Mirror of Justice

Its not quite “later in the day,” but I am finally getting back to Rob’s response to Jack Balkin's post regarding the development of human rights.  Jack says:  “For religion to ground universal human rights in the very attractive way that the previous discussion has assumed, that religion must be of a very special sort, and, I would suggest, it must be of a form that arises most commonly following the Enlightenment.”

I would like to suggest that history shows that the foundations for modern human rights were laid (both directly and indirectly) long before the Enlightenment. 

In the Old Testament, we see the idea planted that those outside the community and the marginalized within the community are to be treated with respect.  The duty toward the alien among them, the duty to leave some crop in the field to be gleaned by the poor, and the concept of a jubilee year where the economic playing field was leveled are all evidence that Israel had started to think about human rights in a way that transcended old boundaries (citizenship and class).

In the New Testament, we see this idea advanced through Christ who came for all human kind.  In Him there is no Jew or Greek, no woman or man.  The NT is full of references to the universal nature of human dignity.  One that sticks out and is particularly appropriate for lawyers is the dialogue between Jesus and a lawyer who asks Jesus who is this neighbor that must be loved like oneself.  In the story of the Good Samaritan, we see that the neighbor is one who is “other;” in fact, one who is an enemy of Israel.  Again, the seeds are their in the Gospels and the rest of the NT for the development of universal human rights.

Much of the rest of my remarks will come from Thomas Woods’ How the Catholic Church Built Western Civilization.  This is a book accessible by popular audiences but with good notes for those with an academic interest.  Some of it also comes from Harold Berman’s Law and Revolution.  What follows are just a few of Christianity’s contributions to human rights pre-Enlightenment.

• The Investiture crisis a millennium ago, established two important principles that are necessary for the development of universal human rights:  1) a rejection of the totalitarian state and 2) the idea of separation of powers (here between state and Church).

• I would suspect that the modern legal system provides a structure in which human rights can be protected.  Within the Church, with the development of canon law in the 12^th century, our modern legal system began to take shape. 

• A part of this development included introducing certain concepts of equality between men and women – for instance, a valid marriage required the free consent of both the male and the female and both could be punished for adultery.
• Quoting Kenneth Pennington, Woods says “by 1300, European jurists ‘had developed a sturdy language of rights derived from natural law.  During the period from 1150 to 1300, they defined the rights of property, self-defense, non-Christians, marriage, and procedure as being rooted in natural, not positive, law.  By placing these rights squarely within the framework of natural law, the jurists could and did argue that these rights could not be taken away by human prince.’”

• I would suspect that the university, with its commitment to learning, debate, reasoning, and inquiry, is a vital albeit indirect necessity for the development of universal human rights (and much else we hold dear today).  Universities grew out of the cathedral schools.  Woods says that “[e]ighty-one universities had been established by the time of the Reformation.”  53 of these had a papal charter.

• Spanish conquest of the New World and the mistreatment of the native population led to great debate among theologians, philosophers, and others about the status of the native populations individually and as peoples, leading to de las Casas “Defense of the Indians” among other arguments for the humanity and dignity of that population. 

• The emergence of international law and the rights of all grew out of or were deepened by these debates occasioned by the mistreatment of natives of the New World.  Vitoria, de Molina, and Domingo de Soto played important roles in developing this thinking.  Woods quotes de Soto:  “Those who are in the grace of God are not a whit better off than the sinner or the pagan in what concerns natural rights.”

This is just a taste of the development of human rights prior to the Enlightenment.  MOJ reader, Jonathan Watson, has suggested that those interested in further study look to “the scholarship of Kenneth Pennington, here - his website is a collection of very valuable thoughts / materials regarding human rights and procedural norms from the Middle Ages and Christendom - this and this might be good starting points” and to “Stephan Kuttner, Mario Bellomo, Brian Tierney, Charles Donahue, and Richard Helmholz.”  And, there is also Charles Reid at St. Thomas in Minnesota.

The idea of universal human rights did not appear out of no-where and into the heads of the Enlightenment intellectuals.  It was by and large an outgrowth of Judaic-Christian theology and philosophy.

A large question remains.  If the idea of human rights grew out of the church then why have Christians (and others) had such a bad track in recognizing and granting these rights?  The theological answer is “original sin.”  Our reason is fallible and this truth of “love your neighbor as yourself” has to be thought through and debated as new situations (the New World for instance) stretch our imagination.  And, our reason is often sacrificed at the altar of the passions.  We know what is right but our self-interest prevents us from doing what is right.  In speaking of slavery, Thomas Jefferson said, “I shudder to think God just.”  In other words, Jefferson knew slavery was wrong but he couldn’t bring himself to free his own slaves in his lifetime.