The Political Community and Inalienable Rights and Duties

THE POLITICAL COMMUNITY is directed to the promotion of the common good. Intimately tied to the common good in a manner that the two cannot be separated are fundamental and inalienable human rights. It follows that the political community has as one of its principal purposes the defense and promotion of these fundamental and inalienable human rights. Here the American Declaration and Catholic social doctrine are in perfect agreement and accord:

We hold these truths to be self-evident, that all men . . . are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men . . . .

Considering the human person as the foundation and purpose of the political community means in the first place working to recognize and respect human dignity through defending and promoting fundamental and inalienable human rights: "In our time the common good is chiefly guaranteed when personal rights and duties are maintained."

(Compendium, No. 388) (quoting John XXIII, Pacem in terris, 273)

Draft of the Declaration of Independence

Though both the Enlightenment thinkers and the Church agree that inalienable or unalienable rights pre-exist the State and relate to the common good,* the Church's social doctrine is broader as it includes not only inalienable "rights," but also the other side of the rights equation: inalienable "duties."

The rights and duties of the person contain a concise summary of the principal moral and juridical requirements that must preside over the construction of the political community. These requirements constitute an objective norm on which positive law is based and which cannot be ignored by the political community, because both in existential being and in final purpose the human person precedes the political community. Positive law must guarantee that fundamental human needs are met.

The political community pursues the common good when it seeks to create a human environment** that offers citizens the possibility of truly exercising their human rights and of fulfilling completely their corresponding duties.

(Compendium, No. 388, 389)

The political community is not a "necessary evil," but it is a positive good and required both as part of the nature of man, who is a political animal. This notion of the political community is as old as Aristotle who taught in his Politics "that the city belongs among the things that exist by nature (τῶν φύσει ἡ πόλις ἐστί), and that man is by nature a political animal (ὁ ἄνθρωπος φύσει πολιτικὸν ζῷον)." (1253a1-3) The political community civilizes man, makes him a man, for a man without a city would in reality either be a beast or a sort of god, and certainly not man. "He who is without a city through nature (ὁ ἄπολις διὰ φύσιν) rather than chance is either a mean sort [beast] or superior to man [god] (ἤτοι φαῦλός ἐστιν, ἢ κρείττων ἢ ἄνθρωπος)." (1253a4-5)

Not only is the political community something that is natural to man, it is, as a matter of experience, something practically required to prevent might--political, economic, or social--from gaining the upper hand over right:

Experience has taught us that, unless these [political] authorities take suitable action with regard to economic, political, and cultural matters, inequalities between citizens tend to become more and more widespread, especially in the modern world, and as a result human rights are rendered totally ineffective and the fulfillment of duties is compromised.

(Compendium, No. 389) (quoting Pope John XXIII, Pacem in terris, 274)

The relationship of the political community to these fundamental human rights and duties is two-fold if it is to accord with the common good.

First, it must defend and promote these inalienable rights and respect the inalienable human duties an equal manner so that one group is not given preeminence over another with respect to these fundamental rights. "It should not happen that certain individual or social groups derive special advantage from the fact that their rights have received preferential protection." (Compendium, No. 390) The political community and its organs are not a res privata, a private thing, but they are a res publica, a public thing.

Second, in exercising its fundamental function--to protect the political community and its organs of government should not interfere with, or inhibit the full expression of these inalienable rights and duties. Indeed, it ought not disrupt the moral ecology of a people. The State must not become a sort of officious and high-handed intermeddler so that "in seeking to protect these [inalienable human] rights," it becomes an obstacle "to their full expression and free use." (Compendium, No. 389)


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*On inalienable or unalienable in the Declaration of Independence see http://www.ushistory.org/declaration/unalienable.htm. Obviously, unalienable rights are placed in opposition to alienable rights. The distinction between alienable and unalienable rights appears to have come from the moral philosopher Francis Hutcheson. In his Inquiry into the Original of Our Ideas of Beauty and Virtue first published in 1725, Hutcheson clearly anticipates the language eventually selected in the Declaration of Independence: "For wherever any Invasion is made upon unalienable Rights, there must arise either a perfect, or external Right to Resistance. . . . Unalienable Rights are essential Limitations in all Governments." Though unmentioned in the Declaration of Independence, but stressed in the Compendium, Hutcheson also linked these unalienable rights with the common good, stating in the same book, that "there can be no Right, or Limitation of Right, inconsistent with, or opposite to the greatest publick Good." Francis Hutcheson, An Inquiry into the Original of Our Ideas of Beauty and Virtue in Two Treatises (Indianapolis: Liberty Fund Press 2004), 192, 193.
**In other words, governments are instituted to protect the "moral ecology" or the "social ecology" of a people. We might borrow from Robert Bellah who defined "moral ecology" or "social ecology" as "[t]he web of moral understandings and commitments that tie people together in community." Robert N. Bellah, et al., Habits of the Heart: Individualism and Commitment in American Life (Berkeley: University of California Press, 1985), 335. Allen D. Hertzke defines "moral ecology" as the "philosophical, empirical, and practice construct" that forms the moral environment in which people live their civil or social lives. Allen D. Hertzke, "The Concept of Moral Ecology," Review of Politics, Vol. 60, No. 4 (Autumn 1998), 629.

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.

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*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.