| Rick Garnett has referred to my work on human rights a few times--in particular, to my book The Idea of Human Rights (Oxford 1998). I am now working on a new book on human rights, the (tentative) title of which is Human Rights as Morality, Human Rights as Law: Toward a Theory of Human Rights. The first chapter of the book will soon be published as an essay in a symposium issue of the Emory Law Journal. The abstract of the essay is below. If you would like to download and read the essay, click here and then download from SSRN. Abstract: In the midst of the countless grotesque inhumanities of the twentieth century, there is a heartening story: the emergence, in international law, of the morality of human rights. The morality of human rights is not new; in one or another version, the morality is very old. But the emergence of the morality in international law, in the period since the end of World War II, is a profoundly important development. The International Bill of Rights, as it is informally known, consists of three documents: the Universal Declaration of Human Rights(UDHR), the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social, and Cultural Rights. The UDHR refers, in its preamble, to "the inherent dignity . . . of all members of the human family "and states, in Article 1, that "[a]ll members of the human family are born free and equal in dignity and rights . . . and should act towards one another in a spirit of brotherhood." The two covenants each refer, in their preambles, to "the inherent dignity . . . of all members of the human family" and to "the inherent dignity of the human person--from which, the covenants insist, "the equal and inalienable rights of all members of the human family . . . derive." As the International Bill of Rights makes clear, then, the fundamental conviction at the heart of the morality of human rights is this: Each and every human being--each and every member of the species Homo sapiens sapiens--has inherent dignity; therefore, no one should deny that any human being has, or treat any human being as if she lacks, inherent dignity. To say that all human beings have inherent dignity is to say that one's dignity inheres in nothing more particular than one's being human; it does not inhere, for example, in one's "race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status." According to the morality of human rights, because every human being has inherent dignity, no one should deny that any human being has, or treat any human being as if she lacks, inherent dignity. The conviction that every human being has inherent dignity--and that therefore no one should deny that any human being has, or treat any human being as if she lacks, inherent dignity--is so fundamental to the morality of human rights that when I say, in this Essay, the morality of human rights, I am referring to this conviction. An act (whether of commission or omission) or a policy violates a human being, according to the morality of human rights, if the rationale for the action or policy denies that the human being has, or treats her as if she lacks, inherent dignity. The morality of human rights holds that every human being has inherent dignity and is therefore inviolable: not to be violated, in the sense of "violate" just indicated. The morality of human rights responds to what is perhaps the most basic of all moral questions: Which human beings are inviolable--all, some, or none? Moreover, the morality of human rights is, for many secular thinkers, problematic, because it is difficult--perhaps to the point of impossible--to align the morality of human rights with one of the secularist's reigning intellectual convictions, what Bernard Williams called Nietzsche's thought: "[T]here is, not only no God, but no metaphysical order of any kind . . . ." In this Essay, I elaborate a religious ground for the morality of human rights. I then pursue the question whether there is a nonreligious (secular) ground for the morality of human rights. Along the way, I comment critically on the positions of John Finnis, Ronald Dworkin, Martha Nussbaum, and Richard Rorty. This Essay, which is being published in a symposium issue of the Emory Law Journal, is part of a larger work in progress--a book--tentatively titled Human Rights as Morality, Human Rights as Law: Toward a Theory of Human Rights. | |
Wednesday, March 16, 2005
The Morality of Human Rights
Lupu and Tuttle on the Notre Dame / Americorps case
Law professors Chip Lupu and Bob Tuttle -- two of the Nation's leading church-state scholars -- have posted a detailed analysis of the D.C. Circuit's opinion in the Notre Dame / Americorps case.
Rick
Father Johansen's article on the Terri Schiavo case
Father Johansen has just published an excellent article on the Terri Schiavo case. See here. Father Johansen will be discussing the Terri Schiavo at the University Faculty for Life annual meeting, which will be held at Ave Maria School of Law from June 3-5, 2005. I will post more details about that conference when the conference schedule is available. The UFL website, which is here, contains information about that conference.
Richard
Tuesday, March 15, 2005
The iPod Nation and Bowling
Putnam was wrong about bowling and community, as anyone who knows one of the greatest films of all time can tell you. The Coen brothers' classic "The Big Lebowski" is a hymn to the community formed by The Dude, Walter and Donny, bowlers who ultimately triumph over The Nihilists ("We believe in NOTHING, Lebowski!".) The Dude, one of the authors of the Port Huron Statement ("the original, more radical one"), would have an iPod, but he would never bowl alone.
--Mark
Democrats, Republicans, Catholics
Bradley Lewis has two interesting posts (here and here) over at the Notre Dame Center for Ethics and Culture "Forum." This observation, in particular, seems right to me:
It seems to me that the basic problem here is to see politics in the categories of individualism and collectivism and to identify the Catholic tradition with collectivism. Individualism run amok (as sometimes seems to be the goal of many political "conservatives"--an odd thing on its face: what's "conservative" about that?) is often vicious, but so is collectivism. The question one should ask from the perspective of the Catholic intellectual tradition is what protects and promotes the common good, understanding the adherence to basic moral norms as itself partly constitutive of that very common good. This leaves a great deal for Catholic citizens and politicians to argue about when it comes to policy, without confusingly assimilating questions of doctrine to those of prudence.
Rick
Wieseltier on the Ten Commandments
The always eloquent if sometimes maddening Leon Wieseltier has an essay in the latest New Republic, called "God Again." Here is his report on the recent oral arguments in the Ten Commandments cases:
It was amusing to watch the conservatives at the lectern argue that the monument of the Ten Commandments on the grounds of the state capitol in Austin deserves the protection of the Court because it is the historical, and even the secular, symbol of a common heritage; and encouraging to discover that the justices were having none of this Christian casuistry. They seemed all to agree that the Decalogue is a religious expression, which plainly it is. None of them seemed especially horrified by this fact, at least in these settings. A reasonable distinction between the acknowledgment of religion by the state and the establishment of religion by the state was in the air, and none of the justices wished government to be hostile to religion. I will be surprised if the Court orders the slab of pious stone in Texas, or the framed commandments that hang in courthouses in Kentucky, removed.
And here are his concluding thoughts:
As an illustration of an acceptable display of the Ten Commandments on government property, some of the justices pointed to the figure of Moses on the marble frieze on the upper wall of their own courtroom, carved after pencil sketches by Cass Gilbert, the building's Beaux-Arts architect. (Moses appears also on the eastern pediment outside the building.) There the prophet stands, facing the bench, and holding in his hands the revealed law, inscribed in Hebrew and in gold. By a miracle of political convenience, only the second tablet appears, the one with the non-theological instructions. As I pondered this sculpture, I saw that it represents not a victory for the believers, but a defeat for them. For here is the son of Amram, fresh from his meeting with God at Sinai, newly in possession of the exclusive and immutable law, alongside Hammurabi and Menes and Solon and Confucius and Octavian. (And opposite Mohammed and Napoleon and John Marshall.) He is a lawgiver among lawgivers, no more. This is a fine iconographical program for the court, but it is decidedly not what the devout have in mind. On the south wall of America's most significant courtroom, the Ten Commandments have not only been celebrated, they have also been relativized. I reflected sweetly upon the inevitability with which the multiplicity of beliefs in an open society condemns absolutists to an exasperated existence. Pluralism protects them, but it also discomfits them. And their discomfiture is one of democracy's beauties.
Rick
iPod Love
In light of Steve's post, I should clarify that -- notwithstanding my link to Andrew Sullivan's recent essay -- I also have an iPod . . . and love it!
Rick
A Reply to Rick re the iPod Nation
As someone who feels about his iPod sort of the way NRA types feel about their guns, I may not be unbiased, but I'm going to take up Rick's recent challenge anyway.
Rick pays Andrew Sullivan the compliment of taking seriously Sullivan's essay iPod World: The End of Society?, in which the latter wrote:
Americans are beginning to narrowcast their own lives. You get your news from your favorite blogs, the ones that won't challenge your own view of the world. You tune into a paid satellite radio service that also aims directly at a small market - for New Age fanatics, or liberal talk, or Christian rock. Television is all cable. Culure is all subculture. Your cell-phones can receive email feeds of your favorite blogger's latest thoughts - seconds after he has posted them - or sports scores for your own team, or stock quotes of just your portfolio. Technology has given us finally a universe entirely for ourselves - where the serendipity of meeting a new stranger, or hearing a piece of music we would never choose for ourselves, or an opinion that might actually force us to change our mind about something are all effectively banished. Atomization by little white boxes and cell-phones. Society without the social. Others who are chosen - not met at random.
Human beings have never lived like this. Yes, we have always had homes or retreats or places where we went to relax or unwind or shut the world out. But we didn't walk around the world like hermit crabs with our isolation surgically attached. Music in particular was once the preserve of the living room or the concert hall. It was sometimes solitary but it was primarily a shared experience, something that brought people together, gave them the comfort of knowing that others too understood the pleasure of that Brahms symphony or that Beatles album.
Now where have we seen this before? Ah ha! Isn't Sullivan just recycling Robert Putnam Bowling Alone thesis? With a techno-geek spin?
You'll recall that Putnam's 1995 essay and 2000 book claimed that social capital was in decline due to a loss of community. Observing that people supposedly were bowling alone more often, Putnam opined: "The broader social significance ... lies in the social interaction and even occasionally civic conversations over beer and pizza that solo bowlers forgo." Sounds a lot like Sullivan's complaint about the iPod, doesn't it?
The problem is that it is all bunk. Shortly after Putnam's 1995 essay appeared, Robert Samuelson viciously fisked it for Newsweek. More recently, Marginal Revolution guest blogger Fabio Rojas pointed out research that directly undermines Putnam's titular claim:
Tim Hallett, a colleague of [Rojas'], his dissertation advisor Gary Alan Fine and graduate student Mike Sauder decided to see if people really bowled alone. They recently published a summary of their findings in the magazine Society. Fine, Hallett and Sauder write: "As occasional bowlers – although not in leagues – we asked a simple question: Do Americans really bowl alone, and what, if anything, does it mean?"
To answer that question, they went bowling and observed over 800 bowlers at six Chicago area bowling alleys. What did they find? Less than 1% of the people seen bowling actually bowled alone. In interviews, only 13% said they had bowled alone during the past year. What about those loners? Were the solo bowlers introverted and anti-social? To the contrary, 12 out of 22 interviewees who admitted to bowling alone did so to practice so they could do well in bowling leagues. In other words, bowling alone correlates with being in a bowling league.
In short, Putnam was wrong. So, in my judgment, is Sullivan. The evidence simply doesn't support the claim that were are retreating into a world, to quote Sullivan, of "Society without the social."
But suppose they're right? So what? Putnam's thesis has been seized upon by left communitarians to justify a whole slew of "It Takes a Village"-style government initiatives designed to promote community and solidarity. They thus bring to mind Richard Epstein’s observation that socialists no longer advocate direct government ownership of production. Instead, they operate on two different levels: "At a personal level, [modern socialism] speaks to the alienation of the individual, stressing the need for caring and sharing and the politics of meaning. At a regulatory level, it seeks to identify specific sectors in which there is a market failure and then to subject them to various forms of government regulation."
Yet, as I explained in my article Community and Statism: A Conservative Contractarian Critique of Progressive Corporate Law Scholarship, if America is becoming a low social capital society, it is precisely because of the sort of statism the left communitarians propose to foist upon us. Indeed, it can be argued that the decline in social capital (if there is one) began when the rich set of mediating institutions famously praised by Tocqueville was caught, like the Romans at Cannae, between the nanny state on one side and judicial hijacking of the state’s monopoly on the use of coercive force to advance a hyper-legalistic cult of the autonomous individual on the other.
We may fear the faceless bureaucrat, but he does not inspire us to community. Social capital thus cannot be created by state action. But while the state cannot make its citizens invest in social capital, it can destroy the intermediary institutions that do inculcate virtue. To quote Epstein, again: "Communities can be destroyed from without; but they cannot be created from without; they must be built from within."
So my answer to Rick is: Don't take Sullivan too seriously. Which, come to think of it, is probably a pretty good rule of thumb!
(X-posted to my main blog.)
Pro-Life Progressivism: Avoiding the Pitfalls
As Mark Sargent noted in his posting, I too attended (most of) the Pro-Life Progressive symposium (“Can the Seamless Garment Be Sown”) here at the University of St. Thomas School of Law in Minneapolis this past weekend. I also join with Mark in congratulating the organizers, especially my colleague Tom Berg, and participants for a greatly successful program, which notably drew a large audience from the community, who were not the typical attendees of a law school symposium. Mark volunteered to post further summaries of the presentations made and his observations, and I for one would benefit in hearing more from him.
Because so much was said that was positive and indeed inspiring at this symposium, it would not have been appropriate for me as a non-participant and harboring concerns to be the first to post on this event. For that reason, I deliberately delayed this posting until after someone else, such as Mark Sargent, who was a direct and thoughtful participant had the chance to relay his impressions of the gathering.
As an observer of the Pro-Life Progressive discussion, I was a sympathetic outsider looking in with great interest. I am sympathetic in that I too yearn for a pro-life witness from the political left. I remain an outsider in that I do not agree with every element of the progressive agenda, at least on the means to the ends (as I share the skepticism well-expressed on this blog by Rick Garnett about over-reliance on statist methods, and have a greater appreciation for free enterprise as the best, if imperfect, engine for economic progress). I look inside with great interest because of my fervent wish for an ever-larger and diverse witness for life; indeed, because of the powerful message for life that would be sent thereby, I’d be tempted to vote for a genuinely pro-life liberal candidate for public office – even over a conservative of comparable pro-life credentials – despite my doubts about other elements of the progressive platform.
Having thus acknowledged my perspective, and having listened carefully to (most of) the presentations at the symposium, I thought I identified three potential dangers that could undermine Pro-Life Progressivism as an authentic pro-life movement.
First, a few participants exhibited an unseemly tendency to depreciate the value of electing pro-life candidates to office and to denigrate pro-life accomplishments. The argument that pro-life candidates (at least of the Republican variety) abandon the anti-abortion cause once elected to office is overstated, objectively false, begs the question of why offering progressive pro-life candidates would serve any practical purpose, and often appears to be a thinly-veiled excuse for ignoring even the most egregious of pro-abortion records of liberal candidates so as to justify casting votes for them.
One of course can and should criticize Republican leaders who sometimes fail to place pro-life issues on the front-burner and fully exercise the bully pulpit of public office to speak against the culture of death. But one legitimately can urge even more attention to the scourge of abortion without denigrating hard-fought victories for the pro-life movement. We must recognize that the battle for life will be won mostly through small successes that build upon each other. At the federal level, pro-life members of Congress have been able to enact a prohibition on the grisly practice of partial birth abortion and continue to fend off the persistent efforts of the pro-choice left to subsidize abortion-on-demand through federal spending. While President Bush was criticized as the Pro-Life Progressive symposium for not speaking more energetically against abortion, he in fact frequently mentions the subject and devoted an entire speech to the matter at the recent anniversary of Roe v. Wade (although the news media tend to ignore those statements). At the state level, pro-life legislative successes continue to multiply, from ensuring greater information to women in trouble, protecting the rights of parents, and providing easier access to alternatives to abortion. While these pro-life successes are not yet the bountiful harvest for which we all pray, the basket is by no means empty.
If those who claim to be building a pro-life progressive movement belittle the hard work of those who for many long years have labored hard in the political vineyard and reaped many victories over the concerted opposition of the party that claims to speak for progressives, this newly-formed progressive voice simply will not be in solidarity with the pro-life movement as a whole.
Second, while some participants persuasively argued that Pro-Life Progressives are better situated to seek common ground with skeptics on the question of life, including those on the pro-choice side, such fora for dialogue must be entered with caution lest they be abused by abortion advocates who disguise themselves or their agenda. The dialogue must be conducted with integrity and always with fidelity to the cause of life.
As a frightening example of the risks posed by naive ventures in the “common ground” direction, one person in the audience of the Pro-Life Progressive symposium raised the possibility of dialogue with Catholics for a Free Choice. Much harm would come to the Pro-Life Progressive movement were it to pursue exchanges with this deceptively-named front for the abortion industry. Asking for dialogue with such a fraudulent and extremist outfit would be tantamount to expecting the abolitionists to have sought common ground with the auctioneers at the slave market. The only thing that could come from such an exchange would be to polish the tarnished public image of pro-abortion groups and abortion industry lobbyists, while distracting and dividing the pro-life movement and thereby suppressing the witness for life. To be sure, one should always be ready to reach out to people of good will who are unsettled on the issue or who are genuinely prepared to reevaluate the absolutism of pro-choice politics. But one must never allow one’s natural and generous desire for dialogue to be cynically manipulated by others to a very different purpose.
More than one participant in the symposium emphasized that, while constituting a welcome beginning, changes in the rhetoric on abortion by certain liberal political figures must be accompanied by meaningful action. While the action that should be expected was not made concrete (which brings me to my third concern below), it at least indicated that more than one member of the Pro-Life Progressive movement is attuned to the risk I describe above.
Third, the Pro-Life Progressive movement, while presenting itself both as a sincere opponent of abortion and broadly progressive on economic and international matters, seemed rather short on specifics about how to advance the pro-life cause beyond words. Indeed, more than one speaker raised doubts about whether anti-abortion legislation—with the eventual goal of prohibiting any violent taking of unborn human life—ought to be pursued. All of us agree that the culture must be changed if we are to realize our hope of one day placing abortion alongside slavery and genocide as universally-acknowledged intrinsic evils. Moreover, some of us will be called to devote our time and talents to reaching hearts and minds, rather than to engaging with politicians and judges. But the pro-life movement as a whole cannot stand by and fail to take such action as is possible now. We must save as many lives as we can today, even if limited restrictions on abortion and enhancement of alternatives are all that can be legislatively achieved at present.
Interestingly, the same symposium participants who were quick to dismiss pro-life Republicans as inconsequential based upon a supposedly inadequate legislative agenda were also the ones who seemed most reluctant to forthrightly endorse legal constraints on abortion as part of the new movement’s platform. If this cognitive dissonance is rooted in an underlying timidity about pro-life politics or an unwillingness to unite with other pro-life activists across the political spectrum in seeking always to accomplish whatever is politically possible, then it will be difficult for this new movement to sustain itself as truly pro-life as well as progressive.
I do not mean to suggest that any one of the three dangers mentioned above, much less all three in concert, were manifested in a dominating way at the Pro-Life Progressivism symposium. But each emerged from time to time. Nor do I think it inevitable that the Pro-Life Progressive movement will succumb to these temptations. Any nascent political movement will be less than fully formed and internally coherent at its birth. Mapping the pitfalls, so that they may be avoided, ought to be welcomed as advancing the cause. Mark Sargent’s earlier posting confirmed that these risks are recognized by those within the movement.
If Pro-Life Progressivism is truly to be a fourth political alternative in the country (along with conservatism, libertarianism, and secular liberalism), then it must be authentically pro-life as well as genuinely progressive. Should it succeed in becoming a viable part of the political landscape, while remaining true to its pro-life soul, we all would have great cause to rejoice.
Greg Sisk
Evangelicals and Catholics as Conservative Alliance
In the current Books & Culture, noted evangelical theologian J.I. Packer paints an intriguing portrait of William Shea's recent book, The Lion and the Lamb: Evangelicals and Catholics in America (Oxford 2004). Shea traces:
the parallel between the Catholic and evangelical volte-faces during the past century and a half. The Catholic story is of defensive anti-modernism capped by Vatican II's new openness to dialogue with the world and with non-Catholic Christianities, a move that left integralists behind. The evangelical story is of anti-liberal fundamentalism trumped by the commitment of the 1942 National Association of Evangelicals to interactive engagement with both secularism and Protestant liberalism, a move that left fundamentalists behind.
In many ways, it seems conservative Catholics and evangelical Christians have more in common with each other than they do with the more liberal elements of their own faith tradition. Packer explains that:
To all conservative Christians, liberals, however well meaning, appear as parasitic cosmeticians; cosmeticians, because they constantly aim to remove from Christianity that which outsiders, like some inside, find intellectually unsightly and unacceptable; parasitic, because they attach themselves to the historic faith and feed off it even as they whittle it down, diminishing, distorting, and displacing major features of it to fit in with what their skeptical conversation partners tout as factual truth. In mainline Protestantism, where doctrinal discipline is, alas, virtually nonexistent, liberals have a free run, but in Catholicism only a few steps along this road prove to be too far. Witness Hans Küng . . . . Liberal Catholicism may have charms, but has it a future? One doubts it.
Read the rest here.
Rob
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