Human Rights in Midair

by M. D. Aeschliman
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.

Mary Ann Glendon, in her A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (2000), describes the history and formulation of the 1948 United Nations Declaration, stressing the role of Mrs. Roosevelt’s Christian convictions and those of the Lebanese diplomat Charles Malik. She also documents the directive given to Mrs. Roosevelt by the U.S. State Department that quoted from Lincoln’s defense of the ethical, theological, natural-law core of the U.S. Declaration of Independence in the context of the dangerously amoral “popular sovereignty” majoritarianism or “democratism” of Stephen A. Douglas in the 1858 Illinois Senate race. We are indebted to Harry V. Jaffa’s two great books on Lincoln — Crisis of the House Divided (1959, on the Lincoln–Douglas debates) and A New Birth of Freedom: Abraham Lincoln and the Coming of the Civil War (2000) — for a detailed, profound understanding of how crucial a figure Lincoln is not only in the history of the United States but in the history of human law and rights and of civilization itself.

Apropos of these considerations, the Columbia historian Samuel Moyn has written a judicious book of great value, The Last Utopia: Human Rights in History (2010). Moyn has a nuanced awareness of the contingencies of history, including a realization — always hard to maintain — that we are as human creatures neither wholly determined (which scientistic perspectives always dismally imply if they do not explicitly state) nor wholly free, and that in the light of the apocalyptic century since 1914, it is clear that human history is no pre-determined, teleological march forward of cumulative, collective, inevitable, irreversible progress. Individual, group, and collective histories are as likely to be going to Hell as to utopia, and for many of our contemporaries human history has been and is a nightmare of political, social, and/or economic pathologies.

Moyn’s book eschews any triumphant progressive narrative about human rights of the kind that looks to the ancient Hebrews, the Stoics, the Christian Church, or the 18th-century French “Enlightenment” for an initial agenda that “in the fullness of time,” over decades or centuries, is finally worked out in a coherent, secular ethical consensus and body of international law. He knows that 20th-century history was both apocalyptic and tragic and that there is no guarantee that 21st-century history will be better. The “Thousand-Year Reich” lasted twelve; Bolshevik “scientific socialism” produced not utopia but massive amounts of death, destruction, and demoralization; commercial capitalism produces increasing cultural degradation and gross inequality; Islam is at best morally ambiguous; China is no exemplary moral picture; Venus has not triumphed conclusively over Mars.

Yet Moyn’s book is invigorating in showing that the beliefs and actions of certain traditions and individuals have borne fruit in the intermittent diminution of human suffering and injustice and the intermittent increase in human decency. Almost in spite of himself, he ends up showing the profound, prominent, and prophetic role of the early-20th-century Catholic Church in promoting the universal idea for which Locke and Lincoln stood and that Habermas noted — the idea that the belief that every human being is “made in the image of God” means that each human being ought to be treated as an end, not merely a means; a subject, not merely an object; an essence, not merely an existent; a person, not merely a thing. Though human rights are historically rooted in monotheistic religion and Graeco-Roman Stoicism, and were given an unstable secular basis by Kant, Moyn shows that it was in Christian doctrines, developments, institutions, and individuals that they reached mature and consistent articulation.

Though Moyn does not discuss Locke, as Waldron does, or Lincoln, as Jaffa does, or Pope Leo XIII (1878–1903) and Catholic social thought, he does show that from the 1930s onward it was Catholics who were increasingly vocal and assertive about human rights. The most important figures were Pope Pius XI (1922–1939), especially in his anti-racist encyclical Mit Brennender Sorge (With Burning Concern, 1937); the French Thomist philosopher Jacques Maritain; and the New York Times foreign correspondent Anne O’Hare McCormick. Moyn’s book has an interesting overlap and affinity with Richard Gid Powers’s neglected masterpiece, Not Without Honor: The History of American Anticommunism (1998), as when he concedes, “Without doubt, conservative ideas can be inspiring too” and were especially so during the Cold War “as an idealistic explanation for the defense of the West in a moment of unprecedented danger.” He is also good on the “radical chic” of the 1960s youth movements and particularly of the Paris upheaval of ’68, “which sparked a huge wave of gauchisme,” especially — incredibly, in retrospect — of Maoism.

Moyn shows that Franklin D. Roosevelt’s “Four Freedoms” and his 1941 State of the Union Address introduced “human rights” explicitly into American discourse, though the Christian Gospel, Locke, the Declaration of Independence, and Lincoln had all contributed to the tradition that he appropriated (but not to the views of his Southern segregationist Democratic allies). In a 1982 biography of FDR, his distant cousin Joseph Alsop argued for the importance of sincere Christianity in Roosevelt’s moral formation and political agenda, as Mary Ann Glendon has more recently done regarding Mrs. Roosevelt. But, as so often, the Catholics were “first and forgotten,” and it is a significant achievement of the apparently nonreligious historian Moyn — teaching at a very secular university — to remind us of the courageous, early, eloquent witness of American and European Catholics (and subsequently of Protestants) to truths and values about “the human person” that civilized people now assume, and assume to be secular and noncontroversial. He goes on to show that it was the very Evangelical Protestant president Jimmy Carter, however unsuccessful in other respects, who was the crucial figure in giving international stature and prominence to “human rights.”

Obsessed with democratic-totalitarian ideas of the “General Will,” the Jacobin/Marxist/Communist secular tradition from 1789 onward has shown no secure understanding of or sympathy with “human rights,” which in fact Marx and many of his radical successors denounced — along with “mere” legality and property rights — as “bourgeois” obsessions. Only when the Left utopias definitively failed did secular activists turn to human rights as their “last utopia,” and even here their version of them hangs precariously in midair, unanchored to any coherent philosophical-ethical worldview that would justify and legitimate such rights and relate them to duties and laws. They surely do not want to hear about — or give credit to — the Gospel, Saint Thomas Aquinas, Locke, The Federalist, Lincoln, Pope Pius XI, Jacques Maritain, the Reverend Martin Luther King, Pope John Paul II, or Polish, Czech, and Russian dissidents under Communism.

Describing his own disillusionment with Castro and the Cuban regime, and the disillusionment of other Hispanic and Latin American leftists in the 1970s, the leftist Spanish writer Juan Goytisolo wrote in the 50th-anniversary issue of Partisan Review in 1984 that they all should have known better from the earlier- 20th-century histories of Left utopianism, and that Castro’s contempt for human rights should not have surprised them. But the post-theological mind — whether Left radical or Right libertarian — hates confronting the realities of history: the long, painful, unflattering, frequently sinful, always insecure human experience of trying to harmonize liberty and justice that history documents. This sort of mind prefers promiscuous secular optimism, restless relativism, and voluble attitudinizing to chaste religious hope and steady, decent, dutiful human conduct. Failing to find or apprehend a coherent transpersonal and intersubjective center of value, it nevertheless passionately asserts human rights, but leaves them hanging in midair, forgetting or denying their divine source. Sharers of a nightmarish German legacy caused by that forgetfulness and denial, Habermas and Ratzinger return us to the true path, which Samuel Moyn’s book usefully illuminates.

— M. D. Aeschliman is professor emeritus of education at Boston University, professor of Anglophone culture at the University of Italian Switzerland, and author of The Restitution of Man: C. S. Lewis and the Case against Scientism (second edition, 1998).

 

 

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