“Inflation” of Human Rights. John Paul II and human rights

In these past seventy years pope John Paul II was arguably the most effective public interpreter of the Universal Declaration of Human Rights. In his confrontation with the totalitarian dictatorships of Central and Eastern Europe, in his engagement with authoritarian Latin American governments, he effectively appealed to the principles of human rights as he pushed for needed social, political, and economic changes. Speaking before the United Nations General Assembly in October 1979, Pope John Paul II said, “The real way, the fundamental way to [peace] is through each human being, through the definition and recognition of and respect for the inalienable rights of individuals and of the communities of peoples.”^[1]

John Paul II’s advocacy for human rights was not, however, in a form we might have expected. He never directly addressed politics. He did not use the words “Communism” or “totalitarianism” towards particular state. Neither did he appeal for some kind of legal enforcement of the rights, for example by appealing to the Helsinki Accords of 1975. Instead, he appealed to consciences, first to the conscience of those in power, but also to the conscience of those whose rights were violated. By appealing openly to the rights of the human being he undercut the pretensions of totalitarian ideology and restored the hopes and dignity of those subjected to ideological control. His appeal was moral, not legal. Furthermore, without denying the importance of material rights—he spoke of rights “to food, clothing, housing, sufficient health care, rest and leisure”^[2] —his primary emphasis was on the rights to spiritual goods, praising in the Universal Declaration’s “the primacy given to spiritual values and by the progress of moral life”^[3]. The central concept governing his analysis of and appeal to human rights—indeed, the basis of these rights—is the dignity of the human person as a rational being possessed of conscience. By his reason man can know and understand truth, and by his conscience he can discern good and evil and choose the good.

WHAT HUMAN RIGHTS ARE

At the outset, we do well to define what we mean by human rights. In one of the earliest and well-known statements we read in the Unites States Declaration of Independence: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty and the pursuit of happiness.”^[4] John Locke develops an account of these rights in his Second Treatise of Government, in which from the first page the notion of right is a constant and foundational theme. There Locke refers to “our great restorer, our present King William”, to whose rule the people of England, “whose love of their just and natural rights […] saved the nation.”^[5] ,consented. The fundamental rights are given to human beings according to the “state of nature” in which all men are free and equal to every other human being. Locke writes:

The state of nature has a law of nature to govern it, which obliges every one: and reason, which is that law, teaches all mankind […] that all being equal and independent, no one ought to harm another in his life, health, liberty, or possessions.”^[6]

Furthermore, because each man has property in his own person, his labor and its fruits are properly his.^[7] Locke’s position is therefore simple and straightforward; because no one is by nature superior to any other, the individual human being must remain inviolate. Whoever harms a human being does wrong and indeed deserves punishment^[8]. This constitutes a right not to be harmed in one’s life, freedom, and property. On the basis of this right according the state of nature, John Locke develops an account of the origins of civil right, the rights guaranteed under law by established states through their governments. For Locke, the basis of human rights is simply the nature of the human being as an intelligent and free being, equal to every other such being.

John Stuart Mill takes an important, and seemingly obvious, step by characterizing a “right” as something that constitutes a valid claim that one person has on society: “To have a right, then, is … to have something which society ought to defend us in the possession of.”^[9] If any person has a right, then implicit in his possession of that right is access to some means by which that right can be vindicated. Should “A” attempt to erect a structure on “B”’s property, then “B” can appeal to the county court, which will direct “A” to cease his building project. If need be, the court may even direct the sheriff to force “A” to leave “B”’s property and restore it to its original state. Mill’s principle effectively identifies human rights with legal rights, because to claim anything as a human right is meaningless without a conceivable legal mechanism to enforce it. Let us note in passing what Mill alludes to in his work, that there may be rights that are not recognized under law and that there may be legal rights that ought not to be such^[10] The Jewish homeowner may be deprived of his legal right to defend his ownership by the Third Reich’s Nuremberg Laws—a right he ought to have. A pregnant American woman has the legal right to abort her unborn child—a right she ought not to have.

A third principle to note is that the notion of right is usually paired, whether explicitly or implicitly, with that of dignity. For Locke and the American Declaration of Independence this dignity is implicit in the claim that all human beings are equal and free, to be respected in their persons and property. The United Nations Universal Declaration makes explicit this link with human dignity: “All human beings are born free and equal in dignity and rights.”^[11]. The “International Covenant on Human Rights” expressly states that these rights derive from the inherent dignity of the human person^[12]. The Second Vatican Council also characterizes human rights as a direct consequence of the dignity of the human person^[13]. The relationship between human rights and dignity will turn out to be especially important for our argument, as the nature and import of human rights depends decisively on the conception of human dignity.

INFLATION OF RIGHTS: HOW AND WHY?

In this paper we address the question of “inflation of rights”. Is such an inflation a bad thing, or somehow problematic? In her study of the language of rights, Mary Ann Glendon suggests that the dynamic toward the expansion of rights is indeed problematic^[14]. However, if the Universal Declaration on Human Rights is so important, how can an inflation of rights be anything but a great good? The real problem, of course, is not that there are too many rights nor that rights are too great. The problem is that we are not clear about what rights are, about what is the essence of a human right.

One of the fundamental and most important sources of the contemporary Anglo-American conception of rights is John Stuart Mill’s On Liberty. There Mill writes:

“The sole end for which mankind are warranted…in interfering with the liberty of action of any of their number, is self-protection. […] Over himself, over his own body and mind, the individual is sovereign.”^[15].

No person or group, not even the community under its government is warranted to interfere with individual freedom, except to protect itself. The individual is sovereign over himself. Of course, Mill is careful to nuance this account, allowing for the state to require services such as military or jury duty of its citizens. Furthermore, the line between public and private harm may sometimes be unclear; consider the controversies over cigarette smoking and recreational drugs. Nonetheless, the libertarian principle stands firm: The individual, and only he, determines for himself how he is to live and to what end. Mill’s basis for this principle is no abstract right, but simply “utility”:

I regard utility as the ultimate appeal on all ethical questions; but it must be utility in the largest sense, grounded on the permanent interests of man as a progressive being.^[16]

For Mill ‘utility’ means nothing more or less than the “greatest happiness principle”. “By happiness is intended pleasure and the absence of pain; by unhappiness, pain and the privation of pleasure.”^[17] Although Mill is careful to explain that his principle precludes rank sensual debauchery and further that its proper understanding requires a concern for the happiness of others, the standard of utility is ultimately subjective. What pleases people is good to the extent that it them feel satisfied. Although Mill argues warmly that the pleasures of the mind are to be preferred to those of the body and that the populace should be encouraged by state organs of education and public opinion to pursue those higher pleasures, pleasure is irreducibly subjective. Only the individual subject can know what he enjoys. And since pleasure is the criterion of happiness (which for its part is the criterion of morality), only the individual can know what is good for himself. The ultimate criterion of good and evil is, in the final analysis, the judgment of the experiencing subject.

Mill’s principle of freedom has two consequences: First, there can be no objective touchstone of good or evil. An immediate consequence of this is ethical relativism, a difficulty which Mill tries to obviate by allocating moral authority to those whose experiences of the pleasures of the mind qualify them as experts and models for the populace in general. Where pleasure is concerned, these elites can direct others, by means of “education and opinion” to a properly fulfilling and happy life^[18]. Second, a person’s dignity resides in the fact that no other person can legitimately impose his will on him. No other person may legitimately say to me, “This is good. You must recognize and embrace it as good.” Although his libertarian principles suggest otherwise, Mill is far from being egalitarian. Liberty is necessary because it allows room for men of genius to rise above the ordinary mass of men and to develop and express their own individuality.

It is not by wearing down into uniformity all that is individual in themselves, but by cultivating it and calling it forth … that humans become a noble and beautiful object of contemplation. […] In proportion to the development of his individuality, each person becomes more valuable to himself, and is therefore capable of being more valuable to others. There is a greater fullness of life about his own existence… ^[19]

This greater fullness of the life of the man of genius and character can only enrich and elevate the lives of his fellows above the mediocrity and conformity to which they are otherwise prone.

Despite Mill’s confidence in the judgment of progressive elites, his utilitarian and libertarian principles lead inevitably to the conclusion that what a person wants is good because he wants it. Through the organs of education and propaganda, the intellectual and cultural leaders of society can exhort and propose, but they cannot, on Mill’s principles at least, compel others to embrace their elite values. J. S. Mill had great confidence in the character of the educated English gentleman. But would he approve of the morals of William Blake or Oscar Wilde? The composer of Mozart’s angelic music was crude, profligate, and selfish, given to scatological humor, while Caravaggio often found himself in prison. What these examples and our own contemporary experience make clear is that the lives of cultural and artistic leaders do not readily provide moral examples for the rest of us. The wise legislator whose parliamentary arguments serve the common good of the republic may well spend the afternoon with his mistress before returning to his wife and home in the evening.

Returning to Mill’s own principles, it is inevitable that to deny a person’s own evaluation of the good is to insult his dignity. From this it follows that there can be no common good. The best that a society can hope for is to achieve some common ground agreeable to all. Absent a notion of an objective common good, some ultimate good that is good for each and good for the whole, the inflation of human rights follows inevitably. Of course, a good that consists only in a mutually acceptable common ground is hardly the basis of rights. On the other hand, if the good consists ultimately in the individual’s subjective evaluation, then subjectivity forms the ultimate basis for human rights.

THE STATE AND ENFORCEMENT OF RIGHTS

Writing about materialistic philosophies of society—and materialism is the default philosophy of our civilization—Jacques Maritain writes.

It has been frequently noted that bourgeois liberalism with its ambition to ground everything in the unchecked initiative of the individual, conceived as a little God, and the absolute liberty of property, business and pleasure, inevitably ends in statism. The rule of the Number produces the omnipotence of the state.^[20]

Note Maritain’s use this phrase, “a little God”. God is the supreme being, the Author of all truth, the exemplar of all that is good, and the criterion of reality. If the individual human being is the ultimate judge of all truth and his desires the standard for goodness, then he is a god—perhaps not the Almighty God, but a god nevertheless. Associate Justice Anthony Kennedy of the U.S. Supreme Court famously wrote, “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”^[21] At issue in that particular case was the alleged right of a woman to have her child aborted. The decision effectively asserted that only the woman was capable of judging the value and meaning of the unborn child she carried. A being that does these things is a god, and the prerogatives of this god are his rights. And because different autonomous persons have different rights, their perceived rights can come into conflict.

According to John Stuart Mill, “To have a right, then, is … to have something which society ought to defend us in the possession of.”^[22] Because the state is precluded from recognizing any substantive value as a common good, its judgments concerning rights—especially when rights are in conflict—must be formal, almost mathematical insofar as it can be based only on the implications of certain definitions. Decisions cannot be made with reference to a transcendent common good but only according to neutral procedures accepted as fair to all so that each person enjoys reasonably unfettered access to the good as he or she conceives it. This perforce leads to the inflation of rights, because the legislator must recognize the rights and prerogatives claimed by every autonomous individual. To be sure, such rights must be balanced an, if possible, reconciled with the rights claimed by others. Such reconciliation of rights will require subtle judicial analysis and, to the extent possible, some kind of compromise, if the autonomous subjects claiming the conflicting rights can be induced to compromise. So, for example, persons who identify as transgendered—who claim a gender-identity different from their biological sex—insist on the right to use bathroom and locker-room facilities corresponding to their transgender identity, which conflicts with the right claimed by many women or girls (for example) who find it objectionable to have to relieve themselves or undress in the presence of a biological male. The foundation of rights in the subjective experiences of the autonomous individual thus expands and inflates human rights, and consequently the right recently created to live one’s subjectively experienced gender identity of necessity creates new requirements of the law.

If Mill’s liberalism fosters an inflation of rights in one way, Marxist theory does so in another. “The history of all hitherto existing society is the history of class struggle,”^[23] a struggle arising between the oppressors and oppressed. Although Marx addressed the economic conflict between proletariat and bourgeoisie, the principles of his analysis can be applied to any identifiable opposing classes: men vs. women, whites vs. blacks, LGBTQ vs. straight, and so on. Even though Marxist collectivism stands sharply opposed to liberal individualism, it results in a similar inflation of rights (albeit in ways that Marx could not have foreseen), as groups whose interests are in some way or to some degree suppressed by a more powerful group assert their own rights. Therefore, just Marx originally called for the abolition of the state with its classes of workers and capitalists, the neo-Marxist conception calls for a society in any signs of oppression must be suppressed. The Majority opinion in the U.S. Supreme Court’s decision on same-sex marriage repeatedly refers to the “humiliation” experienced by same-sex couples in the face of the broader society. There we read:

Same-sex couples are denied benefits afforded opposite-sex couples and are barred from exercising a fundamental right. Especially against a long history of disapproval of their relationships, this denial works a grave and continuing harm, serving to disrespect and subordinate gays and lesbians.^[24]

The principle at stake is that a particular class in the society is subjected to the “disapproval” of the majority who believe that the minority’s sexual preferences are unacceptable, a subjection that in itself constitutes oppression.

In this Supreme Court decision, members of the LGBTQ class are formally to be relieved of the disrespect they experience from the majority. Therefore, it is necessary that they, like every oppressed class, must have their rights over against the majority—the oppressors—affirmed and guaranteed by state authority. Such expansions of rights of different groups can lead to absurd conflicts. For example, girls and women have the right not to be subject to physical and sexual abuse. Therefore, it seems clear that the practice of female genital mutilation (FGM), which is practiced in other cultures to keep women sexually pure, ought not to be allowed. However, if immigrant citizens and their cultures are to be valued and not subject to disrespect, then their custom of FGM needs to be respected and allowed, however abhorrent the host culture may find the practice. This claim has already been recognized in one federal court within the United States.^[25]

TRUTH AND DIGNITY

We have noted that human rights are related to human dignity, suggesting that if human dignity grounds human rights and is prior to them, then the nature of those rights must flow from our conception of human nature. Further, if human dignity is conceived to consist in the autonomy of the experiencing and willing human subject, then his dignity lies in his subjectivity. Indeed, such a conception is very close to that which Kant offers in his Grounding for the Metaphysics of Morals (Kant 1993, 435-36)^[26]. Curiously—and also importantly—this notion of dignity has been rejected by some of the strongest advocates of personal autonomy on the grounds that given the operational notion of autonomy, the concept of dignity adds nothing^[27].

In the Aristotelian-Thomistic anthropology we discover a firmer foundation for the concept of human dignity. The soul, with its powers of reason—to know and understand truth—and conscience—to recognize the moral good and choose it—, is the foundation for human dignity. Two decades before his election to the papacy, John Paul II wrote of the human person as a rational being who lives from his interior life, and in virtue of whose reason and will has the power of self-determination^[28]. The human person is much more than a consumer of products and experiences. It was precisely to this person that John Paul II referred in his appeals for human rights in his address to UNESCO in 1980.

Therefore, referring to the origins of your Organization, I insist on the necessity of mobilizing all the powers that direct the spiritual existence dimensions of human existence, which testify to the primacy of the spiritual in man—of that which corresponds to the dignity of his intelligence, of his will and of his heart—in order not to succumb again to the monstrous alienation of collective evil which is always ready to use its material powers in the mortal struggle of man against man, of nations against nations.^[29] (John Paul II 1980)

The human spirit possesses the good by knowledge and love. To appeal to human dignity is therefore to appeal to what is innermost in every human being as he faces the transcendent. Unlike material goods, which are by nature located in time and space, spiritual goods can be shared and therefore have the power to unite rather than divide human beings. This means that dignity relates each human person to what is above every human being. The rights based on this dignity belong to the person whether they are recognized and defended by others or not. The power to know truth belongs to the person, regardless of any restriction that others may seek to impose. The capacity to love and choose the good according to one’s own understanding of the good belongs to him and is not received from any other earthly power.

J. S. Mill had claimed that a right is “something which society ought to defend us in the possession of”. However, not every political regime recognizes every human right. To be sure, Mill’s own words and indeed his writings suggest that there are some rights that the regime ought to recognize. Because human dignity is inherent to the nature of the person, when addressing human rights, John Paul II appealed not to law but to consciences. Speaking to Poles in Warsaw on Pentecost Eve 1979, he reminded his listeners of their culture and gave them back their history.

s that the regime ought to recognize. Because human dignity is inherent to the nature of the person, when addressing human rights, John Paul II appealed not to law but to consciences. Speaking to Poles in Warsaw on Pentecost Eve 1979, he reminded his listeners of their culture and gave them back their history.

It is right to understand the history of the nation through man, each human being of this nation. At the same time man cannot be understood apart from this community that is constituted by the nation. Of course it is not the only community, but it is a special community, perhaps that most intimately linked with the family, the most important for the spiritual history of man. It is therefore impossible without Christ to understand the history of the Polish nation—this great thousand-year-old community—that is so profoundly decisive for me and each one of us. If we reject this key to understanding our nation, we lay ourselves open to a substantial misunderstanding. We no longer understand ourselves.^[30]

In Latin America he certainly condemned the oppression of the poor by the powerful, but he also called on the poor to lay hold of their own dignity.

But by calling you to cultivate these spiritual and evangelical values, I wish to make you think of your dignity as men and children of God. I wish to encourage you to be rich in humanity, in love for the family, in solidarity with others. At the same time I exhort you to develop more and more the possibilities you have of obtaining a situation of greater human and Christian dignity.^[31]

In a similar way, Václav Havel, speaking of the suffocating power of the Communist regime of the 1970’s in Czechoslovakia, said that the “power of the powerless” lies not in acquiring more goods or political power, but rather in living in truth rather than by ideological lies. Human dignity rests not on what one has or experiences but on how a person relates to truth. Human rights are powerful, but their power lies not so much in their specifically legal application as in conscience. By its very nature a human right is based on knowledge of the truth about the human person and his authentic good. In other words, the force of human rights rests not on law, even though rights should give rise to legal protections. With their basis in the human dignity that transcends legal institutions, rights are prior to law.

From a materialist perspective, whether individualistic (Mill) or collectivist (Marx), human rights can only inflate, because, in virtue of its own particularity, every person or group threatens some other’s perceived rights. The particularity of human experiences and possessions render truly universal human rights—rights pertaining to the human being as such—inconceivable. Understood spiritually, however, human rights are inherent to the transcendent dignity of the human person. Even if not defended by public authority, they can be claimed by individuals and peoples, promoted from within conscience, and defended externally in dialogue as human beings and societies grapple seriously with their shared humanity.