To mark the 70th anniversary of the UN Declaration of Human Rights, we are revisiting Nick Spencer’s ‘The Evolution of the West’. 10/12/2018
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Today we are marking the 70th anniversary of the UN Declaration of Human Rights. Where did this global commitment to rights come from? Why should we believe in rights at all? And do they owe anything to Christianity or are they, as one scholar put it, actually a religion for a godless ages?
To mark the anniversary we are republishing Nick Spencer’s long–read on ‘The Religion of Christianity and the Religion of Human Rights’ which first appeared in his book The Evolution of the West.
1.
Shami Chakrabarti‘s book On Liberty ostensibly retells her “personal and political journey” as Director of Liberty, the Human Rights organisation. The organisation was already of pensionable age when she joined on 10 September 2001, having begun in the crypt of St Martin–in–the–Fields in 1934, but Chakrabarti – and the events of the following day and their still–unfolding consequences – gave it a whole new lease of life. For all its biographic framing, however, this Director’s cut is, in effect, the story of human rights and, in particular, their recent history in Britain.
This has been somewhat turbulent, to put it mildly, rights being only just short of salvific for some, and only just short of demonic for others. There is little doubt where Chakrabarti stands on this spectrum. Although she is not what she calls a human rights ‘fundamentalist’ – she recognises that very few rights are absolute and that the majority may be “interfered with” if done “proportionately [and] for… good reasons” – she nonetheless is unyielding in her belief that a full and principled adherence to legally–enshrined human rights makes for a much better, fairer and more secure society. If this sounds like a balanced and reasonable position, half way between the poles as it were, Chakrabarti’s language certainly tips her towards the salvific end of the spectrum. Human rights are what people in some parts of the world “dream” of. They “empower the vulnerable”. They “irritate and inconvenience the mighty”. One wonders whether the faint echoes of the Magnificat are accidental.
The idea of human rights as religion is not a new or controversial one. In the words of historian Samuel Moyn, “Christianity is the global faith that many would like human rights to become”. In the mind of some, there is nothing aspirational about this. It is reality. Thus, solicitor and academic Anthony Julius, writing in The Guardian in 2010 claimed that “a human rights discourse now dominates politics; there is a powerful human rights ‘movement’. It is the new secular religion of our time.”
Some take this a step further, contending that if human rights is the liberal West’s new orthodoxy, it must come at the expense of the old one. According to human rights lawyer, Francesca Klug, rights and, in particular, their incarnation in Human Rights Act are our “Values for a Godless Age”. More antagonistically, columnist Deborah Orr wrote in 2013 that “for human rights to flourish, religious rights have to come second to them.”
It is worth pondering such simplistic pronouncements. Deborah Orr seems to be unaware of the fact that religious rights are human rights, both legally and philosophically; or that there is no algorithm to judge between which human rights take precedence when; or that there is (and could never be) a pre–ordained set of priorities that established a permanent and inflexible hierarchy between different human rights, as to do so would be to subordinate some rights to secondary status in such a way as effectively to devalue them entirely. Such quibbles notwithstanding, views such as Orr’s are not uncommon.
On account of their alleged origins, rights are often judged as somehow incompatible, in competition with, or at very least in tension with Christianity. More precisely, this view rests on two distinct narratives about the roots of rights: philosophical and political.
The first contends that the ideology of rights was built rather like the walls of Jerusalem after the Babylonian exile, only in this version it is Immanuel Kant who plays the role of Nehemiah, his philosophical disciples that of the returned Jews, and the Church that played Sanballat, Tobiah and their allies, first mocking, then plotting against, and then threatening to destroy the entire project. According to this story, it is only the deontological foundations sunk so deeply by Kant, which make an absolute and non–negotiable the duty of respecting the rational nature of human beings, that can secure the walls with sufficient robustness. Admittedly, the anti–Christian slant of this tale is sometimes harder to justify, given Locke’s role of John the Baptist to Kant’s Jesus, and Kant’s own pietistic upbringing in his notably holy family. Nevertheless, Kant’s self–evidently lukewarm Christianity – agnosticism in all but name – and his non–theological reasoning serve to spin a story that is sufficiently non–Christian for those who wish to divorce Christianity from rights.
The second narrative is, as it were, the political sequel to this philosophical blockbuster. Rights find their political voice in the French Revolution, albeit with language developed in the previous generation by philosophical radicals. The open atheism of most of these radicals, and the Revolution’s anti–Christian and, in particular, anti–clerical credentials need no emphasis – although the (Catholic) Church’s relentless opposition to anything that could trace its roots back to the Revolution, rights included, over the following century offers just such an emphasis. Rights become the flag to which the secular rallied whenever the forces of religious reaction threatened oppression.
This essay acknowledges that while there is something to be said for both of these views, especially the second, the picture is more complicated than that and that two recent publications in particular – Nicholas Wolterstorff’s Justice: Rights and Wrongs and Samuel Moyn’s Christian Human Rights – offer a counter–narrative to which we should pay attention if we wish to represent the full nature of Christianity’s engagement with human rights.
The ‘conflict thesis’ between science and religion, which argued that science and religion were somehow necessarily at war with one another has been replaced by historians of science, in particular John Hedley Brooke, not by its opposite – some kind of harmony thesis’ which imagines the two have always been the best of friends – but by what Brooke has termed a ‘complexity thesis’, the straightforward idea that relations between the two have been complex, marked by moments and periods of mutual hostility and mutual support, conflict and harmony. As with science and religion, this essay contends, so with Christianity and rights.
2.
Nicholas Wolterstorff’s central contention in Justice: Rights and Wrongs is that justice is constituted not of “right” but of “rights”. The Christian ethicist Oliver O’Donovan has remarked that this distinction might remind readers a little of the passage in Book 2 of Decline and Fall of the Roman Empire where Edward Gibbon shows how the great Christological battles of the fourth century turned on a single letter: were God and Jesus homoousios, meaning of the same substance, andor were they homoiousios, meaningof a similar substance? To those less enmeshed in such theological subtleties, such as Gibbon, the difference appears insignificant and facile, a fact aided in as far as the two words differ by one letter, the iota, which happens to be the smallest in the Greek alphabet. This is angels dancing on splinters of pin heads.
Is not the question of whether justice based on right or rights similarly pedantic? Even if the context is more concrete – is it right that the hungry are fed or do the hungry have a right to food? – the difference is still paper thin: the hungry will get fed, or not, either way. As Wolterstorff points out, however, there is something more profound at stake here. “The debate at bottom is over the deep structure of the moral universe: what accounts for what.” Do rights come from justice or does justice come from rights? Or, put another way, are rights, such as they can be said to exist, natural or are they socially or politically conferred?
There are many prominent Christian ethicists who incline to the latter but contrary to their views, Wolterstorff argues that inherent, natural rights are not a modern invention, dating from either the eighteenth, seventeenth or fourteenth century depending on your historical taste, but rather can be traced back to the canon lawyers of Middle Ages, the Church fathers, Roman Jurists and, before them all, the Bible.
Drawing on the work of the mediaeval scholar Brian Tierney and his student Charles Reid, Wolterstorff argues that the language and logic of rights are readily identifiable in the legal systems of thirteenth century Europe. Indeed, in Tierney’s words, twelfth century European society was “saturated with a concern for rights… mediaeval people first struggled for survival; then they struggled for rights.” Thus, one Godfrey of Fontaine writing in the 1280s could say, apparently without saying anything remarkable, “each one is bound by the law of nature to sustain his life, which cannot be done without exterior goods, therefore also by the law of nature each has dominion and a certain right in the common exterior goods of this world which right also cannot be renounced.”
A similar point could be made of the Roman Jurists and the Church Fathers nearly a millennium earlier. Even if the precise vocabulary wasn’t there, the idea of natural rights clearly hovers in the background of patristic sermons. Wolterstorff quotes examples from John Chrysostom, Ambrose of Milan, and Basil of Caesarea who proclaimed, “that bread which you keep, belongs to the hungry; that coat which you preserve in your wardrobe, to the naked; those shoes which are rotting in your possession, to the shoeless; that gold which you have hidden in the ground, to the needy. Wherefore, as often as you were able to help others, and refused, so often did you do them wrong.”
This is powerful stuff although it seems to me an exaggeration to claim, as Wolterstorff does, that it is “as decisive as evidence in intellectual history ever gets.” It is precisely the rhetorical power of Basil’s words that seem to me to blunt the philosophical force of Wolterstorff’s case for natural rights among the Church Fathers; Basil is pleading, shaming, exhorting his audience, all the time performing on Matthew 25. His objective, it seems to me, is to open their eyes to (what would one day be called) the universal destination of goods, a concept as consonant with ‘justice as right’, as it is ‘justice as rights’. It is not that such exhortations are incompatible with the idea of natural rights. It is rather that they are equivocal.
A similar point might be made of the biblical material that stands behind such Church Fathers. This seems an even harder claim and Wolterstorff himself recognises that “when one attends to the prominence of divine legislation in Israel’s life, everything points to the conclusion that we are dealing with a right order way of thinking.” However, he proceeds to argue that the prophets and the psalmist do not argue the case that alleviating the plight of the lowly is required by justice. They assume it: “they take for granted that justice requires alleviating the plight of the lowly.”
The reason for this, and indeed the Old Testament’s obsessive focus on the widows, orphans, resident aliens, and poor is that it is God holds his people accountable for doing justice in a highly personal way. Failing to do so is to fail in obligations to God himself, to wrong God, to deprive him of that to which he has a right.
But if one acknowledges this – that God, in effect, has rights – one has made a crucial move towards recognising natural human rights. “To think of human beings as having inherent rights it to think of human beings as little gods, sovereign individuals.” But that, of course, is precisely how scripture does envisage humans, bearing his image, imitating his nature, discharging his role on earth. In other words, it is from God’s natural right as God that human’s acquire natural rights as humans. Thus, “the proscription against murder is grounded not in God’s law but in the worth of the human being. All who bear God’s image possess, on that account, an inherent right not to be murdered.”
This, Wolterstorff recognises, is not a fully formed doctrine of inherent natural rights but, rather, the raw material for later thinkers to develop just that. It is also, I suggest, vulnerable to the same criticism levelled at Basil’s exhortation. Recognising in every human being the fact that he or she belongs to and is in relationship with God, however acknowledged or broken that may be, is certainly compatible with a rights–based understanding of the moral universe. But the undeniable biblical register is one of moral exhortation directed at those who are called to respond, follow and obey God and his commands, which rather orients one towards a right order form of thinking.
The sense, in other words, is the biblical material can be used to derive a framework or foundation for natural rights, but it doesn’t do so necessarily. There is equivocation within scripture borne not least of its exhortative, rhetorically charged and often urgent genres.
3.
To move from the theo–philosophical case for rights to the theo–political one is not so much to change tunes as to move from one movement of a symphony to another: themes, motifs, patterns are recognisable even if the melody and key are clearly different.
However much Wolterstoff’s case for a Christian grounding of human rights might be legitimate, it wasn’t shared by European Christians of the modern period. For all the early modern period pondered rights, in the wake of the conquest of the Americas and the questions that raised about the rights of indigenous tribes, they came of age in the Enlightenment, and in particular with the American and French Revolutions, and their respective declarations, of Independence and of the Rights of Man. Rights were not only, it seemed, quintessentially modern but associated with an anti–authoritarianism that, predictably, the Churches rejected.
This changed in the early decades of the twentieth century and in particular from the 1930s. In 1925, the Catholic philosopher Jacques Maritain drew this distinction between person and individual when discussing what he took to be modernity’s wrong turn, which he laid at the door of Luther, Descartes, and Rousseau. In doing so, he was recapturing the Thomistic idea of the person, as someone distinct and inherently relational. At the time those who were setting out on this path were more likely to find themselves favouring authoritarian regimes over liberal alternatives, as these placed heavy rhetorical emphasis on the importance of community and seemed a viable refuge from the horrors of the communistic and materialistic view of human nature in the east and the individuated and atomistic vision of the liberal west. Maritain himself was still involved with the far right movement Action Française at the time, although he abandoned them when they were condemned by the Church for nationalistic and anti–democratic tendencies the following year.
Personalism began to find its feet independent of statist and nationalist ideologies. A personalist political manifesto was issued in 1931 from the rightist club, the Ordre Nouveau, but was explicitly not collectivist (nor, of course, individualist) in its emphasis. Personalism’s strength was arguably in its indeterminacy. Maritain claimed that there were at least a dozen difference personalist doctrines that he knew about, and even communism tried to get in on the game in around 1934. It was Maritain himself, however, who helped provide a more substantial analysis, moving it emphatically away from authoritarianism and defending “a pluralism founded on the dignity of the human person, and established on the basis of complete equality of civic rights, and effective respect for the liberties of the person in his individual life.” By means of such re–evaluation the movement gained momentum during the mid–30s, aided in no small measure by the dawning realisation that far right parties in Spain, Italy and in particular Germany might have offered a refuge from Communism but did so now at too great a cost. Personalism became a narrow and vulnerable path between two ideological heresies, and human dignity became a bulwark against the sins of both.
Moyn puts forward 1937 as the key turning point in this story, for two reasons. First, it was in that year that a new Irish Constitution was drawn up. The Preamble to this began, “In the Name of the Most Holy Trinity, from Whom all authority and to Whom, as our final end, all actions both of men and States must be referred”, and continued on to use the words, “seeking to promote the common good, with due observance of Prudence, Justice and Charity, so that the dignity and freedom of the individual may be assured.” Moyn observes that the term “dignity” had been used before then. Papal encyclicals, for example, such as the important Quadragesimo anno of 1931 had used the term when attached to collective entities like workers or to religious sacraments like marriage. There was, however, little precedent for it being used of human beings and in this particular way. The Irish Constitution was ground–breaking, marking the emergence of Constitutional Dignity, causing the Vatican newspaper L’Osservatore Romano to remark that “it differs from other Constitutions because it is inspired by respect for the faith of the people, the dignity of the person, the sanctity of the family, or private property, and of social democracy.”
As it happens and in spite of this, the future Pius XII had some problems with Constitution as it did not recognise Catholic Church as the one true church, but he was nonetheless satisfied with it, not least because his predecessor, Pius XI, who had been on the throne of Peter in 1937, had issued several encyclicals, such Mit brennender Sorge (on the Church and the German Reich) and Divini redemptoris (on atheistic communism) which had highlighted the significance of human dignity. These constitute the second reason for highlighting 1937. Communism, Pius proclaimed in the latter encyclical, “strips man of his liberty, [and] robs human personality of all its dignity.” It “denies the rights, dignity and liberty of human personality”. The encyclicals strike the personalist balance between collective responsibility and unencumbered individual freedom…
“it is impossible to care for the social organism and the good of society as a unit unless each single part and each individual member – that is to say, each individual man in the dignity of his human personality – is supplied with all that is necessary for the exercise of his social functions”
… in such a way as would make the idea of rights tenable in the 1940s.
The alliance between human dignity and rights was still a very tenuous one, however, and it was not until half way through the war that the two became more closely and firmly associated. American Catholic bishops used the language of rights in 1942, as did German Bishops in a pastoral letter of Easter 1942 when they complained against the Nazi regime and “the general rights divinely guaranteed to men”. The French Catholic resistance group Témoignage Chrétien republished and amplified it in 1942 booklet ‘Human and Christian Rights’. Maritain himself was increasingly campaigning on the issue and published Human Rights and Natural Law in 1942 in which he said “the dignity of the human person… means nothing if it does not signify that, by virtue of natural law the human person has the right to be respected, is the subject of rights, possesses right.” Most influentially, which is where Moyn’s book actually begins, Pope Pius XII’s Christmas message of 1942 firmly and explicitly (and very publicly) associated dignity and rights in a way that now became hard to avoid.
From having been a secular and liberal idea, rights came to be seen by the notably more conservative Catholic Church, as bulwark against hyperactive and overbearing state, especially when that state was communistic, as well as against the secularism, materialism and relativism that it felt threatened to undermine common order. However else it might be read, this growth of rights talk not secular. In Moyn’s word:
“Historians who have examined the crucial early war years to trace the rise of the hitherto largely unused phrase (in English) of “human rights” have discovered only minor percolations until something happened to bring the tern into its immediate post–war moment of increased use. Completely neglected among these percolations… is the comparatively early Catholic articulation of the human rights idea.”
If conservative Christian thought bore the language and logic of human rights in the immediate pre–war and war years, it was generally conservative Christian thinkers and parties that nurtured it in the post–war period.
Maritain continued as an effective global evangelist for human rights, both in UNESCO and as French Ambassador to Holy See where he helped orient Pope Pius XII towards human rights language in the late 1940s. Charles Malik, a Lebanese Christian, was responsible for the personalistic language in UN Declaration itself. In Moyn’s words “the human person became a key figure in thought at the United Nations, thanks to Christians who were impressed by papal language and who injected it into founding documents.”
In Europe, the post–war dominance of Christian Democracy secured the future of human rights there. Christian Democracy is little discussed in Anglophone circles. Moyn points out that Tony Judt’s massive history, Postwar: A history of Europe since 1945 has almost nothing to say about it. However, it was almost hegemonic in the 1950s and ‘60s. Post–war constitutions of rehabilitated nations adopted the idea and the language of human rights, starting with the Bavarian Constitution of 1946, the Italian Constitution of 1947, and the Basic Law for the Federal Republic of Germany in 1949. Even the preamble to the French Constitution of 1947, never likely to be a good place to find language that had been baptised by the Catholic Church, mentioned human person (though not, naturally God, or even human dignity). More broadly, the founders of European project were Christian Democratic politicians steeped in pesonalistic thought, such as French Prime Minister Robert Schuman, German Chancellor Konrad Adenauer, Italian Prime Minister Alcide De Gasperi, and Pierre–Henri Teitgen, President of the Christian Democratic Party in France in the early 1950s. All in all, at least until the 1960s, it was Christian–inspired or at least Christian–flavoured parties and movement that were responsible for the embedding of human rights within European and even global politics.
4.
This essay has been careful not to slip quietly from historical to normative claims. It is one thing to argue that human rights have been philosophically or politically grounded in Christian thought and activity, it is quite another to say that they therefore must be and, by implication, to claim that if we continue to see the melancholy, long, withdrawing roar of faith in certain parts of the world, Europe most obviously, we will lose our commitment to human rights.
Wolterstorff does make the case – indeed it occupies a sizeable proportion of his book – that only Christian theism can successfully ground a commitment to human rights. He goes through a number of alternatives, focusing on the Kantian approach which is undoubtedly the most serious alternative (not to mention the most significant philosophical influence on the development of human rights in the modern era). However, he concludes that “the fatal flaw in Kant’s capacities approach [is that] if we insist that the capacity for rational agency gives worth to all and only those who stand to the capacity in the relation to actually possessing it, then it is not human right that are grounded but the rights of those who possess the capacity.” By contrast, he says, the Christian basis side–steps any capabilities trap.
“If God loves equally and permanently each and every creature who bears the imago dei, then the relational property of being loved by God is what we have been looking for. Bearing that property gives to each human being who bears it the worth in which nature human rights inhere.”
There is undoubtedly something in this argument: unless one recognises something wholly alien or ‘given’ or sacred when one comes into contact with another human, it is hard to see how you can ground inalienable dignity. Put another way, if human dignity is grounded in something humans do or possess, then it is contingent on them being able to do or possess it. The Christian grounding of human rights has the advantage of being grounded in something entirely other, beyond human control (or indeed comprehension).
Even if one believes that Christian faith does indeed ground human rights more satisfactorily than other alternatives, however, there is still the question of whether such a grounding is really necessary. The story of the UN Declaration of Human Rights is a good example in this regard. As already noted, the Declaration is saturated with the language of personalism. The Preamble begins by recognising “the inherent dignity and the equal and inalienable rights of all members of the human family” as “the foundation of freedom, justice and peace in the world”, and goes on to talk about the “faith” that the peoples of the United Nations have in “the dignity and worth of the human person and in the equal rights of men and women”. Article 2 talks of “the right to life, liberty and security of person” and Article 6 to “the right to recognition everywhere as a person before the law”. Article 22 states that “everyone… is entitled to realization….of the economic, social and cultural rights indispensable for his dignity and the free development of his personality”; Article 26(2) states that education “shall be directed to the full development of the human personality and to the strengthening of respect for human rights”, and Article 29(1) states that “everyone has duties to the community in which alone the free and full development of his personality is possible.”
The personalistic hinterland here is about as clear as it is possible to be, but even if one can see the hand of Malik or Maritain hovering in the background, one cannot avoid the fact that the Declaration is not a personalistic document. Indeed, it conspicuously fails to justify its faith in human dignity or rather, does so only in negative, historically specific or aspirational terms. Thus, the Preamble declares how “disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind”, and how “if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.” Similarly, it speaks of the “advent” of a world in which “human beings shall enjoy freedom of speech and belief and freedom from fear and want” which has been “proclaimed as the highest aspiration of the common people.” Maritain subsequently remembered that at one of the meetings of a UNESCO National Commission where Human Rights were being discussed, “someone expressed astonishment that certain champions of violently opposed ideologies had agreed on a list of those rights. ‘Yes’, they said, ‘we agree about the rights but on condition that no one asks us why.’”
If that worked for the Declaration then, why is it not an option now? This is not an altogether silly suggestion. After all, most of us do what most of us do through largely unreflective habits and instincts. Digging down deep and searching hard for secure foundations for dignity and rights is perhaps to return to Gibbon’s iota. But while not being silly it is perhaps a little complacent. We may well behave by habit and instincts but our habits and instincts are still shaped by ideas, albeit over periods of time that are too long for most of us to notice. Moreover, as legal scholar Christopher McCrudden has noted, “with the increased political salience of human rights, and the increased use in litigation of human rights language, has come increasing attention on the theoretical underpinnings of human rights.” The more weight we pile on the edifice the more reason we have to ascertain how it might sway or buckle. Perhaps most tellingly, when respected ethicists makes serious arguments about the non–human status of mentally disabled infants, medical ethicists make sincere case for infanticide (or post–natal termination as they euphemistically call it), and advanced Western democracies legislate for the euthanasia of children, one can see the thread of equal, permanent, incommensurable dignity for all humans fraying.
Shami Chakrabarti’s book, with which we began is not apocalyptic about human rights and nor, hopefully, is this essay. However, her and Liberty’s on–going vigilance is itself a good reason against undue complacency. Christianity cannot claim to be human rights’ saviour, riding on its white charger just as it appears to be swallowed up in some relativistic swamp. Given the distinctly chequered and chilly relationship the two have had, that would be as false a reading of history and future, as those who imagine that human rights is a kind of anti–Christian movement. But it is perhaps precisely because of that chequered, or complex, relationship that it is worth integrating serious Christian theological reflection when thinking about the foundation and future for human rights. If, as Samuel Moyn says, “no one interested in where human rights came from can afford to ignore Christianity,” we might want to say that same about where human rights are going.
