The European Juridical Thinking, Concerning the Human Rights, Expressed along the Centuries

• Author: Nicolae V. Dura, PhD
• Position: Professor - Vice-rector of the "Ovidius" University of Constanta
• Pages: 153-192

Page 153

The word "law" is the translation of the word "jus", which, in its turn, comes from the Sanskrit "jaos". In Sanskrit, "jaos" means something which is required or allowed according to a moral-social rule. The word was also taken over with this sense in the Latin language, hence the expression "righteous", in the sense of "holy", "good" etc. In fact, the word "jus" (law) was also taken over, with the same moral value, of a metaphysical nature, in the Romanian language but, later on, its original sense was replaced, so that the word justice acquired the meaning of conformity with the legal provisions, also referring to an amount of norms which regulate the social relationships between individuals.

Initially, by the word "justitia / ae", the Romans have also expressed a value of a moral nature, assessing, in fact, what is "justi atquae injusti" (just and unjust) (Ulpianus). With time, this moral principle was also acompanied by a principle of aPage 154juridical nature, so that the word "justitia / ae" came to enclose both a moral and a juridical principle. By the enforcement of this moral and juridical principle, the Romans aimed "to give everybody what they deserved" (suum cuique tribuere), thus, respecting every person`s rights by the enforcemenrt of an "aequitas / tis" (equity), and not of an absolute "justice".

By Romanians, the ontic relation between law and morals, between what is "righteous" and "good", between law and religion (Dură, 2003, pp. 15-23) was also emphasized by the fact that the distribution of justice itself was made in the name of "the holy law", implicitly considered a direct emanation of the divine will. Therefore, it`s not surprising that for the Romanian legislator - from the age before the secularization of sacred law, that is, in the time of Voivode Cuza, - "direptatea" (justice) was perceived and defined as "a thing which is holier that everything" (the Nomocanon of Târgovişte, 1652).

By "human rights", we can understand everything which is required and allowed by a man according to some moral norms, with a social or juridical character, hence the different nature of these rights, which are both based on "jus naturale" and on "jus gentium", and on the rules of moral conduct admitted and practised in a democratic society, where the humanistic values are asserted and promoted. The rights that the law recognizes to individuals in the context of social life are defined as liberties, hence their diversity (e.g. freedom of opinion, religious liberty etc.). Anyhow, these human rights and liberties have changed with every age because of the ideological concepts about the world and life, hence the different perception - in the European juridical thinking - regarding the implementation method of the human rights` juridical protection.

Etymologically, the word "protection" comes from the Latin word "protectio-onis" and it means "defence", "protection", "preservation". By the juridical protection of human rights we refer to the totality of juridical norms and concrete measures taken by the world`s states in order to defend the human being and, ipso facto, for the fulfillment of the man`s spiritual and material life. The Romanian Law - up to the Revolution of December 1989 - didn`t refer to human rights, but to the rights of "citizens" (Drăganu, 1972, p. 209) (Muraru, 1973, pp. 35-108) (Prisca, 1974, pp. 207-274), emphasizing, this way, the dependence of the Romanian juridical thinking on the French one, the genesis of which goes back to the age of the Revolution of 1789. At that time, in the year 1789, the European, religious "man" (either Catholic or Protestant), was replaced by the citizen, the man of a city wherePage 155"liberty, equality and fraternity" among "individuals" or "citizens" with the same political and social status had to rule. Of course, through such a political and juridical thinking, the human beings, the men, have been not only depersonalized, but also brought to a state of equalitarianism.

This social concept, which aimed at the leveling, the equalization of consumption and of the lifestyle of the members of the French society, has also imposed a secularization, pushed up to a trial to desecrate the French society, which actually ended up in the spreading of an atheistical ideology, in which agnosticism and the fight against the religious-moral faiths and values, - especially against the Roman- Catholic Church, the institution which, for the Revolution of 1789, embodied the Medieval, oppressive spirit - found devout promoters and supporters among the followers of the Marxist-Leninist ideology.

As a conclusion, the man was ideologically and juridically conceived as a servant of the city and his rights and liberties were also included in the sphere of a thinking of a preeminently ideological, of a party-minded nature, with negative consequences also within the human relationships, at the basis of which the very reason of these rights and liberties lacked, namely the "communion", the only carrier of the effects of interior freedom, namely of conscience, of faith and religion.

Among the historical ideologies, which left aside the interior freedom of man, there was also "the communist ideology, which tends to immerse the human person in the anonymous mass of nature and to talk about equality and collective rights...". In this sense, "... neither equality, nor liberty are important, but the communion or the personal relationships between people", because "the man was neither created for the collectivist equality, nor for the individualistic freedom, but for his communion with God within the Holy Trinity". (Popescu, 2004, pp. 18-19)

Mircea Eliade wrote - in the year 1964 - that "... the secular is nothing but a new manifestation of the same constitutive structure of man (de l'homme), which, earlier, has manifested itself through sacred expressions (par des expressions sacrées)". (Eliade, 1965, p. 13) "... The religious man (l'homme religieux) - the same historian of religions said - can only live in a sacred world, because only such a world can participate to the being, can exist in reality. This religious neccesity expresses an unquenchable ontological thirst. The religious man is craving for existence .... For the religious man, the secular space represents the absolute non-being ... . The profound nostalgia of the religious man is that of livingPage 156in a "divine world, ..., as it has been depicted in temples and sanctuaries later on. As a conclusion, this religious nostalgia expresses the wish to live in a pure and holy Cosmos, as it was in the beginning, when it came out of the Creator`s hands" (Eliade, 1965, pp. 61-62). The same historian of religions wrote that "... the experience of the sacred is that which creates the world, and the most elementary religion is, above all, an ontology", hence the justified observation that "any existential crisis is, to a great extent, "religious", because, at the archaic levels of culture, the being mixes with the sacred" (Eliade, 1965, p. 178). In the end, Mircea Eliade concluded that only religion is the one which ensures "the integrity" of "an existence which creates the values". (Eliade, 1965, p. 180)

That this thing is real is also certified by the demiurgic work of Constantin Brâncuşi. A pioneering work in modern art, it cannot be understood in its entirety and complexity without a direct reference to Christian symbolism, to that sacred metaphysics expressed by certain names that the sculptor of Hobiţa himself has chosen for his works: The Beginning of the World, The Red Sea Crossing, Adam and Eve, The Prodigal Son, The Last Supper, the Table of Silence etc. In fact, his work itself - as, for example, The Masterly Bird or Bird in Space, - "... strives for, craves for the transcendent. At Brâncuşi - a great exegete of his work noticed - everything is "elevation", "sublimation", "overcoming one`s limits", thirst of freedom and redemption. Even in the making-up of the Sculptural Ensemble of Târgu-Jiu, the unrivalled masterpiece of the Brancusian art, competent researchers have decoded Christian-Evangelical intuitions and meanings, ..." (Cârlugea, 2006, p. 32), indeed "The Table of Silence" also has an "apostolic conotation"; "The Column of Endless Memory"..., as the artist himself once used to call it, ..., suggests "the .. sacrificial veneration ..." and "Stairway to Heaven", which reminds us of "the one of John the Climax from the frescos of Suceviţa Monastery, of the Tree of Life and the centre of the world, of the bond between earth and heaven, between the man and God, ..." (Cârlugea, 2006, p. 32)

For he who has a religious faith, the Nature "is always filled with a religious value" and the "world remains imbued with sacrality" (Eliade, 1965, p. 101). In this sense, in the name of that sacrality of the world and of the respective religious value of "Nature", of "the Cosmos", "homo religiosus" is also a promoter and defender of the man`s right to religion. Such a "homo religiosus" was also the "great" Brâncuşi, who also proved to be a sacerdot of human rights.Page 157

Intolerance and ignorance in matters of religion, displayed both by the ones who are hostile to the right to religious freedom and by the ones who kill in the name of God, are vectors leading to "... a war of peoples` mentalities and cultures"¹ (Dură, 2003, p. 23). Hence, the obligation of the human society to avoid any kind of existential crisis, of a religious nature and to ensure the "integrity" of a human pluralistic existence, "one which creates the values" (spiritual, religious, intellectual, cultural, economic etc.), imbued with sacrality, as this is the only one able to eliminate any kind of "war" of religions or civilizations.

The internationalization of human rights was made through "The Universal Declaration of Human Rights", adopted and proclaimed by the United Nations General Assembly, through the Resolution...