Angilbert (fl. ca. 840/50), On the Battle Which was Fought at Fontenoy

The Law of Christians is broken,
Blood by the hands of hell profusely shed like rain,
And the throat of Cerberus bellows songs of joy.

Angelbertus, Versus de Bella que fuit acta Fontaneto

Fracta est lex christianorum
Sanguinis proluvio, unde manus inferorum,
gaudet gula Cerberi.

Thursday, April 7, 2011

Natural Law's Modern Cousin Germain: Limits on Rights

AS ANYONE FAMILIAR WITH ST. THOMAS'S definition of law knows, "law is nothing else than an ordinance of reason for the common good, made by him who has care of the community, and promulgated."* Finnis attempts to do likewise with the notion of right in the sense that he tries to tie right to the common good. The common good is the end of the law, and if human right is to be somehow tied to law it ought also to be tied to the common good. Finnis thinks that the concept of human rights as modernly received, if "carefully employed," is a valuable contribution to the almost innumerable aspects involved in the "complexities of collaboration, co-ordination, and mutual restraint in pursuit of the common good." NLNR, 210. Care must be taken, however, that the talk of rights does not overwhelm or confuse the "rational process of investigating and determining what justice requires in a given context." NLNR, 211. In other words, one can pull the "rights" card out of the stack too many times and too fast and the discussion of justice and the common good and quickly becoming impeded and sidetracked.

The modern "canonical" lists or "manifestos" of rights** have similar features which Finnis seizes upon upon for his analysis of rights within the context of his natural law system. First, he observes that the rights come in two general forms: affirmative and negative. The former are open ended and hortatory in form: "Everyone has the right . . . " The latter are more narrow and prohibitory in form: "No one shall be . . . " While anyone can turn an affirmative right into a negative right (e.g., "Everyone shall have the right to peaceful assembly" to "No one shall be denied the right to peaceful assembly"), there is a reason to why the rights are sometimes put in affirmative language and sometimes put in negative language. The reason relates to the limitations on rights that are also part of the "canonical" lists of rights. In Finnis's view the limitations to the exercise of rights relate to the exercise of affirmative rights, even if "inalienable," but do not limit the negative or prohibitory formulation of rights which--unless they are formulated to have some internal limitation***--may be said to be absolute. In this view, the affirmative rights are "guiding," and the negative prohibitions are "of conclusory force." In other words, while a policy can be stopped or trumped if violative of a negative prohibition (say, e.g., the prohibition against torture which is absolute) it is not necessarily trumped if it is an affirmative right.

There are four reasons that may limit the affirmatively enumerated rights in the Universal Declaration of Human Rights:

(i) to secure due recognition for the rights and freedoms of others; (ii) to meet the just requirements of morality in a democratic society; (iii) to meet the just requirements of public order in a democratic society; (iv) to meet the just requirements of the general welfare in democratic society.

NLNR, 213 (summarizing Article 29(2))

Finnis finds this last limitation on affirmative rights, "to meet the just requirements of the general welfare in a democratic society," to be "inept." But the ineptness of the limitation is not, in his view, the criticism of Ronald Dworkin, who sees rights as the "individuated political aims" that are not "subordinate to conceptions of 'aggregate collective good' or to the 'general interest or 'general utility.'" NLNR, 213.

Finnis observes that the entirety of human rights lists can be said to be "a way of sketching the outlines of the common good, the various aspects of individual well-being in community." In other words, the term "general welfare" in article 29(2) is either a reference to the common good (in which case it is circular since it is merely a reference to the rights that are nothing other than a formulation of the common good) or it is a reference to a sort of utilitarian "aggregate collective good" notion, in which case it would be a practical limit on the exercise of rights. In this latter instance, however, Finnis says it is objectionable because a consequentialist or utilitarian time of "aggregate good" or benefits/burden calculus is, in his view, unreasonable and impossible of implementation.†

The other limits are not "inept," yet they are challenging in their implementation. There are objections, perhaps more terminological than fundamental, that may be made to the limitations, objections, however, for being terminological are not for all that mere quibbles. For example, Finnis cites to the term "just requirements of morality." In modern parlance, that seems to be focused on sexual standards and mores. However, in a classical view, the "just requirements of morality" would include a vast array of moral requirements outside of sexual morality. How, then, are the "just requirements of morality" to be interpreted? As another example, Finnis addresses the limitation based upon the "just requirements of public order." What the "just requirements of public order" means to one raised in the Anglo-American tradition of law (which generally understands "public order" as "absence of disorder") is something quite different from what those raised in Continental traditions (where the term "public order," ordre public or orden público is a concept "almost as wide as the concept of public policy in common law"). NLNR, 215. Whose concept is to be applied?

Would the terminological problems in the limitations found in article 29(2) be overcome by simply saying that the exercise of rights ought to be limited only by the respect of the rights of others? Finnis thinks that, in practice, such a limit is unworkable because it ignores the communal aspect of rights and imports an individualistic concept of rights that is distilled of the reality that rights can only be exercised in a community.†† So to act like rights are exercised outside of a community and outside the requirements of public morality, public health, public welfare, and public order which are part of the common good is a chimera. It is for this reason that, for all their problems, "the references to morality, public morality, public health, public order, etc., in all the contemporary declarations of rights, are neither conceptually redundant nor substantively unreasonable." NLNR, 216. For this reason, for all their problems and difficulties in interpretation, these limitations on the exercise of rights (public morality, public order, public health, etc.) are not "inept."

And so Finnis concludes:
On the one hand, we should not say that human rights, or their exercise, are subject to the common good; for the maintenance of human rights is a fundamental component of the common good. On the other hand, we can appropriately say that most human rights are subject to or limited by each other and by other aspects of the common good, aspects which could probably be subsumed under a very broad conception of human rights but which are fittingly indicated (one could hardly say described) by expressions such as 'public morality', 'public health', 'public order'.
NLNR, 218.
*See S. T., Iª-IIae q. 90 a. 4 co. ("definitio legis, quae nihil est aliud quam quaedam rationis ordinatio ad bonum commune, ab eo qui curam communitatis habet, promulgata.").
**Finnis cites to the Universal Declaration of Human Rights (1948), the United Nations Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights (1966), the European Convention for the Protection of Human Rights and Fundamental Freedoms (1952).
***Finnis gives as an example article 9 of the Universal Declaration: "No on shall be subject to
arbitrary arrest." The word arbitrary limits the right so that someone may be subject to be arrested if the arrest is non-arbitrary, that is, based upon a reasonable law reasonably executed. Some rights are not so similarly nuanced. For example, article 5: "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment."
See, e.g., Natural Law's Modern Cousin Germain: Distributive Justice, Part 2, and Natural Law's Modern Cousin Germain: Consequences Matter.
††"The fact is that human rights can only be securely enjoyed in a certain sort of milieu--a context or framework of mutual respect and trust and common and trust and common understanding, an environment which is physically healthy and in which the weak can go about without fear of the whims of the strong." NLNR, 216.

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