Natural Law

Robert George Speaks on Restoring the Natural Law Basis of Human Rights – Part 1

on July 24, 2019

The rhetorical power of the American Left is surely the greatest difficulty faced by political and social conservatives. In just a few years in the twenty-first century, it has become difficult to make rational arguments or knock down preposterous ideas because issues are framed in the language of “rights.” If something is assumed to be a right, then it is not up for debate. As this writer has pointed out in several articles, the leftist takeover of rights dialogue to make leftist objectives into indisputable rights must be challenged with a correct understanding of rights as being objective, independent of politics, as is now belatedly (in the wider world) being done.

The shift from speaking of natural rights to human rights (or as need be, animal rights or even plant rights) corrupts both domestic politics and foreign policy. For the latter, since freedom is a central idea of American foreign policy, the United States, other western nations, and the United Nations have recently begun including “abortion rights” (commonly rephrased to “reproductive rights”) and “LGBT rights” in their policy objectives and aid to non-western, developing nations.

The Trump Administration is attempting to rectify the misunderstanding and corruption of foreign policy. U.S. withdrawal from the U.N. Human Rights Council last summer, noted the inclusion of such severe violators of human rights as Cuba, Venezuela, and China, and a perennial bias against Israel (held by the mainstream media to be “the” issue involved). One State Department ministerial on advancing religious freedom was held last year, another this year from July 16-19.

This summer, Secretary of State Michael Pompeo announced the formation of a commission to study the doctrine of inalienable rights, with a view to providing an understanding of human rights that will become part of U.S. foreign policy. This summer, the State Department held the second ministerial on international religious freedom, a foreign policy objective since the passage of the International Religious Freedom Act of 1998.

Emily Kao of the Heritage Foundation discussed the natural law foundation of Western civilization’s doctrine of rights with America’s leading conservative legal scholar, Robert George of Princeton University, on July 16. It was observed to begin with that the “human rights community” has deteriorated in its advocacy and activities “as it has come unmoored from its foundation in natural rights and natural law.”

George said that the “concept of human rights” has roots as far back as the Middle Ages, but the modern concept was given its current form by the Universal Declaration of Human Rights (UDHR), promulgated in 1948. A commission chaired by Eleanor Roosevelt developed the document in the wake of the mass atrocities of World War II. The commission could find no theoretical basis for human rights that its members from different parts of the world, cultures, and religions could agree on, but did reach agreement on many rights that they wanted to protect. While western commission members came from a Judeo-Christian background in natural law, other non-western members did not.

Today, George said, differences are still fundamental, but now exist within Western society. Indeed, it might be said that the most fundamental differences about rights, which is more a Western than non-Western concept, are in the West. George said the conflict in the West concerns “fundamental differences about what human rights are, and what human rights there are.” He said that “rights cannot be whatever you want.” While this should be obvious, it could be added that Americans are so attuned to the language of “rights” that this is exactly what the Left claims regarding its key issues. Discontents that it wants to exploit are presented in the language of rights, and so a moral claim is made to put the issue above public debate. We must therefore “distinguish between true rights and false or failed claims” to rights. In this conflicted situation, the only way to come to a correct understanding of rights, George said, is “to do fundamental philosophy.”

To address the question from the standpoint of philosophy, George said that “a human right is a right that you have simply in virtue of your humanity.” It is not “bestowed” by any government. Rights cannot be “empirically verified,” George said, although this “does not mean that they are not objective.” But only philosophy can disclose their real existence. A philosophy of rights does not begin with rights, but begins elsewhere, and we “reason to” rights. “Beneath the concept of human rights, we have the human good, human wellbeing, human flourishing.” People are “not just instruments for other ends.” George noted that both socialism and fascism regard the human collective as the true good, considering individuals mere tools to the good of the collective.

George said that where the true human good of human flourishing is recognized, there is a concern for “justice, fairness, among human beings … A properly ordered state is concerned with justice, doing justice, and preserving justice.” Justice is not merely concerned with individuals, even though they are ends in themselves, but also with “the overall flourishing of human beings.” Therefore “justice will be specified by reference to the human good.” He said that he disagreed with legal theorist John Rawls, despite his own great respect for him. Rawls maintained that abstract rights could be known independent of consideration of the human good, and particularly of controversies about what the human good is. But George holds that only if we know what a good life is can rights be specified. He said rights are not “premises, but conclusions.” They are discovered by considering “the human good, and all of its complexity.”

While a moment’s reflection ought to tell anyone that law and justice must have some good in mind, Professor George is surely correct that failure to recognize this is the root reason why common sense is being banished from public life by very intelligent and powerful people. George’s further comments, explaining philosophical alternatives for law and the dominance of the idea of constructed rights rather than natural rights will be reviewed in a subsequent article.

  1. Comment by Steve on July 24, 2019 at 11:47 am

    When considering “rights,” it is necessary first to consider two prerequisites: 1) the authority to pronounce them and 2) the power to enforce them.
    In the context of “human rights,” the only “authority” to pronounce them is the post-World War II United Nations commission chaired by Eleanor Roosevelt. They are posited as rights everyone has, simply on account of being a human being. Once again, says who? In spite of the fact that one can study “human rights” in erstwhile respectable institutions of higher learning and get degrees in them, it only works if one passes over the question of “Says who?” They are up there, as the saying goes, entirely by their bootstraps.
    Even their proponents touted them as a “secular basis for morality,” that is, a basis for morality without God, without anything or anyone transcendent. It doesn’t take much to realize that the only basis for morality without anything or anyone transcendent is power politics. Without God it is not a matter of “good and evil,” “right and wrong”; it is only a matter of “strong and weak.” The authority, then, behind “human rights” is whoever or whatever holds the power over the society in question.
    If the authority to pronounce human rights effectively belongs to the powerful, the answer to the second question (“Who has the power to enforce them?) is obvious: it is the same power that appropriates the authority to pronounce them. It is a scary picture, hidden behind a façade of high sounding “human rights.” But, logic will always have its way, and without an external referent with the power to enforce morality of any sort, the (secular) state becomes the natural repository of whatever “rights” it deigns to allow its subjects. All that happens is that faction after faction jockeys for its “rights” in the political arena, however that arena is temporarily organized.
    It may be viewed that there are two different forms of organization, democratic or authoritarian, free or tyrannical, but one must concede that without a transcendent provider of morality, democracy is just the means to bring about the tyranny of the majority. Conversely, the most autocratic despot who considers himself subject to a transcendent power, particularly if that transcendent power is a Creator God whose being is good and whose mercy is just, one may find a better chance for a workable society there than one that decides morality by majority vote.
    It all comes down to dealing with who has the power to enforce whatever “rights” are at issue and who has the authority to make those rights law. It’s simply a matter of power politics and, on the way there, the only thing “human rights” a la the 1948 Declaration of them are good for is propaganda.
    Untethered “Natural law” will not provide the basis for human rights, however defined. In the west lex naturalis has traditionally been understood as something God-given. Before “natural law” was discarded wholesale in favor of “positive law” (manmade law—power politics law), lex naturalis came to be thought of as somehow inherent in the nature of things, apart from a Creator who authorized it and had the power ultimately to enforce it. It was on that account that early twentieth century Christian writers such as Gustaf Aulen provided the corrective of referring to God-given law as lex revelationis, revealed law to distinguish it from “natural law apart from one who creates it.”
    In point of fact, in the west, virtually all western and western influenced societies now find themselves dealing one way or another with manmade (power politics) law. And, it all gets couched in terms of “rights.” But, it was one thing for the Christian church to be the proponent of “natural law” and “natural rights” when western civilization thought of itself as “Christendom” and subject to a Creator God who was definitive good. Those “rights” were—all of them—dependent upon preeminent duties levied on humanity by this just and merciful God. Those duties were to love him above all else and to love our neighbors as we love ourselves. With the coming of Christ, that bar to love our neighbors as we love ourselves was raised even higher as we were given the duty to love one another as he has loved us.
    It seems the church, to be true to its call to represent this Creator and Redeemer God to the world, might pronounce judgment on every claim of “right,” and rather remind us all of the preeminent duties we all have to God and to each other, duties from which every “right,” if there are any rights, derives.
    Very simply, from the viewpoint of revealed religion duties precede rights while from the viewpoint of secularism, supposing that in our natural state all of us are free from each other and have rights to do whatever which rights are only encumbered by others, rights precede duties. Thus, in order at least to survive, if not to make a true neighborhood, we trade off our rights to do whatever and take on certain contracted duties in order to be the beneficiaries of limited rights that come to us as others trade off their rights to do whatever and assume certain reciprocal duties toward us. It’s called the “social contract.” It doesn’t result in a neighborhood. It results in an armed camp, or several armed camps. But, it’s always what happens when rights precede duties. Unfortunately, the call to God-ordained duty is either not being sounded at all or is being entirely downed out in all screaming for rights. And, the authority for those “rights” belongs only to those screaming the loudest and carrying the biggest stick.

  2. Comment by Gary Bebop on July 24, 2019 at 1:18 pm

    Great article introducing a subject of significant import and moment. Thank you for publishing this series!

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