Articles and book excerpts used in and referred to on Issues, Etc.
by Dr. John Warwick Montgomery
The plot thickens. In this chapter we discover (1) that only a transcendent source of human rights could logically establish a satisfactory justification for human dignity, but (2) that several major religious alternatives do not succeed in providing such a transcendental foundation, and (3) that ecumenical religiousity and religious natural rights theories are no more successful. We are left at best with inalienable rights lacking in specificity, and a broken order of nature crying out for redemptive solution.
"Midway in this our mortal life" Dante took stock of himself, or so the opening lines of the Divine Comedy suggest. Midway in the present investigation let us see to what point we have arrived.
|A survey of existing human rights protections, international and domestic, governmental and nongovernmental, left us with a plethora of rights-claims, but with no underlying justification of the purported entitlements other than their embodiment, to varying degree, in conventions, constitutions, and other instruments of positive law. Our examination of the meaning of the concept of "right" yielded an understanding of human rights as entitlements to human dignity, but it did not reveal whence such entitlements properly arise. And a survey of the most challenging philosophies of human rights has left us with no adequate foundation for human dignity.|
|Shall We Jettison Rights-Analysis?||In the face
of such conceptual and philosophical discouragement, some thinkers are prepared
to jettison any link between morals and rights. R. G. Frey provides a homely
Consider an example: Cathy loves fried eggs for breakfast, and her husband, Heathcliff, knows this; but though Heathcliff makes scrambled eggs, poached eggs, boiled eggs. and omelettes, he never makes fried eggs for breakfast. Heathcliff and Cathy are married, there are duties on both sides, and marriage is, we say, a matter of mutual accommodation: yet, though he knows Cathy's desires and preferences perfectly, Heathcliff never makes fried eggs for breakfast.It will be observed that neither Cathy's status as an individual human person nor her contextual, institutional relations with others (here, her marriage to Heathcliff) can adequately establish the alleged moral right in question.
For Frey, this problem is to be resolved by short-circuiting rights analysis totally.
What is wrong with torturing and killing someone is not the violation of some right of his, but the sheer agony and suffering he undergoes, the snuffing out of his hopes, desires, and wishes, and so on. What is wrong with depriving someone of a decent wage is not that it infringes some alleged right of his to this or that income but that it ruins his life and the lives of those who depend upon him. What is wrong with depriving someone of his liberty is that it thwarts his hopes and plans, circumscribes his future and what he can make of it, and so impoverishes his life, in short, there is no need to postulate moral rights as intermediaries between pain and agony, or thwarted hopes, desires, and plans, or ruined lives and the wrongness of what was done)Yet surely this is a colossal begging-of-the-question, for one is immediately faced with the same issue in another guise: how do we justify the wrongness of killing, torturing, paying inadequate wages, depriving people of their liberty, or, in general, impoverishing their lives? The wrongfulness of such conduct requires demonstration, not mere assertion.
|"Prima Facie" Rights Won't Do||It will be remembered that, at Nuremberg, Robert Jackson described our recent history thus: "No half-century ever witnessed slaughter on such a scale, such cruelties and inhumanities, such wholesale deportations of peoples into slavery, such annihilations of minorities." These "overshadowing historical facts" have made contemporary thinkers less and less happy with an intuitive ethic (who's intuition? Eichmann's?) or with a relativistic, contextual approach to human rights. Thus, critics have pointed out that the "prima facie" rights theory of my former philosophy professor at Cornell University, Gregory Vlastos, reduces to the notion that rights "should be exercised under the condition that better reasons cannot be cited for not exercising them." Surely this is not enough: we need inalienable rights." Even Marxist thinkers (who by definition make human rights a function of shifting economic and social conditions and the variable will of the Party) are now trying to employ "inalienable rights" terminology meaningfully.|
|Inalienable Rights Require Transcendence
could "inalienable rights" be established, even in principle? And why have the
ofttimes brilliant philosophical attempts to do so (such as those discussed in
the last chapter) always failed? The answer, quite simply, is that given
aphoristically by Ludwig Wittgenstein in his Tractatus
Logico-Philosophicus: "The sense of the world must lie outside the world.
Ethics is transcendental."
Water does not rise above its own level, Human efforts at formulating. promoting, and protecting human rights suffer from the limitations and prejudices of those engaged in these activities. This should not appear the least strange. since all systems of human law display exactly the same failings. Prior to the U.S. Civil War, the common law of chattels was extended in a sophisticated manner to cover the ownership (and even the hypothecating - the mortgaging) of slaves. National Socialist law did not recognize the humanity of the Jew. The Union of South Africa today gives jurisprudential sanction to apartheid.
|A Cannibalistic Illustration||One can well
imagine a society of anthropoph-agi who formulate third-generation
environmental rights standards in some such terms as the following: "We hold as
self-evident the right to a clean environment, and therefore categorically
forbid the leaving of femurs or other human bones in public places after
picnicking." This fine statement of human rights could be incorporated into a
ratified international convention between two or more anthropophagous states.
Kurt Baier, the analytical ethicist, has concluded that from within the human situation ethical values can never logically rise above the societal level; indeed, "outside society, the very distinction between right and wrong vanishes." This is Wittgenstein's point: one's ethic always reflects one's stance in society; and an absolute ethical stance (inalienable human rights) would require an absolute vantage point. which is precisely what fallible and limited human beings lack. An absolute ethic - if there were one - would have to be transcendental.
principle involved is classically set forth by Archimedes (figure 4). His
pioneer work in mechanics was summed up by the line attributed to him: "Give me
a place to stand and I will move the earth''
Expressed otherwise, the necessary condition for moving even the most gigantically heavy object is a fulcrum outside the object itself. Pulling oneself up by one's own bootstraps is always hard on the derriere - and does not succeed in any case.
|Rousseau||Rousseau - remarkably - saw the application of this principle to jurisprudence and political science when he wrote in the Contrat Social:|
In order to discover the rules of society best suited to nations, a superior intelligence beholding all the passions of men without experiencing any of them would be needed. This intelligence would have to be wholly unrelated to our nature, while knowing it through and through: its happiness would have to he independent of us, and yet ready to occupy itself with ours: and lastly, it would have, in the march of time, to look forward to a distant glory, and, working in one century, to be able to enjoy in the next. It would take gods to give men laws.Francis Schaeffer observed in much the same vein:
Even Will and Ariel Durant, who were avowed humanists, and who received the humanist pioneer award in 1976, said in The Story of Civilization: "Moreover, we shall find it no easy task to mold a natural ethic strong enough to maintain moral restraint and social order without the support of supernatural consolations, hopes and fears." History, experience, and logic prove that is [sic] is not only difficult, as the Durants suggest, but impossible.In a word, to find an absolute foundation for human rights, one is obliged to move beyond the relative human situation to divine absolutes.
|Flew's Roadblock Removed||But would
not such a derivation of human rights be vacuous? Antony Flew argues -
supporting his position by Plato's Euthyphro - that to establish human
rights as creatures of the divine will is to "disclaim all possibility of
praising that will as itself good" and that the rights conferred under God's
prescriptive law would be "only the most empty and formal of custom-built
necessary truths." Aside from noting Flew's misattribution of this view to Hugo
Grotius (a common mistake, easily correctable if one recalls that Grotius was
one of the pioneers of Protestant Christian apologetics), I reply that the
derivation of human rights from God's will might well be a "formal, necessary
truth" (in the sense that there would be no independent means of proving that
God knew what He was doing in setting forth these rights!), but the rights set
forth need hardly be "empty": their content could presumably he as full
revelationally as God desired to make it. I am also at a loss to determine - in
light of Wittgensteinian analysis - how an atheist such as Flew could even in
principle establish the necessary absolute standard of goodness by which to
"praise" (or blame) the prescriptive laws of God or man. From flux, nothing but
flux, as Heraclitus well observed.
Rosenbaum is quite correct that "very few recent philosophers are inclined to found or even discuss human rights at the cosmic or spiritual levels. Most of them prefer to analyze the concept of human rights only within the moral dimension in terms of the status of personhood in the 'good society.' " But this restriction of philosophical analysis to purely societal, immanent, nonreligious considerations is now seen to be the very reason why such analyses could not succeed even in principle. We must therefore turn our attention to religio-transcendental claims to justify human rights.
|Religions of the Far East||Let us begin
with the Far East. In his important article, "A Metaphysical Approach to Human
Rights from a Chinese Point of View." Professor Peter Woo has argued that the
Chinese world-view was shaped by "the Taoistic ideal of natural harmony, the
ideal of the compassionate man of Confucianism, and the universal benevolence
of Buddhism"; as a result, the Chinese "were, for a long time. . . . strangers
to the concepts of human rights." Specifically, "in view of the acceptance of
universal unity and harmony, the issue of individual rights among men did not
take the shape of a problem": as for Confucianism, it "was to inculcate the
acceptance of fate or of any living conditions, since all forms of revolt were
ruled out." Professor Elaine Pagels, discussing the same theme, writes:
A similar pattern has prevailed for centuries in Hindu societies of India, Cambodia, Nepal, and in Pakistan: the social and political order reflect the divine order which the ruler embodies. The caste system, endorsed as the reflection of that order, fixed the ranks of society into the three upper classes, defined by their privileges, the fourth class, consisting of people who maintained minimal rights, and, below these, the "untouchables," who remained outside of society, and outside any system of rights. Buddhist society, which for centuries prevailed in China, Japan, Korea, Mongolia, Burma and Ceylon, similarly, revered the ruler as the embodiment of divine order. The laws of Buddhist society, which in its Indian form included the caste system, were religious laws which allowed no recourse for what we call "the individual."After a decade-long frustration with Marxism, Arthur Koestler drank deeply at the founts of Eastern wisdom; his rejection of the Buddhist path was due principally to its lack of any clear moral direction, as exemplified by Zen monks who had no difficulty in becoming kamikaze pilots. Francis Schaeffer writes:
One of the distinctions of the Judeo-Christian God is that not all things are the same to Him. That at first may sound rather trivial, but in reality it is one of the most profound things one can say about the Judeo-Christian God. He exists; He has a character; and not all things are the same to Him. Some things conform to His character, and some are opposed to His character. This is in clear distinction, for example, from the Hindu or the Buddhist concept of God. To these gods, everything is the same, so that there is no distinction between good and evil, cruelty and noncruelty, between tyranny and nontyranny. In such a setting, speaking of inalienable rights or human rights would be meaningless, because to the Hindu or Buddhist the final reality - their concept of God as the all, the everything - would give no voice, no word, as to why anything is bad; why anything is humanness or anything is lack of humanness. In such a setting, human rights are meaningless. The proof of this is very easy to ascertain. All one has to do is to look at the Hindu situation in India itself with its caste systems. There are no intrinsic human rights. I would say in passing one only has to walk the streets of Bombay to feel the implications of this in practice.'"Though not a Christian, Gandhi acknowledged that it was the Christian missionaries and not his co-religionists who awakened in him a revulsion for the caste system and for the maltreatment of outcastes. And it is also worth pointing out that the Tantristic sacralizing of animal life has been one of the roots of the denigration of human values in the contemporary animal rights movement.
|Buddhist Enlightenment||Professor Chamarik endeavors to touch up this somber picture by stressing the Buddhist ideal of "internal self-control": 'Instead of relying on the external control on behaviour which is currently characteristic of both libertarian and egalitarian lines of approach . . . Buddhism goes further and deeper into the inner world of man himself; that is, the problem of deliverance from the transient self to the true self." We have already noted - and the last chapter of this book will particularly stress - the overarching need for a change in man's inner perspective in order for true respect for human dignity to come about. Chamarik's recognition of this need is most commendable. The question remains, however, as to whether Buddhism can demonstrably fulfill that need. As Koestler observed, the nonpropositional, noncognitive nature of Buddhist ethics has left it with no absolute principles, and the enlightened sages of Buddhism did nothing to remove the appalling evil of the caste system. We are told that "Buddhism perseveringly takes to an optimistic view of man for his aptitude for goodness," that "the deliverance from the self to the true self can be accomplished and achieved solely through the individual's own endeavour," and that "man's altruistic outlook and attitude . . . is the result of his own deliverance through knowledge." Sadly, human experience belies such optimism: the Germany of Hitler had a university tradition of cultural enlightenment second to none. Man is evidently incapable of attaining his "true self" through his own unaided efforts. To establish human rights, he requires absolute principles and transformation from outside himself, neither of which Buddhism offers or appears capable of supplying.|
|The Near East||Moving now from the Far East to the Near East, we come into contact with religious traditions which, in contrast with those just discussed, do indeed set forth explicit codes of rights and duties for man, with the claim that these codes are the product of divine revelation. Let us first consider human rights in the Islamic tradition, and then say a few words about Judaism and human rights.|
|Islam, a Religion of Law||Considerable scholarship in recent years has been devoted to the implications of Islamic religion for human rights. Such interest is understandable in light of the facts that the Koran is in itself a law code, that Islam ideally makes no distinction between divine law and human law, and that the Islamic way of salvation is strictly legalistic (on the Day of Judgment, one's good and bad deeds - as defined by the Koran - are meticulously weighed to determine whether one will go to Paradise or to Hell).|
|The Positive Side of the Ledger||Islamic human rights principles include the right to life (Koran 5:35); the right to education without sex - or class-distinction - in light of the Prophet's insistence that all knowledge comes from God (Koran 96:1 -5; 39:12; 35:20); the right to work (Koran 94:7-8; 53:40) and to form trade unions; and the right to possess property - in the capacity of a steward or life tenant, not as an absolute owner, since only Allah holds property in fee simple absolute (Koran 3: 186; 2:27).200 Such principles as these have been presented as illustrations of "the sublime morality and legal precepts of the Quran"°' by Muslim scholars in a number of international colloquia, such as the Kuwait seminar on human rights in Islam, held in December 1980 under the co-sponsorship of the international Commission of Jurists, the University of Kuwait, and the Union of Arab Lawyers; and the earlier 1972-74 colloquia on Muslim dogma and human rights in Islam, held in Riyad, Paris, the Vatican, Geneva, and Strasbourg, sponsored by the government of Saudi Arabia.|
|M'Bow Again||On 19 September 1981, at UNESCO headquarters in Paris, the European Islamic Council proclaimed their "Islamic Universal Declaration of Human Rights" in the setting of an international conference on human rights in Islam.203 UNESCO directorgeneral Amadou Mahtar M'Bow, himself a Muslim (we have met him earlier as the administrator most responsible for U.S. withdrawal from UNESCO),204 waxed oratorical on Islamic human rights ideals. In the course of his address, he offered two illustrative anecdotes: during a famine in Medina, the future caliph Othman would not allow merchants to raise prices on necessaries, but insisted on giving away free the contents of his caravan shipment (showing Islam's concern with social and economic rights); and Muhammad's admission, on being asked whether his plan for the battle of Al Khandag was divinely inspired or his own idea, that the battleplan was only the result of his own thinking, and therefore his willingness to change the plan on the advice of others (showing Islam's respect for such civil and political liberties as individual freedom of expression and nondiscrimination).|
|Islamic Doctrine and Human Rights||However,
after all that can be said is said along the above lines, it will come as no
surprise to the reader that Islam has some very serious human rights defects.
We refer here not to inconsistencies between Islamic doctrine and practice
(every system of thought has its unworthy disciples and fellow-travelers) but
to unfortunate teachings built into the very fabric of Islamic jurisprudence
through the Koran.
Thus, Sir Norman Anderson, formerly director of the Institute of Advanced Legal Studies of the University of London and probably the foremost present-day scholar of Muslim law outside of the Muslim world, notes the following doctrinal deficiencies of Islam vis-à-vis human rights: (1) The "castiron view of Predestination," supported by the Koran, leading to a "fatalism [which] plays a large part in the daily lives of millions of Muslims. To this the lethargy and lack of progress which, until recently at least, has for centuries characterized Muslim countries can be partially attributed." (2) "Islam sanctions slavery and the slave-trade, and the unlimited right of concubinage which a Muslim enjoys with his female slaves. . . . This extends even to married women captured in war, and opened the door to terrible abuse during the early wars of expansion, when almost any woman in a conquered land could be considered a slave by capture. . . . The would-be reformer of the position of women finds that polygamy, slave-concubinage, unilateral divorce and the beating of refractory wives is permitted by divine authority." (3) "The last section of the Shari's deals with 'Punishments' or criminal sanctions. These provide, inter alia, for the murderer to be executed by the family of his victim; for one who causes physical injury to another to he submitted to the like; for the thief to have his right hand cut off; and for the adulterer to he stoned and the fornicator beaten." (4) Though the UN Universal Declaration of Human Rights has been "approved by all Muslim slates, except Sa'udi Arabia and the Yemen, which are members of the United Nations Organization, yet the clause which affirms a man's right to change his religion if he so wishes runs directly counter both to the Islamic law of apostasy and to the practice of most of the Muslim states concerned."
|From Doctrine to Practice||These
criticisms are by no means cavalier or able to be dispensed with on the ground
that in enlightened Muslim countries modern civil and criminal codes have
rendered Shari's principles obsolete. President Sadat was assassinated by
Muslim fanatics primarily because of his refusal to make Egypt a fundamentalist
Islamic state; the human rights violations of Khomeini's Iran have been
documented ad nauseam: and a recent London Times report from
Khartum informs us that
One year after he imposed a stem Islamic Code on punishments on this 70 per cent Muslim nation, President Gaafar Nimeiry of Sudan says he remains convinced that surgically amputating hands and feet of habitual thieves is a good thing.
|Why Accept the Koran?||But far more devastating for Islamic human rights theory than these specific deviations from accepted standards of human dignity is the epistemological problem of establishing that the Koran indeed constitutes divine revelation. We have no difficulty with the fact (to return to M'Bow's illustration) that Muhammad declared his military strategy to be mere human opinion; our problem is to find an adequate ground for accepting his assertions that in writing the Koran he was the unique Prophet of God. conveying infallible judgments. To claim divine inspiration is surely not the equivalent of proving it. (Consider also Father Divine and Jim Jones - examples suggesting that a false religious claim may be more dangerous than even an inadequate secular ethic, for the former not infrequently trades on its pseudo-absolutism to ruin lives and trod on human rights with olympian impunity.) Elsewhere I have analyzed in depth the paucity of supporting evidence for Islamic revelational claims, particularly in comparison with Christian claims. It should be of more than passing interest that Sir Norman Anderson (whom I quoted at length above), while one of the foremost living specialists on Islamic law, is a Christian and author of a treatise titled, The Evidence for the Resurrection. No such attesting evidence for Muslim revelational claims can be marshalled, for it simply does not exist.|
accepts Old Testament religion as one of its legitimate forerunners. What can
be said of Judaism and human rights? We shall not go into detail here, for the
general biblical approach to human dignity will occupy our attention in later
chapters. But we do need to examine the claim of Judaism per se to supply the
transcendental-revelational answer to the dilemma of human rights.
Professor Abraham Kaplan, chairman of the University of Haifa's Department of Philosophy, handsomely summarizes the Jewish approach to human rights:
In short, the basis of human rights and their content rest, for Judaism, on the divine order of things. Because man, like the rest of nature, has also been created by God, this order has its counterpart in man's makeup, in his conscience and reason. Laws governing relations between man and man, if they accord with the divine law, stand to reason and satisfy our native sense of justice. "Reason." says Saadya Gaon, "prescribes that human beings should be forbidden to trespass upon one another's rights by any sort of aggression"- any sort. even that which claims to be justified by its noble goals. Commentators have explained that the Law proclaims "Justice, justice shall you follow!" (Deut. 16:20), repeating the word "justice" to convey that we must pursue justice in the means we employ as well as in the ends to which we aspire.
|Actions, Not Simply Beliefs||Unfortunately, however, this is only part of the story. On the
doctrinal side, it is true, the Old Testament is free of the debilitating
principles of social and familial intercourse that we have found to be integral
to the Koran. But Professor Kaplan insists that "Judaism must be defined by
characteristic actions rather than by a set of beliefs." Viewed from the
standpoint of "characteristic actions." Judaism does not have an enviable human
rights record. During most of her history, the Jewish people have manifested an
extreme racial exclusivism: rabbinic Judaism has displayed a fascination with
legalistic minutiae unparalleled elsewhere - a legalism that has often crushed
the human person under the weight of rule and alleged spiritual authority; the
State of Israel today has a sorry history of documented human rights violations
vis-à-vis her neighbors (Left-Bank Palestinians, Lebanese civilians,
etc.) and her own people (e.g., the antiproselytizing law which in principle
chills Christian missionary efforts and religious freedom in the country).
Even if such conduct can somehow be explained away, the same epistemological watershed exists for Judaism as for Islam: How do you know that your purported revelation is indeed from God? Suppose that the human rights contributions of Eastern religions, or of Islam, or of Judaism were unqualifiedly positive (which, as we have seen, is hardly the case)- would even such a record establish the divine authority of the faith in question? One of the most distinguished living analytical philosophers. Willard Van Orman Quine, puts it devastatingly:
|Social Benefits don't equal Truth||
Social benefits, unlike mere wishful thinking, are a sound reason for propounding religious doctrine. Whether they are a sufficient reason, I hesitate to say; but they afford no evidence of truth.
|Wanted: An Epistemological Messiah||One can indeed show, in the case of the Old Testament (unlike the Koran or even later rabbinic tradition) that its teachings are unique, standing-in the words of Harvard Old Testament scholar G. Ernest Wright - "against their environment." But uniqueness is not the equivalent of divine origin. Without a provably divine Messiah to stamp biblical revelation with His approval and to distinguish true law from merely legalistic accretions, how could Judaism even in principle meet the need for a transcendental standard of human dignity? In human rights, as in Heilsgeschichte (salvation-history), Judaism offers a beguiling but unfinished canvas: a picture lacking only a Messiah for ethical and epistemological completeness.|
|Ecumenicity as a Basis for Human Rights?||If the individual religious claims we have discussed do not succeed in providing a demonstrably transcendent foundation for human rights, could we not achieve that goal by showing the "natural agreement" of these - and, indeed, all great religious traditions - on the core values of human dignity? Just such evidence of common human values was collected by Jeanne Hersch in the UNESCO volume, Birthright of Man; and distinguished Christian writer C. S. Lewis, in an appendix to his Abolition of Man, provides a catena of citations from the world's religious literature illustrating what he terms the "Tao," or basic ethical values.|
|Three Anti-Ecumenical Salvoes||Sad to say,
this ecumenical endeavor is doomed to failure, and for at least three reasons.
(1) As Hersch herself perceived by quoting Mariano Moreno's classic line, "Any
tyrant can compel his slaves to sing hymns in praise of liberty," even if one
cites common human rights principles from diverse religious traditions, this is
no guarantee that people do or will follow them; i.e.. the key problem of
transforming man's motivations still remains unsolved.
(2) Professor Werblosky is doubtless correct in his rather uncharitable comment about anthologies of religious "golden sayings" concerning human rights: "The trouble with this noble and well-intentioned parlour-game is that it is so utterly and depressingly childish." The naïveté of the anthologies comes from at least two sources. First, the anthologist is generally unaware of the principle of selection which he employs in culling one aphorism rather than another from the vast literature of the world's religions: C. S. Lewis' anthology sounds wonderfully Christian because it is! (Lewis, as a Christian, had already derived his ethics from Christian revelation before he proceeded to anthologize the religious traditions.) Secondly, the world's religions do not in fact agree in their core teachings about human value, the meaning of human dignity, or man's capacity to put human rights into practice. To be specific, they differ radically in their understanding of the nature of man and how he can be "saved." René Cassin is simply incorrect when he declares. "It is plain to see that for the Christian, as for the Muslim and the Buddhist, doing one's duty constitutes the very essence of virtue for the believer who is desirous of aspiring to eternal rewards."' In reality, the Buddhist and Muslim views of man and ways of salvation (as we have seen) are by no means identical even as between themselves, and the Christian faith is 180 degrees removed from both of them on these cardinal points. Christianity asserts that man, being radically self-centered, can only be saved and transformed so as to treat his neighbor with proper dignity when he admits that he cannot "do his duty" or save himself - and relies entirely on God in Christ for salvation.
(3) Finally, even if all the great religions of the world agreed on fundamental human rights principles (we here ignore the thorny problem of identifying which religions are truly "great"- Toynbee thought Islam was great but not Judaism!), their agreement would not justify those rights, since the revelatory character of no one of those religions has been established. Their common tenets could well represent no more than common human opinion - with no binding force for anyone who disagreed with them. D. L. Perrott of the University of Exeter makes the point strongly when he writes:
Even if research revealed the existence of such rules, their ubiquitousness would not by itself justify calling them Natural Law. They might, although wide-spread, be very bad rules. Surveys carried out at various points before the eighteenth century might well have revealed, for slavery, or an inferior legal status for women, were well-nigh universal institutions. Alternatively the widespread rule might be a very trivial or arbitrary one: conceivably one day all the world may have to drive on the right of the road, or obtain two witnesses for a valid will, but we would probably not call such rules Natural Law.
|Natural Rights in the Spirit of the Declaration of Independence||But doesn't the extent of natural agreement on human rights in the various religious traditions say anything to help us in our quest? Perrott's references to " natural law" remind us of the classical natural rights position, dominant in Western jurisprudence before the rise of legal positivism, by which fundamental rights were defended. In the previous chapter, we briefly discussed John Finnis' attempt to rehabilitate natural law thinking on a purely philosophical basis, and we saw that modern neo-Kantian rights theorists (Rawls, Gewirth) and even the Marxists have a natural law flavor to their thinking. Might not the search for an adequate justification of human rights be found in the stirring natural rights philosophy of the American Declaration of Independence: "We hold these truths to be self-evident, that all men are created equal: that they are endowed by their Creator with certain unalienable rights: that among these are life, liberty, and the pursuit of happiness"?|
|Expressions of This Viewpoint in the Ancient World||What we term
the classical - or religious - natural rights tradition can be traced back to
Greco-Roman antiquity. Prior to the Christian era and the medieval scholastic
labors of Thomas Aquinas, it was expressed most attractively by the Stoics and
by their greatest jurisprudential representative. Cicero, that noble Roman
I find that it has been the opinion of the wisest men that Law is not a product of human thought, nor is it any enactment of peoples, but something eternal which rules the whole universe by its wisdom in command and prohibition. Thus they have been accustomed to say that Law is the primal and ultimate mind of God.The Justinian Code, which summed up Roman law in a Christian spirit, set forth the most quoted description of the natural law in the tripartite phrase, Honeste vivere, neminem Iaeden, suun cuique tribuere ("Live honestly, harm no one, give to each his own).
|Roman Catholic Affirmations of Natural Rights||Thomas
Aquinas, in his Summa Theologica, declared the natural law to be rooted
in the cosmic order and in the God-given nature of each human being, and modern
Thomists such as Jacques Maritain have argued for the validity and universality
of human rights on this same ground:
The true philosophy of the rights of the human person is . . . based upon the idea of natural law. The same natural law which lays down our most fundamental duties, and by virtue of which every law is binding, is the very law which assigns to us our fundamental rights. It is because we are enmeshed in the universal order, in the laws and regulations of the cosmos and of the immense family of created natures (and finally in the order of creative wisdom), and it is because we have at the same time the privilege of sharing in spiritual nature, that we possess rights vis-à-vis other men and all the assemblage of creatures.
Appeals to natural rights have not been limited to the Thomist frame of reference in contemporary Catholicism. "The unbreakable link that is said to exist between human rights and human nature has been poignantly expressed by Gabriel Marcel, the late religious existentialist, as a human right written, as it were, into the very structure of a slave's own nature, for example, the slave can never entirely rid himself of the feeling that his body is his own.
|Conflict on Natural Rights Among the Protestants|| In
Protestantism, with its formal principle of Sola Scriptura, the key
question as to natural rights has always been whether the Bible allows for such
a teaching. Principally on the basis of Romans 1 and 2 (in particular, 1:20 and
2:14-15), the Reformers maintained that even after man's Fall into sin, a
limited general knowledge of the universal principles of morality remained,
indelibly inscribed on man's heart. This was Luther's position, and Calvin's
also.31 In the twentieth century, following the collapse of the old modernism,
or religious liberalism, which in effect jettisoned biblical revelation in
favor of a saving view of general revelation, a powerful reaction set in. Karl
Barth in particular cried Nein to Emil Brunner's relatively mild
endeavor to maintain natural revelation (as in the case of the Reformers, not
as a means of salvation, but only as a partial and imperfect knowledge of
divine standards for human life and thus an objective judgment on man's sinful
conduct toward his fellows). Brunner's position was in fact little more than a
restatement of the classic Reformation doctrine of the
Schopfungsordnungen (Orders of Creation), declaring on the basis of
Scripture that even after the Fall. God in his grace structured human life
through government, the family, education, etc., to prevent sinful man from
destroying himself through unrestrained selfishness. The weight of Evangelical
scholarship has concluded that Barth's total rejection of natural theology -
and, with it, natural rights theory - is scripturally unwarranted.
But even if such a natural law theory is accepted, does it provide the necessary grounding for human rights? Norwegian theologian Einar Molland contends that
It is enough to believe in the value of man and in a written law which is valid for all mankind at all times, that is, in the law which ancient thinkers called the natural law. This is not what the natural sciences understand by natural law, since the law they refer to raises us above nature. The law in question here is concerned with man and corresponds to man's nature. For human co-existence, it is enough to believe that such a natural law exists and that we can all more or less clearly discern it.
|Natural Rights: The Predicament of Justifying Their Content||I doubt very much that this is "enough for human co-existence." The problem is not that formal natural rights structures or orders are absent from human society. The trouble is that, though ubiquitously present, they are "formal": what universal substantive content they possess in line with Romans 1-2 seems incapable of independent epistemological justification. Perrott's theory of fundamental rights highlights the root difficulty, when he concludes that "there are what may be called Natural Areas of Legal Concern rather than Natural Law principles with a specific content," and that "the precise content of the rules, within limits, does not matter very much: what does matter is that legal discriminations should he drawn, and then generally adhered to. We do need to decide which side of the road to drive on; the choice of sides is, within limits, arbitrary."|
|And Content Is All-Important||With respect, this is simply inadequate. In a footnote to the quoted passage, Perrott states that "of course, it [the choice of substantive legal content} matters enormously from an evaluative or emotional point of view." Does it only matter emotionally? Is it just an arbitrary question of which side of the road one drives on? A little earlier in his essay, Perrott declares that "a number of different definitions of murder may be equally acceptable"! In point of fact, the substantive definition of particular human rights is all-important, and it is these clear definitions that natural law fails to provide or to justify epistemologically. Carl J. Friedrich noted that the formula of the Justinian Code is so "imprecise" that it does little more than to underscore the need for "some kind of equity." I observed at the Buchenwald death camp in East Germany that the Digest's vague expression, "Give to each his own," was inscribed in German translation (Jedem das seine) on the metal doors leading into that place of horror.|
|Natural Rights Are Real, but They Cry Out for Definition||This is not in any sense to deny the reality of natural rights: it is only to say that their content is left epistemologically ill-defined by natural law thinking, and it is precisely their content that is essential to solve the human rights dilemma. C. S. Lewis is correct that all human societies operate - and must operate - with ethical values; but in order effectively to oppose the myriad variations of man's inhumanity to man, we must be able to determine which ethical values are good, bad, and indifferent. (Is torture wrong? What about cannibal environmentalists cleaning their plates?) The Orders of Creation are a reality: but it is not enough to know that the family has been instituted by God - one must be able to determine whether polygamy and polyandry are assets or liabilities to human dignity. The Declaration of Independence properly asserts that human beings are endowed by their Creator with the inalienable rights to life, liberty, and the pursuit of happiness: but, without more, what does this guarantee? "Life" remains undefined (does it include the fetus?), likewise "liberty," and - vaguest of all - "happiness." Even if John Locke's original trilogy of "life, liberty, and property" had been retained by the Founding Fathers, "property" would no less have required substantive definition.|
|Natural Rights Theories Are Like John the Baptist||The best that can be said of religious natural rights theories is that, like John the Baptist, they point beyond themselves. The same is true of the secular moral philosophies, such as Rawls' theory of justice and Gewirth's conscious endeavor to rehabilitate the Golden Rule, that draw indirectly upon the natural law tradition. They remind us of ethical patterns without which we would cease to be human, but they do not flesh out these patterns so that we can confidently identify genuine human rights and with equal confidence stigmatize violations of human dignity.|
|A Corrupt Natural Order Requires Redemptive Human Rights||Moreover, as
Daniel Vidal well observes, the natural order cannot simply be equated with the
original order of creation. Because of the brokenness of the human situation,
one will forever be frustrated in "a search for the basis of human rights in
the natural order."
Historically, the natural order is always, or almost always, self-justifying, basing itself on situations of inequality, and therefore of injustice. It is not difficult to discern at the very foundation of naturalism a pattern of rich-poor, powerful-weak, even indeed, oppressor-oppressed. But the existence of this pattern serves precisely to prove that what is "natural" for the one who is rich and powerful is not at all natural for the one who is poor and weak, although the latter does not and cannot act except in the hope of reversing the situation - the hope of an opposite inequality.Vidal's conclusion: "Human rights build on the proper foundation, the redemption." The final chapters of this devoted to that very programmatic.
Chapter excerpted from Human Rights and Human Dignity by Dr. John Warwick Montgomery, copyright 1986. This material is not to be electronically transferred. Down-load for personal use only. Human Rights and Human Dignity can be purchased for a total of $30 by calling the Issues, Etc. resource line at 1-800-737-0172.
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