There is an ethical concept which man recognizes, in and of itself, without mediation…recognized in an almost instinctive way, and as a norm to abide by, in order to live according to whom man is, reflected in that immense and diversified reality which is nature.
(This lecture was delivered earlier at the Pontifical College Josephinum in Columbus, Ohio.)
When, therefore, I see the right and capacity to enact everything given to any authority whatsoever—whether it be called people or king, democracy or aristocracy, whether exercised in a monarchy or a republic—I say: the seed of tyranny lies there, and I seek to live under different laws. 1
Alexis de Tocqueville’s statement, although made many years ago, is, without a doubt, especially relevant today. The historical period we are living in today seems to recognize a sort of unbounded extension of individual rights, which can only alarm those who have the good of all society at heart. It would appear that the contents of the 1948 United Nations’ “Universal Declaration of Human Rights” now forms part of the cultural patrimony of the world. As Pope Benedict XVI has stated, in his discourse to the United Nations on April 18th, 2008, that this document highlights: “The result of a convergence of religious and cultural traditions, all motivated by the desire to place the human person in the heart of institutions, laws and actions in society, and to consider the human person essential for the world of culture, religion and science”.
Whatever judgment one would arrive at, that document remains as an event that has altered the history of nations and, therefore, represents a point of no return. Such a document, after all, by its very nature, requires that it be injected with the spirit proper to every generation that reads it, interpreting it always in a new way, and in light of the changes that history brings. The passing of the decades, therefore, does not occur in vain, but allows us to analyze the path taken thus far, realizing how much still needs to be accomplished in order to fulfill the wishes of those who inspired the document. It is important to ask ourselves how much of the Declaration has been fulfilled in these last decades. What should we say about recent incidences of genocide and religious conflicts; or about the defense of life, from conception until natural death; or about the dignity of the family? Should we not consider the growing gap between the planet’s few wealthy people—holding immense financial resources—and the millions of men, women, and children, living in absolute poverty? Are we still capable of concern for those nations that are in a permanent state of underdevelopment? Are we still sensitive to, and worried about, the use of torture, the arbitrariness of capital punishment, and the unfolding drama of millions of refugees seeking assistance? What is left to say of the tremendous international silence concerning massacres, inflicted without any reason, upon Christians in different parts of the world?
If we move the analysis onto a cultural plane, we cannot deny that something extraordinary is happening in various societies. Revolutionary technologies, especially in the area of health care, are provoking new ethical questions, which often do not find adequate answers. Discoveries relating to the human genome, cloning, genetically modified organisms, the donating and trafficking of human organs, the questionable experiments with human cells, as well as pushing the very limits of behaviour in one’s personal life—to name just a few examples—highlight, on the one hand, the recourse to novel individual rights; and, on the other hand, a real emptiness of values and ethics, raising the ante tremendously. These kinds of problems cannot be addressed politically if, at first, they are not confronted with due care and intelligence culturally: to be able examine the anthropological concept at the root of this situation with a culture so affected by such a simplistic, fashionable relativism.
What remains relevant is an agreement that the majority of nations in the world have accepted a document that, not only indicates true progress in the maturation of a civil conscience, but even represents a universal ethical statute, to which different juridical systems can refer—beyond all ideological, religious and civil distinctions. Given that this carta constitutes an important milestone in international history, the obvious nature of its contents should not be forgotten, nor should it sink into banality. It often happens that invoking fundamental rights occurs more for rhetorical reasons than because of a genuine confidence in its ethical importance. On the other hand, the continual claims we are hearing, made by those demanding individual rights, are leading to an irreversible weakening of universally recognized, fundamental rights that form a basis for international, peaceful co-existence.
In fact, speaking of the rights of man inevitably leads to the question concerning its original foundation, prior to the legitimacy granted by institutions. There is the question of whether or not there is a constitutive space for the recognition of the centrality of the human person, of the dignity of every man and woman in their demands for an authentic freedom, and attainment of the common good, which would extend beyond strict national boundaries. The rights of man are not primarily a long list of pretences to satisfy desires; they are, rather, a demand of universal importance so that fundamental requirements—which all people are called on to recognize—are respected. If this does not occur, then rights would be relegated to the will of the strongest, at any given moment, making the line between rights and might blurry, eventually forcing a re-drawing by the one possessing the power.
This horizon poses the question of whether we have arrived at the point of looking beyond the rights of an individual, recognizing, also, the rights of a people. If an individual has rights, then a people—formed on the basis of common and accepted values, such that they create a recognized identity—also have them. These rights should lead to the recognition of an international commitment—obliging nations to respect such entitlement precisely in the area of international relations—allowing international intervention in some difficult situations, which are still scandalous. I am thinking particularly of the right of independence; of development and social progress; of the condemnation of international crimes, such as genocide, war crimes, and crimes against humanity. In the end, it is necessary to emphasize that there are rights that go beyond the individual, inspiring forms of behavior throughout entire societies. Has the moment not arrived, perhaps, to stop pushing for some debatable “rights” in order to commit ourselves more to other situations needing to be recognized and regulated for the international good? In this way, we could more easily arrive at that consensus omnium gentium (consensus of all nations) which is the basis of every international, juridical order— from ancient times, referred to as ius gentium (law of the nations). Perhaps, it is this right, and not merely a subjective right, which needs to be taken up with force and conviction.
In this sense, Pope Benedict XVI’s speech to the United Nations on April 18th, 2008, becomes particularly important because it challenges nations to rediscover the value of international responsibility: “Every state has the primary duty to protect its own population from grave and sustained violations of human rights, as well as from the consequences of humanitarian crises, whether natural or man-made. If states are unable to guarantee such protection, the international community must intervene with the juridical means provided in the United Nations Charter, and in other international instruments. The action of the international community and its institutions—provided that it respects the principles undergirding the international order—should never be interpreted as an unwarranted imposition, or a limitation, on sovereignty. On the contrary, it is indifference, or failure to intervene, that does the real damage. What is needed is an expanded search for ways of pre-empting and managing conflicts by exploring every possible diplomatic avenue, and giving attention and encouragement to even the faintest sign of dialogue or desire for reconciliation.”
The Myth of King Midas
How will the West react in the future, faced with the ever-increasing demands for the recognition of new rights? One image that comes to mind is from an ancient myth. One day, Midas, king of Phrygia, encountered in his garden, Silenus, who was Dionysus’ foster father. The old man, somewhat drunk, had fallen from his donkey’s saddle, becoming lost in walking around the garden. King Midas, aware of whom it was, treated him royally. He then took him back to Dionysus. As a sign of his gratitude for this help, Dionysus asked the king how he would be able to repay him. Known for his greed, the king asked that everything he touched would turn to gold. His wish was quickly granted. King Midas was happy: all that he touched actually turned to gold. However, he quickly realized how terrible his wish really was as all his food and drink turned to gold, as well, once it touched his lips. In order not to die from hunger and thirst, he went back to Dionysus, asking him to take back his gift. Dionysus consented as long as King Midas first washed in the river, Pactolus, which, from that time on, was filled with gold specks.
We know that in Greek mythology, Dionysus represents the instinctive, sensual, and irrational component of life; it is not by chance that the encounter with Midas’ greed produced a lethal mix. This ancient myth is a parable for contemporary man. If we want to walk down a path where everything we desire becomes a “right,” we will discover that, at the end, there is only death, owing to our incapacity to form a society. Closed in on himself, man will not be able to go very far. Life comes about through relationships, without which there is only the darkest loneliness, and, as a result, sterility, owing to an inability to create. The inevitable conclusion is the end of life. King Midas had to make a symbolic gesture: washing in the river. The same will be necessary for contemporary man if he wants to survive: he will need purification and renouncement. It is a path many do not want to walk down. There is a presumption of not having to renounce anything that is a perceived “right.” Yet, without this renouncement, it is difficult to foresee a real future for society. Rights are fundamental. However, the greed of insatiably, which demands more and more, always leads to self-destruction.
The theme of human rights involves an anthropological vision which determines its interpretative horizon; that which sees the centrality of the person as a relational being. “No Man is an Island” is not just a poem by John Donne. It indicates, and rightly so, the truth underlying the conception of a human being, leading everyone naturally to enter into relationships with others, in order to form a society of persons. When it probes the mystery of existence enclosed in the human mind, even neuroscience concludes that man finds his vital space within interpersonal and social relations. By ourselves, closed in on ourselves, we cannot produce much. Language would not exist; science would never have been born; nor would human thought developed logically. These simple realities, while just examples, require of us an openness to other human beings as the place of comparison and complementarity. This “being-in-relation” does not end with those around us. It is open to transcendence. Because of this openness, everyone recognizes others as having the same dignity, equally embraced by one God who loves and creates. The centrality of the person, therefore, does not destroy individuality, nor does it undermine conscience. On the contrary, it exalts all qualities, and elevates all perspectives.
Our times have shown us amazing advances in terms of science and technology. Today, man no longer feels intimately tied to nature, as in the past; the fact of being able to intervene in nature, producing something that was before unthinkable (for example, cloning), has as an obvious consequence, a changed attitude, towards nature and towards man himself. We run the danger of interpreting life as a product of the lab, rather than a gift of nature, or the fruit of providence. The temptation which constantly dominates in today’s world (explicitly or implicitly) is that of wanting to achieve a perfect human being in every way. Those who do not meet those high standards will be deemed “unwelcome.” So we see new pressure to abort new life in the womb because of eugenic selection, or by social exclusion after birth, or by euthanasia—ending a life before its natural end. One need not be an enemy of science and progress to realize that this is not mere imagination, but rather the actual reality of our times. It is easy to guess how the average citizen may be reacting to such changes. On the one hand, there may be a sense of wonder and enthusiasm emerging because of the possible goals that can be reached, not only a prolongation of life, but also an increase in the quality of life. But on the other hand, one cannot exclude a sense of fear upon realizing aspects of this, of the mysterious and enigmatic, that which cannot be controlled or dominated completely. At this point, ethical judgments become problematic because the new vision of nature, and of personal existence, are seeking objectives that, until now, have not been completely explored. The preferred approach, which seeks true goodness, held by those with beliefs counter to these new ideas, is finding it difficult to achieve acceptance. Subjected to pressure by the media, and often tied to economic interests, this reasonable approach may find it difficult in seeking the right path for its own judgments. Thus, it happens that news can be manipulated, and the truth made to depend no longer on what is good, but on opinion polls. In such a context, it becomes very clear that it is necessary to find the path that both believers and non-believers can, through fruitful dialogue, produce a common stance, going beyond all differences. Sooner or later, we must become convinced that there is an order in creation, and this foundational truth should be respected and protected. Preserving nature cannot be the desire of only a few, but rather it is everyone’s responsibility. Furthermore, the progress of science occurs only when the results obtained do not harm humanity, but protect it. Research and scientific conquests, therefore, either go hand-in-hand with the fundamental ethical principles regulating the natural order and personal life, or they are destined to fail.
It is urgent to recover, in a serious way, the theme of natural law as the principle foundation for man’s rights in a secular and pluralistic society. This law becomes a guarantee of freedom, and the basis for ethical judgments related to truth and goodness, without becoming trapped in the pitfalls of positivism. This law allows us to state that the rights we are referring to are not an invention of the ingenuity of men long past. Rather, this is the perennial discovery that every generation formulates concerning some new discovery which is offered to humankind as pure gift. As knowledge of man and creation increases, we are able to touch the mystery surrounding nature and our personal existence. The more science progresses in investigating the universe in all its forms, the clearer it becomes that the instrument itself is inadequate to probe to the depths of the cosmos. It is true that the same observation goes for law.
Perhaps no other historical period than our own has understood less about what law is. Is it the command of he who holds power, or the decision of a judge; a plurality of closed precepts, or a systematic unity; an exterior prescription, or a communitarian, even interior, one; the imperative of the history of the Spirit, or the relationships of production? 2
The question must not go without an answer. We are obliged to clarify, but above all, to identify the very source of law, and its inalienable foundation. If law were to be limited to an agreement among individuals, or a convention among nations, or a sanction of the privileges and obligations on the part of citizens, we will fall into arbitrariness. Thus, Benedict XVI has rightly pointed out:
In this situation it is opportune to recall that every juridical methodology, be it on the local or international level, ultimately draws its legitimacy from its rooting in the natural law, in the ethical message inscribed in the actual human being. Natural law is, definitively, the only valid bulwark against the arbitrary power or the deception of ideological manipulation. The knowledge of this law, inscribed on the heart of man, increases with the progress of the moral conscience.” 3
To speak coherently of “natural law,” it is necessary to refer to the objective content of such a law. In its fundamental determinations, this law is immutable. However, the awareness of its historical value, of the contents which it expresses, and the importance that this law has for individuals, and for societies, matures with the growth of an ethical consciousness, which can never stop without causing the stunting of humanity’s spiritual progress. Natural law is not an invention of Catholicism. Some would suggest this in order to summarily dismiss the question, avoiding the importance and truth of its origins. Behind natural law, there has been a gradual maturation of human reason, during different historical periods, where an attempt has been made to grasp reality and attempt to find intelligent answers to the constant questions which arise. The very first philosophical theories of the ancients revolved around the question about nature. Before any other question, man’s reason tried to respond precisely to the question about what was physis, or “nature,” an equivocal term, yet fundamental in understanding ourselves. We must go back to Aristotle’s Physics and Metaphysics in order to find an original articulation of the concept: “Nature is a principle, and a cause, of movement and of rest, in all that exists in itself, and not by accident.” 4 In other words, nature is the generation of all that has life and develops. The term physis is derived from the verb phyein, indicating all that is generated, born, and grows. In summation, all that has form and substance is enclosed in the term “nature.”
In order to have a more in-depth vision of natural law, one need only read Cicero’s famous text:
Law, in the proper sense, is right reason in harmony with nature. It is spread through the whole human community, unchanging and eternal, calling people to their duty by its commands, and deterring them from wrong-doing by its prohibitions. When it addresses a good man, its commands and prohibitions are never in vain; but those same commands and prohibitions have no effect on the wicked. This law cannot be countermanded, nor can it be in any way amended, nor can it be totally rescinded. We cannot be exempted from this law by any decree of the Senate or the people; nor do we need anyone else to expound or explain it. There will not be one such law in Rome, and another in Athens; one now, and another in the future; but all people, at all times, will be embraced by a single and eternal and unchangeable law; and there will be, as it were, one lord and master of us all—the god who is the author, proposer, and interpreter of that law. Whoever refuses to obey it, will be turning his back on himself. Because he has denied his nature as a human being, he will face the gravest penalties for this alone, even if he succeeds in avoiding all the other things that are regarded as punishments. 5
That which the Roman orator has written is found both in Greek philosophy, as well as in Hebrew references to “the Law of God.” In the Bible, the concept of law is not limited to the notion of positive law, but rather is conceived as an order which God himself has placed in creation. He ordained it for his people, that they might learn to discover his will, putting it into practice, as the premise and condition for happiness. It is not by chance that the biblical theme of the law is often associated with justice. This relation leads to the primacy of conscience, which always senses a commitment to seek justice through the application of a “law.” This law cannot be only that which is codified, but must reflect the profound meaning of the Creator’s will. This is why the biblical concept of law adds its own originality to that of the Greek-Roman conception.
Justice does not consist merely in respecting a norm, even the most perfect that could be formulated; nor does it end in guaranteeing equality among all subjects. Justice, which goes hand-in-hand with law, must be capable of addressing the true need of every person, so that he or she can find his or her place in order to play their corresponding roles in the heart of the community. This fundamental demand is, therefore, seen as being so necessary that the search for the dignity of the person is considered, from the Biblical point of view, the true foundation of law. Justice does not fully attain its goal until it accomplishes this task. In this sense, the words of Benedict XVI’s speech to the United Nations are profound and meaningful:
Human rights are increasingly being presented as the common language, and the ethical substratum, of international relations. At the same time, the universality, indivisibility and interdependence of human rights all serve as guarantees, safeguarding human dignity. It is evident, though, that the rights recognized and expounded in the Declaration, apply to everyone by virtue of the common origin of the person, who remains the high-point of God’s creative design for the world, and for history. They are based on the natural law inscribed on human hearts, and present in different cultures and civilizations. Removing human rights from this context, would mean restricting their range, and yielding to a relativistic conception, according to which the meaning and interpretation of rights could vary, and their universality would be denied, in the name of different cultural, political, social, and even religious outlooks. 6
Therefore, it appears evident that, however one examines the topic without prejudices and ideological biases, the same basic idea emerges: there is a law, there must be a law, which is not created by man. This law, rather, is given to him so that he can direct his actions to search for goodness, to become happy, and to avoid evil so as not to deserve punishment. That which the Greeks called “right by nature,” becomes transformed by the Romans as “ius natural,” (natural law), and from the Hebrew: mišpat Jhwh. This transformation concerns the form, not the content. In different epochs, and in different places, a fundamental, and mutually agreed upon idea is born out: there is an ethical concept which man recognizes, in and of itself, without mediation. It is recognized in an almost instinctive way, and as a norm to abide by, in order to live according to whom man is, reflected in that immense and diversified reality which is nature.
To use a more concise expression by St. Thomas Aquinas, natural law is “the participation of the rational creature in the eternal law of God.” 7 In so few words, Aquinas describes the profound meaning of the natural law as the exercise of that reason and freedom of every man, which help to recognize that which is in accord with and coherent for the person, in order to attain the full realization of himself. In sum, the more one grows in self-understanding in a way coherent with whom one truly is, the more man becomes involved in that life project which fulfills him. It guides him in the knowledge of truth. We do not have time here to analyze the underlying developments that natural law has undergone during the centuries. Concerning Ockham’s emphasis on the will—which is reflected in the positions of Luther and Calvin—Grotius will respond with his more rationalistic approach known as “ius-naturalism.” In this way, we find a slipping of the objectivity of natural law, to the subjectivity of positive law, with which innate and inalienable rights are recognized by reason, and placed as the foundation for society. Our contemporary context is no less complex.
Natural law has been essentially forgotten. The reasons for this forgetfulness are many. Yet, it is clear that the indifference towards this theory has not only impoverished scientific research, but has had, above all, negative consequences for people’s behavior. Science appears dominated by experimentation on nature, and with its unwarranted manipulations, it risks destroying the very foundations of its object—research. It undermines the sense of responsibility towards a superior order, not subjected to mere human willpower. Thus, the behavior of future generations will no longer find its foundation in nature, according to its authentic definition, but rather will tend towards the mere satisfaction of fleeting needs, thus losing its freedom and, too easily, becoming reduced to change for the sake of changing. It is unfortunate to have to point out that from this generalized weakness, not even many legislative organs are spared, for they have pronounced dispositions that not only ignore natural law, but which actually justify behavior in direct opposition to it.
Natural law, understood in antiquity, had its justification in a religious reading of the world. Today, the various forms of secularization have modified the way of presenting such a Weltanschauung, and, as a result, natural law itself has suffered an unjustified exclusion. If we no longer can refer to a law written in nature, which goes beyond the various human cultures, then we will fall into a primacy of culture, dominating and conditioning all things. No one, however, must be a prisoner of culture. In the measure in which culture is a product of personal and social action, it should express a tension towards the fullness of truth, not a binding which makes its conquest impossible. This is why it is necessary to stipulate natural law as the guarantee for every person to be free and responsible in affirming his or her proper dignity; not in reference to the conventions of men, but rather in reference to the profound truth of their very essence.
We can only hope, therefore, to advance towards a renewed understanding of natural law—of the rights and duties that come from it—and a language which is more in-step with contemporary society. We can once again perceive the value of an unwritten law uniting the human race, and a concrete sign of the mark which God has left on creation, showing his love. Seriously examining, once again, the problematic theme of positive and natural law corresponds to the attempt, recurring in the history of thought, which answers the question concerning the possibility of an objective knowledge, independent of Christian revelation, regarding ethics. In other words, is there something common for humanity, some values or norms that are valid at all times, for all people, independent of one’s culture, religion, or legal system? And that is not all. How can these values be determined, and how can we best enact them?
Current efforts in contemporary society concerning justice, peace, protection of the environment, human dignity, and universal rights are rendered useless, despite our good intentions, if they are not rooted in a foundation which goes beyond political consensus.
- Alexis de Tocqueville (1805-1859), Democracy in America, Penguin Classics, 2003, p. 294. ↩
- S. Cotta, “The Concept of the Nature of Law”, in Studium, 83 (1987), 533. ↩
- Benedict XVI, Address of His Holiness Benedict XVI to the Participants in the International Congress on Natural Moral Law, Monday, 12 February 2007. ↩
- Aristotle, Physics, II, 1, 192b 20-23. ↩
- Cicero, The Republic, Book Three, 33. ↩
- Benedict XVI, Meeting with the Members of the General Assembly of the United Nations, New York, Friday, 18 April 2008. ↩
- Thomas Aquinas, Summa Theologiae, I, II, 91, 2. ↩