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From the November/December, 1998 issue of Touchstone

 

Christianity & Subjective Human Rights by Peter Toon

Christianity & Subjective Human Rights

On the Fiftieth Anniversary of the United Nations’ Universal Declaration of Human Rights (1948)

by Peter Toon

Far too many people around the world are treated inhumanely and even barbarously. In such contexts the message of the Universal Declaration of Human Rights, issued fifty years ago by the newly formed United Nations, that “all human beings are born free, and equal in dignity and rights” needs to be heard again so that basic human rights—such as full recognition as a person before the law to equality before the law and equal protection of the law—are not only fought for but also implemented.

In contrast, a “human rights industry” has developed in North America on the basis of the post-1960s American judicial rights revolution, and the Universal Declaration is now interpreted as if it were a global Bill of Rights, a list of essentially separate guarantees. The result is an increasing demand for more and varied rights from more and more individuals, organizations, and groups with less and less reference to responsibility, duty, and community.

It seems appropriate on the fiftieth anniversary of the adoption of this Declaration for a Christian pastor and theologian to offer some reflections upon the theme of “rights.”

What Is a “Right”? From Objective to Subjective Rights

The word right is used both in an objective sense (e.g., that which is right, to which I appeal) and in a subjective sense (that which I claim as mine). A right in the subjective sense can be understood as (a) a right I have because I appeal to an objective, transcendent law, and thus a right that flows from that which is outside myself, and (b) a right that I possess individually by reason of its inhering in my humanity—belonging to my personhood and nature and thus possessed by me. Then, in terms of (b) I can either see this inherent right as related to an objective law of nature (God) or not.

“Right(s)” as a legal term has a long history in Roman, medieval, and early modern times pointing to certain possession of specific persons or classes of persons based upon covenants, royal grants, the ancient constitution, or the common law (e.g., the Bill of Rights of 1688 of “the Glorious Revolution” in Britain). However, from the eighteenth century (American and French revolutions), in political, moral, and everyday speech, this noun, usually in the plural and with the adjective “natural,” has referred to a title or claim by an individual human being in his individuality and as a creature possessing dignity. Such subjective rights have been defined as “a certain moral power which every man has, either over his own things or over things due to him”—thus rights to religious liberty and free speech and more.

In his book, Desire of the Nations, Oliver O’Donovan states:

The language of subjective rights (i.e., rights which adhere to a particular subject) has . . . a perfectly appropriate and necessary place within a discourse founded on law. One’s right is the claim on which the law entitles one to demand performance. In such a sense mishpat may sometimes be translated “a right” in the text of the Hebrew Scriptures. What is distinctive about the modern conception of rights, however, is that subjective rights are taken to be original, not derived. The fundamental reality [today] is a plurality of competing, unreconciled rights, and the task of law is to harmonize them. (p. 248)

Thus in the modern sense the “right” is usually a primitive endowment of power with which the subject first engages in society. This contrasts with the older, legal sense of a right as an enhancement which accrues to the subject from an ordered and politically formed society.

Subjective rights of human beings, their “natural rights,” were set forth in a systematic way as a universal public truth by philosophers, statesmen, and preachers who were part of, or influenced by, the Enlightenment. In America the proponents included Unitarians, Deists, and Trinitarians. Apparently they believed it to be appropriate to speak of these natural rights as belonging to each human being as a creature of “God,” and they showed little or no problem with the fact that the Bible (much read at that time) had seemingly no specific teaching on subjective human rights. Apparently what they agreed upon (their natural rights) were so important at that time, it was not obvious to many people of a possible clash between the biblical doctrine of God’s righteousness and a developing doctrine of human rights.

Seventeenth-century or eighteenth-century philosophers and statesmen did not, however, invent the notion of “natural rights.” As Professor Brian Tierney has shown in his book, The Idea of Natural Rights, the concept came into being in the late Middle Ages with Christian jurisprudence and philosophy initially over whether Franciscans had property rights. Then it was primarily Hugo Grotius (1583–1645), the great Dutch jurist, who put into a modern idiom a way of speaking about both natural law and natural rights, which was then developed by such thinkers as Hobbes and Locke.

Modern Rights: Natural & Civil

In North America at the end of the second millennium, it is universally taken for granted that “human rights” exist, are foundational and that “rights talk” is not only appropriate but also necessary political and moral discourse. People differ on what actually are human rights and how they are defined and applied, but all—Christian, Jew, Muslim, Hindu, agnostic, and atheist—speak of rights and, in general, base them on a commitment to “the dignity of human beings.”

For historical accuracy and for clarity, a distinction has to be made between “natural rights” and “civil rights.” In the first category, as expounded by seventeenth-century and eighteenth-century philosophers, are the rights to life, to liberty, to property, and to the pursuit of happiness. These are obviously subjective rights. They are also positive rights in the sense that they only impose on others the duty of non-interference. They do not require other human beings to do anything specific to make these rights exist.

With the formation of civil society and government from the universal consent of the people (the social compact), a new type of right comes into being, the right to protection not only of their natural rights but also in them—the right both to protection by the state and to protection from the state. In practice, this means both the protection of the laws and the right to due process of the law.

Within the American Declaration of Independence, written by Thomas Jefferson in 1776, is a very famous statement of natural rights in terms of “life, liberty and the pursuit of happiness.” Also, within the Declaration of the Rights of Man and the Citizen from France in 1789 is the claim that “Men are born free and equal in rights.” This “Catechism” for the French claimed that “ignorance, disregard or contempt of the rights of man are the sole causes of public misfortunes and governmental corruption.” In modern times, the United Nations Declaration of Human Rights of 1948 is the most prestigious statement combining natural/human and civil rights.

Earlier Rights

If we look back to the situation in Europe before the Enlightenment, we find little or no talk of “rights” as such. In the Christian civilization it was generally believed that God’s right(eousness) had established and keeps in being a matrix of divine, natural, and human laws (or objective obligations) that constituted the ordering justice of human relations within the political community. Here the ruler and the ruled are seen as consenting to the demands of divine and objective justice, that is, to the obligations inhering in communal life according to the divine intention and set forth in a rational way as laws.

The ruler commanded, legislated, and issued binding judgment, and these acts were said to embody not his own will but his consent to an Order of Right and Obligation. God’s justice thus conceived was to bind the ruler’s own will. In turn, the subject had an obligation to obey the ruler’s commands, statutes, and judgments, not only because of his rightful authority, but also because of their intrinsic conformity to the requirements of justice.

In this system of divine and human order, there is God, his righteousness, and the embodying of that righteousness in human law. Since all are God’s creatures and placed by his providence in specific vocations and places, all are to do right by obeying his will whether as the ruler or the ruled. Within this order, it is possible to speak of rights, but these are rights primarily belonging to the various orders (e.g., king, lords, and commons) and institutions (parliament and courts) of society in relation to each other and in relation to objective right(eousness).

Only in the eighteenth century, and especially in France and America, did the subjective rights of individuals supersede the objective right of divinely revealed and natural laws as the primary or exclusive basis of political authority, justice, and law. This is illustrated in colonial America where, when the decision for independence from Great Britain was made, all claims to rights based upon royal grants, the common law, and the British constitution became theoretically irrelevant. This was because the Americans justified their action ultimately upon an appeal to “the Laws of Nature and Nature’s God,” and thus spoke of the natural rights of individual human beings. Their appeal to their rights in common law and the ancient constitution had gone unheard in London and so, breaking with the Crown and Parliament, they appealed to that which they believed was prior to and above constitutional rights: natural rights.

Individualism & Rights

The human being who has natural and civil rights belonging to him in an inalienable way is a human being who in some way stands alone or separate in the grand scheme of things. He can be thought of as God’s creature with his own God-given dignity and individuality, or he can be seen as a superior form of animal who has inherent worth and dignity as a living being. But he has to be seen first of all in his individuality. The point here is that “rights” belong inextricably to the human being as really and truly his. They are inseparable from him because they are inherent within his individuality as a human being.

It is obvious that the modern doctrines of individualism (partly a legacy of the contract theory of the seventeenth century) and of human rights belong to the same sphere of ideas and claims. In colonial America in the late eighteenth century it was common to use the adjective “individual” as a noun to refer to a human being, a person. In the present century we find that the “individual” as a rights-bearing subject is seen to function as the exclusive proprietor of his physical and spiritual being and capacities, together with those external objects necessary to their preservation and development. Thus his relation to his environment (where he is not consciously affected by modern environmentalism) tends to be controlling and acquisitive. His freedom in terms of self-possession is independence from, or non-subjection to, other wills. There must be no externally imposed obligations and natural limitations. As a self-possessing subject he is free to form political and social relationships through which he seeks to maintain self-interest, while giving space to the independence of others.

Mary Ann Glendon of Harvard Law School makes the following critique of this modern form of individualism and rights in her book, Rights Talk.

Our rights talk, in its absoluteness, promotes unrealistic expectations, heightens social conflict, and inhibits dialogue that might lead towards consensus, accommodation, or at least the discovery of common ground. In its silence concerning responsibilities, it seems to condone acceptance of the benefits of living in a democratic social welfare state, without accepting the corresponding personal and social obligations. In its relentless individualism, it fosters a climate that is inhospitable to society’s losers, and that systematically disadvantages caretakers and dependents, young and old. In its neglect of civil society, it undermines the principle seedbeds of civil and personal virtue. (page 14)

It has often been noted that in modern America “the right to privacy” is an example of a seemingly absolute right which is the basis for the current legislation on abortion and euthanasia. Further, if a primary right is said to be liberty, then a person may claim to be free to do whatever he wishes as long as he does no apparent harm to others. Also, if a primary right is “equality,” then the achievement of this in practical affairs can lead to the development of many civil rights. Finally, the near-obsession with “rights language” impoverishes moral discourse by reducing all moral claims to claims of justice. Forgotten is talk of virtue, of the good, of natural law, of duty, of doing God’s will, of keeping God’s commandments, and so on.

The Modern Response of the Churches

Increasingly during the last fifty years, the churches have sought to include the doctrine of human rights within Christian theology. Invoked regularly in support of the generic concept of human rights by professional theologians are three doctrines—the renovation of the divine image by the Incarnate Son of God (Catholics), the divine-human covenant (Reformed), and the justification and freedom of sinful man in Jesus Christ (Lutherans). (However, the general theological grounding most commonly heard involves a quick move from the assertion that mankind is created in the image of God to the claim of the unique dignity of persons in community and then to the possession of rights by all human beings.) These Christian doctrines are usually expounded in such a modern way, especially by Protestants, that they provide affinities with the liberal anthropological premises from Hobbes and Locke and Kant. When this occurs, “God” easily becomes the self-created, eternal, infinite, and free “individual” in whose image the human individual is made. Herein is an open door for Unitarianism, Modalism, Deism, and even Panentheism. This may also explain why the liberal church tends to support the current human and civil rights agenda.

The question arises whether one can deduce any inherent and inviolable rights belonging to human beings from the truth and propositions of biblical and orthodox theology concerning God, Christ, and man. Here the relation between the Holy Trinity and mankind, as read from the Bible, has led believers to speak of divine sovereignty, faithfulness, and gracious blessings in one direction and of trust, filial love, and duty in the other. An individual person is the recipient of God’s love and ought also in an ordered universe to be the recipient of the love of his fellows. In this love of God and man, a human being is given worth and dignity by that love. In this context, to speak of rights seems out of place, for strictly speaking, it is to begin one’s reasoning from the (sinful) creature and not from the Creator. What seems to be appropriate here is the joyous duty to love one’s neighbor and thereby both to confer dignity and worth upon him and to serve his true needs.

It must also be recognized that the divine covenant (in either its Old or New forms) of the Bible is not the heavenly equivalent of an earthly social compact between equal persons. The God who establishes his covenant does so entirely by himself and calls men into a relation to him within his covenant only when it is actually in existence and ready for obedient partners. Thus in the new covenant, there is no negotiated contract or compact but only the merciful provision of God the Father through and in Jesus Christ, the Mediator. The only right(eousness) possessed by a believing sinner before God is the imputed and imparted righteousness of Jesus Christ, the Righteous One, and this is a right (together with an infused power to become righteous) primarily to love God and to love the neighbor. In fact, as a follower of Jesus Christ, the believing sinner is to take up his cross, which will mean the refusal to claim any rights for himself, not even the right to earthly life, liberty, and the pursuit of happiness.

The Dignity & Worth of Man: A Christian View

Certainly, human beings have an infinite worth and dignity bestowed upon them because of the Holy Trinity’s relation to them as their Creator and Redeemer. That worth is seen in the fact that the Father so loved the world that he sent his only-begotten Son into the world to save it by taking unto himself, as his very own, created human nature. The Incarnate Son in that assumed humanity came to perfection through suffering, death, and resurrection. In fact, he became a man amongst men so that men through him might know the Father and have eternal life and, as such, possess worth and dignity as members of the new creation unto the ages of ages.

From a traditional Christian viewpoint it would appear that talk of “rights-bearing subjects” only truly makes sense within the context of political and social ethical discourse in which (either as a firmly held belief or as a necessary hypothesis adopted for the purpose of communication in the modern world) a human being is considered as truly possessing dignity in his individuality and personhood. As such, he or she is considered an independent and autonomous person whose relation to others is contractual and self-determined and whose perceived relation to any “God” is also self-determined.

Thus the Christian seeking to function in the political and social sphere today will have both to understand and to use the language of rights in order to participate meaningfully, but this does not mean that he has to accept this language as objectively true and a legitimate and coherent development of the Christian doctrine of man as God’s creature. Further, it does not mean that in the Church he has to support doctrines and practices which are clearly based on modern expositions of human rights—e.g., abortion, serial monogamy, the ordination of women, and the blessing of same-sex partnerships. In church, difficult as it is these days, the Christian ought to embrace and give support only to that which is in harmony with God’s revelation, will, and order.

Nevertheless, to be heard in the modern world, he may have to use “rights talk” in a limited and wise way to argue for what is good for man in God’s world and is achievable by political action.

The “rights” doctrine stressed by the liberal leadership of the American mainline denominations today is not the same doctrine that American preachers at the end of the eighteenth century believed and expounded. They spoke primarily of God-given natural rights to life, liberty (especially liberty of religion and conscience), property, and pursuit of happiness. They looked for liberty of religion, speech, and conscience, and they claimed those civil rights which they believed belong to the tradition of rights going back to the Magna Carta. They held that these rights flowed from the righteousness of God, from the goodness of his plan in creation, and from the positive demands of his commandments. And they also held that such rights existed inextricably with duties defined by the same law of God, for the One and the Same God who gave commandments also gave rights along with those commandments.

In contrast, in the new modern doctrine of human and civil rights favored by the liberal churches, the rights emanate from the individual as a being of dignity, according to the claims of each, so that each individual person becomes in effect a little god and not subject to the commandments of the Deity of what are referred to as previous patriarchal and androcentric cultures.

From Incarnation to Rights

Perhaps the most noble and sustained attempt to baptize the type of human rights (natural and civil) as set forth in the United Nations Declaration of 1948 into Christian theology is from the Roman Catholic Church and from Pope John Paul II in particular. This approach requires first the adoption of the Christian doctrine of the Incarnation in order to provide a basis for the dignity of all human beings who are made in God’s image and for whom rights can be claimed. Thus we find that the Church proclaims human rights as part of God’s message to the world from a full Christological perspective (and with the present pope via a personalist philosophy), but it is received in the main by a world that posits human rights as belonging to human beings in their individuality and that also includes as rights much that the Church teaches are sins (e.g., abortion).

Jacques Maritain, the Catholic philosopher, who was involved in the writing of the United Nations’ Declaration, believed that a doctrine of individual rights is implicit in the Christian emphasis on the dignity of human personality. In contrast, another French scholar, Michel Villey, who studied the origins of “rights talk” in the late medieval period, held that while rights theories are derived from Christian morality, they are an aberration, a kind of deformed variety of Christian thought.

A careful student of modern Catholic “rights” language and claims is left wondering whether anything of lasting value has been achieved by the adoption and use of them. This is because it seems to be nearly impossible to use consistently a Christian “rights” language that has a totally different foundation from the “rights talk” in normal use in the political and social spheres. It is to be noted that the Catholic Church can and does already make the same points concerning the dignity and worth of man through and in Jesus Christ, the new Adam, without using “rights talk.” However, the “rights” language is now incorporated in The Catechism of the Catholic Church as official teaching and thus seems to be here to stay. Time will tell whether it is a huge mistake or a winning number.

Popes before this century refused to use “rights talk,” seeing it as an aberration of the Enlightenment. And of course those influenced by Leo Strauss (e.g., Walter Berns in his In Defense of Liberal Democracy, 1984) have maintained that the very idea of natural rights is incompatible with Christian doctrine.

Turning to conservative Protestants and biblically-minded Evangelicals, it seems that they have absorbed much from the “rights talk” of Western culture. This can be seen via a careful analysis of some of their modern biblical paraphrases where “rights talk” comes into the translation, of their claims concerning individualist reading and interpreting the Bible, of their ways of speaking of their “relationship” with God in “my quiet time,” of their developing teaching and practice of divorce and second marriages (serial monogamy), of the political claims of the “Christian Right,” of their explanations of and rules for baptism and the Lord’s Supper, and of their rules covering church membership. This whole area calls out for detailed study.

Perhaps the best way to celebrate the fiftieth anniversary of the Declaration on Human Rights of 1948 is to become aware of the origins, nature, and development of “rights talk,” to work for the absolutely basic human rights as stated in the Declaration, and to seek to bring back into public discourse other means by which to speak of the dignity and privileges, as well as the duties and obligations, of human beings. For at best, it would seem, “rights talk” is only implicit in biblical talk.

For further reading:

Basic Documents on Human Rights, 3rd edition, ed. Ian Brownlie (Oxford: Clarendon Press, 1992). Contains all major documents from 1948 to 1991.
• Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse (New York: The Free Press, 1991).
• Alasdair MacIntyre, After Virtue (University of Notre Dame Press, 1981).
• John Warwick Montgomery, Human Rights and Human Dignity (Grand Rapids: Zondervan, 1986).
• Joan Lockwood O’Donovan, “Historical Prolegomena to a Theological Review of ‘Human Rights’,” Studies in Christian Ethics, 9 (1996).
• Oliver O’Donovan, The Desire of the Nations: Rediscovering the Roots of Political Theology (Cambridge University Press, 1996).
• Pope John XXIII, Pacem in Terris (1963).
• Pope John Paul II, Veritatis Splendor (1995).
• Ian Shapiro, The Evolution of Rights in Liberal Theory (Cambridge University Press, 1986).
• Bernard Schwartz, The Bill of Rights: A Documentary History, 2 vols., (New York: Chelsea House Publishers, 1971).
• Brian Tierney, The Idea of Natural Rights, 1150–1625 (Atlanta: Scholars Press, 1997).



On Subjective Human Rights Today

(1) Defining the word “right”

In an abstract sense, “right” (or “the right”) is justice, ethical correctness, harmony with the rules of law, or harmony with the principles of morals. In this meaning the word is not normally used in its plural form.

In a concrete legal sense, a “right” (not normally “the right”) is a power, a privilege, a demand, or a claim possessed by a group of persons or a particular person by virtue of law. Here the word is often used in its plural form referring to a variety or collection of rights.

(2) On “rights” in constitutional law

In constitutional law, “rights” are usually classified as natural, civil, and political. (i) Natural rights are said to belong inherently to each human being and include the rights to life, liberty, and the pursuit of happiness. (ii) Civil rights are those that through the Constitution belong to every citizen of the state and which are not connected with or part of the organization or administration of government. They include rights to equal protection under and by the law, marriage and choice of a spouse, to own property, to inherit, to a trial by jury, and so on. (iii) Political rights entail the power to participate either directly or indirectly in the establishment or the administration of government. They include the right of citizenship, to vote, and to hold public office.

Each legal right possessed by an individual citizen is related to a corresponding legal duty imposed on another (others). For example, the right to private home and property is related to the duty of others not to interfere with the rights of the owner by trespass or burglary.

(3) On economic, social, and cultural “rights”

Within various “Charters” and “Conventions” arising from the work of the United Nations Organization, there are lists of economic, social, and cultural rights—e.g., to work and just conditions of work, to equal pay for equal work, to form and join trade unions, to public health and medical care, social security and social services, to education and training, to participation in cultural activities, and the right of access to all places intended for use by the general public. Some or all of these rights are also found in the civil law of member nations.


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