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.

Monday, October 18, 2010

Jacques Maritain and Natural Law: Distinction Between Possession and Exercise of Human Rights

TO FORGET "THE IMMENSE FIELD of human things which depend upon the variable conditions of social life and on the free initiative of human reason, and which the natural law leaves undetermined." This is the mistake of critics of natural law, at least those critics who see natural law as a sort of natural law code that should be easily fitted between two covers as if it were the Code Napoleon, the work of a short little man instead of the work of God. The positive law, then, one would think would be "a mere transcript traced off from natural law," and a legislator in Congress is like a tourist making a brass rubbing at Westminster Abbey. But the positive law is no such simple rubbing of the natural law because it considers the contingencies in which man-in-society-and-in-history may find himself, and these are highly variable and often present challenging circumstances.

And yet, the positive law, like the ius gentium, is "a prolongation or an extension of natural law, passing into objective zones which can less and less sufficiently be determined by he essential inclinations of human nature." Maritain, 64-65. The movement from natural law, to ius gentium, to positive law is not some sort of discrete, discontinuous movement. Rather, it is a continuous, overlapping process, particularly at the boundaries. "Thus there are imperceptible transitions (at least from the pont of view of historical experience) between Natural Law, the Law of Nations [ius gentium], and Positive Law." Maritain, 65.

What rights of men stem from natural law, what from the ius gentium, and what from positive law?

Examples of rights predicated upon natural law would include:
  • Right to existence (life)
  • Right to personal freedom (liberty)
  • Right to the pursuing of the perfection of moral life (happiness)*
  • Right to private ownership of material goods (property)
Examples of rights predicated upon the ius gentium might include (in Rooseveltian terms):
  • Freedom of nations to live "unburdened by the yoke of want or distress"
  • Freedom of nations to live "unburdened by the yoke of fear or terror"
An example of rights based upon positive law would be "the right of suffrage," which is a determination of the natural law right "of the people to self-government," as applied in a democratic society. Maritain, 66-67.

Natural human rights--that is, those human rights that are directly sourced from natural law--are inalienable. "They are inalienable since they are grounded on the very nature of man, which of course no man can lose." Maritain, 67. While natural human rights are inalienable, they are not, by nature, absolute, infinite, without some boundary. Natural human rights are not the "infinite rights of God." Maritain, 67. By their very nature, natural human rights are bounded. First, and foremost, natural human rights are bounded by the common good since they have an "intrinsic relation to the common good." Maritain, 67. Though natural human rights are bounded by the common good (since natural human rights aim at the common good), there is a variability of natural human rights in terms of what freedom of restriction that the body politic, which represents the common good, can place upon the individual exercise of natural human right. Some like the pursuit of happiness, i.e., the right to moral perfection, cannot be restricted because any restriction would ipso facto be against the common good. Others--say the right of association, or of free speech, or of worship--may be more or less restricted by the needs of the common good in those situations where "the common good would be jeopardized" if unable to restrict them "in some measure." There are thus, in Maritain's view, natural human rights that are absolutely inalienable and natural human rights that are inalienable only substantially. Maritain, 67.

Even absolutely inalienable natural human rights are subject to limitation, if not to their possession, at least with respect to their expression or exercise. Maritain, 67-68. As examples of how the exercise of absolutely inalienable rights might be restricted, Maritain gives the example of a criminal guilty of a capital offense. "If a criminal [who has possession of the absolutely inalienable right to life] can be justly condemned to die, it is because by his crime he has deprived himself, let us not say of the right to live, but of the possibility of justly asserting this right." Maritain, 68. Thus, as in the example of a criminal who offends the common good, the exercise of even absolutely inalienable rights may, in the proper case, be restricted because of one's actions against the common good.

Restrictions on the exercise of inalienable natural human rights may occur for reasons other than an individual's actions. Contingencies of social structures, caused by "vice or primitiveness," may also restrict the exercise of inalienable natural human rights. As an example, Maritain cites the right to "receive the heritage of human culture through education." Maritain, 68. The exercise of such a right "is subject to a given society's concrete possibilities." Indeed, to demand that such right be exercised in some circumstances may even be "contrary to justice," if the claim of such a right "for each and for all hinc et nunc [here and now]," can only be "realized through the ruining of the social body" or the "encroaching upon major rights." Maritain, 68, 69. Such an exercise of a natural human right in such a context would be ruinous and unjust. Yet the possession of such natural human right, though it may not at any particular time be exercised, serves as a sort of spur to social progress:
[T]he basis for the secret stimulus which incessantly fosters the transformation of societies lies in the fact that man possesses inalienable rights but is deprived from the possibility of justly claiming the exercise of certain of these rights because of the inhuman element that remains in the social structure of each period.
Maritain, 68.

*The "pursuit of happiness" is nothing other than the "pursuit of the perfection of moral and rational human life." The "pursuit of happiness here on earth is the pursuit, not of material advantages, but of moral righteousness, of the strength and perfection of soul, with the material and social conditions thereby implied." Maritain, 77-78 & n. 38. Not to be forgotten, however, is "the right to the pursuit of eternal good," for "without this pursuit there is no true pursuit of happiness." Maritain, 78.

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