De Testimonio Quatuor Testibus: Terribiliter Magnificasti Me

“I WILL WORSHIP YOU, for I am fearfully, wonderfully made,” says the Psalmist to his God. (139 (138):14). And the Psalmist thus introduces us to the third of Budziszewski's witnesses to the existence of the self-evident, undeniable principles of the natural moral law. It is the awareness that "every part of us has meaning," from our bodies, to our emotions, to our mind, to our life in common in the family and in civil society; both spirit and flesh and communion speak to us of our own design and purpose. We cannot ignore the obvious teleologies of our bodies, or our broader nature, whether they relate to us as individuals or us as a species. It is in the teleologies of man as a species that Budziszewski focuses upon in identifying the quality of man's moral design.

It is almost a commonplace to observe that man is made to live in common. Man is a political animal as Aristotle noted long ago, and one who is satisfied in living alone is either a beast or a god, but certainly not man. "It is not good for man to be alone" is a truth that covers the conjugal communion which is but one of many societies that man is called to form by nature. In looking at this tendency in man to live in common, Budziszewski identifies four social qualities of man at the level of the species: (1) interdependence; (2) complementarity; (3) spontaneous order; and (4) subsidiarity. Budziszewski (2003), 87-94.

The interdependency of man is manifest. Man needs to rely on his fellow creatures, and even such apostles of individualism as the "ugly as sin, long-nosed, queer-mouthed" Henry David Thoreau had to have a Bronson Alcott from whom to borrow an axe so as to build his cabin at Walden Pond. He also had something less than five pounds of money, which is worth less than the paper the notes were printed on unless there were others with which to engage in commerce. Such interdependence involves more than just the body. It also involves the intellect. How, for example, could Thoreau find any value in his considerable writing skills if he had not had the social interaction which gave him his English to begin with? Even our very existence is dependent upon others: without Cynthia Dunbar and John Thoreau, his parents, it is highly unlikely Thoreau would have seen the light of day. It is thus obvious that man depends upon his fellows for his procreation, for his nurture and education, for his culture, for his material and intellectual needs, for his language, for his identity, his morals, even his religion. And this dependence upon man upon his neighbor does not even address the dependence of man upon God.

We are not all made the same, and though we are interdependent, that interdependence is one of complementarity. We are not interdependent as if we were a bunch of identical worker bees. Most notable is the biological, physical, and psychological complementarity between man and woman which shows itself in the conjugal union and leads to familial life and the nurture and procreation of the human species. But this sort of complementarity is also part of the daily activities and functions of men. Our individual talents, abilities, training, education allow us to complement those of others.

By the term spontaneous order, Budziszewski means that man as a species spontaneously, that is without guidance or extrinsic imposition, quickly form Burkean "little platoons," which is to say we form "a rich array of associations such as families, neighborhoods, villages, businesses, vocational groups, religious societies, schools," and so forth. This includes the political community, although the political community is secondary in the sense that it is not necessarily a relationship of individuals in partnership with a state, but it is a relationship of man already in his primary associations with a state, and so the political community is a "secondary association--and association of associations, a partnership of partnerships." Budziszewski, 91. It seems, however, that as one moves up the hierarchy of associations from the conjugal communion and family to the nation state, there is a "diminishing spontaneity," a reduction in "connaturality," "greater need for contrivance," a lesser reliance upon pure natural impulse toward one based upon convention. To be sure, the institutions of higher order ought not be unnatural, they should "function like a second nature, not fighting first nature, but filling the outline that first nature provides." It is in this feature that Budziszewski finds the fourth quality of man living together as a species: the principle of subsidiarity:

The higher rungs ought to protect and cooperate with the spontaneous lower rungs--but just because they are less spontaneous, they may not. The risk implies a rule. Higher rungs should be permitted to supply only those aspects of the common good which the lower rungs cannot This, finally is the principle of subsidiarity, which applies across the entire span of civil society . . . . The principle of subsidiarity reaffirms to social design of the species, corrects both its individualist denial and its collectivist perversion, and champions the rights and dignity of all those in-between associations which, if only allowed, will take root and flourish, filling the valley between State and Self with fruit and color.

Budziszewski (2003), 93, 94.

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.