The Citizen and the State
VISHMAK, MARK
?ooks in Review The Citizen and the State Review by MARK VISHMAK AN INTERNATIONAL ELL OF THE RIGHTS OF MAN'. By II. fiduterrfrht. ( tilnnibia University fleet. t'! tin Till eminent'...
...Part HI, Art 18-26, is concerned with the implementation, supervision, and enforcement of the Bill of Rights both by national and international agencies...
...Laulerpacht does hoi in tha least overestimate the chances to realise bis bill...
...For the San Francisco Charter has liquidated all dreams and hopes of realising for the near future the rights of Man anywhere in the world...
...Prof...
...In spite ot occasional flashes 0 irony, Dr...
...The author stresses repeatedly the important fact that Germans of practically every political persuasion—even the Socialists—upheld this justification of militarism, either all the time or at least part of the time...
...Part I, Ait 1-9, enumerates the fundamental and self-evident rights of freedom, such as pergonal freedom, the prohibition of slavery and of forced labor, freedom religion, of speech and opinion, of association and assembly, the right to sanctity of the home and freedom of correspondence, the right to equality before th* law, the right to a nationality, and the right of emigration and expatriation...
...Even men like Max Weber, the scholar and liberal, defined the state and politics in terms of power...
...It was published, however, only-after the San Francisco Conference...
...drafted the bill which is to be included in internal and international law...
...By Wit/tos» Eben-»trin...
...The feeling of inferiority, though never admitted, sought compensation in a militaristic attitude, in order to counteract the resistance the expansion of Germanism met in the outside world...
...Part II, Art...
...Political spirit and climate are changeable, and Lauterpacht's book can, from one day to the next, become necessary not only to scientist* but also toy-statesmen...
...In this book Dr...
...Neither German civilization nor her political institutions have been sufficiently unified to be accepted by other nations as representative of* a "World Nation," and the consequent frustration has caused the Germans to attempt the impossible by means of military aggression...
...f'arrar & Rinehart, Inc...
...Since they At aerve full attention, the reader shoul not let the mass of historical detail Jet« him from reading to the end...
...Lauterpacht's bill consists of a preamble and three parts...
...In Prof...
...han another, more essential and creative task...
...Ebenstehr ha* written a' penetrating analysis W the roots Of the German problem...
...j^ Ebenstein, "i* militaristic when rtmh*, elementu acknowledge, and submit <*,- th, military group as the political and **», ruling claaa...
...Behind ideological differences there have always been historical facts and political struggles...
...Kbenstei has reserved his constructive contribu tion to the possible solution of the...
...Ebensasa concludes, a German democracy can am only, if we practice patience...
...In this connection we can only mention that Prof...
...Lauterpacht's book is not in harmony with the present dominant political raood...
...The general reade might oveilook them—but then it is no likely that anyone untrained in histories research will be persistent enough t pick his way through a laiok so t? cumbered with detail and documentatiol It is regrettable that Dr...
...first, because democracy ua defeat would then remain associated u the German mind, and, second, liecami democracy is f'the only system of- ro* element that cannot be imposed .*p*i people-" .Consequently, Dr...
...One can assert that th* full practical realisation of the bill would in itself be a historically unprecedented social revolution by peaceful means...
...It is Dr...
...A POLITICAL PORTRAIT...
...The author should be at once a philosopher, a historian, a lawyer, and a political thinker...
...In this conjucture Lauterpacht's Bill acquires a particular significance...
...Which principle is to be subordinate: the state with its law is to lie superior to the rights of Man, or on the contrary, the stale with its order , is to be only an instrument "to develop (man) in free dpm to all attainable perfection...
...Lauterparht, fortunately, has shown himself erudite in all these fields, and he has succeeded brilliantly in his difficult job...
...Prof...
...10-14, enumerate* what may Ire called the political, cultural, economic, snd social rights of freedom These rights are not of the same nature as the right* of Part I, inasmuch as they are not normally either capable- of or suitable for enforcement by legal action before municipal tribunals of States...
...Kl>rostein's belief that up to the present Germany arid the Germans have been distinctly different from the neighboring states and peoples...
...He does not limit himself to the past: the past is for him like a tower from whirh to glance over the future, and a material with which to create a better world...
...Tbe documentation is thorough and convincing...
...3.00...
...The author completed the manuscript of his book in the autumn of 1943, i.' e. before the Dumbarton Oaks Conference...
...man problem for the last third of hi study...
...And although within Germany there were distinct geographical divisions and little national cohesion, envy of the more successfull nations ultimately served to unite such heterogeneous elements as the Bavarian and the Prussian, the independent peasant of Western Germany and the big landowner of the East...
...The Weimar Republic was a jLJ lived experiment in spite of the facets*, in the twenties there existed a Itrp middle rltus, the natural upholders « democracy During the last ten fUtl the middle class has shrunk considerably Nor can the proletariat lie rtlw.i apes because, having adjusted itself 10,44, rigid stste control of the Nazis, xu, tend toward-- a continued totalit?r** development Moreover, a lashlyiha posed democracy "under the shadow,* military defeat" would Ire doomed, tt failure...
...The bill gives a precise formula of how to frame and how to establish a genuine international organization if mankind wishes to survive and exist under a regime of law and freedom...
...Therefore, he...
...of Israel, and the toVe and charity of' Christianity...
...It has not lieen because the Cermans are racially different, but rather because whatever mixture of races arid culture* had met in Germany had never been successfully welded together into one stable political pattern...
...Record...
...Two thirds of his book are devoted to this study...
...It becomes an antithesis to the charter— s program, a plan, which sooner or later must be realised unless mankind prefers to live under threat of wars and atomic bombs...
...It describes, using the words of the American Declaration of Independence, the "decent opinion of mankind" about principles transcending the historic event which gave rise to their enunciation...
...If men like Mann and Weber can support aggressive war, If Nazism ran be »»^ into power, then ? Is difficult to tbafltW ish between a guilty government kajig innocent people "A nation...
...be does not pass over in silence or bury the problem in verbiage...
...lastly, to -the aggressors tlicmselvaa These are some of the thoughts an farts which constitute the tlrrma...
...He does not dissemble the difficulties whirh rise on his way...
...Th* Magna Charta of 121w> the Habeas Corpus Act of 1679 and the Bill of Bights of 1688 in England, the American Declaration of Independence of 1776, the French Declaration of the lights of Man and Citizen, etc., record landmarks on the long way to recognition of the man's individual rights...
...Ebenstein's detailed study de mands concentrated effort for absorpti*r Nor does the anther's frequent rSpetl tiousness on points which seem impnitan t? him—as, for instance, the fact th* Germany has never had a sucressfu revolution—help matters...
...Lauterpacht's n)ind such a bill must function as an instrument creating legal rights and obligations...
...The daringly attacks the core of every difficulty with thorough conscientiousness...
...The preamble fm mulates "the Bases of the Bill'—the philosophy underlying the fundamental enactment bearing on the relation of man and state in the international order...
...This does not bar one from appreciating hi* monograph as valuable from the political point of view as well as the scientific...
...Not atcer, »arily a benevolent patience, but th stern patience of those whose duty 1 will be to enforce justice- to the work at large, to the victims of aggressiot and...
...I .aut er pacht does not limit him self to the summarizing of the past...
...Students 0 German history will undoubtedly iesen auch repetitions...
...Believing that the Germans, "because they are human," are capable of change and reform, 'if they wish to reform, the authof proceeds to delve into the historical past of Germany, in order to discover how it came to be separated from "the great Stream of Western civilisation, the rationalism of Greece, the monotheism...
...tin Till eminent' Internationalist und professor of law at the University of Cambridge in England, II l.atiicrparht, ha* published a master work...
...Prof...
...The whole book is an ample and elaborate comment on this bill...
...He knows the past and he takes into consideration the lessons of the past...
...Here he offers some conclusion and recommendations that are interesi ing and quite convincing...
...The proposals provide-a minutely elaborated combination of individual and collective guarantees by different ways: by constitutional arrangement, judicial review and international supervision...
...He aims to formulate an International Bill of the Righta of Man, not only as a mere declaration of principles, I rut also as an enforceable part of international order...
...It is clear that Germany is f„, fr fertile ground for the seeds of dsJy racy...
...In his opinion, "a peace settlement which, while containing no provision for an International Bill of Rights of Man, fails to continue the regime of protection of minorities as established in 1919, would be deficient in a vital respect...
...This Irttok will long remain significant and no investigator will he able to pass it by...
...33t pages...
...German Record and the Future Review by ilza Veith THE HERMAN RECORD...
...Therefore he doe* not underestimate the former System ot international protection of the minorities...
...The wealth of material da argument does not make for easy teatl ing...
...His monograph is not just another book on a topic whirh has disturbed the consciences of philosophers, historians, jurists, and 'political thinkers during three thousand years...
...Professor Lauterparht summarizes fhe development of the idea oftlje setting off of the individual against society, of the lights of man against the rights of the slate...
...This is not an ideological controversy alone...
...Hence Lauterpacht's proposals ate made under the assumption that the promised "Four Freedoms," "the enthronement of human rights" (said on September 2, 1941) will be put into practice honestly...
...and Thomas Mann was strongly militaristic during World War I. Mann's political evolution shows the potentiality of German change, but also indicates the complexity of the German problem...
...This task demanded broad knowledge...
...The San Francisco Charter, as is well known, is based on piinciples absolutely different from and contraiy to those of the bill drafted by Lauterpacht, Of course, the charter too mentions "respect for human rights and fundamental freedoms for all" but this is only verbal lip-service, which can not be conciliated with the power-politics of the future world organization projected by the charter...
Vol. 28 • October 1945 • No. 41
