of the Human Person and The Idea of Human Rights: Four Inquiries
by Jean Bethke
The heart of Michael Perry’s argument [in The Idea of Human Rights: Four Inquiries (Oxford University Press, 1998)] lies in his claim that “every human being is sacred” and, that being the case, it follows that there are “some things that ought never (for example, under any circumstances or conditions) to be done to any human being or some things that ought always (under all conditions) to be done for every human being?” The “foundational” claim is that every human being, because sacred, is owed a certain regard and that this regard, in our time, has taken shape as, and congealed around, the idea of human rights. The dignity of the person, in other words, is a necessary prior assumption from which rights derive. The ontological claim, or to put it in a similar if not identical way, certain anthropological presuppositions, necessarily ground any sustainable human rights argument. It is possible, certainly, to make human rights claims on purely conventional grounds or, in more “Rortyesque” language, as just the way we do things around here. But that claim is not sustainable over time, argues Perry. It follows that “there is no intelligible (much less persuasive) secular version of the conviction that every human being is sacred; the only intelligible versions are religious.”
Now this tells us a lot -- or not very much -- depending on your point of view. Perry launches a grand claim but this claim requires a good bit of filling in. Not every set of religious beliefs or commitments, presumably, would or could do the same philosophical, ethical, and political work for us in the human rights area as does, and has, Christianity. It is no accident, as our Marxist friends used to proclaim, that it is in the West that a human rights culture par excellence first emerged. Some might argue that this articulation is a Western response to Western horrors like slavery or genocide. But slavery and genocide were institutions or activities long established before the emergence of Christendom. So that argument does not hold and will not detain us here. This means we are pitched back to a particularity of the West that has become a universal, if not altogether universalized, feature of late modernity.
I realize that what I have just stated so summarily is by no means uncontroversial. But if the reader will grant me the benefit of the doubt, what I want to go on to do is to argue that there are some versions of religiously based human rights that are capable of doing more of the hard work of “sustaining” a human rights culture than others. My concern is that conventionalism or nominalism has so thoroughly saturated much of our modem rights culture, it is often difficult to sort out the stronger claims that refer back implicitly, if not explicitly, to the sacral or religious grounding, from others that have no such necessary point of origin and reference.
The version of human rights argument that seems to me most capable of undergirding Perry’s claims lies in Catholic social teaching. Let’s start with Dignitatis Humanae which begins by proclaiming “the dignity of the human person” and goes on to insist that that dignity involves “enjoying and making use of a responsible freedom, not driven by coercion but motivated by a sense of duty.” Duty and the rightful exercise of rights cannot be severed one from the other.
By contrast, much contemporary “rights talk” is knowingly disentangled from any substantive, normative view of persons. It should be noted, as well, that duty has fallen out of the picture altogether in our dominant “rights talk,” again by contrast to Catholic social teaching. Much of the regnant version of the primacy of rights understood as wants or preferences -- for that is the current view -- is derivable, by a circuitous (some might claim tortuous) route, from seventeenth-century contractarianism which posits the self as given prior to any social order.
A view of a primordially “free” self haunts the modern rights project. More than that: all talk of rights and religion gets very tricky because human rights in a classic Christian (and certainly Catholic) sense is grounded in a realist epistemology rather than on a nominalist basis that opens itself up to arbitrariness. Thomas Hobbes would be a key figure here. Hardly a rights-thinker, Hobbes, and others associated with a scientistic or cosmological mechanistic world-view saw persons as individuals (of which more below) who were driven by irresistible desires. Primus inter pares for Hobbes is a power urge that gets translated into a right or a law. Human freedom and choice become nigh absolutes that are somewhat restricted by rights. That is, rights becomes a way in which we both confront and are protected from each other. There is no “objective orientation toward freedom” in this view whereas, within Catholic social teaching, the context within which rights are located is undeniably teleological. There is a good toward which we tend and there is an intrinsic connection between truth, faith, reason, and freedom.
In the remainder of this essay, a meditation inspired by a reading of Perry, I will devote myself to an exploration of the contrast between “rights talks” and human rights as understood through the prism of Catholic social teaching generally, Dignitatis most particularly. There are three parts: anthropological presuppositions; the concept of rights itself; finally, the good toward which rights, variously understood, tend. If my argument is in any way compelling, it deepens the late modern dilemma: we cannot do without human rights but the way in which rights get generalized and universalized may, over time, be incapable of sustaining those very rights. This dilemma results from the fact that too much of the deep background and justification for rights has been jettisoned along the way in order to maximize the palatability of rights in cultures in which rights are not an outgrowth of the dominant order of things.
When I was in graduate school we talked about contrasting views of human nature. That way of talking has been pretty much ruled out of court by post-structuralism and post-modernism: nature or the natural can never be appealed to, on the view of practitioners of these tendencies in thought. The all-purpose epithet, “essentialist,” gets trotted out as a stick to beat nature or the natural wherever and whenever these terms may appear. Erroneously, the claim is that all those who evoked or evoke nature or the natural as a standard were and are committed to the view that humans are not shaped in any fundamental way by their social and political worlds and their historic time and place. This is balderdash on its face but it is a charge that has stuck. That said, it seems to me better to begin with the notion of anthropological presuppositions instead of human nature in any case. Why? Because human nature arguments, at least many of them, smuggled in a pre-determined telos of a certain kind if they didn’t state one outright. And that telos could be articulated in a way that claimed something close to historical inevitability for the “forward march” of certain movements or some cultures by contrast to others. The telos underwriting human rights within a realist epistemology, contrastingly, avoids hard determinism by permitting us to acknowledge how deeply we are “pressed” by a world over which we have minimal control. At the same time, however, it frames all considerations of human projects with strong notions of the good toward which human being tends and the plural goods that reflect this higher good, a view unintelligible absent a transcendental horizon.
To speak of one’s anthropology is a way to ground an argument without reverting to strong foundationlist assumptions. It is a way of thinking open to cultural and historical specificity as well as the role of chance in human affairs. Here I wish Perry had spelled out what all he is packing into a claim he calls “foundational,” namely, the “conviction that every human being is sacred.” For this sacral dimension, for Christians, speaks to the fact -- and it does have the status of a fact-- that human persons are intrinsically, not contingently, social. We are born to communion, to relationality. It follows that there is no claim to personal goods “which are prior to social relationships and obligations.” Rights, then, are lodged in an ontology of human dignity. This dignity of the self cannot be dehistoricized and disembodied as separate from the experiences of human beings as creatures essentially, not contingently, related to others.
The modern social encyclicals of Popes Leo XIII, Pius XI, John XXIII, Paul VI, and John Paul II
affirm much more strongly the importance of the individual and . . . of his or her rights.” And these rights are not “spoken of primarily as individual claims against other individuals or society. They are woven into a concept of community that envisions the person as a sacred part of the whole. Rights exist within and are relative to a historical and social context and are intelligible only in terms of the obligations of individuals to other persons.
This understanding steers clear of excessive individualism without, at the same time, submerging persons into an indiscriminate social “blob” such that they cannot be distinguished as the distinctive beings they in fact are. In this way, a concept of what one might call distinctiveness or individuality is preserved sans a slide into individualism, whether as anthropology or ideology or both. Within this vision, commonality is on some level assumed and solidarity is an achievement consonant with the dignity of persons. What wants explaining, within this framework, is not solidarity but isolation. By contrast, those oriented to the views imbedded in the presuppositions of individualism—presuppositions characteristic of conventionalist-nominalist strains of “rights talk”—strain mightily to figure out how such essentially, not contingently, selfish creatures as human beings might actually relate to one another in relatively decent ways.
Now: there is an undeniable rights-based, individualist thrust within contemporary, late industrial cultures, nowhere more so than in the United States. This way of thinking sees us as whole and complete unto ourselves: the self is sovereign and has, so to speak, proprietary interest in itself. This self is the sum total of the choices it -- he or she -- has made. There is, of course, a way in which this is correct, or there is an insight here worth preserving, namely, that we really do become, in some profound sense, what we have chosen. The problem with choice in much of contemporary liberalism is that it is impoverished by being reduced to wants and preferences without any necessary reference to goods, ends, and purposes and how one might distinguish the more from the less worthy. Closely linked to the individualist notion of rights is one version of freedom, namely, to constitute and to choose values for oneself in isolation from a community of belief and within a conceptual frame that has eliminated any notion of the normative ordering of goods.
The view of the self as an “autonomous” and sovereign chooser is so deeply entrenched that in late twentieth century America, at least, it is simply part of the cultural air we breathe. Needless to say, this position casts a pall of suspicion over ties of reciprocal obligation and mutual interdependence. Presuppositions of selfsovereignty erode families, civil society, polities, even markets over time. The assumptions of self-sovereignty undergird a notion that human wants and needs are infinitely expandable and feed an ideology of “progress” which, in practice at present, means “more and better” consumerism and higher numbers on the New York Stock Exchange. Dignitatis, by contrast, speaks throughout of “responsible” freedom compelled by a sense of duty to the common good. Our dignity, that with which we begin, is God-given and cannot be repealed, negated, or watered-down by governments or any other institution. The rights of such dignified persons are inviolable. Remember that I argued above that the current individualist order disdains any normative ordering of rights and this, too, departs in significant ways from Catholic social teaching.
Unsurprisingly, then, Dignitatis begins with the dignity of the person and declares, correlatively, that the right to religious freedom is first and foremost. How so? Because this right speaks most pointedly to the ur-ground of rights themselves, namely, our very selves geared, on this view, to seeking the truth: “the right to religious freedom has its foundation not in the subjective disposition of the person, but in his very nature.” Because we have a right, and therefore a duty, to seek the truth, that right which speaks profoundly to the search for the truth is primus inter pares among rights. Our consciences are not up for sale or deployment as bargaining chips in political negotiation. These rights begin with a right to “immunity from external coercion in matters religious.” This immunity from coercion makes possible a form of human flourishing that, without it, is impossible. This immunity is necessary in order that an ordering of goods can be made manifest among us. Dignitatis repeats this theme many times over. There are many ways, of course, that the Church changed over centuries in order to make possible such a ringing endorsement of freedom of conscience. That is not my concern here and excellent histories are available for those who want to track the tale. Instead, let us turn to a few additional words on the impoverished anthropology at play in contemporary “rights talk.”
Here, as I have already indicated, the person is defined by choices understood as preferences. The overall perspective is a type of cost-benefit analysis, often of a rather brutal sort. Because this way of thinking is so pervasive, we have lost sight of just how extreme it is. For there is something extreme in the view that we are most ourselves when we are alone with our preferences and that the sum total of these preferences is who we really are. This view also makes it difficult to assess the negative, cumulative effect of thousands upon thousands of individual “choices,” let’s say those leading directly to certain forms of environmental degradation. Because we cannot criticize any single individual choice (if it’s “right” for him or her), our capacity to evaluate critically the overall direction of the political economy or modern culture or anything else is denuded. Our great gift and responsibility of moral autonomy atrophies as we reduce human freedom to a vast array of consumer choices in a world in which individual goods triumph and any notion of a common good is rejected or lost....
QUESTIONS CONCERNING ENDS
…The ends toward which rights tend cannot be evaluated absent a recognition that one must begin with some understanding of the human person. The Universal Declaration of Human Rights affirms the “inherent dignity” of all persons. This dignity is not free floating, some arbitrary principle picked up on and found useful; rather, this dignity is lodged in the fact that human beings are creatures of a certain sort. Catholic social teaching fleshes this matter out by insisting that, if contemporary society has great difficulty figuring out an intelligible and defensible way to articulate and to limit rights, it is because society has embraced a nominalist construal open to arbitrariness that admits of pragmatic adjudication only when it comes to all the difficult questions. But, alone, proliferating programmatic cut-off points about what is not allowed and what is permitted affords little guidance as to what counts as an offense, in the first instance, or what is required as a basic entitlement, in the second.
As I wind down, let me introduce one other important distinction that this paper -- and Perry’s argument -- relies on, however tacitly. There is an important difference between the individual and the human person. Individuals are usually construed as particular bits or pieces of a large species or group ordering -- they (such individuals) are the subjects of that view I have called nominalist-constructivist. By contrast, persons are intrinsically relational and objectively valued and dignified, being created in the imago Dei. In the words of John Paul II:
Truly, one must recognize that, with an unstoppable crescendo from the Old to the New Testament, there is manifested in Christianity the authentic conception of man as a person and no longer merely as an individual. If an individual perishes, the species remains unaltered: in the logic established by Christianity, however, when a person dies, something unique and unrepeatable is lost.
It is as a person, not an individual, that one takes communion and participates in other solidaristic activities. And it is as persons that we are beings who are rightly touched by, indeed claimed by, the sacred. If Perry had fleshed this matter out more fully, the controversies that swirl around human rights would hit us with even more exigent force that he already allows. Not only that. We would, as well, be bombarded with the rueful recognition that universalizing rights inevitably, or so it seems, involves watering them down.
How so? Because, as Michael Ignatieff points out in a recent, illuminating article on Human Rights: The Midlife Crisis, a “cloak of silence” has been “thrown over the question of God.” Ignatieff’s reference point is the deliberations that led to the Universal Declaration itself. In Ignatieff s words: “The Universal Declaration enunciates rights; it doesn’t explain why people have them.” Communist and some non-Communist delegations, at the time of the drafting, rejected explicitly any reference to human beings as created in God’s image. Even “by nature” failed to pass muster. So “secularism has become the lingua franca of global human rights, as English has become the lingua franca of the global economy. Both serve as lowest common denominators, enabling people to pretend to share more than they actually do.” Can this pretense be kept up? Or will it lead, over time, to more watering down? We can’t predict any future outcome with great confidence. But, if Perry is right, grounds for optimism in this matter are rather flimsy. Ignatieff says it is none too clear to him, at least, “why human rights need the idea of the sacred at all. Why do we need an idea of God in order to believe that human beings should not be beaten, tortured, coerced, indoctrinated, or in any way sacrificed against their will?” These insights, he insists, derive from a certain notion of moral reciprocity, a kind of secularized version of a Golden Rule. He calls this a minimalist anthropology that will leave those of strong religious persuasion unsatisfied.
But just how reliant is this notion of moral reciprocity absent a substantive notion of persons and their moral standing? Certainly one need not bring the full panoply in a rights-based argument lodged in realism (as is Perry’s argument) to every discussion. But to argue that it needn’t be brought to bear in any discussion is, in any case, unnecessary seems to me going too far the pragmatic and nominalist direction. Ignatieff, if anything, ignores human arbitrariness, or our capacity for such. Can “not much more than the basic intuition that what is pain and humiliation for you is bound to be pain and humiliation for me” sustain a robust human rights culture over time, whether within or across societies? I doubt it. So does Perry. But I think that he, like the rest of us, have a lot more work to do to make this point and to make it intelligible, if not acceptable, to those who disagree. Catholic social teaching is one powerful resource toward precisely this end.
Jean Bethke Elshtain is Laura Spelman Rockefeller Professor of Social and Political Ethics in the University of Chicago Divinity School, the Department of Political Science, and the Committee on International Relations.
© 1999 Journal
of Law and Religion. Reprinted with permission.