As discussed in an earlier article, the Judeo-Christian concept of natural law forming the basis of natural rights – surely a major influence on the understanding of individual rights enshrined in the Universal Declaration of Human Rights (UDHR) – has been displaced from primacy in the Western world by alternative philosophies. While still influential, other philosophies challenge it, and create conflict in many countries. Professor Robert George of Princeton University, the nation’s foremost conservative legal scholar, after an initial discussion of the origin of the idea of human rights and the challenge to the idea of natural human rights, went on to discuss with Emily Kao of the Heritage Foundation the leading philosophies influencing law in Western world, and thus, endeavoring to influence the rest of the world, at Heritage on July 16.
George explained that there are three major schools of “political justice.” First, utilitarianism holds that in both personal and political decisions, the righteous choice is for the greatest benefit over harm “however benefit and harm are defined.” A positive note George sees in the utilitarianism of nineteenth century utilitarian John Stuart Mill was the rejection of the “notion of abstract right.” That is to say, the idea of rights independent of the good. He noted that in the case of freedom of speech and expression, “truth seeking” is the good protected by free speech. However, the utilitarian formula of choosing what is most likely to produce the highest ratio of benefit to harm will not tell us what human flourishing is, George said. “Happiness” and “pleasure” are common starting points in finding rights on a utilitarian basis, but George said they do not really arrive at a picture of what human flourishing is.
The second alternative of political justice is John Rawls’ theory of abstract rights. This is developed first “by conceiving of justice as fairness,” and then we derive human rights under the assumption of human equality, excluding human differences that cause controversy. George said he had spent most of his career explaining why Rawls’ theory of abstract justice is wrong.
The third alternative of political justice is natural law, represented by George himself, and by others such as John Finnis and the new natural lawyers. It involves thinking seriously about the human good to arrive at a theory of human rights, but rejects the utilitarian principle of the greatest benefit over harm. The human good must rather be assessed “in all its complexity and variety.” On the other hand, the theory of abstract rights advocated by Rawls “consistently fails to meet” its own standard of independence from a doctrine of the human good. Rawls and the Rawlsians “smuggle into their theory” ideas of the good. George believes that only the “hard road” of assessing the human good to determine human rights is satisfactory.
Asked about the current direction of legal thought, George said that the doctrine of abstract rights has become dominant both in the academic world (and because of that) in the wider culture (“journalism, the arts, the professions, much of government, much of corporate America”). This dominance is “why the Left has had such success in using human rights discourse to advance its agenda.” He said that Secretary of State Mike Pompeo’s effort to re-assess human rights questions this dominance, while leftists themselves believe that their theory is correct and ought to be dominant. The idea of human rights is not driving leftist ideology, he said, rather the ideology is re-shaping human rights.
Emily Kao, who interviewed George, pointed to the explosive growth in the human rights establishment, including treaties, bureaucracies, and vocal advocates. This has happened at a time of serious decline in religious freedom, with many countries having regimes that seriously restrict religious freedom, according to the Pew Research Center. George said that the religious freedom situation in the world “is a tragedy, and its only getting worse.” He sees “two different families of threat” to religious freedom. “Religious extremism” (although not necessarily Islamic), and “militant, and increasingly illiberal, secularism.” The latter includes suppression of religious speech found offensive, prohibition of certain religious activities such as the male circumcision of Jewish and Muslim infants, and a general effort to drive religion to the margins of society. He claimed that the French doctrine of “laicite” is part of this, and is “explicitly” contrary to Article 18 of the UDHR, which holds religious exercise in the public square to be a fundamental human right. He also said that “the right to religious freedom is not reducible to the mere right to worship. That language has come out of previous State Departments.” Religious freedom is not the mere right to religious ceremony, exercised perhaps entirely in a house of worship, but also the public expression of religious life, including endeavoring to move society in ways one’s faith calls for. In this respect, he noted that John Rawls wanted to allow religious support for the civil rights movement, but could not consistently do so, because religious motivation is supposed to be excluded from the public square. But while the religious contribution in striving for a better world is an important reason for religious freedom, the ultimate reason is to raise “basic, fundamental questions of meaning and value.”
In this regard, George pointed to the question of the duty we may have to the ultimate reality we believe we have apprehended as an important reason for religious freedom. All violators of religious freedom, both the violent persecutors, and the secularists who seek to marginalize religion, are acting to prevent people from seeking the truth and living according to it. They are denying the possibility of what many modern people see as vital to human life, namely, “living with authenticity and integrity.” Religious freedom is then a universal right, applying to everyone, including atheists in the right to decline religious activities. In a culture of religious freedom, one should be free to attend or not attend a house of worship, without regard to whether it makes one “look good.” He said that “religious freedom is not an abstract right, it’s rooted in things essential to our humanity, to our good.”
Kao observed that the international human rights community is now advancing several attacks on truth seeking. The Organization of Islamic Nations has advanced a “defamation of religions” concept at the United Nations which would make criticism of religions “a human rights violation.” The United Nations is also engaged in “a global campaign to counter hate speech,” while the U.N. special expert on gender identity has recommended that all nations prohibit criticism of “sexual orientation or gender identity,” especially by religious leaders. George said that “we should fight back against” these things “with all our might.” They are “anti-human at the end of the day. We humans are truth seekers.” He noted that John Stuart Mill said that “truth cannot be authentically sought in the absence of freedom.” People should be free not only from the restrictions of any orthodoxy, but also from “the tyranny of public opinion, or what we would call political correctness, or group think.” This, he said, is particularly noticeable in the academy, where students come already indoctrinated against classical liberal freedom, such as freedom of religion or speech. He said that many of his incoming students believe “that there is a hate speech exception to the First Amendment.”
George said that the commission appointed to review the doctrine of human rights for the State Department was composed of members who understood the universal character of human rights and the importance of truth seeking. Tyrants and opponents of freedom of religion and speech can be expected to treat any criticism as “an offence against decency or an offense against the common good.” After centuries of experience, people should say “absolutely not” to such claims. The conditions of truth seeking are “peace and freedom, no violence, no coercion, no imposing group think, no silencing dissenters and critics, a fair truth seeking discussion.” It is important, George said, to be fighting in universities and schools for a correct understanding of human rights as based on the human good and truth seeking. Students should not be rewarded for “group think” with “safe spaces.”
A questioner asked how George would respond to the claim that self-censorship was proper because conflict is rooted in language and we should respect other people. George responded that discourse should be civil, but people should “do business in the proper currency of intellectual discourse, and that’s a discourse that consists of reasons, arguments, and evidence.”
Going forward into a future in which much of society has become oriented to rights rather than duties, we should recognize that the language of rights is seductive, because people are naturally inclined to think that they are entitled to what they want. This gives strong moral force to demands that are in reality tyrannical. Only if we appeal to external truth and reality independent of wishes and aspirations can we avoid an understanding of human rights that is not a mere contest of wills.
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