Prof. Janne Haaland Matláry – Democracy and Human Rights in Europe: The Problem of Relativism

Prof. Janne Haaland Matláry is Professor of International Politics, Department of Political Science, University of Oslo
Seminar on Wednesday 9 May 2007                                           

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Lecture-cum-booklaunch of the English version of the volume When Might Becomes Human Right: Essays on Democracy and the Crisis of Rationality (Gracewing; Leomister, 2007)


Europe has become the major exponent of human rights, democracy, and the rule of law all over the world. This modern ‘trinity’ of values has become the universal standard for good government and humane politics. While democracy entails a basic equality as its main norm, it is in human rights that we today find values about the human being expressed in the form of a fundamental imperative. Rule of law is taken to mean that there should be a separation of powers with an independent judiciary. Ultimately, it is contended that there can be no real democracy and rule of law unless they are based on human rights.

No one today really questions the legitimacy of human rights as the basis for democracy, the procedure whereby the people decide. Rule of law reflects the same human rights, and constrains the majority when it deviates from these standards. Human rights hang logically together with democracy and rule of law, and these legal and political institutions cannot exist without the foundation, which is a certain and very specific view of the human person – an anthropology. Conversely, human rights require democracy and rule of law – these rights are not respected under tyranny, oligarchy or any kind of one-party system.

Human rights have become the new political ‘Bible’ in two ways: as the only point of reference in a relativist political community, but also as the source of legitimacy in political debates: no actor can ‘afford’ to be seen to violate human rights. It is extremely important for governments to be seen to act in accordance with human rights in modern European politics. They are therefore very powerful in themselves. Yet they are often accompanied by a denial that they can be objectively defined, and this in the long run undermines the authority of these rights.

There are thus at least two paradoxes at work here. While Europe and the West exhort the rest of the world to follow human rights, and in fact make this a condition for aid and cooperation, European politicians simultaneously refuse to define, in an objective manner, what these rights really mean. Secondly, while these rights are appealed to more and more, they are undermined as sources of authority by erosion of the belief that they can be defined in a clear and objective way.

In her analysis, Rights Talk, the Harvard law professor, Mary Ann Glendon, has written that ‘discourse about rights has become the principal language that we use in public settings to discuss weighty questions of right and wrong, but time and again it proves inadequate, or leads to a standoff of one right against another. The problem is not, however, as some contend, with the very notion of rights, or with our strong rights tradition. It is with a new version of rights discourse that has achieved dominance over the last thirty year’.1 This new rights discourse is characterised, says Glendon, by the proclamation of ever more new rights that are properties of ‘the lone-rights bearer’, as she aptly calls him, one who has no duties and who pursues his own interests in the form of ‘new rights: ‘As various new rights are proclaimed and proposed, the catalog of individual liberties expands without much consideration of the ends to which they are oriented, their relationship to one another, to corresponding responsibilities, or to the general welfare’.2 These two processes are intertwined, and are symptoms of a deeper crisis in European politics: that of an ever greater irrationality and relativism, which form the theme of my talk this evening.

Human rights were codified in response to the political and legal relativism of Hitler’s Germany and World War II, which put in a nutshell the relativist problem of obeying orders from the legal ruler of the realm – in this case Hitler – when these orders were contrary to morality. The Nuremberg trials laid down that it is wrong to obey such orders; that there is in fact a ‘higher law’ – a natural law if you will – that not only forbids compliance, but which also makes it a crime to follow such orders. In the wake of this revolutionary conclusion in international affairs – it was the first time in history that a court had adjudicated in such a way – there was a growing movement to specify what this ‘natural law’ for the human being entailed. This resulted only three years after the War in the Universal Declaration of Human Rights – a supra-national set of inherent and inalienable rights for every human being. It is very clear that the statement of human rights was to be a ‘common standard for all mankind’, as is stated in the Preamble, and not something that might be changed at will by political actors. Yet this is exactly what happens in Europe today.

The rights defined in this document are parts of a whole, making up a fullness of rights which reflects a very specific anthropology. The rights are clear and concise, and the underlying anthropology is equally clear. The intention of the authors of the Declaration was to put into a solemn document the insight about human dignity that could be gleaned from an honest examination, through reason and experience, of what the human being is. Therefore they wrote explicitly that ‘these rights are inviolable aninherent’. In other words, these rights could not be changed by politicians or others, because they were inborn, belonging as a birthright to every human being, by virtue of being a human being. The Declaration is a natural law document which was drafted by representatives from all over the world, from all regions and religions. Human rights are pre-political in the sense that they are not given or granted by any politicians to their citizens, but are ‘discovered’ through human reasoning as being constitutive of the human being itself. They are also therefore apolitical because they are not political constructs, but anthropological – consequences of our human nature. As one of the key drafters of the declaration, Charles Malik, said: ‘When we disagree about what human rights mean, we disagree about what human nature is’.3 The very concept of human rights is therefore only meaningful if we agree that there is one common human nature which can be known by discovery of reason.

This last statement is, however, very much at odds with contemporary currents of thought which are relativist and subjectivist while scorning the idea that human nature as such exists and even more that it can be known through reason. But, if this is denied and we regard human rights as something that mere political processes can change, how can we uphold human rights as a standard for others? European foreign policy today is firmly based on human rights observation in all regions of the world, and entry into organisations such as the E.U., N.A.T.O., the O.S.C.E. or the Council of Europe, requires the meeting of human rights standards. Thus, it would seem that the specification of human rights is a matter for more than just the philosophically inclined.

But even more important is European politics itself: we are moving away from era of the nation-state based on ‘nation’ – conceived as a common ethnic, religious, geographical and cultural identity – towards a European polity based upon human rights. In this new ‘post-modern’ era, the traditional state based on the forging of one ‘nation’ – of Frenchmen, Englishmen, Spaniards, etc. – is rapidly disappearing. Instead we increasingly live in a multi-ethnic, multi-religious, and above all, secular, society. Our only basis for common values resides in the concept of human rights. If these cannot be defined in a clear manner, we are doomed to live in a state of prolonged ethical anarchy.

A further very important issue is that the very concept of human rights is being undermined through a process of politicisation at both the national and the international levels. There is a determined and continuous process of redefining individual human rights in areas of contention, such as those of the family, children’s rights, women’s rights, and so on. The many U.N. conferences in the ‘Nineties were arenas for such redefinition, and at the national level in Europe we now see that this activity has moved to centre stage. But when, for example, marriage and family are redefined in national laws, this would appear to be in contravention of supra-national human rights standards. Again, since human rights are ‘above’ politics , they are also above the nation-state. They are truly supra-national – many of them exist also in legally binding form, as treaties and conventions. Each time a national state makes its own definition of a human right, it not only redefines it, but also flouts its own international commitment. That in turn undermines the whole human rights edifice. This is truly a paradox for those states which uphold the ‘sanctity’ of human rights in respect of other states, often rogue or failed ones. For these latter can turn around and declare: ‘If European states can define human rights at will, why may we not do the same?’.

Thus, in the period after the founding of the U.N. and the development of the international regimen of human rights, European states have become the foremost proponents of human rights world-wide, alongside the U.S.A. Compliance with human rights, democracy and rule of law have become the standard criteria for the granting of foreign aid, cooperation, admission to international organisations, and receiving respect as members of the international community. ‘Human rights conditionality’, which includes the criteria of democracy and rule of law, are indeed the key characteristics of the foreign policy of the E.U., the O.S.C.E., and the Council of Europe, as well as of individual European states. We should therefore expect European states to be model democracies, ready to teach others from their own experience. We should expect that there exist a clear value basis – that of universal human rights – in these states, and that voters as well as politicians should be clear about the objective definition of these rights. Indeed, in the absence of a platform of values embedded in human rights, there can be no rule of law or democratic system. It is human rights that form the very basis for these two institutions. But in Europe today the reality is very different. There is no clear basis of human rights, but rather only an intense struggle over interpretation of these rights, and often a major discrepancy between what a state proclaims in solemn international conferences and its own domestic policy.

In more general terms, while ‘the right to life’ is the first and primary human right according to the Universal Declaration, most European states have had abortion on the law books for many decades. While the right to marry is defined as a right for ‘every man and woman’ in the same declaration, same-sex ‘marriage’ is increasingly being introduced in European states. While children have a right to know, and to be raised by, their biological parents, or to be placed in a similar situation, according to the Convention on the Rights of the Child (1989), this seems to be ignored when children are ‘produced’ from anonymous donors. While the right to special societal protection for mother and child is defined in the UN declaration, motherhood is often regarded as a drawback for women in the European labour market, and there is discrimination against mothers. While the family has a right to a sustainable income – a just wage, in the Declaration – labour rights are more and more neglected in European states and individual taxation makes a mockery of the ‘family income’ concept. While religious freedom includes the right to public and private worship, Muslims meet with suspicion and opposition when they want to erect a mosque, and other religions, including the predominant one in Europe, Christianity, are often pushed back into the private sphere. There is, then, a curious paradox here, with many discrepancies between human rights professed, especially abroad, and the political reality at home in Europe.

The paradox is, however, even more glaring when we consider the trend towards not defining the values underlying European democracy. By this I mean the trend towards complete subjectivism, even nihilism: you have your opinion and I have mine. Those who say that there are objective definitions or norms – Grundbegriffe – are dismissed as fundamentalist and undemocratic. The trend is extremely dangerous, for this kind of subjectivism undermines democracy and paves the way for totalitarianism. Might then eventually becomes right when there is no standard by which to determine the latter. Older ideological differences have mostly disappeared after the end of the Cold War, and have not been replaced. Instead, individual preferences predominate in politics. The trend towards nihilism, a hundred years after Friedrich Nietzsche wrote Beyond Good and Evil, aptly sub-titled, Prelude to a Philosophy for the Future,4 is manifested in a lack of belief in human ability, through reasoned debate and thinking, to arrive at objective truth about human nature, as well as human virtue and vice. This stance is pronounced and implicit in European politics today. The very concept of truth itself is not only contested, as it has always been, but is seen as fundamentalist and repressive, as something essentially undemocratic.

This strange aversion to the concept of truth is intimately linked to the concept of ‘political correctness’ or of being ‘politically correct’ (PC). It is perhaps the most powerful concept we have in our modern Western democracies, and it is a wholly immaterial one. The impact of being PC or not has been felt by most people: one senses that something which used to be comme il faut is suddenly not so. The media no doubt play a key role in this process of ‘shaming’ and ‘praising’. To think that one can discover objectively valid moral truths is certainly the most ‘un-PC’ position one can possibly hold. The strength of PC derives precisely from a lack of belief in the result of rational debate, viz., firm and convincing conclusions. If debate is not aimed at the discovery of truth as a possibility and goal, then there is no point in the debate other than as propaganda for one’s own interests and values. PC today is very much about tolerance, but tolerance is an empty concept unless there is a standard for judging what is to be tolerated and what not.

This subjective, media-driven power of PC is only possible because there is no search for truth, since that is swept away as impossible and basically undesirable. But with such a premise, human rights can never exist, for they cannot be defined. The paradox of modern European democracy is exactly this: we profess and impose human rights all over the globe, but refuse to define the substance of these rights at home. We hold that they mean what we choose them to mean at any one time, thereby making PC the guiding star of politics. The majority of voters do not speak out in referenda on these issues, but so-called ‘public opinion’ is moulded in media-driven campaigns, often in clever alliances with single-interest groups. Part of this ‘norm entrepreneurship’ is to ‘shame’ and intimidate minority views and to create an appearance of majority opinion through clever use of the media. In this way the ‘tolerance’ claimed becomes in fact deeply intolerant. The end result is that might becomes right, the logical implication of extreme subjectivism.

Can this situation be remedied? Can rationality be attained? Which kind of rationality is this? Here enters on the scene Professor Joseph Ratzinger, whose scholarship on rationality offers an important contribution to scholarly debate today.

My discussions with him on this topic, so central to my political interests, have formed the basis for my own analysis of natural law. The major problem with modern European society is, according to Ratzinger, the limited nature of our understanding of rationality. While there has been tremendous progress in natural science since the Renaissance and, most importantly, the Enlightenment, there has been little or no progress in ‘the moral sciences’: ‘Moral strength has not grown together with the development of science; rather it has diminished, because the technical mentality relegates morality to the subjective realm’.5 Rationality, says Ratzinger, has come to be defined as ‘functional rationality’, which Max Weber described as Zweckrationalität, or ‘a rationality of the end’. The question to be asked is: ‘Does something work to the end for which we need it?’.

This is a wholly legitimate form of rationality, but it is nonetheless limited. At the same time there are, of course, values that are more and more talked about in society – never, it seems, has there been more talk about values and ethics – but these are defined in a wholly subjective manner and easily become subject to political expediency. There is more and more moralism in both politics and theology, says Ratzinger, but this is uninteresting and anti-intellectual as long as it remains a matter of feeling and subjectivism. The political moralism of the ‘Seventies was ‘a misguided morality, since it lacked the [guide of] right reason’.6

‘Rationality’ is the key word for Ratzinger. He returns to the limits of functional rationality: ‘It deems rational only that which can be proved with experiments’.7 But experiment, the proper method of natural science, is not the proper method of philosophy or theology, and no one would expect this to be so. Proponents of the latter disciplines, however, have failed to show their rational roots, roots that must necessarily be grounded in insight about the human being. While Immanuel Kant could still propose a category of the good – an Sich, or ‘what is in itself’ – and the categorical imperative as an axiom, this, says Ratzinger, is no longer possible. Modern Europe, which has produced the culture of both philosophy and theology as we know them, has produced also their antithesis, whereby, in today’s dominant culture of instrumental rationality, any knowledge about the human being is regarded as mere whim or subjective feeling.

What are the limits of the rationality we possess today, viz., instrumental rationality? Ratzinger puts forward the hypothesis that current European instrumental rationality cannot serve as a universal paradigm. It is only in Europe that moral norms and religion have been banned from the public life of nations in a rather crass version of secularism. But this secularism puts itself forward as the only valid standard against which to measure other cultures and civilisations, thereby making a mockery of respect for pluralism. The only thing that it is not permitted to criticise in the name of relativism is this very European culture. The European paradigm becomes the only politically correct one, thereby committing the logical fallacy of positing that one set of values is more valid than others without admitting that it must itself be based on an objective set of values.

A good example of this is to be found in the debate surrounding the publication of drawings of the Prophet Muhammed in February 2006. These caricatures were first published in the Danish newspaper Jyllands-Posten and later in a right-wing Christian publication in Norway. The reactions were fierce, from boycotts to the burning of embassies in the Middle East. However, in the Nordic countries the debate about freedom of expression with regard to this case is highly illustrative of the naturalness with which the aggressively secular view is held to be universally applicable. The freedom of the press is absolute, Danish and Norwegian journalists argued, and defamation, ridicule and vilification of religion is in fact exactly what freedom of the press is about. If people react by calling this blasphemous, it just shows how they stick to religions taboos that need to be attacked qua taboos. Nothing is holy, they argue, for the claim that anything is holy permits religious people to claim exceptions from otherwise generally applicable standards. Who is to decide on holiness? Religions themselves? If so, they thereby arrogate to themselves privileges that prevent attacks and criticism.

The significance of this line of argument is very great, for it is a perfect illustration of Ratzinger’s point that an intolerant secularism common now in some European countries sets itself up as the defender of human rights and democracy everywhere – indeed as the very standard that other, less developed states, must follow. Further, this secular hegemony in Europe appropriates human rights to itself by defining freedom of expression in its own intolerant and disrespectful way – it becomes an absolute human right which is exercised most freely when insult and ridicule of religion are sharpest. It is actually rather like an index: the more insulted the religion, the more free the expression.

This is, of course, pure nonsense and has nothing to do with anything but primitive tastelessness. Freedom of expression is very wide – total, in legal terms, in many European states – but that does not mean that it should become a channel for all sorts of insulting statements. It is in fact incumbent on the one who expresses himself to take both freedom of religion and the right to one’s good name and reputation into account – two of the other fundamental human rights. Further, respect for religions is implied by religious freedom. All this is commonsensical in most European states, but it was noteworthy that in this case both the Nordic states in question, as well as the French with their secular tradition, had a strong group of spokespersons for a freedom of speech unfettered in the manner described.

The concept of freedom that underlies the argument for a total freedom to express anything, especially that which insults, is also necessarily limitless. Ratzinger correctly identifies this limitless freedom as one of the major problems to be found in modern democracy. Freedom is not limited by evil deeds when the concept of evil is a subjective one, and what constitutes doing harm to others is likewise subjective.

The lack of a willingness to delimit modern freedom ultimately rests on an inability to define the human being. The Universal Declaration of Human Rights of 1948 does rest on a view of the human being, albeit an implicit one. In order to live a dignified life, for instance, man must be able to enjoy civil and political rights, to have religious space, and space and help for his family, etc. If we look carefully, we can delineate the anthropology underlying this declaration. The various human rights form a carefully balanced edifice, and perversions will occur if any one right is made absolute.

To return to the previous example of ridiculing Islam, that serves to illustrate how one human right has come to assume a dominant position vis-à-vis other rights. Muslims are not used to having their religion ridiculed, and therefore react by all sorts of unacceptable methods, such as violent attacks and threats. No one need defend such means. But if we disregard them as unacceptable, we still see that there is a parallel between the ridicule of Muslims and of Christians in parts of the Western press. Christians are routinely attacked in their own national press – perhaps especially so in the Nordic states – but they have grown used to it. Nonetheless, this development shows that the human right to religious freedom is not respected in our societies – it conflicts head-on with the secular premise that all can and should be ridiculed, and that nothing can be sacred and therefore exempt from this. Those that believe in God will not tolerate blasphemy and can never regard it indifferently, although Christians will tackle it rather differently from many Jews and Muslims, given the Christian view of forgiveness. But that is not the point here. The important logical issue is that blasphemy can only make sense to someone who respects the religious phenomenon, and the right to demand such respect is implicit in the existence of the human right to religious freedom. There either has to be a balance between freedom of speech and freedom of religion in a society, or there will be a clash where one right will attempt to suppress the other. The former was clearly the intention of the framers of the Declaration.

This example brings us to the key question of human nature and human rights: the religious need and the sense of the holy. Only because the human being has in his nature a need for God and to seek God, is there a human right to religious freedom . In specifying this human right the drafters of the Declaration accepted that they were thereby affirming something substantial about the human being. Atheists will deny the religious need in man, and here we see that the debate about human rights is really a debate about human nature, just as Charles Malik stated when he commented upon differences of approach among the drafters of the Declaration at its inception.

Can there be any solution to such conflicts other than those based on power? Can freedom be delineated in a rational way? In short, can there be a rationality that is common to all human beings in a society?

 

A rationality that embraces ethics?

The current paradigm of rationality is based on the idea that rationality (Vernuft) is independent of both creator and human beings. This is, underlines Ratzinger, entirely true when we speak about natural science: ‘[Modern Enlightenment philosophies] are based on the self-limitation of rational positivism, which can be applied in the technical realm, but which when it is generalised, entails instead a mutilation of man’.8 The consequence of accepting only this limited form of rationality is that the human being no longer has any idea of how to reason about right and wrong, and that he has no standard of ethics outside of himself: ‘It succeeds in having man no longer admit any moral claim beyond his calculations’.9 It implies that all that is not within the confines of empirical science – all that which relates to political and personal norms and values – is seen as wholly subjective.

Why is this a problem? The difference between a pluralist society and a relativist one lies in the existence of some common norms, Grundbegriffe in German. Citizens are expected to agree on some things, usually thought about as a ‘social contract’ by political philosophers. For instance, stealing is wrong and must be punished; stable families are good for the upbringing of future citizens and hence, good for society, etc. But modern relativism denies any common norms beyond those of political correctness. Indeed, this paradigm leads to a limitless concept of freedom since there are no standards or limits outside subjective judgement: ‘the concept of freedom (…) would seem to extend in an unlimited manner’.10

Modern European man has cut off his historical roots and regards history and its philosophical insights as invalid. The real progress that has taken place in natural science has led to the misunderstanding that a similar progress has taken place in human ‘science’. Not only is modern man totally ignorant of his own philosophical and theological history, but he believes – tragically – that technical and economic progress implies civilisational progress. The state of technical knowledge also dictates what one in fact does to and for the human being, because: ‘What one knows how to do, may also be done. There no longer exists a knowing how to do separated from a being able to do’.11 The moral ‘should’ – the normative issue of ethics – is now regarded as something to be resolved by the power of public opinion and personal preference.

Ratzinger concludes his diagnostic by asking if functional rationality is sufficient for the human being and for politics? The answer is, No. Is this rationality self-sufficient? No, when it is used to decide in non-technical matters, i.e., normative ones.

How can rationality be defined beyond the sphere of technical scientific argument? Can there be a rational determination of basic norms and values? This latter suggestion would seem to be folly today, even if the concept of human rights is based on the postulate of a human nature that is the cause of human rights. We have human rights because we have human dignity, as each and every preamble to human rights conventions states. Further, the Nuremberg trials were premised on the existence of a higher moral law that in fact was argued to be common to all human beings and knowable by all human beings. If we accept this on purely pragmatic grounds – the human rights edifice is based on this postulate – we must immediately ask about this form of rationality – does it exist, how does it work?

 

Politics is the sphere of the rational

It is very interesting, but not surprising, that Professor Ratzinger as Pope Benedict XVI has chosen to focus large parts of his first encyclical on rationality. In the second part of Deus caritas est12 he discusses how rational decisions in political life can be restored. Reason needs constant correction, he states, because ‘it can never be completely free of the danger of a certain ethical blindness caused by the dazzling effect of power and special interests’.13 Reason is inborn in man, but can be and is often corrupted. This is the ancient Aristotelian position where virtue and vice are in constant contestation. The Church stands firmly in this tradition of natural law, which is not specifically Christian at all.

The only role for the Church in political life, says the Pope, is therefore to argue ‘on the basis of reason and natural law (…), to offer through the purification of reason and through ethical formation, her own specific contribution towards understanding the requirements of justice’.14

It is because the Church is ‘an expert in humanity’ that she has something to contribute in this respect, and she ‘argues on the basis of reason’.15 The aim is to reawaken in people a sense of justice, which is the essence of rational argument about politics. Justice is one of the four cardinal virtues and the one proper to politics in the writings of classical political philosophy. The Pope distinguishes very sharply between the role of religion and that of politics, stating that ‘the formation of just structures is not directly the duty of the Church, but belongs to the world of politics, the sphere of the autonomous use of reason’.16

The Church should concern herself with souls, and with promoting the truth about human nature – its virtues and vices, its ability for improvement – in short, its spiritual life. But politics is something else, an autonomous sphere which is neither religious nor private, but which has its own ‘mandate’ and rationality. The Pope defines politics as the ‘sphere of the autonomous use of reason’ – not as that of interests or power, but of reason.

How can this be? What does this mean?

In his speech in Subiaco, on receipt of the Premio San Benedetto in April 2005, some days before he was elected Pope; he underlined that Christianity is the ‘religion of the Logos’.17 Logos is the Greek word for reason, in Latin ratio.  To be rational is , surprisingly enough, equivalent to being human: the definition in the classical Aristotelian and Platonic philosophic tradition is that the human being is a ‘rational and social animal’.  Rationality is the ability to offer arguments and justifications for something. Unlike animals, which also have language and can communicate with each other, the human being is the only entity that can reason about things. Thus, animals fight, make love, procreate, hunt, eat, play and live a communal existence by instinct, but only humans can reason about all these natural activities.

Moreover, ratio defines the human being himself, for without reasoning he simply would not be a human being. The ability to reason is inborn in every human being, but it can be destroyed – as in illness or handicap –, and it can be corrupted – as in people who refuse to discern right from wrong. Having the ability to reason is not equivalent to rightly using that ability.

Ratio enables man to reason about fact as well as about value: one can discern truth and falsehood in a factual statement, such as ‘the house is red’. Unless one is colour-blind, one is able to tell whether this is a true statement or not if one knows the words for ‘red’ and ‘house’. But the same logical ability is present in ethical or moral judgments: an uncorrupted human being can arrive at the conclusion that it is wrong to steal or to kill. The criticism made by David Hume at a later time simply misses the point, because the Aristotelian definition of the human being and his rationality entails ethical ability. Reasoning about ethics is as natural and inborn, and as rational, as is reasoning about empirically observable facts. Animals will most probably steal each other’s prey if they have the chance, whereas humans may do the same and indeed often do, but they nonetheless know that this is wrong. At the very least, they do not believe that it is right.

Modern European rationality is, therefore, only a partial rationality, as it extends only to technical, mathematical, or empirical knowledge. The entire classical tradition of humanism has been forgotten and suppressed over centuries of scepticism and criticism à la Hume.

 

Reviving natural law?

One might object that this tradition has thereby been rendered obsolete by most modern standards, and that it cannot be revived and made usable by the modern, secular, human being.

In response to this assertion it must first be said that the natural law tradition is by no means religiously founded. It is an entirely secular tradition that postulates one premise, viz., that there is a knowable and constant human nature, and that knowledge is arrived at through rational discernment. The Pope, when he was still a Cardinal, made the point to me in conversation that natural law has to be re-made in modern language. Its premises are valid, but one cannot simply revive a tradition that has been side-lined for so many centuries as it has been. Natural science has progressed and natural law has not really taken this into account. Moreover, the critical issue is that of the ‘human sciences’, which seem to have regressed rather than progress.18

In the field of values or norms, however, natural law thinking has persisted, especially in Catholic philosophy and in the Church itself. The defining characteristic of the human being is ratio, and as the Pope points out, Christianity is the religion of the Logos, of ratio. All things concerning ethics can therefore be discerned by what is often referred to as ‘right reason’, that is, uncorrupted reason. Natural law, which is the term St. Thomas Aquinas uses for the ethics of man’s life in the city, of his political life, is entirely accessible to the human mind. Even faith as such is accessible by reason, as evidenced in his logical proofs of the existence of God. Today such proofs are less popular and esteemed, but I mention them simply to underline how far human reason is credited in the Catholic tradition.

St. Thomas took his knowledge and inspiration directly from Aristotle, via the long ‘detour’ of Arab philosophy. If we look at the Aristotelian notion of man, we find the word ousia which means ‘substance’ (Latin, substantia) – or in a derivative sense, ‘substrate’ – something which is in and of itself, underlying all things that change. Essentia, essence, is another expression of this. Genus and other characteristics are ‘accidents’, accidental, but human being is essence, primary and universal.

The human being is, therefore, an entity not derived from anything else. It is a primary substance, along with other natural creatures such as animals. Aristotle is an empiricist in the sense that he proceeds by observation and classification: he therefore observes that both men and animals are social beings, but that only man is a rational being.

This classical postulate, the definition of the human being by its rational faculty, was adopted by philosophers and theologians in the early Middle Ages and later, as has been said, rediscovered by St. Thomas. For instance, Boethius in the sixth century stated that man is a ‘rationalis naturae individua substantia’, ‘an individual substance of a rational nature’,19 and the Stoics of the later Stoa in Rome all postulated the rational ability of man in ethical matters as the relevant characteristic. The ability to discern and to do the right thing was termed ‘virtue’, the Latin for manly, strong, derived as it is from the word for man, vir. The cardinal virtues were known and practised throughout antiquity, from Socrates’ quest for justice in the Platonic dialogues to Marcus Aurelius’ commentaries on how to practise fortitude and temperance in the governing of the Roman empire.

The human being, then, is created with rationality, and indeed this quality is what distinguishes him from animals. The virtues are the characteristics of human nature that allow man to develop, and the corresponding vices are the ways to become less human, to de-humanise oneself. In Aristotelian ontology all beings have a purpose, a telos, and the purpose of the human being is to perfect the virtues and combat the vices. This is so crucial that it is intrinsic to him in the sense that being itself is ‘more or less’ according to how virtuous a person is. A vile person has less reality or being than a virtuous man, and we recognise a remnant of this in the expression ‘de-humanised’ which we use of someone who is really vile. To the relativist this language cannot logically make sense, as virtue and vice are but subjective preferences. Yet people still realise what ‘de-humanised’ means: it refers to someone who is ‘less than’ human.

The telos of man is eudaimonia, happiness. This is not to be understood in the sense of pleasures and indulgences, but in the sense of self-discipline, justice, prudence, and temperance. Only the person who fully masters himself is happy, according to the ancient precept. It is told of the Emperor Marcus Aurelius that he lived an ascetic and frugal life, a Spartan existence, in order to conquer his passions – among which the sexual passion is probably the least important. The ingredients of ethical living were known very precisely. The virtues were all interconnected, providing parameters for navigation in everyday life. Vices could only be combatted through strength, i.e., virtue. In the Stoic universe detachment from life’s vicissitudes and temptations played a key role, as did the practice of being ready for death. ‘Death frees the soul from its envelope’, Marcus Aurelius said. Not fearing death gave strength, a perspective on life, and the ability to appreciate the here and now in real terms.

When we look at Christian teaching, we rediscover the same elements, this time with the addition of supernatural virtue – the theological virtues of faith, hope, and charity. In Christianity the ancient programme of character formation continues. One must acquire the natural virtues before one can attaining the supernatural ones. In the famous dictum of St. Thomas, ‘faith builds on nature and perfects it’. There is no point in trying to be a good Christian unless one is prepared to be a good human being. It is simply an impossibility, for divine virtue cannot be attained by a vile person. Forgiveness can of course be dispensed at the discretion of the Lord, but virtue is like an edifice built stone upon stone.

What happened to this classical scheme of character formation? Why did people stop believing in the objective truth of virtue and vice, and in human nature itself? This is of course the long story of refutations of metaphysics since the late Renaissance, but it is in many ways a story that is correct and progressive in regard of natural science, but not so regarding ethics. As the Pope points out, the old precepts of the natural law with regard to natural science have been refuted and justly discarded, but this development cannot correctly take place with regard to ethics. There has been no Copernican revolution of progress in defining human nature, but rather only a long succession of sceptical philosophers who have dispensed with the concept altogether:

 

Why do we think that human nature cannot be defined?

While natural science progressed, then, human science, or the Geisteswissenschaften, did not. However, the classical definition of the human being and his nature, and the formative need for cultivating virtue, was upheld as the essence of European Bildung for many centuries. In the words of Italian philosopher, Professor Enrico Berti, ‘it remained the basis of global culture, not only Christian but also Jewish and Muslim, as well ancient, mediaeval, and modern, that is of the entire culture which Aristotelian tradition has influenced; indeed, we find relevant variations in Augustine, John Damascene, Richard of St. Victor, Thomas Aquinas, Leibnitz, Rosmini, Maritain and several other thinkers’.20

But with the advent of natural science there followed a ‘spill-over’ into metaphysics. From the time of John Locke onwards we see that this philosopher’s notion of the person cannot yield natural law, although he writes in the natural law tradition. For Locke, the human being cannot be known or defined because it cannot be arrived at through direct sense experience. The human being is something other than mere sensation, Locke thinks, but because he cannot sense or observe it, it must remain unknown. This line of thought was developed further by Berkeley who argued that ‘to be is to be perceived’ (esse est percipi) and reached its high point (or low point, as it were) in the empiricism of David Hume.

Hume does away with metaphysics altogether, but he also does away with physics. His scepticism is such that not even observed causation counts as causation. If we see a ball hitting another ball, all that we observe are two sequential occurrences, and that observation does not permit the inference that the first ball caused the other to roll when hitting it. Hume argues that since we have seen this before, we expect the first ball to make the other roll, but this is simply a habit in us. Since we can never observe the concept of cause, we can never know anything about it! In such an ontology, there is no ontology, even less a human nature that can be known: all that exists is a series of sense experiences. Since we cannot observe ourselves, but only notice our own behaviour, we have no substance or identity. All that we can know about ourselves is a series of disconnected sense experiences. In justice to Hume I should mention that he found his own philosophy entirely dissatisfactory,21 but declared that science could not help.

At this point we are faced with the limitation of the concept of science, and rationality also, to natural science alone. Only that which can be empirically observed and proven, can exist scientifically. While this is true for natural science, it has never been true for the human sciences. The reductionism of science to natural science leaves metaphysics dead and philosophy ill at ease, condemned now to dealing with matters lesser than ontology and with epistemology. It no longer makes sense to study the major questions of ethics when one cannot deal with the premises of ethics by meaningfully asking what human nature is like and how it can fulfil its goals.

Immanuel Kant tried to ‘rescue’ objective human nature by postulating it a priori, like an axiom of mathematics. The human being is a rational being endowed with dignity, he postulates, and therefore should not be treated as an object, or a means, but rather as an end in itself. Praiseworthy though this may be, Kant’s postulate remains but a postulate since nothing about human nature can be known. The ethics, or moral imperative, is necessary because otherwise men would become utilitarian beasts.

Later, in the nineteenth century, Hegel and Fichte went further in destroying the notion of metaphysics by denying that essences can exist and be known: all is idea, nothing is real. After that we find the concept of different cultures replacing human nature: the person is a ‘product’ of culture and society in both Marxism and modern philosophical anthropology. Relativism has become the very premise.

The impossibility of reaching objective reality is today present in the pervasive approach called ‘constructivism’ in the social and human sciences. Political realities, especially norms, are viewed as socially constructed. Likewise, the positivist turn in legal philosophy which underlies most European legal thought today denies that there is any reality to the concept of justice: the law is what the letter of the law says.

Despite all this, however, there is now a turn back to metaphysics in important schools of philosophy. In the Oxford and Cambridge schools of ordinary language philosophy, for example, there may be indications of some return to the classical concept of the person.22 The American philosopher W.O. Quine argues, in his famous book Word and Object (1960) that language must refer to objects that in turn give meaning to language – i.e., that it is the objects that exist independently and language that describes them, not the other way round, as constructivism would have it.

In the continental tradition, too, we find very significant objections to the death of metaphysics in personalism and hermeneutics. Personalist philosophers like Jonas, Mounier, Ricoeur, and the late Pope John Paul II have emphasised that the experience of the other provides the basis for knowledge of human nature and ethics. Mounier himself states that the classical concept of person ‘is the best candidate to sustain legal, political, economic and social battles in defence of human rights’.23 The reason for this is entirely simple and logical: if equality is the central notion of law and politics, then this implies that there is something knowable about the human person that is the same everywhere and always. This is also the central point of my argument that human rights are a natural law concept – they demand and presuppose one common human nature in terms of the same dignity and the same equality.

 

Natural law today: where is the evidence?

So far we have merely shown that the Western philosophical tradition for many centuries upheld the classical notion of human nature as ‘rational and social’, and that metaphysics was side-lined first by British empiricism which equated the human and the natural sciences, and later by increasingly sceptical strands of thought. Much of the problem with this evolution in the history of philosophy, however, had to do with the immense progress in empirical and natural science and the deplorable lack of progress in the human sciences. But it also has to do with confusion between the two, premised on the paradigm that human science must imitate natural science in order to progress.

However, none of this has disproved Aristotle. The argument remains that the human being can reason about ethics as he can reason about facts. Humean criticism misses the point when it faults Aristotle with confusing ‘fact’ and ‘value’, for the classical concept postulates that the person is both ‘fact’ and ‘value’ in its very essence – being rational means being ethical. This point is the most foreign of all to modern man, and the very unfortunate separation that Hume made obscured ever after the possibility of natural law.

Let us now give natural law a chance, as it were. Could Aristotle be right?

In an interesting paper the Swedish M.P., Per Landgren, records an imaginary incident. Two persons rescue others from a burning house. They are subsequently interviewed by a journalist from a newspaper who asks why they have risked their own lives to do this. One says that he did not think about that question at all, but simply acted. The other, meanwhile, says that he thought that he would become rich by getting a prize for valour, that he might become famous, etc. The journalist is puzzled over this answer. Something seems very wrong, undignified, and unnatural about it.24

This example illustrates the argument that natural law makes: a natural reaction is to try to save life, even if one is afraid. An unnatural reaction is to do it to make money out of it. One might even say that the latter reaction is evil, bad, wrong. There is, then, a natural ability in us to discern right from wrong.

Further, saving life – one’s own and that of others – seems to be a basic value, whereas the need to make money can be many things, and varies between being a vital and good thing when one must provide for one’s family, and being a bad thing when a life-rescuer saves life in order to make money, as in the example. Ethics, therefore, makes sense only in a context of telos, as Aristotle argues.

Landgren makes the point that there are some basic values that are universally recognised as such: to live rather than to die , to be respected, to be healthy, to learn, to cherish truth rather than lies, etc.25 The opposites of such values are morbid and unnatural, as most people would immediately agree. These basic values are called ‘intrinsic’, Grundwerte, Rechtsguter.26

The point about these values is that they are inborn, intrinsic, constitutive – they define what a human being is, just as in Aristotle’s definition. This is so because we cannot derive them from any principles or logical arguments; they are simply what human beings, grosso modo, are like. True, there are mass murderers and masochists around, but we tend to describe them as aberrations or perversions, and unnatural. If we were true relativists, we would have to say that a mass murderer simply has another subjective preference, different from ours.

When we read the Universal Declaration of Human Rights, we see that the rights therein are largely such basic principles that are commonsensical to all reasonable persons. Reasonable means, we recall, that one is upright and human, not corrupted and evil. The author of this human nature, creator or not, does not have to be mentioned, but the rights form a whole that reflect a view of human nature that is knowable through common sense and reason. But if the concept of human nature is denied, there is no basis for these human rights – they become mere ideological and political devices. Human nature remains an axiom, as it was also to Aristotle: an essence and prime mover, as he would have called it.

It remains fully possible to discern what human dignity and, therefore, human rights is about through the faculty of reason, by deduction as well as induction. The sharpness of the rational mind is a function of its ascetic and logical training, both in terms of consistent argument – ‘if all men are equal, one man cannot be discriminated against’ – and ethics: ‘if stealing is wrong, I must refrain from it lest my ethical sense be dulled’. The problem, I think, lies not so much in lack of reason as in lack of virtue. It is rather easy to know what is right and wrong, but rather arduous and unpleasant to do what is right. As a joke known among Catholics puts it, tongue-in-cheek: ‘A little virtue does not hurt you, but vice is nice’.

In conclusion, the relativist position is untenable and the rationalist position is possible. There is no need to discard Aristotle’s ontology, the classical notion of the person. Logic itself demands that the law be concerned with universals, and not with subjective interests. But it remains a tall order indeed to restore rationality to Western politics.

 

Footnotes:

  1. Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse (New York, 1991), p.x. ^
  2. Ibid., p.xi. ^
  3. Cited in Mary Ann Glendon, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights(New York, 2002), p.39. ^
  4. Friedrich Wilhelm Nietzsche, Jenseits von Gut und Böse: Vorspiel einer Philosophie der Zukunft (Munich, 1885). ^
  5. Cardinal Joseph Ratzinger, Europa in der Krise der Kulturen, acceptance speech for the Premio San Benedetto 2005; Monasterio di Santa Scolastica, Subiaco, 1 April 2005, published by the abbey in book form, L’Europa nella crisi delle culture (Siena, 2005), p.48. ^
  6. Ibid. ^
  7. Ibid., p.49. ^
  8. Ibid, p.52. ^
  9. Ibid. ^
  10. Ibid., p.52. ^
  11. Ibid., p.53. ^
  12. This encyclical is addressed to Catholics, not to all ‘people of good will’. It is thus an ‘internal’ document for the Church which addresses the role of the Church in the world. It is highly significant that for non-believers the Church can and should be a contributor to society’s political debate only in secular terms. This sharply distinguishes between the society of believers – the Internlogik of the Church – and its external role in secular society where it can act and argue only in natural law, or secular, terms. ^
  13. Benedict XVI, Deus caritas est [25 December 2005], (Catholic Truth Society edn.; London, 2006), section 28. ^
  14. Ibid. ^
  15. Ibid. ^
  16. Ibid., section 29, emphasis added. ^
  17. Ratzinger, Europa in der Krise. ^
  18. Private conversations and correspondence with Cardinal Joseph Ratzinger, 2003-2005. ^
  19. Boethius, Contra Eutychen, III, 6. ^
  20. E. Berti, ‘The Classical Notion of Person in Today’s Philosophical Debate’, unpublished paper presented at the Papal Academy of Social Science’, annual conference, September 2005. ^
  21. David Hume, Treatise of Human Nature, Appendix. ^
  22. I am indebted to Enrico Berti’s paper, op.cit., for the remainder of this analysis. ^
  23. Cited from Berti, op.cit., p.10. ^
  24. Cf. Per Landgren, ‘Det gemensamma basta – Om kristdemokratiens idegrund’, in Naturretten – en mansklig etikk, (Stockholm, 2002), ch.5. ^
  25. Ibid., p.120. ^
  26. Ibid. ^

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Discussant

Professor Carty, given that this meeting was part of a Booklaunch, responded more to the contents of Professor Matlary's recent book When Might Becomes Human Right: Essays on Democracy and the Crisis of Rationality (Gracewing; Leominster, 2007) than to her paper of the evening

Prof. Anthony Carty: Janne Haaland Matláry has written a very comprehensive study on democracy and the crisis of rationality. It is a coherent whole and not simply a collection of essays. It is very clearly written and in my view, as a diagnosis of the extent of moral confusion of Europe, it is impossible to challenge – if that was my task. Instead I want here merely to offer to help situate the message and reflect upon some if its implications. How serious are they? The book raises so many points that I cannot mention all of them. Also my response is reactive – having just read the book.

Firstly, I think it is recognised that we do not at present have any way of grounding either our human rights or democracy rhetoric, but for the moment this does not seem to concern us. We continue to believe in consensus politics and the general recognition of ‘foundationlessness’ – rapidly increasing among the young – merely appears to push parties towards the Centre and to lead to unwillingness to hammer out issues of principle – as being of principle. Election results in Italy, Germany and Scotland were remarkably indecisive. Academic and international institutions alike treat crucial events as sui generis cases – as the Finnish E.U. presidency did on the Kosovo issue – in order to avoid matters of principle.

Prof. Matláry identifies the core polarity in modern philosophy in the opposition between Hume-Hagerstroem and Kant, as the former ground their arguments in value relativity and in the denial of any absolute principle. I have been struck by Hagerstroem’s argument that craving for certainty leads to fanaticism, so that if one accepts contingency then one can float into the centre and drift along happily. This situation is somehow exemplified by the Spanish case: President Zapatero drew Spain out of Iraq, but – Spanish friends say – the troops were mainly transferred to Afghanistan. The Basques appreciate the unusual openness of his party, yet he promotes same-sex civil marriage and ignores the opposition of the Church.

A question is whether and how Europe is drifting towards a real crisis where the absence of rationality will matter. The euthanasia and abortion issues arouse strong passions in the United States but not here. The demand for the former is presented in the media as coming from the elderly and infirm themselves. Abortion is even more worrying for a Christian, but societies read it as a matter of sex-education and management.

But this is not all. An indication of drifting into a deeper crisis is the way engagement in the Iraq war – and, indeed, in the Middle East generally – is discussed. At p.140, in one of many very striking passages of her book, Janne Haaland Matláry mentions the paradoxical fact that, while the language of European politics is highly moralistic, its arguments are nothing more than personal opinion – of the type, ‘I feel this is right’. Politicians ‘feel’ when they should reason according to logical rules. I think this is a very profound point. A crucial aspect of the discourse around the Iraq crisis is the importance attached to Blair’s feelings that he was ‘right’. Discussions tended to focus only on personal opinions. This week Time Out reviewed the play Called to Account and dismisses it by saying that it does not show that Blair himself believed his involvement in Iraq was not right. Also the Butler Report could not say Blair had lied, only that he put a weight on evidence that it could not reasonably bear. Yet, in Iraq, we have drifted into a very dangerous and tragic situation. Also, in dealing with the Middle East as a whole, our similar subjective mood leads us to ineffectual responses in the face of crisis. Why – we often wonder – cannot Palestinians and Israelis compromise and talk to one another, as we do? Robert Cooper, who also characterises Europe as a post-modern continent, strongly argues that we have no way of coping with the radically non-post-modern wider world. While we are, in fact, in a crisis of foundations of values which leads to paralysis of institutions, I do not think we experience this subjectively – except in terms of the threat of terrorism, which is itself, of course, related to our ‘drifting’ policies in the Middle East.

This brings me spontaneously to my central point in situating Prof. Matláry’s work. From a Christian and also classical European national perspective, we can see that Europe is, I would say, ‘sleepwalking’; the task is to wake it up and make it aware of the need to confront an absence of foundations. Because of my background, I also believe I may be more alarmist than Prof. Matláry. I am old enough to have lived through the liberal, secular revolution which occurred in the 1960s, where I think the Christian rationalist bases of political legal order were rejected: 1968 in France, the Hart-Devlin debate and Roy Jenkins’ reforms as Home Secretary in Britain. What I can see is that European societies are in free-fall in terms of their inability to ground democracy in rationality. In the field of family and personal relations, we are also in free-fall. This is not due to the presence of a multi-coloured plural spectrum. In The Guardian I was amused to read a supporter of same-sex marriage saying that it could hardly threaten the traditional family when two-thirds of families are imploding anyway.

What are, then, the remedies to this condition? Prof. Matláry, as Pope Benedict, looks at the logos of the Graeco-Roman culture, and especially at Aristotle, Plato and Aquinas, which encompasses basic values of Christianity. She refers brilliantly to the ‘liquidifying’ of contemporary legal method and reasoning, dissolving the legal process into a mish-mash of subjective policy making, supposedly based on social practice, but in fact radically subjective and incoherent. This needs to be replaced with a return to rationality.

Critical legal studies, however, would agree with the diagnosis, but deny there can be a cure. And, while I completely agree with Prof. Matláry and Pope Benedict, my own favourite among the classics is Socrates. While I believe in absolute values, I am not sure of the journey each of us makes to them. I believe in the role of dialectic in dispelling personal darkness, but, nonetheless, I have no doubt that Socrates would quickly tie up the likes of Richard Rorty in knots, as he did with the cynics and the sophists of his own time.

However, Prof. Matláry sets out clearly the immensity of the tasks ahead. It is not merely a matter of winning some academic argument about the proper philosophical foundations of law, but of effectively restoring a classical education in the art of judgement of good and evil, which amounts to the kind of social revolution in education which Thomas Arnold undertook for English public schools in the nineteenth century.

A final point of doubt and enquiry about the problematic of opposing de-Christianisation… Remember that Socrates was murdered for disturbing people’s complacency. Prof. Matláry writes extensively about Olaf Haraldsson, and his Christianising of Norway. This links to a fundamental theme of her book – the need to bring Christianity and argument about values back out of the private sphere into the public sphere. Olaf, however, used force against local chieftains to bring about a Christian law that forbad such things as (cf. p.134) carrying out into the wood children born ill or malformed – something comparable to abortion. She (p.137) says clearly that Olaf’s method is not good, and that there can be no Christian norms in society unless they are the result of persuasion and dissemination: change comes from appealing to the deeper conviction that something is true and right which will mobilise the citizens to make it a general norm. We also have before our eyes Wilberforce’s ultimately successful campaign to abolish the slave trade. Still, I am not sure that positive results in opposing today’s de-Christianisation can be obtained without the use of any form of active opposition. Our legal -political culture rests on Hobbes much more than the spirit of Socrates, and the ultimate power of law and the state is coercive. The challenge is how to overturn the spirit of Hobbes in a time of a so-called war against terrorism by marking a return to the classical spirit of law espoused by Prof. Matláry in her appeal to a natural-law grounded democracy.

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