Universal Morality as the Proper Basis for Human Rights

The language of rights animates western democracies, but much of it has little basis beyond what someone wants. For a well-ordered society, it is necessary that claimed rights have a basis in truth, and be understandable in terms of a reasonable interpretation of existing law. Discussion of rights is an intensely moral area, and a claim of rights is a claim to a trump card, which if successfully made, shuts down debate. Rights claims are thus quite divisive in society, if there is no general agreement on what true rights are.

Robert P. George, McCormick Professor of Jurisprudence at Princeton University, and Director of the James Madison Program in American Ideals and Institutions at Princeton discussed the moral presuppositions of human rights discourse with William Saunders, Director of the Program for Human Rights for the Institute for Human Ecology at Catholic University of America in a Faith and Law presentation on Dec. 3.

George began the discussion by saying that the point of the Commission on Unalienable Rights, established by former Secretary of State Mike Pompeo, which issued its report last year, “is that human rights discourse has been deeply corrupted, has been really undermined … most so-called human rights scholars are not promoting a vision that I happen to believe is compatible with anything approaching a sound understanding of human rights.” The scholarship of much of contemporary human rights discourse “too often is to indoctrinate people in particular ideological visions.” But he said that a “big exception” to this is the program Saunders directs at the Catholic University of America.

In answer to a question by Saunders, George said that he indeed believes that there are such things as inalienable rights. True human rights, George said, are not the result of things incident to the individual, such as race, sex, ethnicity, etc., but are held in virtue of being human. Nor are they the result of personal achievement, such as level of maturity or exceptional accomplishment. They are rights shared by all other human beings. People who do not believe this do not in fact believe in human rights. They should “drop that rhetoric,” he said, and “speak the truth about what you actually believe.”

Despite this, George said, it is possible to speak of justice and morality without speaking of rights. He said that “the corruption of rights discourse” has led some religious and social conservatives to believe that we indeed should start speaking of moral and political issues without using the language of rights. The problem they see, which indeed exists, is that rights discourse now “almost has built into it a kind of radical individualism – subjectivism of the human person as having rights but not responsibilities.” George, however, believes that we can still address issues of truth and justice using the language of rights. He believes that it very effectively enables people “to characterize the obligations that we owe to each other.” What rights discourse “enables us to do is to look at obligations people owe each other in justice from the perspective of the beneficiary to whom the duty is owed.” It is particularly desirable to continue speaking of rights since it is now the common language of the contemporary world. People committed to the goods that classical liberalism has protected should not abandon the language of rights, but instead try to reclaim it.

Saunders observed that “the modern human rights movement” really began with World War II. It was thought that “the failure to observe and respect true human rights” would lead to another world war, which would endanger the existence of the human race, since it could be fought with nuclear weapons. It is important, Saunders believes, for religious and social conservatives not to “give the field” of human rights to the Left. The point is not to convince the leftist partisans who advance their corrupted version of human rights, but “persuading beyond that to the general public.” Advocates of true human rights must show the public that rights are “not equivalent to desires, or wishes; it’s based on the inalienable dignity of the human person, and it’s therefore shared among all human beings, and then it is tied to responsibilities.” Rights must be based on reality, on the truth about human beings, not “fantasies” of the way we want the world to be. It is our duty to both ancestors and posterity to protect the heritage of universal human rights from the contemporary leftist attempt to subvert it, he said.  

George added that the contemporary tendency is for people to condemn those who stand in the way of their desires “as an enemy of human rights.” Those defending true universal rights “need to learn not to be intimidated by that.” If abortion is claimed as a human right, we should say “what about the human rights of the child?” Other examples would be a human right to same-sex marriage or transgender identity. One conservative response to rights talk about issues of this sort is to say that “those issues are not human rights issues at all.” True human rights “have to do with fundamentals and non-derogables: freedom of speech, freedom of religion, freedom of assembly,” etc. But George insisted that we should not deny that demands made by the Left with respect to culture war or socioeconomic issues are in the human rights “domain,” but people “have got the human rights wrong.”

There is, for instance, no right to abortion, but there is a right to life of any human being of any age, size or condition. Same-sex, polygamous, or polyamorous marriages also raise issues of rights, but there is no right to such things. Instead, there is “the right of a child to be brought up in the love and bond of mother and father and husband and wife who brought that child into existence.” Due to various circumstances, this cannot be guaranteed for every child, but it should be accepted as an aspiration, and form our understanding of proper marriage.

Saunders commented on the human rights work he had done with George in Sudan, and said what was being perpetrated there was “absolutely, clearly, genocide.” There was also actual “chattel slavery,” including slave auctions and cutting the tendons of children to prevent them from running away. Nevertheless, these slaves were human beings. He said that “it’s the unity of the human family that we insist on.” George added that the location of a human being is irrelevant to his or her rights, whether they be in Sudan or in the womb.

George said that even though the “human rights establishment” is on the other side, he is part of a spirited minority that is “vibrant, and we’re tough and we’re here to play.” However, there are issues in which this establishment – which has come to accept doctrines of human rights corrupted by leftist ideology – agrees with the minority advocating for traditional universal human rights. The genocide of the Uyghurs in China, the Rohingya in Myanmar, and the denial of universal rights in Afghanistan and Vietnam are some of those issues. It is entirely possible to work with liberal/left human rights activists where there is true agreement. Many such activists, George asserted, are doing “good work.” But one must be “careful” in such situations, not to be “drawn in” to supporting human rights claims that are truly false and immoral.

Maintaining that not all human beings actually have human rights (as is done by abortion advocates in holding that unborn children are not persons) is extremely dangerous, Saunders said. It defines people “out … of the human race,” or “out of the protection of the law.” If an infant can be killed at five months, why not a child at five years, Saunders asked. He observed in this connection that the human brain does not reach full maturity until the age of 25. Might younger persons therefore be killed, if human rights are a matter of full human capacity? Human rights should apply to all human beings equally, he insisted.

George then emphasized that the true ground of our “dignity and worth” is not any feature that varies among human beings, but must be our status as creatures made in the image of God, and who thus have “agency:” we reflect the freedom and rationality of God. He said that “like God … we can envisage possible states of affairs that do not exist.” He observed that some human beings do not have “an immediately exercisable capacity.” Examples of this would be people who are asleep, in a coma, under general anesthesia, who are “too young,” or suffering from dementia. They cannot exercise their rational and moral capacities in their condition. Nevertheless, such people remain persons, because freedom and rationality are of their nature as human beings. They thus continue to possess their natural rights. Non-human animals such as rabbits and pigs do not have rational capacity however, regardless of what abilities they do possess.

Saunders then brought up the so-called mystery passage in the Planned Parenthood vs. Casey decision (1992), which upheld the Roe vs. Wade decision and declared that liberty involves defining the meaning of one’s own existence and the universe as well. This doctrine of liberty, he said, is not in the Constitution, and is “incredibly undisciplined.” This does not mean that no rights not explicitly mentioned in the Constitution can be found by the courts, but citing a comment by Chief Justice William Rehnquist in the Washington vs. Glucksberg case(concerning a claimed right to assisted suicide), Saunders said any such unmentioned right would have to be “deeply rooted in the history and traditions” of the United States. However, as a result of the recent Dobbs vs Jackson Women’s Health Organization case, Saunders believes that we may “see the death of the mystery passage pretty soon.”

George responded that the mystery clause propounded moral relativism and subjectivism, and seemed to say that there is “a right to manufacture your own moral universe.” This, George said, is “self-defeating.” If a person has the right to manufacture his or her moral universe, he or she “can manufacture a moral universe in which you have no rights.” He said the mystery clause is “very shoddy, poor, embarrassing thinking.” In assessing constitutional rights, “the important thing is to be disciplined.” Indeed there may be constitutional rights not mentioned in the Constitution, but such rights must “be discerned from the text, or logic, or structure, or historical understanding of the Constitution.” The presumption of innocence in a criminal trial is not in the Constitution, for instance. Other examples are “the separation of church and state,” and a “hate speech” exception to the free speech clause of the First Amendment.

Regarding the presumption of innocence, George said there is a basis in the Fourteenth Amendment’s guarantee of “due process of law.” This can be interpreted too broadly as well. But what we may not be denied without “due process” is “life, liberty, or property.” This means that one cannot be put to death, imprisoned, or have one’s property taken without proper procedures being followed. He said “due process” points to standards set in English common law “which provide the standards for fairness in criminal prosecutions.” One is entitled, in the English tradition, to have a judge at one’s trial who is not also the prosecutor, and does not assume guilt, as the prosecutor does.

In answer to a question about the disconnect between rights and justice which results from new rights claimed by the Left, which must be satisfied regardless of the consequences, George said he did not agree that there is a “disconnect” between justice and rights. He contrasted his legal doctrine with that of John Rawls, who maintained that justice is entirely a matter of fairness. Fairness is only one component of justice, George said. He appealed to Plato to say that “justice consists in giving each his due. That includes being fair, but it includes more as well.” He said that despite his disagreements with the utilitarian John Stuart Mill, and against Rawls, rights should not be understood as “abstract entities.” Rather, they are based on the need to protect human goods. To know what human goods are, we must know those things “that are constitutive of the human person.” This helps us understand why freedom of speech does not guarantee a right to pornography or obscenity. Freedom of speech is justified first and foremost by the need to pursue the truth. The same, George said, holds for freedom of religion. Religious freedom is not a “deal” in which people agree to respect one another’s religion (or lack thereof) as a matter of fairness, but rather it is in pursuit of truth.

In concluding his remarks, and citing antisemitism as an example, George said that “every evil will be defended in the dominant discourse of the day.” The dominant discourse may be theological, nationalist, utilitarian, or the discourse of human rights. Rejecting the dominant discourse will not eliminate the advance of evil. Evil must be fought with good arguments instead.

Although Americans live in relative comfort and security, we need to remember that natural human rights are a large part of why we have the United States of America. In particular, it is what the wars of the twentieth century were fought for (whether successful or not). Even undemocratic governments do not tolerate common crime, and concern themselves with an adequate supply of food and fuel for the nation. The ability to freely live in righteousness before God, and be treated justly as a human being were both the reason for the founding, and the struggles to save the nation in the Civil War and the wars of the twentieth century. Americans should not be seduced or lulled into their loss.