Human Rights are Given Not Taken

THE CHURCH HAS ADOPTED INTO HER TEACHING the modern notion of human rights with some modifications. Understood correctly through incorporation into human nature and natural law, a concept of human rights can be reconciled quite felicitously with the traditional social doctrine of the Church. Unfortunately, the concept of human rights is often misunderstood by its most vociferous advocates, and so we have such anomalies and absurdities such as the view that men have a right to define marriage as they see fit, that women have a right to an abortion, that men have a right to take their own life it it seems to them (or to others) too burdensome.

In the Church's view, human rights are not something that man creates out of whole cloth, on mere subjective whim, by social contract. Man is not the measure of human rights. God is the measure of human rights. In the eyes of the Church, human rights are based upon an objective moral order. Most fundamentally, human rights are built upon human dignity, which, as we may recall, comes from the fact that man is made in the image and likeness of God and is called to communion with God. The "roots of human rights," the Compendium of the Social Doctrine of the Church observes, "are to be found in the dignity that belongs to each human being." (Compendium, No. 152)

Among the incessant, frequently irresponsible and cacophonous "rights talk," how do we distinguish true and authentic human rights from their counterfeit? The Church directs us to two sources: reason and nature, on the one hand, and Revelation, on the other. "The natural foundation of rights appears all the more solid when, in the light of the supernatural, it is considered that human dignity, after having been given by God and having been profoundly wounded by sin, was taken on and redeemed by Jesus Christ in his incarnation, death, and resurrection." (Compendium, No. 153)

The fundamental source of human rights is thus human nature, which is to say, that nature as created by God. God, then, may be said to be the ultimate guarantor as he is the ultimate foundation of human rights. Human rights are therefore different from civil rights, the latter being based upon the positive laws of the State. What the State gives, the State may give away. But human rights are not given and taken.


Human rights are simply given by God. They are not to be taken by the State or by any human being without giving offense to God. "The ultimate source of human rights is not found in the mere will of human being, in the reality of the State, in public powers, but in man himself and in God his Creator." (Compendium, No. 153)

Since human rights are given by God, they enjoy a four-part quality. They are universal. They are inviolable. They are inalienable. They are indivisible.

Human rights are universal. Inasmuch as they are founded upon human nature, they are "present in all human beings, without exception of time, place, or subject." (Compendium, No. 153) These rights, like the natural law upon which they are ultimate based, apply equally to all humans irrespective of condition.

Not only are human rights universal, they are also inviolable. They are inviolable because "they are inherent in the human person and in human dignity." Other humans and human institutions, therefore, have an obligation to recognize the inviolability of human rights.

Finally, human rights are inalienable. "No one," the Compendium states quoting John Paul II, "can legitimately deprive another person, whoever they may be, of these rights, since this would do violence to their nature." (Compendium, No. 153)

The universal, inviolable, and inalienable quality of human rights means that they must be defended "not only individually, but also as a whole." They are therefore indivisible. They are a sort of total package, encompass man in his integrity, covering both body and soul, both "material and spiritual spheres," from the first beginning of his life to his natural death.

The indivisibility of human rights means that we are not entitled to select some human rights and ignore others or promote one to the expense of another. "The integral promotion of every category of human rights is the true guarantee of full respect for each individual right." Moreover, the indivisibility of human rights requires that they be recognized to "apply to every stage of life and to every political, social, economic, and cultural situation." (Compendium, No. 67)

In terms of identifying the more important of these human rights, the Compendium draws from John Paul II's social encyclical Centesimus Annus:

• "the right to life, an integral part of which is the right of the child to develop in the other's womb from the moment of conception"
• "the right to live in a united family and in a moral environment conducive to the growth of the child's personality"
• "the right to develop one's intelligence and freedom in seeking and knowing the truth"
• "the right to share in the work which makes wise use of the earth's material resources, and to derive from that work the means to support oneself and one's dependents"
• "the right freely to establish a family, to have and to rear children through the responsible exercise of one's sexuality"
• the right of religious freedom, "understood as the right to live in the truth of one's faith and in conformity with one's transcendent dignity as a person."
  

(Compendium, No. 155)

Particularly in the dissolute West, we speak often of "rights," but rarely of "duties." And yet for the Church, rights and duties are correlative principles. Rights and duties are "inextricably connected." The are mutually complementary. They are "indissolubly linked." (Compendium, No. 156) For every right there is a corresponding duty. Human rights are like coins, they have an opposite face which shows a duty.

To speak only of rights while disregarding duties is irresponsible. They are, using Pope John XXIII's image from his encyclical Pacem in terris, akin to someone who builds with one hand and destroys with the other. "The Magisterium underlines the contradiction inherent in affirming rights without acknowledging corresponding responsibilities." (Compendium, No. 156) The Church's notion of human rights is clearly different from that notion espoused by modern liberalism or moral relativism, which tend to think only of rights, and never of duties.

Human rights apply to individual persons, but they also apply to human communities, including peoples and nations. They are therefore important governors of relations between peoples and nations. International law must recognize human rights. Indeed, the "rights of nations are nothing but 'human rights fostered at the specific level of community life."' (Compendium, No. 157)

There is a sort of irony in the modern preoccupation with human rights in that there is a huge credibility gap between word and deed, between the lip service given to rights and the "painful reality of violations, wars and violence of every kind, in the first place, genocides and mass deportations, the spreading on a virtual worldwide dimension of every new forms of slavery such as trafficking in human beings, child soldiers, the exploitation of workers, illegal drug trafficking, prostitution." (Compendium, No. 158)

With respect to human rights, we are like the Pharisees of old of whom Jesus observed: "for they say, and do not do." (Matt. 23:2) The Compendium calls this a "gap between the 'letter' and the 'spirit' of human rights."

We must therefore work towards closing this gap and assuring a greater correlation between word and deed, letter and spirit. But there is more.

We are called to perform acts of supererogation or sacrifice when it comes to rights: "The Church's social doctrine, in consideration off the privilege accorded by the Gospel to the poor, repeats over and over that the 'the more fortunate should renounce some of their rights so as to place their goods more generously at the service of others." (Compendium, No. 159) We must remember Christ's words: "as long as you did it not to one of these least, neither did you do it to me." (Matt. 25:45)

The Compendium also recognizes that an excessive affirmation of equality "can give rise to an individualism in which each one claims his own rights without wishing to be answerable for the common good." (Compendium, No. 158) There ought to be less self-regarding "mine, mine, mine," and more other-regarding "yours, yours, yours."

Properly understood, human rights are part of the evangelical message. They are founded upon the human nature created by God and represent a recognition of that order of things found in God's plan for man and his world.

Just like someone who knowingly and intentionally violates the natural law--unless he repents--cannot be saved,* so someone who knowingly and intentionally violates the fundamental human rights of another person--unless he repents--cannot be saved. "If a man say, I love God, yet he hates his brother, he is a liar. For anyone who does not love his brother, whom he has seen, cannot love God, whom he has not seen." (1 John 4:20)

How, then, can human rights be anything else than part of the message of the Gospel? The Church sees the promotion of human rights as part of her evangelical duties. "This pastoral commitment develops in a twofold direction: in the proclamation of the Christian foundations of human rights and in the denunciation of the violations of these rights." (Compendium, No. 159)

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*See Compliance with the Natural Law Essential For Salvation which discusses Cardinal Archbishop Raymond Burke's speech at Human Life International's Prayer Congress for Life, October 9, 2010. ("Obedience to the demands of the natural law is necessary for salvation, and, therefore, the teaching of the natural law is within the authority of the Magisterium and part of its solemn responsibility.")

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.
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*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.

Avoiding Secularist Minimalism: Jacques Maritain, Part 1

GOD IS THE AUTHOR AND THE PRESERVER of nature. "He rules the world with truth and grace," we sing at Christmas, a world of his creation, under the umbrella of law of his divine providence. God is not God of the world of grace only. God is God of the world of nature also. "Let heaven and nature sing."

For those who are advocates of the classical natural law doctrine, including but not limited to Catholic Christians, nature is thus "a mode of the divine governance." Long, 143. Indeed, the laws of nature and the natural moral law are, in a very essential and real manner, a participation in the eternal law itself. Yet how do we deal with agnostics and atheists who by definition do not accept such a theonomic view of nature? How, moreover, moving beyond philosophy, does one deal with the non-Christian or the agnostic or atheist in the realm of the political, the social life of man in the polis? What role does the natural law play? Does the entirety of the natural law govern public discourse or just a part of it? And if just a part of it, what part?

These questions indeed poses a serious challenge to the advocate of a classical notion of natural law, one that includes the theonomic element that God rules through nature, a rule which is exhibited and intelligible irrespective of confessional doctrines or personal predilections. It is especially problematic for one who believes, like Maritain himself, that that "in practical moral matters, natural truth needs to be subalternated to revelation," and must consider man as he is concretely. Specifically, the natural law must accommodate at least two facts that are known through revelation alone: (i) man's original sin and its effects, and (ii) the obediential potentiality of nature to the whole order of grace, which means an openness to the end of supernatural beatitude. Long, 144. How does someone in in this philosophical, political, and jurisprudential stream converse with, find common cause and socially cooperate with someone who is without such stream? Some from the natural law stream, including Jacques Maritain, have advocated some sort "minimal practical consensus,"* one based largely on the language of the world, namely that of "human rights."** The problem, however, seems to be that in trying to accommodate to the language of "rights," we are leaving out part of the natural law. And by leaving out part of the natural law from public discourse we are setting ourselves up for practical failure.***

Jacques Maritain

Using "human rights" as a region of minimal practical consensus is not the panacea that Maritain optimistically and perhaps even naively considered it to be. One immediately foreseeable problem, of course, is defining what this "minimal practical consensus" is. If it is defined by the Thomist, it may be one thing. If it defined by the secularist, it may be another. If it is defined by and Islamist, it is another thing entirely. In some ways, Maritain's optimism was a matter of historical accident. The consensus which existed in the 1950s and 1960s with respect to "human rights," was largely an accidental holdover of Christendom mixed it with Western liberalism at the height of its global influence. This consensus which gave Maritain such false hope has virtually evaporated as "human rights" have become progressively further removed from any natural law base. How do we achieve consensus when "human rights" are defined to incorporate a right to artificial contraception, to homosexual marriage, to abortion and to other moral enormities? "Human rights" have not provided a stable base from which to begin public discourse.

There are other problems or dangers associated with relying upon a "minimal practical consensus" as a means to encapsulate the prudential and consensus required to have a working social and political life. It tends to privatize the role of revelation and Christian faith, or even theism and natural religion generally, ostracizing them from the public square because it is not part of the "minimal practical consensus."*** The effect on the Christian, moreover, is problematic because it suggests the the believer that his Faith is something that ought to be closeted, privatized. Yet isn't the Christian under compulsory duty to resist such bracketing of beliefs? Predicate super tecta! The Christian is under a duty to proclaim the truths of the Gospel from the housetops right into the public square. (Matt. 10:27). This is not the language of "minimal practical consensus."

In his book Natura Pura, Steven A. Long points to other fundamental problems associated with relying on "rights" as a minimum practical consensus. First, it by definition excludes the theoretical or speculative (metaphysical) from the area of consensus. This by definition excludes the natural law from the consensus because the core of natural law rests upon certain theoretical or speculative metaphysical truths. Second, relying on "rights" is not conducive to any real political discourse, but to incessant political brawling without referee. Rights alone cannot answer the problem, since solutions require not only the acceptance of rights, but also acceptance of an order of ends to properly hierarchize and define those rights. When rights compete, who is to determine which right takes precedence, and on what basis? Most rights are not absolute, and who is to determine what the reasonable scope of a right is, and on what basis?† Indeed:

[T]o be indirectly opposed to the natural ordering that must contextualize the understanding of rights is to be actively disposed to deny human dignity and to act against genuine or authentic human rights (i.e., against just claims that are true in light of the essential hierarchy of human ends, and in relation to the circumstances pertinent to the species or type of the claim.)

Long, 147.

The natural law, specifically the virtue of natural justice, imposes a duty to acknowledge God naturally known--as First Cause, Final End, and Provident--and to give Him thanks both in private and public life. Corollary to this is conception of man as ordered to God, a theoretical or speculative metaphysical truth which imposes itself upon the public square with full rigor. Reason demonstrates that no created or finite good can compel man's will, a "natural datum on which the obediential capacity of the will to be further ordered to God is predicated." Long, 146. Failure to abide by this natural duty, both public and private, is an injustice of the first order. Yet where in the "human rights" consensus do we find anything remotely like this recognized? Indeed, by very definition "human rights" excludes this fundamental obligation of justice. Long asks the rhetorical question:

Does not the state need at least to acknowledge the truth regarding the moral order, as a condition for prudential judgment even of the facts with respect to legislation to be considered, or with respect to cases that come before the bench?

Long, 146. What the natural law obliges, modern "human rights" ignores. That is why, "without invoking the claims of invincible ignorance, principled opposition to theism is always or for the most part going to imply opposition to the natural law." Long, 147.

But the problem goes even further. There are two revealed truths that cannot be ignored by natural law theorists since these revealed truths are fundamental to a sound understanding of the natural law. The first is the Fall of man. The second is the Redemption of man. Without these, we fail to have a sufficient account of the moral situation of man. The "natural law as such . . . requires for its fullest concrete application some reference to the revealed truth," at least this far. Long, 147.

[T]he entire natural order is further ordered by and in grace, and so the effects of the Fall and of grace are pertinent to practical judgment. It is also true that whatever is directly contrary to man's ultimate end is indirectly contrary to the ordering of natural ends that is presupposed to grace. (It is, after all, a precept of the natural law to do whatever He tells you, to use the words of the Blessed Virgin Mary at the Wedding Feast of Cana.)

Long, 147.

(continued)
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*This sort of accommodation is also advocated by those who are entirely disdainful of a natural law philosophy, e.g., the liberal philosopher John Rawls and his notion of "public reason" which seeks to keep out of the public square "comprehensive doctrines" and thereby reach a practical consensus and form of political life in a liberal state and a pluralistic society. Rawls's particular formulation is rather disingenuous, as it is designed to ostracize natural law philosophy and promote the a "comprehensive doctrine" of secular liberalism. Rawls's particular theory has been addressed and criticized by Lex Christianorum (relying on the work of Robert P. George) in three postings: How Liberalism Cuts Out the Natural Law: John Rawls's Sleight of Hand, Part 1, How Liberalism Cuts Out the Natural Law: John Rawls's Sleight of Hand, Part 2, and How Liberalism Cuts Out the Natural Law: John Rawls's Sleight of Hand, Part 3.
**We have treated Maritain's notion of natural law and natural rights extensively in this blog. The entirety of postings may be reviewed by accessing those posts with the label Jacques Maritain and Natural Law and Jacques Maritain and Human Rights.
***Not to mention that we are probably being faithless to the divine injunction: Euntes ergo docete omnes gentes! Go therefore teach ye all nations! (Matt. 28:19)
****This, of course, is not at all what Maritain would have intended. "Maritain would have abhorred . . . the principled closure of the public realm to any Christian or even theistic reference whatsoever." Long, 144.
†Long observes that the reason why rights need something beyond them to determine what he calls the "trumping order" between rights and to determine their prudential application under various circumstances is because "rights" are not primary concepts, but are derived concepts. From whence are they derived? From the natural law, of course. And so it is back to that natural law that one must turn to hierarchize the rights, to understand their scope and purpose, and to determine their prudential application under the ever-changing circumstances man finds himself.

Jacques Maritain and Natural Law: Historical Excursus on Human Rights

HUMAN RIGHTS HAVE A FOUNDATION, a foundation that their most rabid advocates, or perhaps better, those ideologues who have captured the concept of human rights so as to exploit it, seem to want to hide, forget, or suppress. The ideologues--advocates of abortion rights, homosexual rights, to name but two of such groups--want to take the notion of human rights, put a chain around its neck, and treat it as a beast of burden, goading it to do things it has no business doing, parading it around in a cage, like Tamerlane did to the captured Sultan Bajazet. But to a philosopher such as Jacques Maritain, the philosophical or rational foundation of human rights is of great interest. It is of great interest because it is what explains the importance, even immutability of human rights. At the same time, it delineates their limits. Were the foundations of human rights properly understood, the liberals, the libertines, the radical progressives, the positivists would find themselves without warrant to be spouting their "rights talk." Why? Because, "[t]he philosophical foundation of the Rights of man is Natural Law." Maritain, 53. Not, however, the "natural law" of the Jacobins and French philosophes or of Kant and Hegel, but the "natural law" of Cicero, of St. Paul, of St. Augustine, and of St. Thomas Aquinas.

Like the term "human rights," the term "natural law" was captured and misused by ideologues, ideologues of both conservative and revolutionary leanings, so much so that Maritain exclaims in frustration: "Sorry that we cannot find another word!" Maritain, 53. But we ought not to yield the word, just like we ought not to yield on the word Madonna because of its capture and exploitation by the aging, yet ever-confused, Madonna Louise Ciccone.* We ought to recapture it from those who seek to appropriate it, and learn what it is and what it is not. We must learn to distinguish between the doctrine and theories of the natural law--some of which are truer than others, and some of which may be plain false--and the natural law itself which is immutable.

As we discussed in earlier postings on Maritain, there was a change in the concept of natural law beginning in the 17th century, though it had earlier roots, wherein God and the eternal law were separated from the natural law, except perhaps being a sort of distant, Deistic guarantor of last resort. The natural law, thus, appeared shorn from its moorings, the nature of man and his reason, bobbed up and down on the waves to look fallible, fickle indeed. Ironically, the notion of nature and of human reason became to be thought of as "Nature with a capital N and Reason with a capital R," as if they were "abstract divinities sitting in a Platonic heaven." Maritain, 55. The result of putting Nature and Reason in an independent, idealistic throne, in raising them to the Pantheon as if they were gods, was an unrealistic, untenable, doctrine:

As a result the consonance of a human act with reason was to mean that that act was traced from a ready-made, pre-existing pattern which infallible Reason had instructed to lay down by infallible Nature, and which, consequently, should be immutably and universally recognized in all placed of the earth and at all moments of time.

Maritain, 55. Worse, these wannabe Euclids of morality believed that moral calculation could be done with mathematical or geometric precision. Calculating morality was no different that calculating the circumference of a circle given its radius. Read the fantasies of Condorcet in his Observations de Condorcet sur le vingt-neuvième livre de l'Esprit de Lois:

Since truth, reason, justice, the rights of men, and the interests of property, liberty, and security are the same everywhere, it is difficult to understand why all provinces of a state, and for that matter all states, should not have the same criminal laws, the same civil laws, the same laws regulating trade, etc. A good law must be good for all men, in the same way that a true proposition is correct for everybody.

Comme la vérité, la raison, la justice, les droits des hommes, l’intérêt de la propriété, de la liberté, de la sûreté, sont les mêmes partout, on ne voit pas pourquoi toutes les provinces d’un État, ou même tous les États, n’auraient pas les mêmes lois criminelles, les mêmes lois civiles, les mêmes lois de commerce, etc. Une bonne loi doit être bonne pour tous, comme une proposition vraie est vraie pour tous.

Cf. Maritain, 55 (who quotes Condorcet partially without reference). It is quite apparent that Condorcet forgot the fundamental Aristotelian principle so trenchantly express by William Blake in his "Marriage of Heaven and Hell": "One Law for the Lion & Ox is Oppression". It is inconceivable, and an untenable principle, that law should be the same "for man of the age of cave-dwellers as well as for man of the age of the steam engine, for nomadic tribes as well as for agricultural peoples." Maritain, 55. This sort of Procrustean view of law is, in a word, stupid.

What was the "fatal mistake" of these thinkers in Maritain's view?

Natural law--which is within the being of things as their very essence is, and which precedes all formulation, and is even known to human reason not in terms of conceptual and rational knowledge . . . [was improperly] conceived after the pattern of a written code, applicable to all, of which any just law should be a transcription, and which would determine a priori and in all its aspects the norms of human behaviour through ordinances supposedly prescribed by Nature and Reason, but in reality arbitrarily and artificially formulated.

Maritain, 56.

It was this "fatal mistake" that caused this absurd doctrine as espoused by Condorcet and his ilk, and caused every man's reason and every man's nature to be promulgated as law. Thus:

As Warnkoenig has shown, eight or more new systems of natural law made their appearance at every Leipzig booksellers' fair since 1780. Thus Jean Paul Richter's ironical remark contained no exaggeration: Every fair and every war brings forth a new natural law.

Maritain, 56 (quoting Heinrich A. Rommen's The Natural Law).

These doctrines of natural law--and, like the Gerasenes demon, their name is legion--so attacked by positivists are but straw men. No wonder they burned up in a conflagration once the flames of Hume's skepticism and Austin's positivism touched them.

But the problem got even worse. Instead of re-attaching this emancipated-and-then-divinized human reason and human nature to their eternal source to remedy the problem wrought by the thinkers of the earlier century, thinkers such as Leibniz and Kant tried to solve the problem by emancipating and then divinizing the human will. Typical of liberal thinking: to liberalize still further as a solution to the problems that their initial liberalization caused. "So that finally the human Will or human Freedom" was "also raised to Platonic self-subsistence in that intelligible, though unreachable, empyreal world . . . which was to replace God in actual fact as supreme source and origin of Natural Law." Maritain, 56-57. After these thinkers, "Natural Law was to be deduced from the so-called autonomy of the Will." Maritain, 57. So we have such inanities spouted by even such thinkers as Kant and Rousseau:

"A person," Kant wrote, "is subject to no other laws than those which he (either alone or jointly with others) gives to himself." In other words, man must "obey only himself," as Jean-Jacques Rousseau put it, because every measure or regulation springing from the world of nature (and finally from creative wisdom) would destroy at one and the same time his autonomy and his supreme dignity.

Maritain, 57.**

Such a doctrine is fatal to law, and is fatal to the notion of right. "The rights of the human person," under these notions, "were to be based on the claim that man is subject to no law other than that of his own will and freedom." Maritain, 57. This is self-law, which is no law at all. And so, Maritain appropriately ends his quick historical analysis with this conclusion, which, though lengthy, merits being quoted in full:

This philosophy built no solid foundations for the rights of the human person, because nothing can be founded on illusion: it compromised and squandered these rights, because it led men to conceive them as rights in themselves divine, hence infinite, escaping every objective measure, denying every limitation imposed upon the claim of the ego, and ultimately expressing the absolute independence of the human subject and a so-called absolute right--which supposedly pertains to everything in the human subject by the mere fact that it is in him--to unfold one's cherished possibilities at the expense of all other beings. When men thus instructed clashed on all sides with the impossible, they came to believe in the bankruptcy of the rights of the human person. Some have turned against these rights with an enslaver's fury; some have continued to invoke them, while in their inmost conscience they are weighed down to scepticism which is one of the most alarming symptoms of the crisis of our civilization.

Maritain, 57-58.

To which I can only say, "Amen, Brother Maritain!"


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*Google "Madonna," especially under an image search, and see when you first get a hit on Our Lady, and not the notorious pop singer.
*Maritain quotes Kant's Introduction to the Metaphysicas of Morals, IV.24 and Rousseau's The Social Contract, I.6. The entirety of Kant's quote is:

A person is a subject whose actions can be imputed to him. Moral personality is therefore nothing other than the freedom of a rational being under moral laws (whereas psychological personality is merely the ability to be conscious of one's identity in different conditions of one's existence). From this it follows that a person is subject to no other laws than those he gives to himself (either alone or at least along with others). (Mary J. Gregor, trans.)

Person ist dasjenige Subject, dessen Handlungen einer Zurechnung fähig sind. Die moralische Persönlichkeit ist also nichts anders, als die Freiheit eines vernünftigen Wesens unter moralischen Gesetzen (die psychologische aber bloß das Vermögen, sich der Identität seiner selbst in den verschiedenen Zuständen seines Daseins bewußt zu werden), woraus dann folgt, daß eine Person keinen anderen Gesetzen als denen, die sie (entweder allein, oder wenigstens zugleich mit anderen) sich selbst giebt, unterworfen ist.

The full cite to Rousseau is:

"The problem is to find a form of association which will defend and protect with the whole common force the person and goods of each associate, and in which each, while uniting himself with all, may still obey himself alone, and remain as free as before." This is the fundamental problem of which the Social Contract provides the solution. (G.D.H. Cole, trans.)

Cette difficulté ramenée à mon sujet peut s'énoncer en ces termes: "Trouver une forme d'association qui défende et protège de toute la force commune la personne et les biens de chaque associé, et par laquelle chacun s'unissant à tous n'obéisse pourtant qu'à lui-même et reste aussi libre qu'auparavant." Tel est le problème fondamental dont le contrat social donne la solution.

The Disfigured Face: Ontological Morality and Human Rights

THE "NATURE" OF ARISTOTLE AND OF AQUINAS which is the source of the natural law is different from the denuded, one dimensional, materialistic "nature" of the modern day sciences. If the "nature" as understood by Aristotle and Aquinas were an apple, the "nature" as understood by the modern scientist is but a peel. The modern notion of "nature" is lacking both fruit and seed. It is tasteless, fruitless. It is bland of value, composed only of empirical fact. There is no "ought" in it; there is only "is" in it. The Aristotelian/Thomistic concept of nature had and element of design, but not the design of some complex watch, but the design of a quasi-living organism, as it had an inner entelechy, a desire, a yearning toward the God that had brought it out of nothing and that constantly preserved it in being. The entire cosmos, after all, even its raw matter, the chaotic matter over which the Spirit hovered, was a creature of God. God did not act arbitrarily, without reason in creation ex nihilo. It followed that nature had a purpose, a goal, an end, a telos (from the Greek word τέλος, a word meaning "purpose," or "goal," or "end"). Aristotle and St. Thomas Aquinas (and, for that matter, the entirety of the perennial tradition in between them and after them until this notion was rejected as part of the Enlightenment, Liberal, and Modernist project) was teleological. In this regard, Cortest quotes Ernest Fortin:

The heart of the Aristotelian enterprise is the well-known and now almost universally contested thesis that nature acts for an end.

This teleological view of nature of Aristotle was shared by St. Thomas; however, he nestled it into his unique metaphysics or ontology, which distinguished essence from existence, and which found that existence was the preeminent good, in fact the source of both the true and the good, of perfection. In St. Thomas's view, good and being are exchangeable terms. If a thing is good, it subsists in the fullness of its being (existence); that is, it conforms entirely to its nature which is informed by its end. To the extent that it fails to abide by its being (existence), to the extent that it misses the mark that is its end and which is defined by its nature, it suffers (or does, if the creature has free will and knowledge) evil. St. Thomas, it hardly need be said, also recognized the truths of revelation, particularly those that related to the dignity of man as a creature of God and as a result of his ultimate calling (union with God in the beatific vision). His understanding of the end of nature was informed by the Evangelical revelation.

Aristotle had no inkling of the Gospel. It is for this reason that, "[a]lthough both Aristotle and Aquinas construct ethical and moral systems on metaphysical principles, they have entirely different conceptions of the value of human life." Cortest, 18. So different is that conception, that Aristotle and St. Thomas stand apart each other by a great divide. It is the philosophical analogue of the historical divide between B.C. and A.D. The Lord had not walked among us when Aristotle did his thinking. Aristotle promoted (or at least excused) the killing of deformed children and human chattel slavery, something unthinkable to St. Thomas. So massive is the difference the Gospel made to the Aristotelian underlayment of St. Thomas Aquinas, that if Aristotle alone was relied upon to build a natural law, he would be unable to provide us with a workable morality. "I would argue," says Cortest, "that no credible doctrine of human rights can be based exclusively on an Aristotelian anthropology, since nature shows no compassion for the weak, the innocent, or the 'deformed.'" Cortest, 19. Cortest is right. As great as Aristotle was, he lived without Gospel light, and his teaching is, next to the sublime values of the Gospel, barbaric in some aspects. To return to raw Aristotelianism without the temper of the Gospel would be a giant leap backwards in human development.

While indisputably St. Thomas had a high view of human dignity, it would be a mistake to attribute to him, as some scholars do (John Finnis or Brian Tierney come readily to mind), the modern notion of "human rights." The most fundamental chasm exists between St. Thomas's traditional notions and the modern notions of human right. That chasm arises out of the excessive individualism of modernity, an individualism so excessive that it advances rights that are idiosyncratic, even against human nature and inimical to communal life. St. Thomas always saw rights ensconced within the greater good of the community, and never apart from duty to God and neighbor. He never saw rights as something inhering in free-standing, atomic and autonomous individuals. "In Thomas's system, ius or right is understood in terms of justice, which is itself always understood of others." Cortest, 21. In short, St. Thomas saw ius (right) as coming out of an I-Thou and I-You relationship, one of responsibility to God and to fellow humans. Moderns, on the other hand, see right as coming from the seagull philosophy in Pixar's (Disney's) movie Finding Nemo: "Mine, mine, mine, mine . . . ." I rather think that St. Thomas would have been impatient with the modern advocates of human rights, who now claim things like the right to abortion, the right to homosexual marriage, among a whole slew of rather questionable "rights." Like Nigel in Finding Nemo, he would have told the incessant advocates of autonomy to shut up. To claim St. Thomas as a sort of precursor to the modern notion of rights is not fair to St. Thomas's thought.

The "Seagull Philosophy" of Modern Right: Mine, mine, mine . . .

Three things are without question shared between St. Thomas and Aristotle: (1) a teleological view of nature, (2) a notion that positive laws, or laws particular to the city-state, are distinct from universal or natural law, and, finally, (3) that this natural or universal law is not to be separated from the notion of a natural or universal justice. Cortest, 14, 22.

From St. Thomas, Cortest jumps to the Dominicans at the School of Salamanca, focusing on the works of Francisco Vitoria, Domingo de Soto, and Domingo Bañez. These men were devoted followers of their fellow Dominican, Thomas Aquinas. Cortest also rejects the effort to recruit the Dominicans at the School of Salamanca as advocates of modern, individualistic human rights. "For them, individual or human rights are always understood within the more general context of justice." Cortest, 22. It seems that Brian Tierney is at the forefront of recruiting the Salamancans as advocates of modern human rights. But it would seem that Tierney is not recruiting, but impressing or shanghaiing the Salamancans who would probably be unwilling advocates of the modern, liberal, individualistic vision of human rights that are not based on any notion of nature or reason.

Domingo de Soto of the School of Salamanca

The Salamancans distinguished between the notions ius or right and dominium or lordship or power. De Soto's De iusticia et jure posits a distinction between the two:

Ius is the same as what is just (as Isidore says in Book V). It is the object of justice, the equity which justice establishes between men, dominium is the facultas of a lord (as its name implies) in servants or objects which he can use has he likes for his own benefit. Ius must therefore not be confused with domininium, as it is superior to it, and of wider reference.

Ius namque idem est (ut ait lib. 5 Isid.) quod iustum. Est enim objectum iustitiae: puta aequitas quam iustitia inter homines constituit: dominium autem facultas est domini (uti nomen sonat) in servos vel in res, quibus suo arbitratu, ob suumque commodum utitur. Fit ergo, ut ius no converatur cum dominio, sed sit illi superius et latius patens.

(quoted in Cortest, 23).

The Salamancan jurists, Vitoria, Soto, and, most famously, Bartolomé de las Casas, were very critical of the Spanish Conquista of the New World, and the Conquistadores' treatment, in some cases virtual enslavement, of the indigenous populations. It would seem, then, that the Salamancans were advocating some sort of inherent human rights of the Indian that were being violated. Brian Tierney seizes on the Salamancan notion of dominium or lordship as the source of the Salamancan advocacy of modern human rights. Dominium, Tierney suggests, is nothing but right under another name. Cortest, I think properly, criticizes Tierney's use of dominium as the source of individualistic rights. "[T]he difference between the traditional notions of dominium as Vitoria [and the Salamancans] understood it and a doctrine of 'natural rights' is vast." Cortest, 23. To equate the two would be to wrest the Thomistic objective foundation inherent in the Salamancans' thought and carry it into a subjective realm. It would be analogous to taking the Thomistic intellectual cathedral and moving it from a foundation of rock onto a foundation of sand, watch the cathedral collapse into a pile of rubble, and call the two situations the same. The underlying basis of modern rights theory and Thomistic and Salamancan natural law are simply different. Moreover, as Cortest correctly points out, the notion of dominium related to self-governance of a people, not to a subjective, individual right over one's possessions, and certainly not a subjective, individual right over one's own person against others. Cortest, 24. The Salamancans were not defending the rights of the Indians, but were defending the natural right of the Indian communities to exist and to govern themselves. Cortest, 25.

The only "right" found among the Salamancans that may be said to be an individual right in the strict sense would be the right to self-preservation. "Soto comes closest to defending a notion of personal rights in his treatment of self defense," which builds upon the right to self-preservation. Cortest, 25. But even this right must be understood within the more general framework of justice and the common good, something that is entirely absent from the modern concept of rights, which seem to be, in fact, independent of notions of justice to the entirety, and seem to be pitted against the demands of the common good or the good of the community. Certainly, many of the advocates of modern so-called "human rights" espouse values that are contrary to the very nature of man. Most uncontroversially, the claim to the "right" to procure an abortion is against human nature; indeed, it is foul, not fair, to nature's teaching. A tree, like a legal theory, is known by its fruits. Classical natural law and modern natural rights are two different species.

Now what is true for the Salamancans is not necessarily true for Suárez according to Cortest. In Cortest's view, Suárez appears to hover a bit closer to the modern notion of personal, positive human rights. Cortest, for example, cites to the definition of ius or right in Suárez's De Legibus, ac Deo Legislatore as more attuned to the modern understanding of human rights: According to Suárez, ius is "a certain moral power which ever man has, either over his own property or with respect to that which is due to him . . . . Accordingly, this right to claim (actio), or moral power, which every man possesses with rspect to his own property or with respect to a thing which in some way pertains to him, is called ius, and appears to be the true object of justice." [ius vocari facultas quaedam moralis, quam unusquisque habet, vel circa rem suam, vel ad rem sibi debitam . . . . Illa ergo actio, seu moralis facultas, quam unusquisque habet ad rem suam, vel ad rem ad se aliquo modo pertinentem vocatur ius, et illud proprie videtur esse obiectum iustitiae.] Cortest, 26 (citing Trac. de Leg. ac Deo Leg., I.2.5]

While Suárez may arguably be the source, or at least the harbinger, of modern notion of right, it would stem from his failure to "follow the strict Thomistic line of legal theory followed by the Dominicans at Salamanca." Cortest, 27.

But, in fact, the source of modern human right is more likely to be one who came after Suárez, but who relied heavily upon him: the Dutch Protestant jurist Hugo Grotius. In his De Iure Belli, Grotius seems well on his way to understanding right as a subjective right, positive, rather than negative, in tone:

A legal right (facultas) is called by the jurists the right to one's own (suum); after this we shall call it a legal right properly or strictly so called. Under it are included power, now over oneself, which is called freedom, now over others, as that of the father (patria potestas) and that of the master over slaves; ownership, either absolute, or less than absolute, as usufruct and the right of pledge; and contractual rights, to which on the opposite side contractual obligations correspond.

(quoted in Cortest, 27) While Grotius still bore traces of Aristotelianism, this language of "power . . . over oneself . . . which is called freedom" is recognizable as something new. Here we have a kernel of modern rights theory, one based on alleged autonomy or freedom from restrictions of any kind, including eventually, nature and, what is the same thing since nature contains within it the law of God, even God. Some of Grotius's notions, particularly when seasoned by the Hobbesian notions of nature and right which were wholly outside the pale of the Aristotelian/Thomist tradition, may be the source of modern theories of human right. But by the time one gets to Hobbes and his Leviathan one is clearly outside any notion of morality having an ontological or metaphysical foundation. In Hobbes, right is no longer tied to being, or, for that matter, Being.