From
Loyola Law Review (New Orleans),
XXXVIII (#2, 1992). 289-309. The
Annual Brendan Brown Lecture.
ON
BEING DISSATISFIED WITH COMPROMISES:
NATURAL
LAW AND HUMAN RIGHTS
"In the modern development, 'natural law' is
as it were replaced by 'the rights of man,' or in other words the emphasis
shifts from man's duties to his rights.
Whereas pre-modern natural law was on the whole 'conservative,' modern
natural law is essentially 'revolutionary.' The radical difference between modern and pre-modern natural
law appears most clearly if one studies the still-remembered great modern
natural law teachers rather than the university professors who as a rule rest satisfied
with compromises."
-- Leo Strauss, "On Natural Law."[1]
I.
Natural law and natural rights in recent years have
received a certain impressive amount of academic attention.[2] But no one could ever say that natural
rights were especially in the public eye until the Hearings for the Nomination
of Judge Clarence Thomas to the United States Supreme Court, though natural
rights were also rumblings around the edges in critiques of Judge Robert Bork's
theories. Suddenly, for a time,
anyone who espoused this curious doctrine of natural law seemed either by some to
be a defender of public morality against irresponsible civil legislation or,
conversely, by others, he seemed to be a subversive of the public order itself
for implying that even the Constitution is subject to a "higher
law." Many scholars, no
doubt, will recall, on hearing such words, Edward S. Corwin's little book The
"Higher Law" Background of American Constitutional Law, while we might hope that everyone would have once
heard in a most famous Document a phrase that refers to "the Laws of
Nature and of Nature's God."[3]
Writing to this controversy, Jerome J. Shestack,
former United States Ambassador to the United Nations Commission on Human
Rights, remarked that "there may be reasons to question Judge Clarence
Thomas's qualifications for the Supreme Court, but his espousal of natural
rights philosophy is not one of them." Shestack pointed out that such documents as the American
Declaration of Independence, from whence in fact came the phrase "The Laws
of Nature and of Nature's God," the French Declaration for the Rights of
Man, and the Universal Declaration of Human Rights found their "moral
philosophic underpinnings" in "natural rights."[4]
What was embarrassing was thus not Judge Thomas'
recalling the foundations of modern political society but the views of those
who sought to reject these very foundations in the name of positive laws that
might indeed violate something essential to human dignity and life. The long intellectual struggle to limit
the state has invariably led minds back to considerations that must be
described as natural law, that is, to a source outside the powers of the state
itself to formulate entirely by itself what it was.
For Shestack, the "chief exponent of modern
natural rights theory (divorced from religion) was England's great philosopher,
John Locke." Clearly, for Shestack,
America is founded in "modern" natural rights that are
"divorced" from religion.
These rights are still "inalienable" because they are the
foundations of why we enter society in the first place. The Constitution incorporated a more
particular statement of these natural rights into the law of the land. "First Amendment rights,
due-process, and immunities" are examples of natural rights.
When natural rights came under attack from Bentham,
natural rights were replaced with positive rights in which "legal
authority stems solely from what the state has laid down as law." To the
positivist charge that "natural law thinkers" -- notice that natural "law,"
not "rights," is used here --
"blurred the distinction between what law is and what it ought to be,"
Shestack replied that the difficulty for positivism was that "the law is
not better than the source of its authority." Shestack remarked that after World War II natural rights
enjoyed a revival because the Nazi experience revealed "the horrors that could
emerge from the positivist system in which the individual was completely
subject to the state." Even
Justice Thurgood Marshall referred to "natural rights" in the famous
desegregation case, Brown v. Board of Education.
I have cited from this short essay of Jerome Shestack
at some length because he gives a good historical summary of the case for
natural rights, rather than natural law, terminology. Yet, certain aspects of this not uncommon presentation can
be wondered about. Here, natural
rights are treated as something specifically "modern." They are rooted in Locke, not
Aristotle. Shestack noted,
furthermore, that some modern philosophers base rights not on Locke but on
Kant, on the notion that "rights flow from the autonomy of the individual
in choosing his or her own ends."
Is it possible, we might wonder, in our freedom to choose ends against
nature? If this be so, the
autonomy of the individual is not remarkably different from the positivist
position. This position holds that
whatever the state, which itself is but a collection of equally autonomous
wills, establishes as law is law,
with no answerability to some "higher law."
If modern natural rights, moreover, are
"divorced" from religion, what are we to make of the classical
position of natural law that had already made a distinction of this sort when
divine and natural law were clearly distinguished from each other? Are modern natural rights designed
particularly to support the autonomous individual who is responsible to no one
but himself, even in his polity, as Rousseau attempted to demonstrate? Are the collective decisions of
autonomous individuals the only source of law even against the individual's own
autonomy? If this alternative
position is the case, are natural or human rights all that defensible? Is there something about particularly
"modern" natural or human rights that needs to be carefully reflected
upon? Are modern human rights
simply equivalent to what was historically called natural law or even classical
natural right?[5] Is there after all something
"alien," to use Shestack's word, about natural rights and if so, what
is it?
The most elementary statement of natural law as it
exists in human beings is simply "do what is reasonable." Indeed, the statement can be made even
briefer than that: "Act
reasonably." Thomas Aquinas,
in his extraordinary capacity to be both brief and to the point, put the
principle this way: "Naturalis
inclinatio inest cuilibet homini ad hoc quod agat secundum rationem."[6] We not only do things, but we have a
reason for doing them, a reason that, while it is our own reason, is not merely
our own. It is a reason in its
essence that seeks to conform itself with what we ought to do, with what is, not just with what we do "do". Deeds or actions in their
intelligibility are open to the understanding of whatever else in the universe
besides ourselves has reason.
Though our thoughts and even our willed deeds may be private, they are
not unintelligible. They can be
explained. Indeed, their very nature
is to seek explanation or intelligibility for themselves.
Perhaps I can illustrate this position in a more
familiar manner. Sally and Linus
are walking along a path by a stone wall.
Linus is following Sally, his little sister. Linus asks her with some curiosity, "How come you
didn't go to summer camp this year?"
In the next scene, she stops dead by a telephone pole, turns abruptly to
him with some genuine perplexity to ask a puzzled Linus, "You mean I have
to have a reason?"[7] The very humor of this scene depends on
the natural law at work in all of us; it depends on the fact that yes, we do
need a reason in all that we do, even when we do not go to camp this
summer. Humor, as Aristotle said,
is itself a sign of reason, a sign indicated by the fact that we get the point,
that we can see the reason why something is funny, why a cartoon denying a
reasonable action is itself suddenly a manifestation of reason.
II.
The most philosophic issue that the experience of
politics occasions, through its bewildering experience of differing actual and
historic regimes, is that of the best regime. And as Aristotle pointed out in the Second Book of The
Politics, we must consider not merely
the variety of actual regimes but also the variety of theoretic regimes proposed
by the philosophers. The best
regime, as we know it from Plato, however, only existed in speech. In human history, including the history
of the 20th Century, efforts actually to establish the best regime in some
political entity always seemed to entail something tyrannical. St. Augustine had recognized that it
was of the very essence of human nature to seek the best city, the City of God,
as he called it. But St.
Augustine, not unlike Plato, warned us not to look for this City in this world.[8] The identification of the best regime
with some actual regime, a problem we already seem to find in Cicero's
understanding of the actual Roman Republic, displayed a profound
misunderstanding of the proper location of human happiness, the happiness to
which all regimes indeed pointed, as Aristotle taught in the First Book of The
Ethics.
Aristotle had held, moreover, that political science
was the highest of the practical sciences, but not the highest science as
such. Politics existed in its own
right, yet at the same time, it was the condition for something further,
something more "divine," as he put it (1177b27). Politics at its best existed for the
leisure in which the highest things as such could be considered and lived. The "doing" and the
"making" of the life of man on earth, the "practical" life,
was naturally related to the highest things as such, to what the Greeks meant
by "theory" and the Romans by "contemplation." But Socrates soberly remarked in The
Apology, that he, the philosopher,
had to remain a private citizen in his polity of Athens, the best actual
regime, lest he be killed sooner than he was by his politician accusers, by the
craftsman, the lawyer, and the poet.
There seemed to be some dangerous conflict between polity, poetry, and
philosophy.
In his short "Preface" to The Natural Law
Reader, Professor Brendan F. Brown,
in whose honor this Lecture is given, wrote in 1960, that consideration of
natural law was relevant not merely to professional experts in the field but to
all human beings. Natural law,
Brendan Brown thought, related "to the most fundamental values of every
day living. It is pertinent to the
choice of the best future legal and political order, and the kind of
civilization which will be most conducive to man's happiness."[9] Already here, if we reflect on it, is
the question of the best regime posed as an aspect of natural law. Brown was even rather optimistic and
thought that "natural law jurisprudence ... is slowly but surely winning
its final battle with the force concept of law contained in positivism which
makes the essence of law depend on the will of the political sovereign."[10]
Though the intellectual discussion of natural law is
currently at a high level, as I have indicated, I would not be so sanguine as
Professor Brown about its chances.
And yet, if we are familiar with, say, Professor Ellis' Sandoz'
brilliant A Government of Law or
the more Hegelian reflection of Francis Fukuyama's The End of History and
the Last Man or Mary Ann Glendon's Rights
Talk, we will realize that the
question of the best regime can be carefully re-posed either in terms of the
American Founding, of the democratic-free market system, or a communitarian
rights system as the best possible regime for all the world.[11]
Hadley Arkes, in his Beyond the Constitution, speaking of the philosophical principles that lie
behind any reasonable regime, including our own, remarked that we still need to
appeal to "those moral understandings lying behind the text; the
understandings that were never written down in the Constitution, but which must
be grasped again if we are to preserve
-- and perfect -- the
character of a constitutional government."[12] This approach would suggest that the
distinction between good regimes and the best regimes remains crucial. We can distinguish between bad, good,
and the best regimes only if we have some principle of common distinction among
them.
Moreover, as St. Augustine implied, even though the
question of the best regime is a legitimate one, its location can never be in
this world. Thus, following this
line of thought from Plato and St. Augustine, there are a number of political
philosophers who hold that the effort to put the best regime in this world is
in fact the origin of the totalitarian mind and system. In this sense, since no actual regime
can embody the elements or items of human happiness, we must look elsewhere to
complete this pursuit of happiness, or else we must despair of ever finding
it. Political happiness,
consequently, as Aristotle already observed in the Tenth Book of The Ethics, is a secondary form of happiness, less divine, more
human. It is not to be neglected,
but it is not to be confused with the best to which mankind is ordained.
What is new about this re-posing of natural law and
the best regime, of course, is that it takes place in the light of the death of
Marxism and those forms of ideology, left and right, that have caused such
turmoil in this century. It would
be comforting to see in this demise of Marxist ideology the likelihood of a
return to classic natural law, but there are perhaps more ominous indications,
as Paul Johnson has warned, of the continuation of the philosophic causes of
ideology in a new, more subtle, ironically more "democratic" form.[13] We should not forget, moreover, that
practically every extreme ideological state in this century has been proposed
as a "best" regime and usually put into effect by a politician with
philosophic pretensions. On this
account there are some who would erroneously conclude that reflection on the
best regime is an illegitimate occupation. But the only true way to deal with a legitimate question,
which the question of the best regime is, is to think about it properly, not to
stop thinking about it at all.
III.
Brendan Brown noted the influence of positivism as the
alternative to natural law. Both
Leo Strauss and Eric Voegelin have argued that historicism and positivism, both
of which result in the same position that there is no natural human order known
to reason, are the dominant methods and theses in our culture.[14] Hadley Arkes also had written that
modern liberalism and conservatism are both rooted in the same general
philosophic premise. This is
the displacement of natural rights, in our public
philosophy, with one variety or another of "positivism" or moral
relativism. Regardless of whether
lawyers are liberals or conservatives, they are products of our law schools,
and since the inception of law schools, their students have been tutored in the
reigning orthodoxy of "legal positivism."[15]
This
suggests that, in practice, there is little real dialogue with natural law
theory, however much the philosophic occasion for this dialogue might now be
possible and however high might be the quality of natural law discussions in
obscure areas of contemporary political philosophy.
But if the positivist side of this discussion is
perhaps most prevalent in law schools, in universities it can be argued that
the historicist side of modernity is most prominent. The cultural relativist or historicist or deconstructionist
thesis against natural law is that there are no universal civilizations or
discussions. Whatever is done in
this or that culture is a kind of absolute, not subject to any standard of philosophical
analysis other than itself. This
argument means that the world is strictly and in principle
"pluralist," that politics has no "best regime" except that
regime that accommodates opposite, even contradictory, philosophic,
ideological, national, or religious systems. It means that natural law is not even
"natural."
This accommodation to all cultural systems no matter
how contradictory usually entails the doctrine that there is and can be no
truth and that claims to truth are themselves enemies of the best regime now
brought forth by modern philosophy.
Thus, there can be no principle of better and worse, the very stuff of
classical natural law and ethical theory.
It is to be emphasized here that this cultural pluralism is a very
different position from that traditionally elaborated under the heading of the
legitimacy of different regimes.
Catholic social thought in particular has often stated
that nations are free to choose the form of rule that is best suited to them so
that a wide variety of regimes would be normal. Aristotelian theory also recognized differing forms of
"good" and "possible" practical regimes. But both of these theories were
grounded in a reflection on the best regime. The distinction of good, better, and best thus remained, as
did the distinction between bad, worse, and worst. From the point of view of a theory of prudence, the central
intellectual virtue of moral and political philosophy, it might be necessary to
accept systems that were not the best.
It might even be necessary to accept a bad regime in preference to the
worst regime. Elements of
possibility and gradualness were necessary aspects of any common sense
discussion of ethics or politics.
But neither considerations of possibility or gradualness meant that
continued reflection on and understanding of the best regime did not remain the
condition for any decisions about ordinary regimes.
No one has seen more clearly the result of this
historicist position that all regimes are equal than Gertrude Himmelfarb. "The presumption against greatness
goes deep," she remarked in her Jefferson Lecture.
It is, in fact, at the heart of the debate about
"great books." The
argument is no longer about the specific composition of the canon, the
inclusion of this or that book, but about the very idea of greatness, a greatness
that traditionally has been thought to transcend race, gender, and class -- and genre, too.... (The truth is) that high culture is
higher, more elevating, than popular culture, and that some events in history
are more momentous than others.[16]
We
do not exalt the common man by depriving him of nobility, of his formidable
capacity to recognize greatness and dignity, even when he may not himself
possess it.
IV.
A cartoon in The New Yorker shows a young romantic couple sitting on a bench in
Central Park. We see the trees,
the grass, the birds, the city buildings in the distance. The young lady has very bright eager
eyes. She is holding the young
man's hand and touching his shoulder reassuringly. She faces him.
He in suit and tie has equally big eyes, but he seems a bit confused by
it all. Behind the bench, in the
air, however, we see two cupids, a Military Cupid with the traditional bow and
arrow about to shoot his fatal shaft at the young man and a Legal Cupid with a
piece of parchment but also with a rather angry, concerned look. The Military Cupid yells down to the
Legal Cupid impatiently, so he can get on with his amorous business, "Read
him his rights".[17]
We are accustomed to finding what we call
"rights" in official documents that "declare" or
"hold" that we have them
-- the Bill of Rights, the Universal Declaration of Human Rights, the
French Declaration of the Rights of Man.
We are perhaps vaguely aware that "rights talk" is the
successor to "law talk," that the discussion of human rights is not
exactly the same as the discussion of natural rights and that neither are
exactly the same as discussion of natural law. Not a few have sought with some care to put all of these
notions together in one coherent discourse. Jacques Maritain has sought to do so as has John Finnis in
recent years.[18]
On the other hand, many historians of the subject
maintain that there is a radical distinction between modern and classical
natural law, that the two concepts are not the same and should not be confused. "Except for the name, the medieval
and the modern notions of natural law have little in common," Alexander
Passerin d'Entreves wrote in a famous book.[19] Alasdair MacIntyre would go even
further:
The concept (of rights) lacks any means of expression
in Hebrew, Greek, Latin or Arabic, classical or medieval, before about 1400,
let alone in Old English, or in Japanese even as late as the mid-nineteenth
century. From this it does not of
course follow that there are no natural or human rights; it only follows that
no one could have known that there were.
And this at least raises certain questions. But we do not need to be distracted into answering them, for
the truth is plain: there are no
such rights, and belief in them is one with belief in witches and in unicorns.[20]
"What
is going on here?" we might ask ourselves. Why has so formidable a thinker as Leo Strauss pointed out
that modern natural right is "revolutionary," that it is associated
with modern totalitarian movements and, at the same time, we are told that
rights are proposed as the way to limit absolutist states in the modern
era? We are told that a new sort
of "right" is invented about 1400 that seems quite different from the
natural law that went before with the medievals or with the Greek notion of
natural right.
The obvious culprit seems by all odds to be Hobbes, to
be his peculiar way of formulating natural right as something that in itself
allows no limits of nature or reason, but only a kind of instrumental reason
calculated to protect and multiply one's own rights.[21] Another cartoon in The New Yorker showed two cave men, clearly in the state of nature,
both with huge rough-hewn clubs over their shoulders, both wearing the famous
loin cloth invented shortly after Adam's expulsion from Eden. The cave men, obviously still in the
classic State of Nature, are coming down a mountain conversing. The first cave man, with evident
sincerity and perplexity, declares to the second, who listens with some
sympathy, "I'd be the first to say 'Repeal the harsh old rule of tooth and
claw' if someone could show me that it wasn't working."[22] Well, Machiavelli and Hobbes developed
a system of natural right that showed how it could work. Brendan Brown's insightful remark that
"the essence of law (for legal positivism) depends on the will of the
political sovereign" is nothing but the logical consequences of natural
right doctrine as it has worked its way through modern political philosophy.
In her recent study, Mary Ann Glendon wrote of the
degree to which human rights have had a destabilizing effect in public and
private life. Divorced from any
corresponding concept of duties and any grounding in a higher reality, they
have become claims based on nothing other than themselves. "Our rights talk, in its absoluteness,"
Glendon has written,
promotes unrealistic expectations, heightens social
conflict, and inhibits dialogue that might lead toward consensus,
accommodation, or at least the discovery of common ground. In its silence concerning responsibility,
it seems to condone acceptance of the benefits of living in a democratic social
welfare state, without accepting a corresponding personal and civic
obligation.... In its neglect of
civil society, it undermines the principal seedbeds of civic and personal
virtue.[23]
Rights,
which in some sense were understood as a protection from the state, have
somehow become an instrument in its growth and power.
If human beings have "rights," then, for
every right they do not have, they can look at themselves as
"victims." The state
becomes responsible for redressing every perceived violation of rights. And if there are no truth limits to
rights except what is legislated or willed, then the state has practically
unlimited power to define and promote "rights."[24] A "rights" based morality is
in this sense conceived in opposition to a "virtue" based morality
and politics. The emphasis of the
latter is mainly on the individual's own powers of self-action and initiative,
on his own prudence. People can
fail to do the normal things, a failure that is not the result of a lack of
"rights," but a lack of energy or enterprise.
V.
Thus far, it seems, I have suggested that there are
considerable intellectual and historical problems with free use of the notion
of natural or human rights. John
Paul II, however, a man for whom I have the greatest admiration, seems to use
the notion of human rights with great frequency and in a manner that, I think,
causes some concern because of its failure to attend more specifically to the
problems that arise in modern rights theory. Thus, the Holy Father seems rather less aware of this danger
inherent in rights language.[25] Times without number the Pope will say
that the state is to protect and promote human rights -- civil, economic, social, and human -- and the Church should assist in this
task. This sort of language causes
confusion not merely because economic and social rights in particular are more
like feasible legislation that will vary from country to country and time to
time but because rights seem unrelated to duties and seem to have no intrinsic
limits.
However, when one examines carefully what the Holy
Father says, it is clear that he is aware of the sort of problem I have been
suggesting. What I propose to do
here, as an example of how we might best think out this problem, is to follow
the Holy Father's discussion and to note how he sees rights as involving some
intrinsic limit beyond the will of the individual or legislator. There are three passages in John Paul
II's recent Encyclical Centesimus Annus that I think are pertinent to our consideration of natural law and
human rights, passages that illustrate the problem.
The first passage has to do with a reflection on the
causes for the demise of socialism, the second on a notion of democracy that is
itself unlimited. "Socialism
... maintains that the good of the individual," the Pope observed,
can be realized without reference to his free choice,
to the unique and exclusive responsibility which he exercises in the face of
good or evil. Man is thus reduced
to a series of social relationships, and the concept of the person as an
autonomous subject of moral choice disappears (#13).[26]
Notice
that socialism is criticized in its philosophic import not because it is
immoral with no concern for good and evil in human affairs, which concern is
the basic issue of moral philosophy, as Aristotle said.
Rather socialism is criticized because it improperly
located the place where this decision about good and evil should be made, that
is, in the individual himself. The
person not the state is the subject of moral choice. The state is not a substance or thing. It exists only in the relation of its
members to each other.[27] But once this capacity to choose is
established or identified, it is to be made for truth, not merely for
itself. The fact that a person is
a subject of moral choice still does not indicate how he will choose. And ultimately, it is this latter
decision that makes the essential difference among human beings.
If "the good of the individual" cannot be
achieved without reference to his "free choice," this freedom must be
itself a constitutive part of what it is to be a human being. The alternative that human beings are
determined either by a fatalistic nature or by social institutions outside
their control is the line that must be taken if we deny this intrinsic freedom
and the drama of life that goes with it.
On the other hand, once we admit this freedom, we can say that it is
"right" that we have such a capacity that defines our very uniqueness
in the universe. But the exercise
of this freedom that is our right itself must direct itself to reality, to what
is. In this sense, the object of our freedom is not itself -- we do not choose just to
choose. Rather we choose the good that
we must know as true if this freedom is to be properly used.
Thus, the Holy Father in the same Document will add,
"... Total recognition must be given to the rights of human conscience, which is bound only to the truth, both natural and
revealed. The recognition of these
rights represents the primary foundation of every authentically free political
order" (#29). If there is any
theoretic point at which the Pope distinguishes himself most clearly from
modern autonomous natural rights theory, without foregoing its confusing
terminology, it is here where he insists on using the language of natural
rights. I want to take some care
with this argument because I think its language is the source of enormous confusion
and because I think we need to form some coherent reasoning by which if we must
use the natural rights language, it is not rooted simply in will or in the
abstract capacity to choose with no attention given to the choosing of
what. "Freedom" as such
is quite impossible without carefully indicating its object, its choosing
what? Freedom always exists in the
context of an object, of a choosing something.
Thus, we speak of human conscience. It is that last act of the reason by
which we judge in our own souls the moral and ontological status of an act we
are about to put into the world, an act we know can be otherwise. We judge this act in light not of
itself but of its truth or goodness. From this background, we can see that the
Pope is insisting, by his use of the term "rights of human conscience,"
on a criterion that the conscience discovers but does not make for itself. This is why the Pope says that we are
bound only to the "truth either natural or revealed," as if to say
that any other claim to bind us must first justify itself before this source
outside of itself and of ourselves.
The very existence of this objective criterion is,
therefore, why we are ultimately free even in the worst regime or
situation. We are not speaking
here of things like "honest" error or invincible ignorance, though
these two must at some point be subject to the test of truth. We are rather trying to understand that
the word "right," however confusing it might be, can and should mean
that a being who can know the truth should choose the truth and not merely itself.
When the Holy Father maintains that the recognition of
these rights of conscience is the foundation of every "free political
order," consequently, he is giving us a theory of the limitation of the
state as such. He is denying any
theory of "right" that would have will and not truth as the highest
obligation or purpose in freedom.
This is not a theory that denigrates freedom but one which saves it so
that it can be what it is intended to be.
The Pope affirms here something that St. Thomas meant when he remarked
that the civil law, that is, the positive law that men ought to enact for their
common good, cannot reach directly to our inner intentions and souls from which
all law and action proceeds.
This concern for the limits of law and polity is why
John Paul II included both "natural and divine truth" in his
description of the proper object of the free will. It is true that neither nature or revelation needed to exist
in the first place. In this sense,
creation is filled with contingency, with the freedom of its possible
non-existence, or, to put it the other way around, it is filled with the glory
of God in the existence of what is not God. We often think, perhaps unmindful of the essence of the account
of The Fall in Genesis, that the
danger of freedom is an act of self-choice in which we choose our truth over
the truth of what is.
We find ourselves maintaining, in this understanding
of freedom, that the very definition of good and evil depends only on our own
will. The fact is that if the only
truth we can discover is itself dependent solely on our own wills, we cannot
avoid knowing that it is not the truth.
We know that we did make ourselves to be human beings or to be at all for that matter. The truth of our being is already contained in the truth of
what we are from nature. Yet we
still have both to discover and to choose this truth which is why it may not
come into existence, as it need not, since its effective existence depends on
our freedom.
VI.
A final consideration about the Pope's understanding
of the notion of rights needs to be made if we are to think our way through the
complexity of this term as it refers to political philosophy and natural
law. If "rights" depend
merely on will, then we automatically have a "right" to do whatever
we choose to do individually or politically. This position grounds those accusations against the Pope to
the effect that he is not consistent in his "rights" usage.
Modern society, in its own understanding of itself,
has in fact developed a number of what it calls "rights" -- abortion, I suppose, is the prime
example -- that the Holy Father
strongly and rightly objects to on the grounds that they violate human
rights. If one's theory of rights
is based on will, however, then the content of rights is found to be whatever
is willed. In political or
sociological terms, we find out what rights we possess by measuring what
"rights" are in usage. If
we find that certain practices or institutions are in fact popularly willed,
then they are called "rights" because this is what, in such a theory,
causes rights to be rights.
"Even the law is trying to get by more and more
without the concept of guilt," Josef Ratzinger wrote in a passage that
gets to the core of the problem:
It prefers to make use of sociological language, which
turns the concept of good and evil into statistics and in its place
distinguishes between normative and non-normative behavior. Implicit here is the possibility that
the statistical proportions will themselves change: what is presently non-normative could one day become the
rule; indeed, perhaps one should even strive to make the non-normative
normal. In such an atmosphere of
quantification, the whole idea of the moral law has accordingly been generally
abandoned. This is a logical
development if it is true that there is no standard for human beings to use as
a model -- something not
discovered by us but coming from the inner goodness of creation.[28]
This
description is, no doubt, the accurate analysis of what has taken the place of
any source of intelligence in nature and reason. "Will" description is merely what we do. The distinction between good and bad is
itself based, in this position, on what men "do" do, not on what they
ought to do, to recall a famous passage in Machiavelli's Prince (XV).
A natural rights legislation based on modern natural
rights, whether interpreted positively or historically, will invariably yield
this theoretic result in which what is "right" is decided by what is
done for the most part. This
practice becomes the norm in lieu of any other source but will. There is thus a form of natural rights
theory combined with democratic theory that would propose itself as the
embodiment of human civilization and dignity. Indeed, the very notion of a classic natural law or
revelation is seen, rightly, as an attack on this understanding of modern
humanism. The suggestion that
revelation or reason an correct what is chosen or what is done is considered to
be anti-democratic and even fanatical, which, of course, it is granted these
philosophic foundations of a theory of law based on will and a theory of
democracy based on statistics of what is done.
John Paul II shows that he understands the issue as
formulated. He wrote, also in Centesimus
Annus:
Nowadays there is a tendency to claim that agnosticism
and skeptical relativism are the philosophy and the basic attitude which
correspond to democratic forms of political rule. Those who are convinced that they know the truth and firmly
adhere to it are considered unreliable from a democratic point of view, since
they do not accept that truth is determined by the majority, or that it is
subjected to variation according to different political trends. It must be observed in this regard that
if there is no ultimate truth to guide and direct political activity, then
ideas and convictions can easily be manipulated for reasons of power. As history demonstrates, a democracy
without values easily turns into open or thinly disguised totalitarianism
(#34).
No
doubt, this is an accurate description of much modern political and legal
philosophy. It is also shows a
correct understanding of why, on the basis of this skeptical position, natural
law must be looked upon as "anti-democratic." The Pope gives both an historical and
philosophical argument about the validity of this position. This historical argument is that
positivist theories did lead to totalitarianism. The philosophic argument is that truth must be grounded
outside the will by some truth beyond politics, a truth to which every will is
ordained through a reason open to truth as such, even from revelation.
From these considerations, I would conclude that the
widespread use of the term "natural rights" by our Founding Fathers
and even by the contemporary Papacy, needs a rather more careful attention than
it has received. The fact is that
"natural rights" can found diametrically opposite systems and lead to
quite opposed results both in the individual soul and in society. The struggle for control of civilization
is being fought out in many ways over the meaning of "natural
rights." We should not be
surprised that it is, in many ways, a very bitter fight, because it involves
nothing less than a proper understanding of man's full reality as a being
endowed with a rational faculty open to and capable of knowing and acting on
truth.
One final cartoon shows two New York businessmen at a
party. Both have a drink amidst
palm decor, paintings, other casual but well-appointed guests. The larger gentleman, with hand in
pocket, quite angrily is telling the smaller moustached, bespectacled men, who
listens with some astonishment, "I may not know much about the
Constitution, but I certainly know what I like."[29] We should indeed know what we like and
like what we know. The
Constitution was founded in a kind of knowing, no doubt, a knowing that what we
liked, our self-interest, needed various kinds of checks. What if that which checks both our
likes and our Constitution is best described by something called our natural
rights? But these rights need
themselves to be ordained to a freedom oriented to truth, a truth we did not
make but a truth we can, to some degree, discover "coming from the inner
goodness of creation."
That the teaching about natural or human rights has caused
considerable confusion even when pursued with the best of intention is the
foundation of what I have wanted to address myself to here. Ernest Fortin, in this same regard, has
asked simply "whether the modern rights theory that lies at the root of so
much of what our church leaders have been saying lately is compatible with the
stress on duties or virtue that is typical of the older approach to these
matters."[30] Fortin is quite dubious that these
enterprises are compatible as the terms are used in modern political language
and thought. I would not deny that
in many sectors of religion, knowingly or unknowingly, "modern"
rights language and thought have in fact been accepted with all the consequences
that go with them. On the other
hand, I would suggest that the Holy Father himself, who seems often to be most
guilty of using "rights talk" with unqualified enthusiasm, in fact
has in his actual discussions recognized the basis of the problem in a theory
of rights based on will alone as its origin and justification.
I do not want altogether to abandon the language of
rights, though I am willing to acknowledge that more often than not is in fact
used to promote positions that are not grounded in any understanding of what
the classic natural law was about or intended. When Leo Strauss remarked that university professors in
these discussions of natural right were often "satisfied with
compromises," he put his finger on the real problem. As Strauss noted, there is a shift in
modernity from duties to rights and this shift is not merely one of stress or
emphasis.
The "revolutionary" nature of modern natural
rights theory that Strauss also noticed is possible not because it is
interpreted against a standard of reason, itself found in nature by a mind
capable of understanding itself and the order of things, but because it is
understood against a theory of rights based on will. If we are to be "dissatisfied with compromises"
about human rights and natural law, we must, I think, clearly understand that
"rights" easily lend themselves to these two radically different
interpretations.
The problem is not so great if we take the trouble to
understand exactly what is meant by the differing usages. Furthermore, there is a perfectly valid
use of the word "right" or "jus" in classical natural law
theory. It refers not to what is
willed to be the form of action or regime but to that intelligible rightness
that exists in every human action by which it is either good or bad, either
this action or that. We may indeed
not know much about the Constitution but know quite clearly what we like. What virtue ethics and politics ask is
whether what we like is itself in conformity with what is.
One notion of human perfection is whether we put into
being what we want. The other asks
whether what we want is itself in conformity with what ought to be, itself
based on the reality of our being and on the order in the cosmos. The division between these two
approaches at bottom is St. Augustine's difference between either creating our
own world or discovering that of God as it is reflected in our own nature. The passion generated over the claim
about whether there is a "natural law" or only modern "natural
rights" is rooted in this ultimate problem, the problem of pride, the
problem of whether we create in our ethics or in our polity our own world and
consider ourselves to be only happy when we exclude any judgement from it that
we did not put there ourselves.
In his comment on the legal theories of Giorgio del
Vecchio, Brendan Brown wrote that "the most basic elements in the positive
legal order are rights and duties, not merely interests, and that some of these
rights are inalienable and exist prior to the state, even to custom."[31] Professor Brown was correct to imply
that we cannot talk of "rights" unless we talk of
"duties." He also
implied that some "rights" are more important than others and that
their inalienability does not derive from man himself either by law or
custom. In the literally dozens of
"rights" that John Paul II spoke of in Centesimus Annus, there is one sentence, itself a quotation from
Vatican II (Gaudium et Spes, #24),
that serves more than any other, I think, to sum up what I have been arguing
here. "It is through a free
gift of self that one truly finds oneself" (#41).[32]
In the end, this statement is not "rights
talk." It is not even
"duties talk." Rather it
is "gift talk," that is to say, that our freedom is constituted at
its highest by what we give to others.
It is when we lose our lives that we find them. We might conclude by observing that
even when the legal order is suffused with justice, its proper virtue, it has
not yet arrived at that which is most necessary for man and his kind.
The study of rights requires us to distinguish between
that view of the world that is merely an expression of our own wills and that
view which asks of us to know the truth and to give of what we are. In the end, when we all have our
rights, based even on truth, we will have just begun to live in a world not of
rights but of gifts. As Aristotle
had taught that political happiness is proper to us but it is not our highest
end or goal. After we have
insisted on our rights, after even we have forced others to acknowledge them,
we have just begun the road to virtue, to sacrifice, to gift. This is the importance of understanding
talk of natural rights properly, lest we end up with only ourselves and our
polities formed only on the image and likeness of ourselves presupposed to
nothing but ourselves.
When asked what was the reason she did not go to
summer camp, Sally responded, "You mean I have to have a
reason?" Leo Strauss
suggested that when it comes to understanding natural rights properly, we
should not "be satisfied with compromises." "Naturalis inclinatio inest cuilibet homini ad hoc
quod agat secundum rationem." We can be grateful to Brendan Brown for
encouraging us to continue to reflect on the meaning of the natural law, for
this issue, more perhaps than most others in the public order, brings us to
wonder about the best regime and our relation to it. "Indeed it is through the free gift of self that one
truly finds oneself."
[1]Leo Strauss, "On Natural Law," in Studies in Platonic Political Philosophy, Edited by Thomas Pangle (Chicago: University of Chicago Press, 1983), p. 144. (Emphasis added).
[2]See Yves Simon, The Tradition of Natural Law: A Philosopher's Reflections (New York: Fordham University Press, 1965); John Finnis, Natural Law and Natural Right (New York: Oxford, 1980); Heinrich Rommen, The Natural Law: A Study in Legal and Social History and Philosophy, Translated by Thomas R. Hanley (St. Louis: B. Herder, 1947); Javier Hervada, Natural Right and Natural Law: A Critical Introduction (Pamplona: University of Navarra, 1987); Michael Bertram Crowe, The Changing Profile of the Natural Law (The Hague: Matrinus Nijhoff, 1977); Henry Veatch, Human Rights: Fact or Fancy? (Baton Rouge: Louisiana State University Press, 1985); Russell Hittinger, A Critique of the New Natural Law Theory (Notre Dame: University of Notre Dame Press, 1987); Ernest Bloch, Natural Law and Human Dignity, Translated by Dennis J. Schmidt (Cambridge: MIT Press, 1986); Natural Law and Modern Society (Cleveland: World, 1963); Paul Sigmund, Natural Law in Political Thought (Cambridge: Winthrop, 1971); Light on Natural Law, Edited by Illud Evans (Baltimore: Helicon, 1965); E. B. F. Midgley, Natural Law and International Relations (London: Elek, 1975); Jacques Maritain, The Rights of Man and Natural Law (San Francisco: Ignatius Press, 1986); Peter J. Stanlis, Edmund Burke and the Natural Law (Shreveport, LA.: Huntington House, 1987). The two journals The American Journal of Jurisprudence and Vera Lex (Natural Law Society: An International Review on a Global Issue) are both concerned with natural law questions.
[3]Edward S. Corwin, The "Higher Law" Background of American Constitutional Law (Ithaca: Cornell University Press, 1955).
[4]Jerome J. Shestack, "There's Nothing Alien about Natural Right," The Wall Street Journal, September 6, 1991.
[5]See James V. Schall, "Human Rights as an Ideological Project," American Journal of Jurisprudence, 32 (1987), 47-61; "Second Thoughts on Natural Rights," Faith & Reason, 1 (Winter, 1975-76), 44-59.
[6]"A natural inclination exists in each human being to the end that he acts according to reason." Thomas Aquinas, Summa Theologiae, I-II, 94, 3.
[8]See Herbert Deane, The Political and Social Ideas of St. Augustine (New York: Columbia, 1965); William R. Stevenson, Christian Love and Just War: Moral Paradox and Political Life in St. Augustine and His Modern Interpreters (Macon, GA.: Mercer University Press, 1987); Christopher Dawson, "St. Augustine and His Age," St. Augustine (New York: Meridian, 1957); James V. Schall, "St. Augustine and Christian Political Theory," The Politics of Heaven and Hell: Christian Themes from Classical, Medieval, and Modern Political Philosophy (Lanham, MD.: University Press of America, 1984), pp. 39-66.
[9]Brendan F. Brown, The Natural Law Reader (Docket Series #13; New York: Oceana Publications, 1960), pp. vi-vii.
[11]Ellis Sandoz, A Government of Laws: Political Theory, Religion, and the American Founding (Baton Rouge: Louisiana State University Press, 1990); Francis Fukuyama, The End of History and the Last Man (New York: The Free Press, 1991); Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse (New York: The Free Press, 1990).
[14]Leo Strauss, Natural Right and History (Chicago: University of Chicago Press, 1953), pp. 9-80; Eric Voegelin, The New Science of Politics (Chicago: University of Chicago Press, 1952).
[15]Arkes, ibid., p. 15. See also Thomas E. Baker and James E. Viator, "Not Another Law Course: A Proposal to Teach a Course on the Constitution," Iowa Law Review, 76 (May, 1991), 739-61; Charles N. R. McCoy, The Structure of Political Thought (New York: McGraw-Hill, 1963), pp. 29-72..
[19]Alexander Passerin d'Entreves, Natural Law: An Historical Survey (New York: Harper Torchbooks, 1965), p. 9.
[21]See Leo Strauss, The Political Philosophy of Hobbes: Its Basis and Genesis (Chicago: University of Chicago Press, 1952).
[23]Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse (New York: The Free Press, 1990), p. 14. See also Maurice Cranston, What Are Human Rights? (New York: Taplinger, 1973).
[24]See James V. Schall, "The All-Caring State," Religion, Wealth, and Poverty (Vancouver, B. C.: Fraser Institute, 1990), pp. 25-30.
[25]It can be noted that in Centesimus Annus, John Paul II did not use the term "natural law" but exclusively used "rights talk." The European Bishops, at their Synod in 1991 did use the expression "natural law," interestingly when they referred to anti-Semitism: "After the terrible Shoah of our century, for which the church feels a profound grief, new attempts have to be made to acknowledge Judaism more profoundly, rejecting all forms of anti-Semitism, which are contrary to both the Gospel and natural law." Final Declaration, #8, L'Osservatore Romano, English, 23-30 December, 1991, p. 13.
[26]John Paul II, Centesimus Annus (Boston: St. Paul Editions, 1991). See A New Worldly Order: John Paul II and Human Freedom (A Centesimus Annus Reader), Edited by George Weigel (Washington: Ethics and Public Policy Center, 1991).
[27]See James V. Schall, "The Reality of Society according to St. Thomas," The Politics of Heaven and Hell, ibid., pp. 235-52.
[28]Josef Ratzinger, "In the Beginning...": A Catholic Understanding of the Story of Creation and the Fall, Translated by Boniface Ramsey (Huntington, IN.: Our Sunday Visitor Press, 1990), p. 79.
[30]Ernest L. Fortin, "Church Activism in the 1980's: Politics in the Guise of Religion?" Religion and Politics, Edited by F. E. Baumann and K. N. Jensen (Charlottesville: University of Virginia Press, 1989), p. 49.
[32]This sentence, no doubt, brings up the further question that we need to reflect on in the light of the limits of natural rights, namely, our relation to revelation itself. See James V. Schall, Reason, Revelation, and the Foundations of Political Philosophy (Baton Rouge: Louisiana State University Press, 1987).