Christianity didn’t change this in a fundamental way, but added the purpose of the next life, a metaphysical purpose, and some new Christian virtues to get there. The key here is that we are entitled to an inherited law, and a life with a purpose.
Enter the Enlightenment and all this changes. Man is suddenly without a purpose. He is an autonomous moral being. He is to live a lonely, isolated individualistic life. What the Enlightenment calls freedom I would argue represents a destruction (or rather concealment) of our birthright, those laws and customs and traditions that gave life a purpose. Now, you are on your own. You are naked in the world and easy prey, and there are plenty of predators. How many have added their names to the long list of people who counted on the Rule of Law or their fundamantal human rights to save them, and were grievously disappointed to realize both are fickle, if not outright fictions.
… The best reason for asserting so bluntly that there are no such rights is indeed of precisely the same type as the best reason which we possess for asserting that there are no witches and the best reason which we possess for asserting that there are no unicorns; every attempt to give good reasons for believing that there are such rights has failed.8
Alasdair MacIntyre, After Virtue
But why persist in believing in human rights? One explanation is that they are a fiction that props up another fiction holding up the whole modern system (one of those turtles all the way down):
The concept of rights was generated to serve one set of purposes as part of the social invention of the autonomous moral agent… 9
Alasdair MacIntyre, After Virtue
It is no coincidence that the first law struck down after Canada got its Charter of Rights in 1982 was a law the gave workers a guaranteed day off on Sunday.10 The problem was, this was a Christian day of rest. Can’t have that. Now, and ever since, not only is Christianity continually the target of those who love their human rights, workers can work their two or three mindless jobs seven days a week. Intermediary institutions that come between the state and the atomized individual are frequent targets of the lovers of human rights.
The great philosophers inherited a treasure chest of moral notions, like the importance of telling the truth, keeping your promises and the sanctity of marriage. But now, according to MacIntyre, these all had to be justified. The philosophers tried in turn. David Hume tried the passions. Kant tried to justify morals based on reason and his “universal law”. Kierkegaard tried choice. According to MacIntyre, they all failed.11 Much like legal philosophy, Enlightenment thinking is trapped in its universality, that there is one morality inherited by all presumably rational human beings and that somehow this translates into a grand scheme of human laws and moral principles. That is a tall order. It is also plainly false. Anyone with eyes can see that the world is full of people living under different legal and moral systems, all lumped together in so-called nation states.
Legal Universalism means more than human rights and one global legal regime. It also applies to the universal application of laws within a nation state. These states are treated as containers into which you can poor all manner of humanity and, apparently by some magic, they are all suddenly subject to the same laws, the positive laws of that state. This is also sheer nonsense.
In Canada, it is illegal to carry a sidearm, including a knife. The Sihk community argued that it had the right to carry a ceremonial dagger, the Kirpan, as it was in the practice of their religion. The Supreme Court of Canada agreed12, declaring carrying a knife, for some, a matter of religious freedom. Really? Religious freedom? I’ll put to you that this had nothing to do with fundamental rights. Rather, the modern state must continually recognize that different people are subject to difference laws for entirely non-legal reasons. It is a social fact. In this case, Sihks a well represented people in Canada and in communities sufficiently large to support distinct systems of rules, had their separate laws affirmed. Following a familiar pattern, some Canadian laws they accept. Some they don’t. In this case they didn’t. We see here how so-called fundamental rights are used to conceal or mask the fact multicultural states are in fact, multi-legal states. It’s unavoidable and challenges in a existential way the notion that the state is the sole source of law. Fact is, it isn’t and it is getting harder and hide.
What then are the true sources of law? Well, what better place to look than the learned law societies, regulators of the legal community, in our various states and provinces. Well, aren’t these fully occupied, bastions of modernism and progressivism? Certainly, but in the interests of equity, diversity and inclusion, they have taken a remarkable step without knowing it of underming the authority of the modern state, for some at least.
A great example is the recognition of the multiple sources native or aboriginal rights. The law societies have published authoritative texts on the topic and, indeed, in some cases, made the study of the aboriginal sources of law mandatory. The real implications of these publications have apparently gone unnoticed. They do in fact cast serious doubt on the state’s purported monopoly on the law.
2. Sources and Resources of Indigenous Law13
a) Sources of Indigenous Law
All laws flow from a place or multiple places of authority, including laws within Indigenous legal traditions. The underpinnings, or sources, of Indigenous law are “…entwined with the social, historical, political, biological, economic, and spiritual circumstances” of different Indigenous peoples and communities. As John Borrows emphasizes … that “Canada could be characterized as a juridically pluralistic state because it draws on many sources of law to sustain order.” [emphasis added]
Borrows identifies five sources of Indigenous law. These sources are not separate, nor do they operate in silos, as “…Indigenous legal traditions usually involve the interaction of two or more…sources…In fact, in practice it would be hard to separate them from one another.” The five sources are: “sacred teachings, naturalistic observations, positivistic proclamations, deliberative practices, and local and national customs.”
First, sacred law … [M]ost legal traditions in the world, including Canadian law, … draw upon religion [see preamble to its Constitution]. While there is no doubt that the sacred is a source of Indigenous law, not all Indigenous law should be categorized as sacred. This is an important distinction, as laws that are considered sacred are often viewed as being unassailable or unchangeable. An inherent danger of such a perspective is that it reduces human beings to legal actors who are merely following rules, rather than fostering and normalizing legal actors who are responsible for interpreting, debating, reasoning through and applying the law.
The second source of law, natural law, refers to law that is drawn from the observations of the natural world, including analogies and legal reasoning drawn from how animals and other nonhuman life interact with one another.
The third source of law, deliberative law, is “formed through processes of persuasion, deliberation, council, and discussion.” Borrows refers to the debating, interpreting and talking that people do as the “proximate source of law,” as opposed to natural or sacred sources that may form the “backdrop” to those discussions.
The fourth source of Indigenous law is positivistic law. Positivistic law includes “the proclamations, rules, regulations, codes, teachings, and axioms” that people understand as governing or binding their behaviour.
A fifth source of law that Borrows identifies is customary law, which refers to the “practices developed through repetitive patterns of social interaction that are accepted as binding on those who participate in them.”
…
… social interaction [is] another source of law. “Social interaction” means the collective ways in which people formalize law through their long-term social, economic, and political interactions within their own societies and with people in other societies.
…. Alan Hanna identifies relationality as a source of Indigenous law, meaning the ways in which Indigenous legal institutions, such as kinship or family structures, “regulate and maintain interactions with others (human and non-human) and the kinds of behavior that people can expect and rely upon from others.”
What is important here is the recognition that the source of law is much more than what the state decides or says it is. If the sources of law for one branch of humanity includes the social, historical, political, biological, economic, and spiritual, it follows that this must be true for any branch of humanity that maintains distinct social, historical, political, biological, economic or spiritial identities. This would be applicable to any self or objectively identifiable ethnicities, peoples and cultures, so long as they have been lucky enough to have conserved their heritage and are prepared to make some attempt to practice it. I would suggest positive law is built on this foundation of higher, unwritten norms. There is no reason this should be not be true of many Europeans, Asians and other peoples, co-existing in our multicultural states. The outrage felt by one population or another, at yet another grasping piece of legislation from state or federal governments, may well be rooted in far more than personal preference, religion or political views. Rather, this outrage may be rooted in the experience of real conflict between laws that still attach to people, those inherited as a birthright (even if you are unaware of it), and other competing sources of law such as state positive law.
It has long been looked upon as a mere historical curiosity that after the Fall of the Roman Empire, the Germanic tribes that settled in the lands of the former Empire lived under their own laws and customs, which entailed a return to the ancient principle of the “personality of law”, in which the “law applicable to a person was determined not by the territory they happened to live in but by the people, the national group, to which they belonged.”14 Perhaps, we are witnessing a return to the “personality of law” or, rather, it is being unmasked, was always there and never left us.
The interesting question then, is whether there is a surviving customary, traditional law for the rest of us that has survived modernity and our busy legislatures. Have these ancient laws really been repealed (as most if not all modern lawyers, judges and politicians would insist) or have they survived (as I stated above) as higher, inalienable, unwritten laws, waiting to be recognized once again within our overly rigid, modern legal system and enforced? Is the flow of humanity across the globe reviving a “personality of law”? All good questions, and ones I will continue to explore in these essays. Francesco Belvisi writes that the plurality of law in the world is an inevitable consequence of our times:
The close link between law and culture is a well-established fact in modern legal thought … In the years to come, increased migration will erode not only […] national characteristics, but also […] European-Western features. … In a pluralist society which boasts a ‘polytheism of values’, one can no longer assume the absolute superiority of one’s own principles over those of others…. At stake, here, is the possibility of living together in peace in a global society characterized by conflicting legal systems.15
Francesco Belvisi
Obviously, the notion of a “global society” is a dubious proposition. But rather than relying on the legal fiction of fundamental human rights, looking to other sources of law, perhaps ancient ones, that attach to people, may represent a far more reliable and lasting way to resist the overreach of the culture-less, value-free, grasping modern state.
A. MacIntyre, After Virtue (Notre Dame Press, 3d ed.) chapters 3-6
J. Stephens, Universal Human Rights and Their Justifiability (Academia Letters, Aug. 2021) at 1
F. Belvisi, Rights, World-Society and the Crisis of Legal Universalism (Ratio Juris. Vol. 9, No. 1 March 1996 (60-71) at 63
MacIntyre, supra at 66-67
MacIntyre, supra at 38
MacIntyre, supra at 69
Aristotle, Nicomachean Ethics (Dover, New York, 1998)
MacIntyre, supra at 69
MacIntyre, supra at 70
R. v. Big M. Drug Mart Ltd., [1985] 1 SCR 295
MacIntyre, supra at 52
Multani v. Commission scolaire Marguerite-Bourgeoys, [2006] 1 SCR 256
J. Asch & T. Wiliamson, Introduction to Indigenous Law (LSBC, Feb. 2025)
G. Mousourakis, Comparative law and legal universalism: an historical perspective, 2007 Journal for Juridical Science 32(1): 144-162 at 148
Belvisi, supra at 60-62)