MARITAIN AND NATURAL RIGHTS

Readers of Alasdair MacIntyre’s After Virtue will have been struck by an apparent inconsistency. On the one hand, he says that Maritain is someone from whom, in the immediate past, he has learned much, presumably on the subjects addressed in the book. After Virtue, Notre Dame University Press, p. 242 On the other hand, one of the key arguments in this excellent book is that natural rights are fictions.

The difficulty can be sharpened. It is well known that Jacques Maritain regarded the United Nations Universal Declaration on Human Rights as a landmark. His attitude toward that world body reflects the optimism and enthusiasm common during the first years of the United Nations. In the speech Maritain gave to the second international conference of UNESCO in Mexico City, published in 1947 as La Voie de la Paix, Maritain gave expression to views to be further developed in his 1951 book Man and the State. By way of contrast, here is MacIntyre.

In the United Nations declaration on human rights of 1949 what has since become the normal UN practice of not giving good reasons for any assertions whatsoever is followed with great rigor. And the latest defender of such rights, Ronald Dworkin, in Taking Rights Seriously (1976), concedes that the existence of such rights cannot be demonstrated, but remarks on this point simply that it does not follow from the fact that a statement cannot be demonstrated that it is not true . . . Natural or human rights, then, are fictions – as in utility – but fictions with highly specific properties. ibid. p. 67

My aim in this chapter is to look at Maritain’s remarks on human or natural rights from our end-of-the-century viewpoint to see how precisely he admitted the doctrine of natural rights into his political philosophy and to see whether he has provided defenses against the kind of criticism of right talk MacIntyre has developed.

Nothing comes more easily to a Thomist than to notice that in recent centuries much has been lost in ethical and political theory that is essential to the fashioning of a doctrine of rights. When Maritain called for an end of Machiavellianism, he insisted that classical and medieval moral and political thought are meant to apply to men as they are, to fallen men, men of flesh and blood. To dismiss classical and medieval thought as the idle idealizations of the underemployed about a world that never was is a libel against them. As practical philosophy, such theory is meant to be action guiding. Realpolitik on the other hand cannot be described as taking men as they are and trying to lead them to the good. Rather it is a matter of accepting evils and trying to turn selfish interests, whether of individuals or groups, to public benefit.

Prima facie, one would expect a Thomist like Maritain to be in profound sympathy with MacIntyre, to agree with him about what he calls the Enlightenment Project, and to insist that modern theory is so denatured that it has no basis on which to erect a doctrine of rights. Surely it would be odd in the extreme to cast Maritain in the role of defender of the Enlightenment or indeed as the defender of any of MacIntyre’s main targets. Students of Maritain will think immediately of Moral Philosophy: An Historical and Critical Survey of the Great Systems. Nonetheless, Maritain does defend the modern doctrine of natural rights, with specific reference to the UN declaration. Looking into this paradoxical situation will reveal it to be even more complicated than these opening remarks suggest.

Les droits de l’homme et la loi naturelle, published in 1941, provides a good starting point for our inquiry. After a moving passage in which he argues that the currents of liberty and fraternity opened by the Gospels, the virtues of justice and friendship sanctioned by them, their emphasis on the human person and authority’s ultimate answerability, provide the internal energy thanks to which civilization can reach its fulfillment. Maritain adds:

Those who do not believe in God or who do not profess Christianity, if they nonetheless believe in the dignity of the human person, in justice, liberty and love of neighbor, can also cooperate in the realization of such a society, cooperate for the common good, though they be unable to trace their practical convictions back to first principles or base them on deficient principles. (p. 177)

Maritain wrote this by way of commentary on the fourth of the four characteristics he feels are essential to a society of free men: that it be personalist, communitarian, pluralist and theist or Christian. He is not laying out a plan for a theocracy or for a government that could only be realized by believing Christians. He is speaking of the only kind of society befitting free human beings. Such a society, he says must be theist, even Christian, in the sense that there is recognized in it the dignity of the human person, justice, liberty, love of neighbor and so forth, on whatever basis these be held.

That basis may not be the only adequate and sufficient one, the derivation of all creation, man included, from God, but may be some basis short of yet dependent on that or – this is what is extraordinary – a basis of deficient principles.

Such criticisms of modernity as McIntyre makes argue from the deficiency of the principles from which natural rights are derived to the conclusion that the resultant rights are fictions, a criticism which reaches is apotheosis when confronted with the blithe admission that natural rights cannot be proved at all. Anyone who has been impressed by the opening sweep of chapters in After Virtue may fear that, by contrast, Maritain’s assumption that universal consent to the four characteristics of society can be easily gained is empty and inane. Can a theory antithetical to Maritain’s own theism ground the same natural rights? It is to Chapter IV of Man and the State that we must turn for a discussion on this fundamental issue.

The first section of that chapter bears as title the ringing assertion: Men mutually opposed in their theoretical conceptions can come to a merely practical agreement regarding a list of human rights. This section opens with the remark that we nowadays have come to a fuller realization of a number of practical truths about human life than our forbears, and it is this alleged progress in realization that has gone hand in hand with a divergence in theoretical conceptions (which depend on ideological allegiance, philosophical and religious traditions, cultural backgrounds, historical experiences). He takes the Universal Declaration of 1948 to be proof that men can, with whatever difficulty, achieve a common formulation of such practical conclusions which are “the various rights possessed by man in his personal and social existence.”

Yet it would be quite futile to look for a common rational justification of these practical conclusions and these rights. If we did so we would run the risk of imposing arbitrary dogmatism or of being stopped short by irreconcilable differences. The question raised at this point is that of the practical agreement among men who are theoretically opposed to one another. (p. 76).

Although indispensable, he continues, rational justifications are powerless to create agreement among men. They are indispensable because everyone believes instinctively in the truth and wishes to give consent only to what is true and rationally valid. The powerlessness of theoretical justifications to create agreement is attributed to their plurality and the backgrounds out of which the plurality of justifications arise.

Maritain recognizes that he is holding a paradoxical position. Let us be clear about the difficulties it involves. There are certain practical judgments, judgments about what should be done, on which all men can agree despite the fact that they have radically different ways of justifying those judgments. A MacIntyre would suggest that such radical diversity affects the very meanings of the judgments and thus makes the agreement merely verbal. Unfortunately, Maritain gives no examples here and I will not attempt to provide one lest it skew the discussion. He notices that the UN Rights of Man Declaration commanded agreement from the various signatories provided we are not asked why. “With the ‘why’, the dispute begins.” (p. 77)

At this point, Maritain quotes his UNESCO address cited earlier.

How is an agreement conceivable among men assembled for the purpose of jointly accomplishing a task dealing with the future of the mind, who come from the four corners of the earth and who belong not only to different spiritual families and antagonistic schools of thought? Since the aim of UNESCO is a practical aim, agreement among its members can be spontaneously achieved, not on common speculative notions, but on common practical notions, not only the affirmation of the same conception of the world, man and knowledge, but on the affirmation of the same set of convictions concerning action. This is doubtless very little, it is the last refuge of intellectual agreement among men. It is true however, enough to undertake a great work; and it would mean a great deal to become aware of this body of common practical convictions. (pp. 77-78)

Men do not share a common speculative ideology or common explanatory principles, but “when it concerns, on the contrary, the basic practical ideology and the basic principles of action implicitly recognized today, in a vital if not a formulated manner, by the consciousness of free peoples, this happens to constitute grosso modo a sort of common residue, a sort of unwritten common law, at the point of practical convergence of extremely different theoretical ideologies and spiritual traditions.” (p. 78)

Now this may sound extremely strange to us. It may seem to do little more than recall those halcyon postwar days when it was possible to look upon the United Nations with hope. The decades since have taught us that the language of rights puts a weapon into the hands of those for whom words have meanings diametrically opposed to those we understand. The Soviet Union is a signatory of the Universal Declaration and its understanding of human rights is opposed to our own not simply on the level of theoretical ideology and explanatory principles, but precisely in the practical order, as witness the Soviet Union’s backing of a resolution to declare Israel guilty of genocide. Maritain’s “last refuge of intellectual agreement” seems to be as well the last refuge of scoundrels.

To understand that common practical agreement, it is sufficient to distinguish properly between a rational justification, inseparable from the spiritual dynamism or a philosophical doctrine or religious faith, and the practical conclusions which, separately justified for each, are, for all, analogically common principles of action. I am fully convinced that my way of justifying the belief in the rights of man and the ideal of freedom, equality and fraternity is the only one which is solidly based on truth. That does not prevent me from agreeing on these practical tenets with those who are convinced that their way of justifying them, entirely different from mine and even opposed to mine in its theoretical dynamism, is likewise the only one that is based on truth.(p. 78)

But the problem is, what will ‘freedom,’ ‘equality’ and ‘fraternity’ mean, and mean practically? Maritain sees the agreement that produced the Universal Declaration as pragmatic, not theoretical, and feels that nothing “prevents the attainment of formulations which would indicate notable progress in the process of world unification.” (p. 79)

This makes sad reading some thirty years later. The pragmatic agreement has been a snare and a delusion and it would seem naïve to deny it. To the degree that Maritain’s teaching here is linked to the fact of the UN, it will seem to have been pretty well weakened if not completely refuted by history. There has been, in other words, a pragmatic disproof of his pragmatic agreement.

Does this mean that, since MacIntyre is surely right about the Universal Declaration and Maritain is surely wrong, that we must agree with MacIntyre that the notion of common human rights is simply a fiction? Perhaps not. The Church speaks to us again and again in terms of the rights of all human persons and regards these rights as natural; that is, while the reminder comes to us from the teaching Church, while our convictions about such rights shares to a degree in the certainty of our divine faith, what we are being reminded of, what we are certain of, are rights that can be naturally recognized. Let us go further. There are natural rights that are actually recognized by men.

What I want to do in the remainder of this paper is to develop a version of Maritain’s linking of natural rights and natural law which will enable us to see the defensibility of his teaching on these matters.

Maritain makes quite clear in Man and the State what the correct theoretical foundation of the doctrine of natural rights is. It is quite simply the natural law, properly understood. (p. 80) There may be competitive theoretical or ideological explanations put forward in justification of natural rights, but for Maritain only one of them is the true one. Furthermore, if it is true, it will provide an explanation of how it can be that, despite the plurality of theoretical justifications, there can be agreement in the practical order, and of course I mean a plurality of theoretical justifications in and of the practical order. Just as the theory of natural law is a theory which is both in and about the practical order, so presumably are the other justifications Maritain refers to.

In putting forward a sketch of natural law here, Maritain makes his famous distinction between the first element of natural law, which is ontological, and second, which is gnoseological. Not a very promising distinction, you might think, since if law is as such aliquid rationis, it would seem always to be gnoseological and never merely ontological.

By the ontological element of natural law Maritain means man’s nature in virtue of which he possesses ends which necessarily correspond to his essential constitution and which are the same for all. Every natural and artificial thing has a nature in the relevant sense, but man is endowed with intelligence and determines his own ends and must put himself in tune with the ends necessarily demanded by his nature.

This means that there is, by virtue of human nature itself, an order or a disposition which human reason can discover and according to which the human will must act in order to attune itself to the essential and necessary ends of the human being. The unwritten law, or natural law, is nothing more than that. (p. 86)

But what precisely is the ontological element of natural law? “The normality of functioning which is grounded on the essence of that being man.” (p. 87-88)

The second element of natural law, the gnoseological, is “natural law as known, and this as measuring in actual fact human practical reason, which is the measure of human acts.” (p. 89) The only practical knowledge all men have naturally and infallibly in common as a self-evident principle, intellectually perceived by virtue of the concepts involved, is that we must do good and avoid evil. But this is not so much natural law as its principle or preamble. “Natural law is the ensemble of things to do and not to do which follow therefrom in necessary fashion.” (p. 90) However, every sort of error and deviation is possible in the determination of these things.

Another distinctive note of Maritain’s understanding of natural law is the contention that it is an instance of knowledge through inclination. (p. 91)

It is of course tempting to want to worry over the niceties and details of even so swift a presentation of the doctrine of natural law as we find in Chapter IV of Man and the State. On another occasion I might succumb to that temptation, but not on this one. I shall end this chapter by attempting to state, à la Maritain – who of course develops his own views à la St. Thomas Aquinas – a resolution of the seeming paradox of his position.

What again is the paradox, not to say the seemingly insuperable difficulty, of what Maritain so often says in connection with such documents as the Universal charter?

On the one hand, there is the fact that a great many signatories have surprisingly agreed to the declaration of human rights.

On the other hand, there is the fact that they would put forward different and even incompatible justifications of the rights listed, justifications which may vary from inadequacy to outright untruth.

But is it possible to separate the understanding of the rights, and the sense of the agreement, from the explanations and justifications that are given of them?

Natural law precepts beyond Do Good and Avoid Evil, even though they express ways of acting necessarily connected with the ends of human nature, are formulated only with difficulty, with much veering and careening and intermittent error.

In what sense of ‘same’ could the same precepts be formulated on the basis of radically different theoretical assumptions?

Maritain would say that we have difficulties because we are thinking about the gnoseological natural law. But surely any declaration of rights would pertain to the gnoseological and that is the area where differences are rife.

The only hope for Maritain’s position would seem to be this.

The verbal agreement on a list of human rights which are justified theoretically in many and incompatible ways is founded, not on those different justifications, but rather on what Maritain calls the ontological natural law.

This means, I take it, that even inadequate and false justifications have embedded in them an implicit recognition of the true ends of human nature and thus of the true basis for practical precepts.

As a theory, natural law may be one theory among others. But if it is a true theory, there must be certain truths about the practical order that no man can fail to know. Nonetheless, men say and thus apparently think that ways of action incompatible with precepts of natural law are permissible.

This does not mean that when someone thinks that the direct killing of the innocent is sometimes justified, he really thinks the exact opposite. What it does mean is that such a person already knows that which will show his judgment to be wrong.

The preamble and principles of natural law are already implicitly known by every human agent. The means of refuting our erroneous moral judgments are already possessed by us and are indeed latent in the process whereby we make the erroneous judgments.

This means that the verbal acceptance of the rights of man, while it may in a given case profess to be based on grounds that are false, can be grounded on bases already implicitly known by the one making the erroneous judgment.

If I judge that the direct killing of the innocent is sometimes permitted, I am judging that such an action will be fulfilling and perfective of the kind of agent I am. The fundamental criterion of my judgments is the human good, what is perfective of the kind of agent I am. In the example, I have mistakenly taken a certain kind of action to be conducive to that good or to be an articulation of it. If then I can be made to see that actions of this type are always and everywhere inimical to the human good, destructive of it, I already have a basis for changing my mind. Changing my ways is a different and more difficult matter, but until and unless I come to see that my practical judgment is actually inimical to the good I had thought it conducive to, existential change cannot occur.

Whether or not this is equivalent to Maritain’s distinction between the ontological and gnoseological elements of natural law, it is certainly similar to it. My distinction is perhaps better described as one between implicit and explicit knowledge of natural law. But is my distinction sufficient to explain the agreement among signatories of wildly different outlooks of a list of human rights? I do not think so. I am not sure that Maritain has succeeded in giving a satisfactory explanation of that agreement either – that is, succeeded in showing that it is indeed an agreement that goes beyond mere words which have radically different meanings for different signatories.

An agreement which must accommodate the kind of ideological cleavage that obtains between the West and East seems necessarily empty. The history of the United Nations since Maritain wrote cannot be ignored. Decades of experience on the part of truce teams, arms talk teams, human rights commissions, cannot be ignored. Helsinki accords which are largely ignored indicate that there are quite different notions of what even the world ‘agreement’ means. An agreement that is not one of substance, assuring the same meaning of the same words and the same scheme of justification, is no agreement at all. There is no shortcut to such agreement. As MacIntyre suggests, the Universal Declaration resides on a fiction.

Nonetheless, there is embedded in the very disagreements the possibility of agreement. Call it the ontological natural law, call it the implicit knowledge of natural law precepts which is compatible with explicit knowledge in partial variance with them, human persons can come to agreement on human nature and human rights, but only on the basis of the truth.

The Roman Catholic has a powerful reminder of the reality of human rights in innumerable documents of the Ordinary Magisterium as well as in the documents of Vatican II. One need not be a believer to recognize those rights, however practically necessary it is for fallen man to have that supernatural bolstering of natural knowledge. But the non-believer must understand the true basis of those rights in human nature or it is not human rights he is recognizing.

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