Theology and the Boundary Discourse of Human Rights

Chapter One A Dialectical Boundary Discourse: Secular and Religious

7 Chapter One u A Dialectical Boundary Discourse SECulaR and REligiOuS A child found wandering in the woods, the remnant of a slaughtered nation whose temples have been razed and whose books have been burned, has no share in human dignity. —Richard Rorty HAs this child no shAre in humAn dignity? Hasheorshenoappeal to human rights, the dominant moral discourse of our time? Richard Rorty describes the contemporary moral landscape as one primarily inhabited by “Kantians” or “Hegelians.” Those who hold that there are such things as intrinsic human dignity and universal human rights are Kantians. They also uphold an ahistorical distinction between the demands of morality and those of prudence. Rorty identifies a particular type of contemporary Hegelian as one who seeks to uphold the institutions and practices of liberal democracies without an appeal to their foundations in the Western philosophical tradition. He describes this as “postmodernist bourgeois liberalism.” These Hegelians have no justification for an appeal to the dignity of the wandering orphan, so Rorty, self-described as a “free-loading atheist,” is content to invoke the Jewish and Christian ethic of the treatment of the stranger that still resides in the Western tradition.1 Rorty’s analysis points to some of the difficulties of doing ethics in our time. This chapter begins by examining what kind of discourse human rights is and what place, if any, it should occupy in contemporary ethics. Before offering A diAlecticAl boundAry discourse 8 a definition of human rights, I will briefly respond to two questions that are commonly raised in this context: Are human rights ahistorical? Are human rights universal? A definition of human rights discourse will then be proposed, and two examples—one secular and one religious—of its use in public discourse will be explored. Are Human Rights Ahistorical? Human rights discourse is often perceived as operating within a false universality that is ahistorical at best and marked by Western colonial pretensions at worst. However, rights discourse has always arisen from conflict within a particular historical and geographical context and has found expression at different times in terms of liberties, natural rights, and human rights. The Magna Carta limited the power of the monarch, thus establishing basic legal rights for the freemen of thirteenth-century England; in the face of the sixteenth-century violence of the conquistadores, Francisco de Vitoria and Bartolomé de las Casas appealed to a doctrine of natural rights for the defense of the Amerindians; John Locke’s Two Treatises of Government were published in the context of the English Glorious Revolution and the subsequent practical transition of power from monarch to parliament; and the seminal modern document on human rights, the Universal Declaration of Human Rights, was drafted in the shadows of the Holocaust and the destruction of so many lives in the Second World War. Rights, then, present themselves as an historical product, but rights are not without significant universal validity. This book assumes a broad and complex history for the modern notion of human rights, one that looks behind the major contribution of Enlightenment liberties to what John Witte describes as “the deeper genesis and genius of many modern rights norms in religious texts and traditions that antedate the Enlightenment by centuries, even by millennia.”2 Brian Tierney locates the origins of Western rights theories in the natural rights thinking of medieval law and religion.3 Both Witte and Tierney are part of a considerable body of scholarship that points to “liberty before liberalism,”4 and the contribution of this scholarship to a richer and deeper history of human rights is important in the light of the persistence, in some quarters, of a one-dimensional approach to the history of human rights.5 Aversion to the concept of human rights is sometimes expressed by dismissing them as “inventions,” as if this automatically rendered them philosophically 9 Are Human Rights Universal? irrelevant. The Latin invenio (to discover) points to creativity in discussion and argument. There are many ways in which philosophy and theology “discover” or “come upon” words, structures, and systems that articulate, in particular times and places, truths considered natural and supernatural. Human rights are such a construct, an “invention,” a construction born of an intuitive conviction , a creative attempt to articulate the protection of the human person, an articulation that is not necessarily at odds with natural law theories in philosophy or theology. Are Human Rights Universal? Richard Rorty, a nonfoundationalist...