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THE LIMITS OF POLITICS Dr Sam Gregg 31/01/01

I    INTRODUCTION The beginning of a new century is always an opportunity to discern the lessons learnt over the past 100 years, as well as speculate about the problems that may confront free societies of the future. In the case of the 20th century, it is surely with relief and shame that we leave behind the ruins of Auschwitz and the Gulag Archipelago, two world wars of unprecedented ferocity, not to mention nightmares such as the Marxist-inspired Killing Fields and the Maoist-madness of China’s Cultural Revolution. At many stages, even the then-limited number of democracies seemed to be in danger—and not only from external threats. In what some commentators have described as the most important speech of the 20th century, the then-exiled Soviet dissident Aleksandr Solzhenitsyn used his invitation to deliver the 1978 Harvard commencement address to highlight what he regarded as the inner decline of Western democracies. ‘How is it possible’, he challenged his academic audience, ‘to lose the will to defend yourself?’ [1] Here Solzhenitsyn was referring to the atmosphere of self-hatred and angst that seemed to be permeating many Western institutions. More broadly, however, Solzhenitsyn was highlighting—to his audience’s outrage—the deep ambiguity that marks the heritage bequeathed to us by the ‘Enlightenment’ (that highly prejudicial phrase that falsely implies everything that the world that existed before Descartes was mired in ignorance), perhaps the most dangerous legacy being the narrow instrumentalist understanding of reason that underlay so many of the last century’s disastrous political experiments.

 

Yet there is much about the twentieth century to celebrate. Leaving aside its obvious scientific and economic advances, the degree of consensus concerning certain questions following Communism’s collapse is to be welcomed. While substantive arguments concerning the most optimal models continue, few would deny that, for all its faults, capitalism is preferable to socialism, or that constitutional democracy, for all its problems, is generally better than authoritarian systems. More generally, the closing decades of the 20th century highlighted the limits of politics, and refocussed attention upon that rich web of intermediate associations that exist between the family and the state, collectively described as ‘civil society’. [2]It remains, however, that all is not well. One need only think of the ongoing difficulties experienced by the family unit or the continuing inability of many Western intellectuals to view the world in terms other than gender-oppression. Our focus, however, will be upon exploring a critical issue

confronting free societies of the 21st century: what are the limits of politics? We will explore these frontiers by focussing upon two key concepts that played a critical role in the 20th century: one is the idea of liberty; the second is the notion of human rights.

II THREE CONCEPTS OF LIBERTY When people use the term ‘liberty’, it is often employed as a way of conceptualising the relationship between the individual person and the political arrangements within which that individual lives and acts. To this extent, the word ‘liberty’ signifies the extent to which the regime is not coercive and the space that it allows for individual self-determination. In his famous essay, ‘Two Concepts of Liberty’, Sir Isaiah Berlin defined this way of thinking about freedom as ‘negative liberty’. According to Berlin, negative liberty is ‘not being interfered with by others. The wider the area of non-interference the wider my freedom’.[3][3] Negative freedom thus seeks to guarantee the greatest possible domain for choice; it does so by resisting any truth-claim that might limit choice. ‘Positive liberty’, by contrast, is governed by the belief that while individuals may be formally free to do various things, many are not actually able to do such things because of a lack of resources. Hence, it is held, individuals need to be enabled to do things before they can be truly free. For most of the twentieth century, many scholars concurred that the primary enabler of positive liberty should be the state.

 

Both concepts of liberty have their place, but also their limitations. By definition, any free society must allow room for individual self-determination; that is, negative liberty. A constant motif of Aristotelian and Jewish (and therefore Christian) thought is that no-one can become morally good unless they freely choose to do so. Nonetheless, politics has a role here insofar as it involves making decisions about the rules that allow a coordination of the subsequent actions of individuals. Without such coordination—a type of positive liberty—negative liberty would quickly degenerate into anarchy. Yet we also know that political programmes designed to enhance positive liberty in a more incremental manner, such as state-based welfare policies, have had a range of negative moral-cultural effects that actually help to emasculate people’s capacity to engage in individual self-determination. In more recent decades, these ‘positive liberty programmes’ have embraced ‘affirmative action’ and ‘anti-discrimination’ policies.

 

Leaving aside the on-going debates about the relevant effectiveness, let alone justice, of such programmes, Berlin was surely correct to stress that the political difficulty involved with any promotion of positive liberty is that it assumes an answer to the question of ‘who or what is the source of power or intervention that can decide someone to do this and not that, to be such and no other’. Until relatively recently, much of the world was plagued by political systems that effectively suppressed negative liberty in the name of speeding up the so-called dialectics of history. In this sense, Berlin’s warnings concerning the effects of the pursuit of positive liberty reflect his very 20th century consciousness of the crippling effects upon freedom of collectivist policies, be they communist, socialist or fascist in character.

 

Berlin, however, is less convincing when he claims that there is a direct relationship between the

existence of ultimate principles, the public assertion of truth-claims, and despotism. Totalitarian rule is surely risked not by the acknowledgment of truth but by the claim to control it. Indeed, it may be the case that Berlin neglected the danger to freedom posed by negative liberty’s wariness about truth-claims. Some scholars such as the historian Arthur Schlesinger [4][4] and the philosopher Richard Rorty have claimed that only on the basis of relativism is democracy safe. Rorty states, for example, that ‘No specific doctrine is much of a danger, but the idea that democracy depends on adhesion to some such doctrine is’.[5][5] In place of truth, Rorty proposes ‘a cheerful nihilism’ which holds that any claim to truth independent of pragmatic social preference should be politely ignored. In Rorty’s view, metaphysics and the search for objective standards against which humans can judge themselves are a waste of time. All is flux and contingency. But, Rorty adds, those who hold to no objective standard and claim no foundation in practical reason can nevertheless experience moral indignation about injustice.[6][6]

 

But how, one must ask, are we to judge the correctness of such feelings? How can we know that they are indeed ‘just’ without the type of standard that Rorty rejects? According to his own theory, Rorty could pragmatically react to totalitarian power by treating it with irony, while simultaneously conforming to its demands. In his case, no truth is at stake. People holding Rorty’s views would feel under no obligation to oppose tyranny. Morally speaking, they have nothing to lose by adjusting pragmatically to the new situation. In short, without truth claims, there is nothing to which we can morally and politically appeal in order to defend freedom. For if there is only opinion—your opinion, my opinion, everyone else’s opinion—but no truth, then there is no inherent reason why slavery should not be seen as the same as liberty, or coercion the same as equality. If all opinions are equal, then we must conclude that Edmund Burke’s views, for example, are equally valid to those of Joseph Stalin. If every preference is valid simply by virtue of being freely chosen, then it would be possible to state: ‘the Nazis cannot be held accountable for their choices because they acted according to their own preferences, they showed real commitment to what they believed, and who in any case is to judge that what they did was wrong?’ In such an atmosphere, political debates cease to be a matter of reasoned discussion of the truth of people’s opinions. Instead, politics become reduced to a question of who is able to provide their opinion with legislative and judicial weight. Truth, it would seem, is not as great a threat to liberty as Berlin supposes. Absence of truth, however, certainly is.

 

In itself, politics cannot respond to this problem of how to reconcile liberty and truth. Nor should we expect it to do so. It is essentially a dilemma for philosophers to overcome. The beginnings of an answer might be found in the introduction of a third concept of liberty to Berlin’s schema: liberty understood as self-government. Liberty in the sense of self-government proceeds from the insight that humans seem not to be born free but rather born to struggle to attain freedom. Unless, for example, a child gradually acquires certain moral habits—such as prudence, temperance and courage—he is likely to become excessively dependent upon others or the state. This analysis relies, of course, on the truth-claim—as opposed to the opinion—that habits such as prudence are objectively good for us, while recklessness is not.

 

Liberty in the sense of self-government involves rejection of the notion that truth is reducible to opinion. Instead, it attempts to link the subjective dimension of human existence manifest in the reality of free choice, with the objective dimension that reflects man’s unique capacity to recognise through reason that there are indeed truths—including moral truths—that transcend not only time, place and culture but also preference.[7][7] In this concept of liberty as self-government, liberty and responsibility become one with each ‘liberty [becoming ] coupled with, and ancillary to, a duty’. [8][8]

 

The manner, however, in which people learn to become free in this sense does not occur primarily through politics. Certainly, politics and law can play a subsidiary role. There is no such thing as a morally neutral law or piece of legislation. Scepticism about state power does not mean scepticism about the purposes that the state is to serve. Even a state that professes indifference to life ‘in private’ cannot escape bearing some responsibility for the conditions vitally affecting people’s moral upbringing and common life.[9][9] Hence, it is right that we assess the likely impact of changes in law upon the free society’s delicate moral ecology. Nonetheless, in the final analysis, the liberty of self-government can only be attained by each person’s free choice. But families as well as the associations of civil society have a critical role to play here in terms of forming people in the virtues necessary for self-government, not least because they normally have more intimate connections to most individuals’ lives than the state.

 

The paradox, of course, is that the free society’s long term stability depends more upon such virtues than we often realise. It is a nonsense, James Madison once noted, to imagine that a free political community can survive without virtue in its citizens. [10][10] When free societies began to emerge in the West, philosophers took for granted the existence of certain widespread moral habits. So pervasive were these habits—buttressed not only by the social inheritance that Edmund Burke warned us to avoid trying to manipulate,[11][11] but also the scholarship of ancient and medieval thinkers—that they seemed second nature. Dramatic personal efforts by individuals to align their actions with these moral goods, thereby correcting and tempering their bad inclinations, made possible democratic political institutions as well as the act of market exchange.[12][12]

 

In the past two hundred years, however, the centrality of the word ‘virtue’ has been largely supplanted in political and moral discourse by the term ‘rights’. The significance of this change in terms of its capacity to expand the boundaries for political action cannot be underestimated. For while the classical world understood that politics could play an indirect role in shaping a context that encouraged people to acquire virtue, one of the distinguishing features of modernity is the manner in which politics is regarding as a direct means of providing people with certain protections and entitlements often grouped together under the term ‘rights’.

III THE PROBLEM OF RIGHTS Those who have spoken the language of rights constitute a varied group: Thomas Jefferson but also Maximilian Robespierre; John Paul II but also Peter Singer. While this suggests many things, it does indicate that the language of human rights is the most available discourse for universal deliberation about the dignity of the human person. It may even be viewed as a developing grammar that makes possible a truly universal dialogue about mankind’s future. In the view of the American philosopher, Janet Smith:

 

'Many have observed that the modern world is so pluralistic in its moral thinking that there is no common moral discourse. Yet there is one mode of moral discourse that seems to have a kind of universal currency and that is the language of human rights. Universal declarations of human rights seem to provide a kind of backdrop against which cross-cultural discussions of morality and politics can proceed.'[13][13]

 

The idea that man has a right to life, to freedom of association, to religious liberty, and to property meets with widespread consensus today. The legal obligation to respect such inalienable human rights has been recognised by most states since the 1948 United Nations Declaration of Human Rights. From the beginning, however, there have been questions concerning the philosophical basis of these rights. One of the members of the commission that drafted the Declaration stated at the time that ‘We are unanimous about these rights on condition that no one asks why’. [14][14] According to Michael Novak, the participants ‘recognised quickly that agreement on common principles—a common philosophy of human nature and destiny—was out of the question’.[15][15] The various individuals involved disagreed about the premises of morality. But whether it was from witnessing the terrible consequences of a world without universal standards, or a belief in the prevailing wisdom of three millennia of Judeo-Christian wisdom, they were ready to agree that various practices must not occur ever again.

 

There are two likely reasons that the language of rights was used to express this conviction. First, as mentioned, ‘rights language’ is the contemporary coinage as far as moral discourse is concerned: if one is going to try to make a case of morality in modern times, it is nearly impossible to do so without recourse to ‘rights language.’ Second, ‘rights language’ provides an important corrective to the modern cult of relativism. Whereas relativism dominates modern moral judgments, ‘rights language,’ with its reference to inalienable rights, suggests that there is a universal and absolute set of moral demands, true at all times and places.

 

There are deep problems, however, with the notion of rights with which Western societies are only just becoming aware and which have powerful implications for the limits of politics. The number of human rights, for example, has multiplied to the point that the very idea of rights is dangerously diluted. The UN Declaration of Human Rights is neither exhaustive nor perfect in its articulation of rights. But the essential rights specified by the Declaration have surely been weakened by the multiplying number of

interests, goods and desires elevated to the status of rights since 1948. It has resulted in nothing less than rights-inflation and magnified the expectations of people who are told that they are less than human if they do not possess a whole host of ‘rights’. Unsurprisingly, we soon start claiming that we have a right to whatever we want and claiming that the state should provide it for us.

 

There is also much confusion concerning what a ‘right’ is. [16][16] Some rights, often called ‘negative rights’, describe what is known as a ‘zone of non-interference’. To state, for instance, that one has a ‘right to life’ or a ‘right to privacy’ means that there are very few justifications for taking another’s life and that no one should violate another’s privacy. Other rights, known as ‘positive rights’, make claims on others to provide something to others. Children are said to have a right to food, shelter and clothing from their parents. But it is not always clear whether a right is a negative or positive right or, in the case of positive rights, who has the obligation to supply the need. It is not immediately clear, for instance, whether a ‘right to work’ or a ‘right to health-care’ are negative or positive rights, or (assuming that these

are indeed rights) who has the obligation to provide jobs and health-care. [17][17]

 

Finally, there is the fact, highlighted by the Harvard Law Professor Mary Ann Glendon, that ‘rights language’ has contributed to the contemporary impoverishment of moral discourse insofar as it reduces all moral arguments to claims of justice. [18][18] Entire other spheres of moral discourse have been drowned by our rights Zeitgeist. We no longer speak of virtue (though there are currently powerful attempts to reinsert virtue language into our moral discourse) [19][19] or of duty, or obeying the natural law. Many people are astonished when one states that we have a moral obligation to take care of our health. People baulk at this claim unless it can be framed in terms of what they owe others. That health is a human good that people have a duty to seek and preserve is a foreign concept to many people. If no injustice to others is done, if no rights are violated, then people cannot see that immoral acts can still nonetheless occur. Our loss of the language of these other sources of morality, it seems, reflects the loss of the moral vision that undergirds them.

 

A major cause of these problems with contemporary thinking about rights is that it draws on a variety of political traditions that often contradict each other. In classical and medieval thought, for example, politics was attached to a sense of promoting the rules of life. Man was understood to be animated by a sense of vocation. Politics was consequently regarded as being at the service of the good life, of the bona vita multitudinis. The idea of rights was therefore associated with the concept of a duty to fulfil one’s vocation as a human person.[20][20]

 

By contrast, modern political thought rejects the idea that the bon vita should be a guide to political action. It asserts that people either lack such a thing as a natural vocation or that they disagree about the nature of such a vocation.[21][21] This, it is claimed, necessitates a rethinking of politics so that it focuses upon arranging human affairs in a way that allows those who are divided about what constitutes the good life to live together peacefully. This modern approach of establishing the ‘rules of the game’ (rather than the rules of life) pioneered by Machiavelli, Hobbes and still further by John Locke, results in

procedural solutions. These largely diminish the duties of man to minimal observance of rules that allow people who differ about the purpose of life to pursue their own interests. Human rights are a key dimension of this modern promise insofar as they serve to guarantee individual liberty, peace and comfort for all.

 

To begin with, this modern solution was a moderate one. For Locke and the American founders, the objective was establishing a new political order that permitted people to follow often very different interests. Nevertheless, these thinkers considered it obvious that this order would be limited by moderating influences such as family, education, religion, and natural law. [22][22] While the bona vita was excluded from politics, there remained traditional rules about how to live properly and with honour. The rhetoric of those who wrote the U.S. Constitution certainly invoked rights, but also morality, virtue and obligation. Rights did not mean the freedom to be one’s own judge, or to define the proper standard of behaviour for oneself. Standards of behaviour were real and embodied in the common law. Rights did not trump these common law standards; rather, rights ensured that there were certain paths that the state—by which was meant the executive and legislature rather than the courts—could not tread. While the focus of politics was upon limiting government power, there was the presumption that people would behave responsibly.

 

Unfortunately, one suspects that the moderns did not realise that they were creating an intellectual time-bomb. To begin with the individual and his rights while renouncing the idea of a universal human vocation set in motion a process that leads to the limitless sovereignty of the individual unbound by any ties to natural law. The French Revolution proclaimed the rights of man but did not respect its own principles precisely because of its refusal to acknowledge that these rights were guaranteed by anything except state power. In June 1793, for example, Robespierre and the Jacobins issued a new Declaration of Rights in which they reaffirmed the principle of liberty and the right to resist oppression at the very moment that they launched a systematic war of terror against their own population.

 

It would, however, be wrong to see any contradiction between Jacobin discourse and practice. There was no contradiction because, for the Jacobins, the term ‘rights of man’ had come to signify something quite specific. From the very beginning, the French Revolution had advanced two distinct set of principles: those which were universalist in the sense of being beyond man; and those that were ideological in the sense that they constituted a political programme of action. [23][23] Almost immediately, the ideological overwhelmed the universal. In both 1789 and 1793, the patriotes were saying two different things at the same time: first, that all men were free and equal, enjoyed the same rights, and sovereignty belonged to the people; second, that there were two types of men—the ‘good ones’ being ‘the people’ or les amis de la liberté, while the ‘bad ones’ were the ennemis du Peuple or les contre-revolutionnaires. Robespierre’s famous assertion concerning the despotism of liberty against tyranny would have been a contradiction in terms had it not been for the fact that, in Jacobin thought, liberty was once and for all incarnated in a given ideological camp (i.e., the Jacobins) who therefore enjoyed complete freedom to suppress the liberty of those who did not agree with their vision of freedom. That greatest of Old Whigs, Edmund Burke, fully understood how the priority of the political over the transcendental would allow the French revolutionaries to invest words such as ‘rights’ with meanings that allowed them to use the state to

destroy those who opposed them. As Solzhenitsyn was to do almost 200 years later, Burke took the risk of shaking his contemporaries out of their complacency and, like Solzhenitsyn, was subsequently subjected to much ridicule from his Whig colleagues. [24][24]

 

Despite these problems with the modern human rights project, its political promise has in some senses been kept. The conduct of domestic politics in the West is no longer a dangerous business; no-one will lose their head for it. Human rights have played a role in domesticating and limiting political power. But there is another dimension to the story. In promoting people’s ability to pursue what Hobbes called the ‘delightful life’ rather than the bona vita, the subsequent detachment of rights from any transcendental reference point has caused Western societies, to a certain extent, to be subverted by their own principles. The rights of man were born in a Christian world, and for a long time the roots of the connection were maintained. Only in our own time do we find people earnestly using the language of rights while simultaneously insisting that there are no moral truths. It would never have occurred to the American founders to claim rights that were not grounded in truth. The modern elevation of sincerity over truth, however, has shattered classic normative distinctions between virtue and value, power and authority, reason and emotion, objectivity and subjectivity, the ethical and the aesthetic, male and female, and even human and animal. All such distinctions are widely viewed as atavistic, logocentric illusions that screen the exercise of self or group interests. The grim hold that contemporary tenured Freudians, Gramscian-Marxists, and Deconstructionists have on much of the humanities as well as many scholarly publications and publishing houses, from which they preach their self-described ‘anti-foundational’, ‘post-moral’ faith in self-will and the present alone, is indeed frightful. Such people are not interested in discovering the truth; the only truth—the god—of these modern day Nietzschians is relativity and the exercise of power for its own sake. As a result, we cannot now even agree in the West what constitutes a human being.

 

Given this prevailing intellectual culture, we can hardly be surprised that the language of rights is used with every greater frequency to circumvent reasoned political discussion and to foist specific political programmes upon us. In the words of the American jurist, Russell Hittinger: ‘At the international level, vague and ideologically infused declarations on rights, combined with indirect threats concerning humanitarian aid, easily provide a pretext for non-governmental organizations to cross jurisdictional boundaries and, in effect, determine social and economic policies without any ordinary legal or political accountability’.[25][25] A classic example of one attempt to do this was the 1995 United Nations Conference on Women, held in that contemporary exemplar of human rights, the People’s Republic of China. The initial drafting of the conference’s documents were significantly impeded by the European Union delegates, who attempted to eliminate routine cross references to certain provisions of the UN Declaration of Human Rights. Such provisions included the principle that the family as the fundamental social unit is entitled to protection from the state; the standard guarantee of religious liberty; any reference to parental rights and responsibilities; as well as the Declaration’s statement that motherhood and childhood are entitled to special protection. In effect, the EU delegates were attempting to produce a document that violated various guarantees contained in their own countries’ constitutions.

 

As one delegate to the Conference, Mary Ann Glendon, relates, the EU delegates (overwhelmingly

feminist in composition) were keen to suppress any reference to human rights that might impede the feminist agenda, but were anxious to use the language of human rights to achieve their objectives on other issues.[26][26] The right to religious freedom, for example, did not accord with their assertion that religion is essentially ‘patriarchal’. Likewise the duty to protect motherhood and family contradicted their claim that marriage is a ‘patriarchal obstacle’ to human advancement. It was a remarkable example of the contemporary inclination of many people to pick and choose among human rights, which results in favouring some (e.g., the right to privacy) at the expense of others (e.g., the right to life). Such selectivity undermines the necessary connections between rights, wrenching ‘favoured’ rights out of context and weakening ‘disfavoured’ rights.

 

Similar concerns can be raised about the United Nations Convention on the Rights of the Child. [27][27] This convention should concern everyone insofar as it illustrates how the idea of human rights can be used to allow state power to penetrate to the very heart of the most important human institution; i.e., the family. The Convention claims to be a comprehensive listing of all rights of the child. It thus purports,

among other things, to give children the right to express their own views freely in all matters, [28][28] to receive information of all kinds through ‘media of the child’s choice’, [29][29] and to enjoy the right to ‘rest and leisure’. [30][30]

 

Reflecting on these claims, one cannot help asking what do all these rights mean, how will they be enforced, and against whom? Do they mean that a child can refuse to do his homework and household chores because they interfere with his ‘right’ to rest and leisure? Do they indicate that a child can demand the right to watch television in order to receive media reports from national and international sources? Do they suggest that a child can assert his right to say anything he wants to his parents by insulting them? The Convention provides no answers to these questions. Yet these are just some of the brand-new ‘rights’ of the child scattered throughout the Convention’s 54 Articles. Despite a vague reference to undefined ‘rights and duties of parents’, the Treaty does not recognise any specific parental right to make decisions for their non-adult children. These are real problems, not least because they have the potential to pit state power against parental authority, to the latter’s obvious detriment.

 

But at the heart of these questions about rights and the manner in which they can be used to enhance state power is the issue of their origin and nature. What one understands to be the source of rights makes a tremendous difference to what one considers to constitute a right as well as how absolute and universal one views these rights. Does, for example, the state confer rights upon us or are they God-given? One could ask the same question differently: are rights derived from our nature properly understood, or are rights simply a legal invention? What is the good that rights serve? Do they serve human liberty, human dignity or both?

 

One could try to overcome these difficulties by simply stating that rights are a form of normative binding legal standard. Standards, however, require the existence of an authoritative evaluator. In the modern world, this creates a particular dilemma highlighted in an important 1979 lecture (albeit little known

outside the world of jurisprudence) entitled ‘Unspeakable Ethics, Unnatural Law’ by the Yale Law Professor Arthur Leff. In this address, Leff (an agnostic) acknowledged that any normative standard implies the existence of an authoritative evaluator. But with God out of the picture, Leff suggested, every person inevitably becomes a godlet with as much authority to set standards as any other godlet or combination of godlets. If one says, for example, that humans have the right to life or privacy, people who want to kill life or violate privacy can offer the crushing rejoinder: ‘What gives you the authority to prescribe what is good for me?’ As Leff explained:

 

'Putting it that way makes it clear that if we are looking for an evaluation, we must actually be looking for an evaluator: some machine for the generation of judgements on states of affair. If the evaluation is to be beyond question, then the evaluator and its evaluative processes must be similarly insulated. If it is to fulfil its role, the evaluator must be the unjudged judge, the unruled legislator, the premise maker who rests on no premises, the uncreated Creator of values . . . We are never going to get anywhere (assuming for the moment that there is somewhere to get) in ethical or legal theory unless we finally face the fact that, in the Psalmist’s words, there is noone like unto the Lord. . . . The so-called death of God turns out not to have been just His Funeral; it also seems to have effected the total elimination of any coherent, or even more-than-momentarily convincing, ethical or legal system dependent upon finally authoritative, extrasystematic premises.'[31][31]

 

Leff’s analysis certainly holds true for the idea of rights. Robert George correctly notes that no secular thinker has provided ‘any plausible account of where rights comes from or why we should respect others rights’.[32][32] Modern philosophy cannot provide a moral account of anything insofar as it declines to—and cannot—identify an ultimately authoritative source of moral goodness. One need only think of all the unsuccessful modern attempts to establish a foundation for rights. These include the command of the sovereign; the majority of voters; the U.S. Supreme Court’s increasingly varying interpretations of the U.S. Constitution; references to equality or autonomy; and, perhaps most bizarrely, John Rawls’ imaginary social contract that abstract non-existent persons might adopt in an equally imaginary ‘original position’.

 

One influential jurist, Ronald Dworkin, argues, for example, that individual rights should be identified and institutions designed ‘without employing any particular conception of the good life or of what gives value to life’. [33][33] He maintains that such issues are (almost always) ‘private’ matters, which therefore ‘as a matter of right’ should be left to individuals to decide for themselves. The basis of Dworkin’s argument is that everyone enjoys what he calls ‘the right to moral independence’, a right which in turn is based on what Dworkin refers to as the abstract right to equality. [34][34] Unfortunately, Dworkin nowhere explains in any of his voluminous writings from where this right of equality is ultimately derived.

 

The thinking of another contemporary scholar, Robert Nozick, on this subject is just as unsatisfactory. The first and fundamental proposition of his book, Anarchy, State and Utopia, is that ‘individuals have

rights’. But nowhere in the entire text is there any justification or explanation of this claim. Nozick himself states that ‘it is only a minor comfort to note that we here are following the respectable tradition of Locke, who does not provide anything remotely resembling a satisfactory explanation of the status and basis of the law of nature in his Second Treatise’.[35][35] Unfortunately, when it comes to matters as serious as rights, we cannot afford the luxury of deference to respectable academic tradition. As the French philosopher Jacques Maritain noted: ‘With regard to human rights, what matters most to a philosopher is the question of their rational foundation’. [36][36] With a few notable exceptions, modern thinkers have failed to establish such a foundation. [37][37] Hence when people say ‘individuals have rights’, we should politely inquire, ‘where do these ‘rights’ come from?’ We should also ask whether the assertion that ‘individuals have rights’ means that individuals have no duties and thus are at liberty (i.e., have the ‘right’) to do whatever they want?

 

The crisis of human rights is thus of a first-order nature: that is, philosophical. Nonetheless, there is a fundamental connection between pre-political first-order questions, such as ‘what is a human being’, and the second-order matters that are the concern of modern politics. If, for example, we believe that human beings are no more than conglomerates of material particles pointlessly evolving by blind chance, then it is difficult not to conclude that nothing really matters except that we satiate whatever gives us pleasure while we may.[38][38] Such a first-order conclusion makes calls to embrace the concept of liberty as self-government with its emphasis upon integrating free choice, reason and truth seem an ultimately pointless exercise. Words like good, evil, right and wrong become meaningless. My life and my death matter naught. Indeed, if one adopts this first-order position, then there are no rights and certainly no duties. We are left with only sentiments and social conventions which, being sentiment and convention, can be easily swept away by the next dictator of the left or the right, the Parisian mob, or activist judges obsessed with ‘liberating’ particular social groups, no matter how tendentious their claims. Such is the impasse in which such a first-order conclusion leads us. It reminds us that the so-called death of God tends to lead to what C.S. Lewis called the abolition of man.

 

In the nineteenth and early twentieth century, many came to believe that human rights could be retained as truths quite independent of any rational affirmation of divine existence or what the American founders called ‘nature’s law’. Such affirmations were, it was held, to be removed into the realm of private ‘personal’ belief. In the present, however, public discourse and education are shaped ever more obviously around the belief that every moral, social or political judgement directing action is subjective, relative, personal and autonomous. Right and wrong are mere predicates to be treated as mere expressions of emotionally motivated decisions and social conventions. In this way, the question of right and wrong—and thus the idea of truly inalienable human rights—is quietly replaced by the question of who is in charge, and the determination to be among those who hold power. The moral, political and juridical language of rights becomes the cloak which such self-will retains in order to mask purposes which, if frankly expressed, would arouse resistance from competing wills.

 

None of this, of course, should be construed as an argument against the idea of human rights per se. Rather, it is a suggestion that before we can even begin to consider the feasibility of something like a

‘Bill of Rights’ (or preferably a ‘Bill of Rights and Duties’), we need to engage in more serious philosophical reflection upon the origins and nature of the entitlements and protections that we currently call ‘rights’. There is every possibility that such reasoning may conclude that, given current political and cultural conditions, such a Bill is more likely to undermine freedom than enhance it. In any event, modern politics is not designed to resolve these first-order issues. Yet they are critical for the political health of free societies, not least in terms of establishing clear limits to the state as a political actor. The paradox that confronts us is that contemporary rights language seems increasingly predicated towards facilitating the use of political and legal power to sanctify certain ideological tendencies (most notably, various feminist assertions), to undermine core institutions such as the nuclear family in the name of ‘diversity’, or, as we have seen in more recent times, to attempt to restrict as fundamental a freedom as religious liberty as part of a more general effort to reduce religious freedom to what occurs during church services. It was precisely such freedoms that the acknowledgment of rights was supposed to protect from many societies’ apparently inexhaustible tendencies to become slaves to whatever happens to be prevailing intellectual fashion. In other words, a concept that evolved, in part, as a way of protecting man from excessive state power and which is a critical component of the idea of liberty as self-government, is now slowly but steadily being manipulated to expand the ambit of politics, particularly through the activities of quasi-judicial, institutionalised pressure-groups such as our very own Human Rights and Equal Opportunity Commission.

 

It may well be that one of the challenges for this forthcoming century will be for us to realise that safeguarding what we call human rights is far too important a task to be entrusted to professional human rights activists. Ideas do have consequences, for good or for evil. But they are not the toys of intellectuals. It follows that if rights become modern Trojan horses that help to turn politics from a process of reasoned deliberation and decision-making into what amounts to nothing less than, to paraphrase Clausewitz, war by other means, then we will no one but ourselves to blame. The number of people who suffered and died through the abuse of state-power in the 20th century defies the imagination. Yet we also know that the utopian impulse remains deeply ingrained in the human condition. The free society has only the most fragile of defences against the desire of some to try and build heaven-on-earth through politics: these protections include such humble institutions as the rule of law, not to mention the ever-evolving but delicate tapestry which we know as the common law. To see these safeguards of our liberty undermined in the name of rights, both real and imagined, would surely be the cruelest paradox of all.

Dr Sam Gregg is Resident Scholar at The Centre for Independent Studies and Director of the Religion and the free Society research programme. This is his last lecture for CIS before he takes up a position at the Acton Institute in Michigan, USA.

[1] Aleksandr Solzhenitsyn, 'A World Split Apart', Solzhenitsyn at Harvard: The Address, Twelve Early Responses and Six Later Reflections, Ethics and Public Policy Center, Washington, D.C., 1978/1981, 15.

[2] The best study of the history of this term may be found in Antony Black, Guilds and Civil Society in European Political Thought: From the Twelfth Century to the Present, Methuen&Co. Ltd, London, 1984.

[3] See Isaiah Berlin, ‘Two Concepts of Liberty’, in Four Essays on Liberty, Oxford University Press, Oxford, 1969, 118.

[4] See Arthur Schlesinger, ‘The Opening of the American Mind’, New York Times Book Review, 23 July 1989, 26.

[5] Richard Rorty, ‘Taking Philosophy Seriously’, New Republic, 11 April 1988, 22.

[6] See Richard Rorty, ‘The Seer of Prague’, New Republic, 1 July 1991, 31.

[7] For further discussion of this point, see Walter Kasper, ‘The Theological Foundation of Human Rights’, Human Rights and the Church, Conference organised by the Pontifical Council for Justice and Peace 14-16 November 1988, Libreria Editrice Vaticano, Città del Vaticano, 1990: 47-71.

[8] John Finnis, Aquinas: Moral, Political and Legal Theory, Oxford University Press, Oxford, 1998, 283.

[9] See Robert George, Making Men Moral: Civil Liberties and Public Morality, Oxford University Press, Oxford, 1993: 11-47, 161-181, 189-229.

[10] See Debates in the Several State Conventions on the Adoption of the Federal Constitution (20 June 1788, Virginia), Jonathon Elliot (ed.), Lippincott Press, Philadelphia, 1907.

[11] See Edmund Burke, Reflections on the Revolution in France, C.C. O’Brien (ed.), Penguin Books, London, 1790/1986.

[12] See Michael Novak, ‘Truth and Liberty: The Foundations of the Republic’, in On Cultivating Liberty: Reflections on Moral Ecology, Brian Anderson (ed.), Roman and Littlefield, New York, 1999: 9-31

[13] Janet Smith, ‘Rights, The Person, and Conscience in the Catechism’, Catholic Dossier 102, 1997, 25.

[14] Germain Thils, Droits de l’homme et perspectives chrétiennes, Cerf, Louvain-la-neuve, 1981, 51.

[15] Michael Novak, ‘Human Dignity, Human Rights’, First Things 97, 1999, 40.

[16] Much confusion has stemmed from different uses of the term ‘right’ in different sections of the 1948 UN Declaration. Articles 3 through 20 refer chiefly to what must not be done to people, while Articles 22 through 27 refer chiefly to what should be done for people. The latter obligations, as noted in Article 22, are conditioned upon the ‘organization and resources of each state’, and are not generally enforceable by law. How or whether these goods are provided depends upon political and economic circumstances or, as the Declaration states, ‘in accordance with the organisation and resources of each state’ (Article 22). Indeed, there is a kind of preamble to Articles 23-27 which indicates, through a highly discernible change of tone, that the term ‘rights’ is now being used in the Declaration in a different sense to indicate that what is being referred to are not, precisely, rights (in the way that, for example, the American Bill of Rights speaks of ‘rights’) but rather goods or even goals to be striven towards. There is no doubt that work, an adequate standard of living, health care, food, clothing, housing, and education are all human goods that are, as the Declaration says, ‘indispensable for [a person’s] dignity and the free development of his personality’ (Article 22). Support for the Declaration entails a recognition that we are all obliged to strive to make such goods available to everyone. But the Declaration does not specify how we are to strive toward that goal—whether through state policy, international initiatives, market dynamics, voluntary action, charity, or all of these combined. In retrospect, it may have been better if the human goods specified in the last six articles had been described as our duties of solidarity rather than as the rights of others. We cannot always do the good that we want to do (such as ensuring basic economic goods for all). One can accept, however, that the political exigencies of the time seem to require the conflation of these distinct commitments under the one title of ‘rights.’ Communism’s collapse, however, means that there is now no excuse for continuing this conflation. A renewed adherence to the Universal Declaration of Human Rights requires a clearer distinction between

‘rights-as-endowments’ that we must never violate, and ‘rights-as-claims’ that we must strive to satisfy. The former are the certain possession of all people; the latter are the just claims of all people. The former can and must be guaranteed by law; the latter can and must be met as a duty of solidarity.

[17] John Paul II, for example, warns that ‘The State could not directly ensure the right to work for all its citizens unless it controlled every aspect of economic life and restricted the free initiative of individuals’. John Paul II, Encyclical Letter Centesimus Annus, St Paul Publications, Sydney, 1991, para. 48.

[18] See Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse, Free Press, New York, 1991.

[19] See, for example, Alasdair MacIntyre, After Virtue: A Study in Moral Theory, University of Notre Dame Press, Notre Dame, 19881: 114-245.

[20] For a modern restatement of this position, see John Finnis, Natural Law and Natural Rights, Clarendon Press, Oxford, 1980/1993.

[21] There is no reason, of course, why we should simply accept such disagreement as an eternal given. To do so is to truncate reason itself. As John Finnis observes: ‘Public reasoning should be directed to overcoming the relevant mistakes, not pre-emptively surrendering to them’. John Finnis, ‘Rawls and Political Liberalism’, 24 February 1994, 8 (unpublished manuscript on file with author).

[22] This is illustrated in George Washington’s ‘Farewell Address’ (19 September 1796), in The Early Republic, N.E. Cunningham, University of South Carolina, Columbia, 52-7.

[23] See the magisterial study of the Revolution in William Doyle, The Oxford History of the French Revolution, Oxford University Press, Oxford, 1989: 86-158.

[24] See Russell Kirk, Edmund Burke: A Genius Reconsidered, Intercollegiate Studies Institute, Wilmington, 1967/1997: 145-191.

[25] Russell Hittinger, ‘The Gospel of Life: A Symposium’, First Things 56, 1995: 34.

[26] See Mary Ann Glendon, ‘Rights Babel: Thoughts on the Approaching 50th Anniversary of the Universal Declaration of Human Rights’, Thomas J. Furphy Lecture, 1996, 1-8.

[27] For a powerful critique of the United Nations Convention on the Rights of the Child, see Barry Maley, Children’s Rights: Where the Law is Heading and What it Means for Families, The Centre for Independent Studies, Sydney, 1999: 17-52.

[28] United Nations Convention on the Rights of the Child (hereafter UNCROC), 2 September 1990, Article 12.

[29] UNCROC, Article 13.

[30] UNCROC, Article 31.

[31] Arthur Leff, ‘Unspeakable Ethics, Unnatural Law’, Duke University, 1979, manuscript on file with the author.

[32] Robert George, ‘A Clash of Orthodoxies’, First Things 95, 1999, 35.

[33] Ronald Dworkin, A Matter of Principle, Harvard University Press, Cambridge, 1985, 350.

[34] Ronald Dworkin, Taking Rights Seriously, Harvard University Press, Cambridge, 1977, 198.

[35] Robert Nozick, Anarchy, State and Utopia, Basic Books, New York, 1974/1977, 9.

[36] Jacques Maritain, Man and the State, University of Chicago Press, Chicago, 1951, 77.

[37] Two contemporary exceptions have been Finnis, Natural Law and Natural Rights, 198-230; and Jacques Maritain, The Rights of Man and Natural Law, tr. D. Anson, Gordian Press, New York, 1943/1971: 50-114.

[38] Thus the radical materialist philosophy of the Greek thinker Epicurus sustained and was sustained by his deliberately hedonistic actions. See Epicurus, The Essential Epicurus: Letters, Principal Doctrines, Vatican Sayings, and Fragments, tr. M. O’Connor, Prometheus Books, New York, 1993: x-xiv.