An Australian jurist has made
the following argument about the relationship of an individual and the law:
The state is fair when its laws
and institutions are such that
1.
each individual
(not family head, religious leader, or any group leader)
2.
consents
to be governed by that law. Consent here is a normative notion, not actual
consent but consent which emerges if they thought clearly and in an unbiased
way about it.
3.
everyone
affected by the law has to be able to agree to it.* That’s why it is a moral
matter and relativism or subjectivism are irrelevant.
4.
the law does not discriminate or favor one group or
individal at the expense of another
5.
these considerations are the basis for legal rights: they
justify them. In other word each person would consent
to laws that respected and protected our rights. The rights justify the laws,
not the other way around. The laws do not create basic
moral rights they protect them.
*Gratian,
Decretum (ca. 1140) D.4 dictum after c.3: Ordinances are instituted
when they are promulgated; they are confirmed when they have been approved by
the usage of those who observe them. Quod omnes
tangit ab omnibus approbari debet (What touches all must be aprroved by
all)