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.

Sunday, October 17, 2010

Jacques Maritain and Natural Law: Natural Law and Human Rights

THE NATURAL LAW IS THE LAW THAT BUTTRESSES individual humans their rights. For Maritain, there is no division, no separateness between natural law and human rights."The same natural law which lays down our most fundamental duties, and by virtue of which each law is binding, is the very law which assigns to us our fundamental rights."
--Jacques Maritain
Human rights, sprout forth, as it were from the soil of natural law. "The same natural law which lays down our most fundamental duties, and by virtue of which each law is binding, is the very law which assigns to us our fundamental rights." Maritain, 48.For Maritain, just like there is no contradiction between law and right, there is no contradiction between duty and right. Indeed, human rights are not possible without the foundation of the natural law, which necessarily also includes the eternal law and God:

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

Maritain, 58-59. What is a right? Elsewhere,* Maritain gave us a rather lengthy, and perhaps a little clumsy, definition of right. But it has the merit of clearly referencing both the natural law and the eternal law as a foundational sine qua non of human rights. This link is wholly ignored by many who are most drunk on "rights talk." This definition is cited by the editors of the book Natural Law: Reflections on Theory & Practice, and merits quotation here:
A right is a requirement that emanates from a self with regard to something which is understood as his due, and of which the other moral agents are in conscience not to deprive him. The normality of function of the creature endowed with intellect and free will [i.e., the natural law] implies the fact that this creature has duties and obligations; it also implies the fact that this creature possesses rights, by virtue of his very nature--because he is a self with whom the other selves are confronted, and whom they are not free to deprive of what is due him. And the normality of functioning of the rational creature is an expression of the order of divine wisdom.
Maritain, 60 n. 27.

The "Chain" of Law and Right

The dependence of the rights of man on the rights of God is expressed by Maritain by an interesting expression: "[E]very right possessed by man is possessed by virtue of the right possessed by God, Who is pure Justice, to see the order of His wisdom in being respected, obeyed, and loved by every intelligence." Maritain, 60. There is a Scriptural analogue to this philosophical and jurisprudential truth: "Truly I say to you, to the extent that you did it to one of these brothers of Mine, even the least of them, you did it to Me." (Matt 25:40) To respect authentic human rights is the same as respecting the rights of God. Human right is thus inextricably tied to natural law, which is inextricably bound to eternal law, in a chain of law and right, as it were.

Positivism, however, rejects this triple linkage: human right-natural law-eternal law. For them, there is no "ought" in the order of the world and in the nature of man, and so all is "fact." Similarly, in either idealism or a materialism of absolute immanentism, all is "fact." Philosophies that are built upon positivism or immanentism, ideal or materialistic, are "powerless to establish the existence of rights which are naturally possessed by the human being, prior and superior to written legislation and to agreements between governments, right which the civil society does not have to grant but to recognize and sanction as universally valid . . . ." Maritain, 61. "Logically," Maritain observes, "the concept of such rights can seem only a superstition to these philosophies." Maritain, 61. Hence, Justice Oliver Wendell Holmes, that positivist jurist who stained American law with his vicious jurisprudence, deprecated the concept of natural law and "Every right possessed by man is possessed by virtue of the right possessed by God."
--Jacques Maritain
natural right in the common law, calling such a notion the belief that law was "a brooding omnipresence in the sky."** For the concept of human rights to make any sense, there must be a normative reality in the existential, created order. The order of nature, must not merely be considered a "factual datum in things," but must be viewed as existing in things as a requirement of their essence, as "demands to be realized" by them and "which imposes itself upon our minds to the point of binding us in conscience." There must be a notion of transcendence, of divine creation, of divine ordering in such creation for the notion of human right to have any basis. The notion of right, therefore, requires the notion of Eternal Law:

[T]he fact that things participate in an ideal order which transcends their existence and requires to govern it, would not be possible if the foundation of essences themselves and eternal truths, did not exist in a separate Spirit, in an Absolute which is superior to the world, in what perennial philosophy calls the Eternal Law.

Maritain, 61. There can be no "ought" in the order of things without it; only "is." A philosophy "which recognizes Fact alone," cannot fathom a notion of Value "objectively truth in itself," and not merely subjective--what Justice Holmes called our "can't helps."

"How, then, can one claim rights if one does not believe in values?" Maritain asks. He answers the question for us: "If the affirmation of the intrinsic value and dignity of man is nonsense, the affirmation of the natural right of man is nonsense also." At least Justice Holmes was true to his principles execrable as they were. Founded on his philosophical materialism, on his denial of any "oughtness" or "value" in the world about him, Holmes's jurisprudence was nothing but the fruit of where his steely logic led him en vertu des présentes, in the premises. And so, rather than be inconsistent, the brilliant if misguided jurist denied any such thing as justice and right. Consistency, of course, is not truth, just consistency. In his foundational jurisprudence, Holmes may have been consistent, but he was consistently wrong, and their ain't any virtue in that.

*In Maritain's papers conserved at the Cercle d'Etudes Jacques & Raïssa Maritain in Kolbsheim (France).
**Some of Holmes's outrageous statements have been gathered together in a prior posting. See The Natural Law's Devil: Justice Oliver Wendell Holmes.

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