Intractable Disputes about the Natural Law: Alasdair MacIntyre and Critics

Chapter 8: The Foundation of Human Rights and Canon Law

        The Foundation of Human Rights and Canon Law John J. Coughlin, O.F.M. The increasing recognition of human rights in state and international systems of law constituted one of the most significant legal developments of the twentieth century. However, even as this development continues to mature in the legal theory and practice of the twenty-first century, disagreement persists about the moral foundation of human rights. Alasdair MacIntyre writes about some of the intractable moral disagreements which have characterized philosophical discourse since the Enlightenment, especially among Thomists, Kantians, and utilitarians. What MacIntyre describes from a more general perspective is consistent with the lack of agreement about the foundation of human rights. Indeed, this lack of agreement seems to be a subset of the fifth major type of disagreement identified by MacIntyre, which concerns rival conceptions of justice. During the twentieth century, the Catholic Church assumed a voice in the discussion about the foundation of human rights. The Church has suggested  08 Cunningham Ch8 1/27/09 11:22 AM Page 251  | John J. Coughlin, O.F.M. that both natural law and Christian theology serve as complementary grounds on which to secure human rights language. Despite the growing influence of positivistic approaches to law which attempt to separate law from moral value, the Catholic Church has observed that the only stable foundation for the normativity of human rights law remains the dignity of the human person. In Pope Benedict XVI’s words: [I]nternational discussions often seem marked by a relative logic which would consider as the sole guarantee of peaceful coexistence between peoples a refusal to admit the truth about man and his dignity, to say nothing of the possibility of an ethics based on the recognition of the natural moral law. This has led in effect to the imposition of a notion of law and politics which ultimately makes consensus between states—a consensus conditioned at times by short-term interests or manipulated by ideological pressure—the only real basis of international norms. The bitter fruits of this relativistic logic are sadly evident: we think, for example , of the attempt to consider as human rights the consequences of certain self-centered lifestyles; a lack of concern for the economic and social needs of the poorer nations; contempt for humanitarian law; and a selective defense of human rights.1 In drawing attention to the human person as the foundation of human rights, Pope Benedict’s words are an affirmation of what Pope John Paul II referred to as the anthropological basis of law.2 Absent the anthropological basis, I believe that human rights are endangered in several ways. First, human rights that are dependent on a positivistic approach to law may be subordinated to the interests of state or party. In this regard, it should not be forgotten that human rights language originated in the context of modern Western legal systems . While the historical origins of human rights language remains complex, a watershed in its development may be traced to the  08 Cunningham Ch8 1/27/09 11:22 AM Page 252 Virginia Bill of Rights, which served as a prototype for the adoption of the Bill of Rights or the first ten amendments to the United States Constitution. Almost simultaneously, the language of human rights surfaced as an aspect of the legal theory of the French Revolution. Several centuries later, in , this development culminated in the adoption of the Universal Declaration of Human Rights by the United Nations .3 The language of human rights also served as a catalyst for the events of  in Eastern Europe during which a peaceful revolution toppled an oppressive totalitarian system of government. As contemporary issues such as war, poverty, abortion, capital punishment, euthanasia , and torture—to name a few—demonstrate, mere positive law itself fails to guarantee that the nation-states of the Western world always act in accord with human rights. Second,non-Westernnations sometimes repudiate human rights precisely because their historical origin is particular to the West. In a New York Times op-ed, John L. Allen Jr., comments, “From China to Iran to Zimbabwe, it’s common for authoritarian regimes to argue that rights like freedom of the press, religion and dissent represent Western—or even Anglo-American—traditions. If human rights are to be protected in a st century increasingly shaped by non-Western actors like China and the so-called Shiite axis from Lebanon...