Religious and Secular Foundations of Universal Human Rights and Equality Before the Law

Although Western societies have for some time been moving away from their former Christian orientation, Jeremy Waldron has observed that liberal philosophy has yet to develop a non-religious way of speaking that would do justice to the dignity of all
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  RELIGIOUS AND SECULAR FOUNDATIONS OF UNIVERSAL HUMAN RIGHTS AND EQUALITY BEFORE THE LAW David J. Klassen Although Western societies have for some time been moving away from their former Christian orientation, Jeremy Waldron has observed that liberal philosophy has yet to develop a non-religious way of speaking that would do justice to the dignity of all men and women and to the equality of all persons before the law. According to Waldron, “the Christian conceptions out of which modern liberalism srcinated remain richer and deeper than their secular offspring” and “continue offer themselves as resources and clusters of clues for the modern political debate.” 1  The question which I intend to address, in light of Waldron’s observations, is that of whether we might still speak persuasively about the inherent dignity of all human persons, and also of their equal rights before the law, if we are now prevented in a liberal, pluralistic society from invoking an explicitly Christian conception of the person, or any other religious conception. I believe it is possible, although more difficult without the support of religious belief and religious language. Before I attempt to justify my position, I will briefly consider what we mean when we speak of rights, and particularly of natural rights. I will then examine the srcins of rights language in the history of philosophy and jurisprudence. The focus of this paper is on the rationale for the belief that all human beings share in a certain excellence or dignity on account of being human, and for the associated belief that there are universal human rights, in other words for the belief that all  human beings are equally bearers of certain rights, and thus ought to be treated as equals before the law. Some universal human rights will be specifically mentioned, including rights not to be subjected to murder, mutilation or undignified treatment, and a right to means of survival. It is not, however, my intention in this essay to try to provide a comprehensive listing of such rights, which would require a more thorough inquiry into the natural law and the basic goods which are the ends of human action. 2   WHAT IS A RIGHT? The Latin word ius , the French word droit   and the German word  Recht  , although translated into English as “right,” have wider meanings than in English. To quote Charles Donahue, Jr., each of those foreign words can “mean a whole body of normative rules, a legal order, as well as ‘right,’ in any of the many English senses of the word.” 3  A right, as opposed to a wrong, is something that is morally just or acceptable. As Leo Strauss uses the word in his discussion of “natural right,” right means “the just” or “justice.” 4  As we use the term when we speak of human rights, or rights   Philosophy, Culture, and Traditions 36 before the law, “ a  right” may be defined as a claim or entitlement which  justly belongs to a moral or legal agent, where the agent might be an individual human person, a group of persons, or an organization. Such rights, which have been called “subjective rights” and “powers” by Michel Villey and Brian Tierney, 5  are the topic of this paper. In the tradition of legal positivism, rights, like all other concepts of law, are thought to be products of human ingenuity and will. They are made by us, and only take effect when they are declared in law by a recognized authority. 6  There is, however, another tradition which speaks of natural rights. Natural rights may be  recognized by the positive human law – and indeed they ought to be – but they are believed to be prior to the positive law and do not depend upon it for their existence or for their moral force. Among them are the inalienable rights of each and every human person. Such rights were at one time widely believed to be bestowed upon men and women by their Creator, as in the American Declaration of Independence. They were also thought to be grounded in the natural law, and by the same token to have an objective foundation in the existence and nature of each human person. 7  For that reason, they were called natural  rights. Their grounding in the existence and nature of human persons gives them a certain mind-independence that laws recognizing them, so far as laws are principles of reason, may be thought to lack. In our own time, in the social doctrine of the Catholic Church, human or natural rights are said to flow from the inherent dignity of the human person, where such dignity arises from the fact that each and every person is endowed with reason and free will and is made in God’s image. 8   HISTORY OF RIGHTS TALK  Philosophers and legal historians give rival accounts of when the concept of “a right,” considered as a claim or entitlement, first arose. Beginning in the 1950s, a number of scholars led by Leo Strauss claimed that the idea of such rights first arose in the seventeenth century. 9  In a series of publications beginning in the early 1960s, the French Thomist, Michel Villey, claimed that the notion of rights as powers, which he called “subjective rights,” arose earlier than Strauss had thought, but not until the fourteenth century with William of Ockham. 10  Alastair MacIntyre proclaims a similar view. 11  However, as against the claims of Strauss, Villey and MacIntyre, it has now been shown decisively that rights language had an earlier srcin. Brian Tierney has located texts which reveal that the concept of a right considered as a claim or entitlement inherent in our very humanity, that is, of a natural right, goes back at least as far as the medieval canonists of the twelfth century. 12  Tierney thus adds to earlier research by Heinrich Rommen, who gives an account of how the medieval understanding of substantive and procedural rights, which eventually came to be recognized as natural rights of persons,   Religious and Secular Understandings of Rights 37 was developed for pragmatic reasons in the practices of European towns and kingdoms. 13  In fact, the Latin word ius  was already employed to denote a right in the sense of a claim or entitlement long before the Middle Ages in the laws of pre-Christian Rome, although it was also used to denote liabilities and obligations. 14  The pre-Christian Roman law, as reflected in the  Institutes  of Gaius written in the second century A.D., included no explicit recognition of an inalienable natural right of all  human persons, such as a right to life. One might nevertheless see the implicit beginnings of such a recognition in ordinances prohibiting the mistreatment of slaves, and in the natural right of cognation ( ius cognationis ), a right of guardianship that Gaius says cannot be taken away by the civil law. 15  Rommen, in a study first published in German in 1936, contends that the philosophical doctrine of natural rights can be traced back as far as Hippias, a contemporary of Socrates, that it was adopted by the Stoics, and that it was subsequently transmitted to the Roman jurists. 16  Recent studies by Charles Donahue, Jr. confirm that what Villey called “subjective rights” were common in the ancient Roman law. 17  Donahue nevertheless finds few cases of subjective natural  rights in the Roman law. According to Donahue, the idea of subjective natural rights was not well-developed until the twelfth or thirteenth centuries, when “it clearly was there in a way in which it was not there in Roman law” (78). What historian Harold Berman describes as “the first comprehensive and systematic legal treatise in the history of the West” was completed in about 1140 by Gratian, a monk at Bologna. 18  Gratian’s treatise, the Concordance of Discordant Canons , is more commonly called the  Decretum . “Gratian himself,” says Tierney, “wrote of the iura libertatis , the rights of liberty that could never be lost however long a man was held in bondage.” 19  We thus find the beginnings of a doctrine of universal human rights in the first half of the twelfth century. By the 1180s, something very close to our modern notion of a natural right as a just entitlement had developed in glosses of English canonists who held that ius naturale  applies to a sphere of what is licit and approved, but not commanded or prohibited by God or any statute. 20  For example, one such gloss says that it is licit to eat something or not to eat it, or to reclaim one’s property or not to reclaim it. Tierney observes that this same point is made by H.L.A. Hart in discussing modern rights language, where Hart says that “a right defines an area where an agent is free to act as he chooses, to assert a claim or not to assert it,” and also by Villey in his description of the modern doctrine of rights. 21  It is often claimed that Thomas Aquinas did not recognize individual or subjective rights. 22  However, in his treatise on prudence and  justice in the II-II of the Summa theologiae , 23  Thomas does speak of rights in the sense of claims or entitlements. For example, he speaks of rights to possess property and to have just legal remedies. 24  Moreover, it needs to be kept in mind that for Aquinas the positive human law is valid only insofar   Philosophy, Culture, and Traditions 38 as it is derived from the natural law ( ST   I-II, q. 95, a. 2; II-II, q. 60, a. 5, ad 1, 2). Therefore, when he speaks of a right someone legitimately has at law, he is necessarily speaking of a right derived from the natural law. In that way, Aquinas speaks implicitly of natural rights, even though he has no explicitly developed doctrine that emphasizes natural rights. For a more explicit doctrine, we need to look at other medieval thinkers. Tierney suggests that we might regard St. Bonaventure as “the first who transplanted Franciscan religious concepts to the alien field of legal theory.” 25  In his  Apologia pauperum  or  Defense of the Mendicants , written in 1269, Bonaventure identifies four types of community of property, and associates a particular type of right with each one. 26  I will speak only about the first type, which is most relevant to our topic. It is said to flow “from the right of natural necessity” ( ex iure necessitas naturae ). It may be exercised by those in extreme need who require the use of things to sustain their natural existence. Their share in property is said to be impossible to renounce because it flows “from a right naturally imprinted on man ( ex iure naturaliter inserto homini ), since he is an image of God and the creature of the greatest dignity, for whose sake all the things of the world were made.” In effect, Bonaventure here asserts that every human person has an inalienable natural right to the necessities of life, which is associated with the special dignity of the person made in God’s image. During the thirteenth century, the notion of a natural right to the necessities of life was not restricted to the Franciscan order to which Bonaventure belonged. Tierney shows us that it was also present in the works of theologians who were in some ways adversaries of the Franciscans, including Godfrey of Fontaines and Henry of Ghent. 27  Here we have the beginnings of a distinctively Christian, or Judeo-Christian, doctrine of the inalienable natural rights of all human beings. The source of Bonaventure’s teaching that man is made in God’s image is not the Roman law, but the first chapter of Genesis, in which the first humans are given dominion over all other living creatures. From its beginnings in the high Middle Ages, the notion of rights belonging by nature to all human persons was developed by Catholic thinkers, including William of Ockham in the first part of the fourteenth century, Jean Gerson after him, and Francisco Suarez in the late sixteenth and early seventeenth centuries. 28  The seventeenth century was the era of the most celebrated theories of natural rights, particularly those of Protestant thinkers such as Hugo Grotius, John Selden, Thomas Hobbes, Samuel Pufendorf and John Locke. At the end of the eighteenth century, the American founders declared that all men are created equal and are endowed by their Creator with certain inalienable rights including life, liberty and the pursuit of happiness. The most influential American civil rights leader of the 1960s was a clergyman named Martin Luther King, Jr. In his “Letter from Birmingham Jail,” King speaks of rights as “God given.” 29  He denounces racial segregation as unjust in virtue of its being contrary to the natural law, since   Religious and Secular Understandings of Rights 39 it does not uplift but rather degrades the human personality. 30  King gives the example of the dignity of the oppressed elderly woman who says, with what he calls “ungrammatical profundity,” “My feets is tired, but my soul is at rest” (11). According to King, all humans have dignity as children of God, and equality as brothers and sisters. He calls the victims of unfair discrimination “the disinherited children of God” (11). In his view, justice involves a recognition of our common bond as God’s children, in conformity with what he calls the “true meaning of the gospel” and “the eternal will of God” (10). However, it is not only among Christians, nor only among Christians and Jews, that the ideas of human dignity and human rights have found favour. The civil rights movement in the United States was preceded in 1948 by a United Nations document, the Universal Declaration of Human Rights, which was passed by a vote of the General Assembly representing nations with a wide variety of cultures and religious traditions. 31  Jacques Maritain, who participated in the drafting of the declaration, reports that the delegates gave different and incompatible reasons for agreeing to it. 32  We might nevertheless find the beginnings of a common justification implicit in the first article, which refers to the human faculties of reason and conscience as the apparent grounds of the equality of all humans in their dignity and rights. THE CRISIS OF RIGHTS LANGUAGE In more recent decades, even as civil rights and human rights have come to occupy a place of greater prominence in jurisprudence and public policy, we have found it no easier to articulate a generally accepted philosophical rationale for our declarations of human rights. Indeed, it may have become more difficult, for we seem to have lost sight of what we have in common as human persons. Writing in the early 1990s, Harvard law professor Mary Ann Glendon observed that a change had taken place in the United States that is “sometimes described as a rights revolution.” 33  Glendon is a critic of the change, as reflected in the title of her book,  Rights Talk: the  Impoverishment of Political Discourse . Her concern is that various new rights are being proposed and proclaimed “without much consideration of the ends to which they are oriented, their relationship to one another, to corresponding responsibilities, or to the general welfare” (ix). She says that American rights talk converges with the language of psychotherapy, and “encourages our all-too-human tendency to place the self at the center of our moral universe” (ix). She does not reject the idea of rights altogether, but instead calls for a renewal of the American rights tradition (xii, 15). Since the Charter of Rights and Freedoms became part of the Canadian Constitution in 1982, the rights revolution, at least in the sense of increased judicial attention to rights, has come to Canada. One of the most interesting issues that has come up in Canadian jurisprudence is the
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