By Cameron Hilditch
Wednesday, August 12, 2020
Last year, Secretary of State Mike Pompeo established a
Commission on Unalienable Rights at the State Department. According to the Commission’s
draft report, which was released a few weeks ago, its purpose was to provide
“an informed review of the role of human rights in a foreign policy that serves
American interests, reflects American ideals, and meets the international
obligations that the United States has assumed.” Interestingly, the authors of
the report tell us that “the Commission’s instructions were to focus on
principle, not policy formulation.” I, for one, did not have “Federal
government branches out into intellectual history and philosophy” on my Trump
administration bingo card, but the last three years have been nothing if not
full of surprises.
Unfortunately, the Commission’s draft report is full of
mistakes regarding the nature and foundation of natural rights. However, these
are the same mistakes that were made by the Founding Fathers of this country
and that persist in the minds of many Americans to this day. The American
natural-rights tradition has rarely ever been articulated in a historically or
intellectually defensible way, which is a great shame, because all of its major
intuitions about the sacred and inviolable liberties of man are entirely
correct. The truth is that Washington, Jefferson, and Madison were far more
capable of building the great and glorious constitutional edifice of the
American Republic than they were of accounting for it historically or
philosophically, or explaining it adequately from first principles. The State
Department’s report falls predictably at all of the same hurdles the Founders
did. But it does provide a long-overdue opportunity for Americans to understand
where their rights really come from.
Towards the beginning of the report, the Commission
gestures towards the three-legged stool of American liberty: Protestant
Christianity, civic republicanism, and classical liberalism. Only the last of
the three is given any extended attention in the body of the text, however, as
the Commission attempts to find a workable synthesis between the liberal
principles of the American Constitution and the positive rights approach of the
1948 Universal Declaration on Human Rights. This is how the report’s authors
characterize the role that classical liberalism played in informing the
thoughts and deeds of the Founders:
Classical liberalism put at the
front and center of politics the moral premise that human beings are by nature
free and equal, which strengthened the political conviction that legitimate
government derives from the consent of the governed.
The use of the word “nature” in this sentence, and in the
political thought of the Founders, is an example of where American thinking
about human rights often runs into trouble. How do we know which rights are
“natural” to human beings? This is an important question to ask because, as the
Commission’s report itself concedes, there is now “widespread disagreement
about the nature and scope of basic rights.” Furthermore, how is this kind of
“widespread disagreement” even possible if the rights of man are
“self-evident,” as Jefferson famously argued in the preamble to the Declaration
of Independence? If Jefferson was correct, a lack of popular consensus
surrounding the nature and scope of natural rights should not exist among
rational Americans nearly a quarter-millennium after the Founding. And yet,
such disagreement persists, mainly because Jefferson was wrong. The idea that
the human being’s right to life, liberty, and the pursuit of happiness is
“self-evident” to the unaided rational intellect thoroughgoing and
unadulterated nonsense. Still, it seems to have been the conviction of many of
our most influential Founders. Alexander Hamilton, for instance, who could not
be accused of Jeffersonianism in most areas of politics, wrote that “the sacred
rights of mankind are not to be rummaged for among old parchments or musty
records. They are written, as with a sunbeam, in the whole volume of human
nature.”
In his recent book The Conservative Sensibility,
George Will takes up the cause of the Founders and attempts to explain (and
defend) their thinking on this issue. He summarizes the syllogism behind the
logic of the Declaration thusly: “If our rights are natural, they are
discernible by reason, which is constitutive of human nature.” Repeating his
point for fear that any reader might miss the starring role that reason plays
in this drama, he then clarifies that “rights are natural in the sense that
they are discovered by something that is natural: reason.” In other words, the
light of human reason should be able to observe what is consistently true about
human beings across space and time and then to infer from these data what
rights are “natural” or appropriate for such a creature. Secretary Pompeo’s
Commission argues that “to say that a right, as the founders understood it, is
unalienable is to signify that it is inseparable from our humanity.” The nature
of this humanity can, according to Mr. Will, be induced from empirical
observation in a rather straightforward manner. This is what he calls “the
Founders’ epistemological assertion.” As far as this kind of knowledge is
concerned, everything other than reason is superfluous. The historian C.
Bradley Thompson, as Will notes, places the Founders in a tradition “which said
that the moral laws of nature would still be valid and operational even if, in
the words of Grotius, ‘there is no God, or that he has no Care of human
affairs.’” Jefferson himself, leaving his occasional invocations of the god of
deism aside, wrote in the preamble to Virginia’s statute for religious freedom
that “our civil rights have no dependence on our religious opinions, any more
than our opinions in physics or geometry.” Like mathematics, political
philosophy is simply a matter of reason working upon nature over time.
All of this is very silly, of course. The Founders can
perhaps be forgiven for holding these opinions. After all, they were in thrall
to the spirit of their age, when it was popularly believed that scientific
empiricism could be imported unproblematically into the world of politics.
Will, however, has no such excuse, and the authors of the Commission on
Unalienable Rights should have had the courage to point out how retrograde
Founders naiveté on this issue is. The stubborn fact is that rights commonly
referred to as “natural rights” or “human rights” by people in Western liberal
democracies have not been thought of as such by most human beings at most times
and in most places in world history. This means that they cannot be thought of
as “naturally discoverable” in our nature in the same way language or the
appetite for food is, because only certain communities, nations, and
civilizations exhibit any kinds of adherence to them. Human rights are,
consequently, radically contingent in historical terms. Most cultures have
examined nature, human and otherwise, and drawn very different conclusions from
it than the notion that we each possess the title-deeds to a long list of
subjective rights testifying to our unique individual dignity.
Why is this the case? Because human beings contain such a
bewildering variety of contradictory desires, impulses, intuitions, and habits
that it’s possible to infer just about anything one might care to from our
nature. Mr. Will himself laments at one point in his book that “Hitler
supplanted philosophy with zoology” and quotes Timothy Snyder’s chilling
observation that for Hitler “the law of the jungle was the only law.” But this observation
leaves Will in a difficult position. Reason can indeed discover in nature that
human beings are all of the same species, each self-conscious with the capacity
to reason, form judgements, and act freely. But that groups of human beings
often brutally kill others groups of human beings in a quest for collective
supremacy is also discoverable in nature. Neither is more natural than the
other, and reason reads of both in the “volume of human nature.” In the last
analysis, our nature supplies us with a kaleidoscopic array of facts about
ourselves and the world around us; all accessible to reason and none obviously
more prescriptive of our political institutions than any other. Will
unwittingly illustrates the problem of this himself:
Darwin’s rejection of a
premeditated design helped to validate an analogous political philosophy.
Darwin believed that the existence of order in nature does not require us to
postulate a divine Orderer. Similarly, the existence of a social order does not
presuppose a government giving comprehensive and minute direction to the social
order. . . . Darwinism opened minds to the fecundity of undirected, organic
social cooperation of the sort that does most of the creating and allocating of
wealth and opportunities in open societies.
For Hitler, Nature was a Nazi; for Will, it’s a Reagan
Republican. Go figure.
The question remains then as to why a specific
civilization (broadly speaking, the West) selected from the bewilderingly
diverse array of human characteristics that our species has exhibited across
the ages, free will, conscience, rationality, individual dignity, charity,
liberty, and reciprocity, to emphasize as the most important features of human
nature. Moreover, how did this particular vision of the human person become so
deeply embedded in our collective consciousness that many take it to be an
obvious and intuitive deduction from nature?
Larry Siedentop’s Inventing the Individual: The
Origins of Western Liberalism attempts to answer this question and, in
doing so, comprehensively dismantles the traditional American account of
natural rights. Though it is not a work of religious polemic (the author is
not, so far as I can tell, a believer and the book has garnered praise from
atheist luminaries such as Douglas Murray and John Gray), it does offer a
treatment of intellectual history in which Christianity emerges as the cradle
of the rights tradition in the West.
Siedentop begins by disputing that the idea of “human
nature” employed by the Founders “is something ‘obvious’ or ‘inevitable,’
something guaranteed by things outside ourselves rather than by historical
convictions and struggles.” He then offers an account of classical antiquity
that demonstrates just how much distance lies between Plato and Jefferson on
this question:
The Greek conception of nature did
not at first make any sharp distinction between nature (physis) and culture
(nomos), between the cosmos and the social order. Instead, it presented the two
as a single continuum. Binding them together was the assumption of natural
inequality, the assumption that every being has a purpose or goal (telos),
which fits it to occupy a particular place in the great chain of being.
The ancient Greeks are an example of a people who
examined nature and concluded that its predominant feature was inequality
rather than equality. Inequalities and disparities between people are, after
all, part and parcel of human nature. Some of us are stronger than others, some
smarter, some more courageous. Why, in strictly rational terms, should this
ancient emphasis on inequality be considered any less “natural” than the modern
political emphasis on the many ways in which people are equal to one another?
As I intimated above, when it comes to politics, nature is a Rorschach test.
The real civilizational shift from the assumption of natural inequality to the
assumption of natural equality in the West began not, according to Siedentop,
with the isolated machinations of unaided reason, but with the advent of
Pauline Christianity:
[Paul’s] understanding of the
meaning of Jesus’ death and resurrection introduced to the world a new picture
of reality. It provided an ontological foundation for ‘the individual,’ through
the promise that humans have access to the deepest reality as individuals rather
than merely as members of a group.
Siedentop then spends most of the book analyzing the
gradual infiltration of European legal thought with Christian moral intuitions
from the fall of the Roman Empire to the close of the Middle Ages. It sounds at
first like a fairly speculative task, but there is in fact a wealth of primary
sources that attest to Siedentop’s thesis in unambiguous terms. The canon
lawyers of the twelfth century, for instance, radically renovated the Roman law
codes that had survived the fall of the Empire to bring them into line with the
Christian belief in the universal brotherhood of man. At the beginning of
Gratian’s Decretum, one of the most influential legal texts of the
Middle Ages, we find a remarkable inversion of the ancient conception of
Natural Law as the rule of natural inequality:
Natural law [jus] is what is
contained in the Law and the Gospel by which each is to do to another what he
wants done to himself.
As Sidentop notes, “by identifying natural law with
biblical revelation and Christian morality, Gratian gave it an egalitarian bias
— and a subversive potential — utterly foreign to the ancient world’s
understanding of natural law as ‘everything in its place’.” The scholar Brian
Tierney observes that by 1300 a number of rights were regularly claimed and
defended on the basis of Natural Law: “They would include rights to property,
rights of consent to government, rights of self-defence, rights of infidels,
marriage rights, procedural rights” and also measures to make these rights
enforceable against positive law. These proto-liberal principles would only
come together when deployed against the Catholic Church’s attempt to interpose
itself as the exception to the intuitive liberty it had bequeathed to the
people of Europe. Nevertheless, as Siedentop insists:
The ‘deep’ foundation for the
individual as the organising social role — a status which broke the chains of
family and caste — was laid by lawyers, theologians, and philosophers from the
twelfth to fifteenth century. Their picture of reality gave individual
conscience and intentions, the moral life of the individual, a foundational
role.
Siedentop’s work conveys an important fact that’s often
omitted by American rights theorists. This fact is that moral reasoning, like
mathematical reasoning, always begins with premises, or first principles, that
reason doesn’t supply. If it were otherwise, we might expect universal
agreement on these issues. Cultures around the world and throughout history
have, however, had differing and often irreconcilable first principles from
which their moral reasoning is done. All of these cultures, however, can be
said to be “natural” in their own way. The moral intuitions that underwrite the
unalienable rights enumerated in the American Constitution are, furthermore,
emphatically not natural facts apprehended by naked reason, but cultural
artefacts bequeathed to us by 2,000 years of Christian history. I would not in
any way claim that adherence to liberal principles or advocacy for human rights
requires adherence to Christian dogma; merely that a sound account of how human
nature came to be understood in such a way that human rights are justified must
include the advent of Christianity and the moral transformation it wrought upon
our civilization.
The Commission on Unalienable Rights report laments the
fact that “the core principles on which nearly all nations once agreed are now
threatened by a competing vision in which” the rights of the individual are
being “radically subordinated in the name of development or other social and economic
objectives.” It further associates the “overuse of rights language with a
dampening effect on compromise and democratic decision-making.” These
complaints make sense when one understands that the Western understanding of
human rights is predicated on one particular and historically contingent idea
of what it is to be human: that of the Christian religion. There is furthermore
no evidence that this particular notion of rights will outlive the faith that
birthed it. We are already seeing the emergence of a new conception of rights
that replaces God with the state and “life, liberty, and the pursuit of
happiness” with the right strike action and free health care. To amend a
quotation from C.S. Lewis, we cannot castrate and at the same time “bid the geldings
be fruitful.”
The Founders tried to carve out a vision of human rights
that circumvented the need for metaphysical or theological commitments, but
they were destined to fail. They were heirs to 1,700 years of Christian
civilization and every page of their writings testifies to this fact in spite
of them. This same reluctance to speak honestly about the theological roots of
American rights still plagues the republic today, as the Commission’s draft
report reveals. The disestablishment of religion in the United States, a
glorious victory for the claims of conscience, should not prevent us from
acknowledging that the entire ideological edifice of classical liberalism has
been constructed exclusively with borrowed capital from the Christian Church,
capital that the radical Protestants and Enlightenment deists who built the
structure were unlikely to attribute to their actual creditors: the Catholic
canon lawyers of the Middle Ages. Nevertheless, that capital is dwindling and
is now almost spent. Our inheritance of human rights was built to reflect the
fact that we are all living images of a particular crucified criminal from
Galilee, who proclaimed that we are each and all more than what Caesar would
make of us. If we care to enjoy the rights bequeathed to us by this tradition
throughout the coming years, decades, and centuries, then we can no longer
avoid publicly discussing the inextricable nature of religious and political
ideas. A civilization can only avoid this discussion for so long before it
begins to wither on the vine. For the United States, the day is already far
spent in this regard.
No comments:
Post a Comment