Human Rights in Midair
To be coherent, a conception of rights must relate them to duties and laws.


Fifty years ago the distinguished Anglo-Canadian philosopher J. M. Cameron noted about the Nazis’ anti-Semitic laws that there could “be no doubt that the Nuremberg Laws were good law by all the Austinian criteria,” referring to the utilitarian legal theorist John Austin (1790–1859), but also in effect to the whole modern secular, utilitarian moral-political tradition. “The greatest good of the greatest number of people,” i.e., Germans as opposed to German Jews, was plausibly pursued by such laws. One reason that de jure American racial segregation (1877–1954) was so difficult to destroy is that it was plausibly utilitarian and palpably majoritarian: Each Southern state had a white majority, in whose interests segregationist public policies could be enacted. Thus the two crucial legitimating criteria of modern political regimes — majoritarianism and utilitarianism — were satisfied by Southern segregation laws and German anti-Semitic legislation.

In the last book that the American educational statesman and Kantian philosopher John Silber wrote, published shortly before his death in 2012, Kant’s Ethics: The Good, Freedom, and the Will, Silber carefully weighed the shocking claim of the Nazi functionary Adolf Eichmann at his trial for “crimes against humanity” in Jerusalem that he had acted as a good Kantian, a good German citizen, who had properly deferred to legally constituted authority. In the chapter entitled “Kant at Auschwitz” — where one of Silber’s German-Jewish aunts had perished — Silber concluded that Eichmann was indeed in some sense a consistent Kantian, despite the horrible death machinery whose proper functioning he reliably assisted, and despite Silber’s own certainty that the moral universe of the Nazis was the most profound violation of the philosophical aims of the rational, universalist ethical tradition of which Kant was the greatest modern exponent.

In 1952 the Israeli historian Jacob L. Talmon published The Rise of Totalitarian Democracy, arguing that majoritarianism in the 20th century had helped midwife murderous left-wing and right-wing totalitarian tyrannies that could indeed plausibly claim to be democratic. The “general will” turns out to be a very dangerous guide to public policy: “Vox populi non est vox Dei” — the voice of the people is not dependably just.

Thus it is not surprising that thoughtful present-day political and ethical thinkers have searched for a coherent, consistent defense of the rights of individuals and minorities against majorities, while still admitting the indispensable character of majoritarian and utilitarian criteria for the legitimacy of any political regime: necessary but not sufficient conditions for a decent polity. A brief but profound and valuable dialogue between two great contemporary German thinkers — the secular philosopher and sociologist Jürgen Habermas and the future pope Joseph Cardinal Ratzinger — was published in German in 2005, and in English in 2006 as The Dialectics of Secularization: On Reason and Religion. If the secular tradition of the French “Enlightenment,” in its many forms over the last 250 years, has regularly concerned itself with critiquing the numerous “pathologies of revelation,” both German thinkers agree that in the light of the last 100 years of nightmarish history, fueled and rationalized by secular ideologies, there are also “pathologies of reason,” and that the term “reason” itself has proved dangerously accommodating to a wide range and long series of intellectual and political follies and fanaticisms, including “scientific socialist” Communism and utilitarian Nazi “racial science,” not to speak of the ever-revolving, kaleidoscopic intellectual fads of contemporary post-modernism that have undermined the unitary conception of universal moral obligation itself, so long identified with Kant.

In this light, the very careful and influential Habermas makes a profound, moving argument in his dialogue with Cardinal Ratzinger. Starting by conceding that “a radical skepticism vis-à-vis reason is profoundly alien to the Catholic tradition,” Habermas goes on to speak respectfully of “the assimilation by philosophy of genuinely Christian ideas,” while noting the complex, ambiguous dynamics of secularization that characterize these assimilations and translations. “One such translation that salvages the substance of a term,” Habermas argues, “is the translation of the concept of ‘man in the image of God’ into that of the identical dignity of all men that deserves unconditional respect. This goes beyond the borders of one particular religious fellowship and makes the substance of Biblical concepts accessible to a general public that also includes those who have other faiths and those who have none.” Habermas clearly worries that modern functional rationality and moral skepticism — radical, libertarian, or libertine — are increasingly eliminating what he calls “social solidarity (that is, a coordination of action based on values, norms, and a vocabulary intended to promote mutual understanding)” and that religious traditions and fellowships make a “fundamental contribution of motivations and attitudes that are socially desirable.”

From the English-speaking world, we have the legal and political philosopher Jeremy Waldron’s argument in God, Locke, and Equality (2003) that the Christian view of Locke — the foundation of the ideology of the American Republic — is “as well worked-out a theory of basic equality as we have in the canon of political philosophy.” The late Richard J. Neuhaus noted that “Waldron argues not only that Locke’s theory of human equality has essentially Christian foundations, but that this Christian theory of human equality may be essential to the liberal, egalitarian state.” Waldron and Habermas have thus resurrected arguments and insights that the acids of modern skepticism have badly damaged but not yet altogether destroyed and that provide the civilizing impetus, trajectory, and residual momentum for whatever remains of Western civilization that distinguishes it as such from a mere aggregation of competitive, cacophonous individuals, groups, entities, companies, bureaucracies, and states.


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