NRPLUS MEMBER ARTICLE L ast year, Secretary of State Mike Pompeo established a Commission on Unalienable Rights at the State Department. According to the Commission’s draft report, which was released a few weeks ago, its purpose was to provide “an informed review of the role of human rights in a foreign policy that serves American interests, reflects American ideals, and meets the international obligations that the United States has assumed.” Interestingly, the authors of the report tell us that “the Commission’s instructions were to focus on principle, not policy formulation.” I, for one, did not have “Federal government branches out into intellectual history and philosophy” on my Trump administration bingo card, but the last three years have been nothing if not full of surprises.
Unfortunately, the Commission’s draft report is full of mistakes regarding the nature and foundation of natural rights. However, these are the same mistakes that were made by the Founding Fathers of this country and that persist in the minds of many Americans to this day. The American natural-rights tradition has rarely ever been articulated in a historically or intellectually defensible way, which is a great shame, because all of its major intuitions about the sacred and inviolable liberties of man are entirely correct. The truth is that Washington, Jefferson, and Madison were far more capable of building the great and glorious constitutional edifice of the American Republic than they were of accounting for it historically or philosophically, or explaining it adequately from first principles. The State Department’s report falls predictably at all of the same hurdles the Founders did. But it does provide a long-overdue opportunity for Americans to understand where their rights really come from.
Towards the beginning of the report, the Commission gestures towards the three-legged stool of American liberty: Protestant Christianity, civic republicanism, and classical liberalism. Only the last of the three is given any extended attention in the body of the text, however, as the Commission attempts to find a workable synthesis between the liberal principles of the American Constitution and the positive rights approach of the 1948 Universal Declaration on Human Rights. This is how the report’s authors characterize the role that classical liberalism played in informing the thoughts and deeds of the Founders:
Classical liberalism put at the front and center of politics the moral premise that human beings are by nature free and equal, which strengthened the political conviction that legitimate government derives from the consent of the governed.
The use of the word “nature” in this sentence, and in the political thought of the Founders, is an example of where American thinking about human rights often runs into trouble. How do we know which rights are “natural” to human beings? This is an important question to ask because, as the Commission’s report itself concedes, there is now “widespread disagreement about the nature and scope of basic rights.” Furthermore, how is this kind of “widespread disagreement” even possible if the rights of man are “self-evident,” as Jefferson famously argued in the preamble to the Declaration of Independence? If Jefferson was correct, a lack of popular consensus surrounding the nature and scope of natural rights should not exist among rational Americans nearly a quarter-millennium after the Founding. And yet, such disagreement persists, mainly because Jefferson was wrong. The idea that the human being’s right to life, liberty, and the pursuit of happiness is “self-evident” to the unaided rational intellect is thoroughgoing and unadulterated nonsense. Still, it seems to have been the conviction of many of our most influential Founders. Alexander Hamilton, for instance, who could not be accused of Jeffersonianism in most areas of politics, wrote that “the sacred rights of mankind are not to be rummaged for among old parchments or musty records. They are written, as with a sunbeam, in the whole volume of human nature.”
In his recent book The Conservative Sensibility, George Will takes up the cause of the Founders and attempts to explain (and defend) their thinking on this issue. He summarizes the syllogism behind the logic of the Declaration thus: “If our rights are natural, they are discernible by reason, which is constitutive of human nature.” Repeating his point for fear that any reader might miss the starring role that reason plays in this drama, he then clarifies that “rights are natural in the sense that they are discovered by something that is natural: reason.” In other words, the light of human reason should be able to observe what is consistently true about human beings across space and time and then to infer from these data what rights are “natural” or appropriate for such a creature. Secretary Pompeo’s Commission argues that “to say that a right, as the founders understood it, is unalienable is to signify that it is inseparable from our humanity.” The nature of this humanity can, according to Mr. Will, be induced from empirical observation in a rather straightforward manner. This is what he calls “the Founders’ epistemological assertion.” As far as this kind of knowledge is concerned, everything other than reason is superfluous. The historian C. Bradley Thompson, as Will notes, places the Founders in a tradition “which said that the moral laws of nature would still be valid and operational even if, in the words of Grotius, ‘there is no God, or that he has no Care of human affairs.’” Jefferson himself, leaving his occasional invocations of the god of deism aside, wrote in the preamble to Virginia’s statute for religious freedom that “our civil rights have no dependence on our religious opinions, any more than our opinions in physics or geometry.” Like mathematics, political philosophy is simply a matter of reason working upon nature over time.
All of this is very silly, of course. The Founders can perhaps be forgiven for holding these opinions. After all, they were in thrall to the spirit of their age, when it was popularly believed that scientific empiricism could be imported unproblematically into the world of politics. Will, however, has no such excuse, and the authors of the Commission on Unalienable Rights should have had the courage to point out how retrograde the Founders’ naiveté on this issue is. The stubborn fact is that rights commonly referred to as “natural rights” or “human rights” by people in Western liberal democracies have not been thought of as such by most human beings at most times and in most places in world history. This means that they cannot be thought of as “naturally discoverable” in our nature in the same way language or the appetite for food is, because only certain communities, nations, and civilizations exhibit any kinds of adherence to them. Human rights are, consequently, radically contingent in historical terms. Most cultures have examined nature, human and otherwise, and drawn very different conclusions from it than the notion that we each possess the title-deeds to a long list of subjective rights testifying to our unique individual dignity.
Why is this the case? Because human beings contain such a bewildering variety of contradictory desires, impulses, intuitions, and habits that it’s possible to infer just about anything one might care to from our nature. Mr. Will himself laments at one point in his book that “Hitler supplanted philosophy with zoology” and quotes Timothy Snyder’s chilling observation that for Hitler “the law of the jungle was the only law.” But this observation leaves Will in a difficult position. Reason can indeed discover in nature that human beings are all of the same species, each self-conscious with the capacity to reason, form judgements, and act freely. But that groups of human beings often brutally kill others groups of human beings in a quest for collective supremacy is also discoverable in nature. Neither is more natural than the other, and reason reads of both in the “volume of human nature.” In the last analysis, our nature supplies us with a kaleidoscopic array of facts about ourselves and the world around us; all accessible to reason and none obviously more prescriptive of our political institutions than any other. Will unwittingly illustrates the problem of this himself:
Darwin’s rejection of a premeditated design helped to validate an analogous political philosophy. Darwin believed that the existence of order in nature does not require us to postulate a divine Orderer. Similarly, the existence of a social order does not presuppose a government giving comprehensive and minute direction to the social order. . . . Darwinism opened minds to the fecundity of undirected, organic social cooperation of the sort that does most of the creating and allocating of wealth and opportunities in open societies.
For Hitler, Nature was a Nazi; for Will, it’s a Reagan Republican. Go figure.
The question remains then as to why a specific civilization (broadly speaking, the West) selected from the bewilderingly diverse array of human characteristics that our species has exhibited across the ages, free will, conscience, rationality, individual dignity, charity, liberty, and reciprocity, to emphasize as the most important features of human nature. Moreover, how did this particular vision of the human person become so deeply embedded in our collective consciousness that many take it to be an obvious and intuitive deduction from nature?
Larry Siedentop’s Inventing the Individual: The Origins of Western Liberalism attempts to answer this question and, in doing so, comprehensively dismantles the traditional American account of natural rights. Though it is not a work of religious polemic (the author is not, so far as I can tell, a believer and the book has garnered praise from atheist luminaries such as Douglas Murray and John Gray), it does offer a treatment of intellectual history in which Christianity emerges as the cradle of the rights tradition in the West.
Siedentop begins by disputing that the idea of “human nature” employed by the Founders “is something ‘obvious’ or ‘inevitable,’ something guaranteed by things outside ourselves rather than by historical convictions and struggles.” He then offers an account of classical antiquity that demonstrates just how much distance lies between Plato and Jefferson on this question:
The Greek conception of nature did not at first make any sharp distinction between nature (physis) and culture (nomos), between the cosmos and the social order. Instead, it presented the two as a single continuum. Binding them together was the assumption of natural inequality, the assumption that every being has a purpose or goal (telos), which fits it to occupy a particular place in the great chain of being.
The ancient Greeks are an example of a people who examined nature and concluded that its predominant feature was inequality rather than equality. Inequalities and disparities between people are, after all, part and parcel of human nature. Some of us are stronger than others, some smarter, some more courageous. Why, in strictly rational terms, should this ancient emphasis on inequality be considered any less “natural” than the modern political emphasis on the many ways in which people are equal to one another? As I intimated above, when it comes to politics, nature is a Rorschach test. The real civilizational shift from the assumption of natural inequality to the assumption of natural equality in the West began not, according to Siedentop, with the isolated machinations of unaided reason, but with the advent of Pauline Christianity:
[Paul’s] understanding of the meaning of Jesus’ death and resurrection introduced to the world a new picture of reality. It provided an ontological foundation for ‘the individual,’ through the promise that humans have access to the deepest reality as individuals rather than merely as members of a group.
Siedentop then spends most of the book analyzing the gradual infiltration of European legal thought with Christian moral intuitions from the fall of the Roman Empire to the close of the Middle Ages. It sounds at first like a fairly speculative task, but there is in fact a wealth of primary sources that attest to Siedentop’s thesis in unambiguous terms. The canon lawyers of the twelfth century, for instance, radically renovated the Roman law codes that had survived the fall of the Empire to bring them into line with the Christian belief in the universal brotherhood of man. At the beginning of Gratian’s Decretum, one of the most influential legal texts of the Middle Ages, we find a remarkable inversion of the ancient conception of Natural Law as the rule of natural inequality:
Natural law [jus] is what is contained in the Law and the Gospel by which each is to do to another what he wants done to himself.
As Sidentop notes, “by identifying natural law with biblical revelation and Christian morality, Gratian gave it an egalitarian bias — and a subversive potential — utterly foreign to the ancient world’s understanding of natural law as ‘everything in its place’.” The scholar Brian Tierney observes that by 1300 a number of rights were regularly claimed and defended on the basis of Natural Law: “They would include rights to property, rights of consent to government, rights of self-defence, rights of infidels, marriage rights, procedural rights” and also measures to make these rights enforceable against positive law. These proto-liberal principles would only come together when deployed against the Catholic Church’s attempt to interpose itself as the exception to the intuitive liberty it had bequeathed to the people of Europe. Nevertheless, as Siedentop insists:
The ‘deep’ foundation for the individual as the organising social role — a status which broke the chains of family and caste — was laid by lawyers, theologians, and philosophers from the twelfth to fifteenth century. Their picture of reality gave individual conscience and intentions, the moral life of the individual, a foundational role.
Siedentop’s work conveys an important fact that’s often omitted by American rights theorists. This fact is that moral reasoning, like mathematical reasoning, always begins with premises, or first principles, that reason doesn’t supply. If it were otherwise, we might expect universal agreement on these issues. Cultures around the world and throughout history have, however, had differing and often irreconcilable first principles from which their moral reasoning is done. All of these cultures, however, can be said to be “natural” in their own way. The moral intuitions that underwrite the unalienable rights enumerated in the American Constitution are, furthermore, emphatically not natural facts apprehended by naked reason, but cultural artefacts bequeathed to us by 2,000 years of Christian history. I would not in any way claim that adherence to liberal principles or advocacy for human rights requires adherence to Christian dogma; merely that a sound account of how human nature came to be understood in such a way that human rights are justified must include the advent of Christianity and the moral transformation it wrought upon our civilization.
The Commission on Unalienable Rights report laments the fact that “the core principles on which nearly all nations once agreed are now threatened by a competing vision in which” the rights of the individual are being “radically subordinated in the name of development or other social and economic objectives.” It further associates the “overuse of rights language with a dampening effect on compromise and democratic decision-making.” These complaints make sense when one understands that the Western understanding of human rights is predicated on one particular and historically contingent idea of what it is to be human: that of the Christian religion. There is furthermore no evidence that this particular notion of rights will outlive the faith that birthed it. We are already seeing the emergence of a new conception of rights that replaces God with the state and “life, liberty, and the pursuit of happiness” with the right strike action and free health care. To amend a quotation from C.S. Lewis, we cannot castrate and at the same time “bid the geldings be fruitful.”
The Founders tried to carve out a vision of human rights that circumvented the need for metaphysical or theological commitments, but they were destined to fail. They were heirs to 1,700 years of Christian civilization and every page of their writings testifies to this fact in spite of them. This same reluctance to speak honestly about the theological roots of American rights still plagues the republic today, as the Commission’s draft report reveals. The disestablishment of religion in the United States, a glorious victory for the claims of conscience, should not prevent us from acknowledging that the entire ideological edifice of classical liberalism has been constructed exclusively with borrowed capital from the Christian Church, capital that the radical Protestants and Enlightenment deists who built the structure were unlikely to attribute to their actual creditors: the Catholic canon lawyers of the Middle Ages. Nevertheless, that capital is dwindling and is now almost spent. Our inheritance of human rights was built to reflect the fact that we are all living images of a particular crucified criminal from Galilee, who proclaimed that we are each and all more than what Caesar would make of us. If we care to enjoy the rights bequeathed to us by this tradition throughout the coming years, decades, and centuries, then we can no longer avoid publicly discussing the inextricable nature of religious and political ideas. A civilization can only avoid this discussion for so long before it begins to wither on the vine. For the United States, the day is already far spent in this regard.