Remarks prepared for “Human Rights and the Sexualization of Culture,” the Fourth Annual Symposium of the Center for Global Justice, Human Rights, and the Rule of Law, at Regent University School of Law, Virginia Beach, 21 February 2015.
Mary Ann Glendon wrote nearly a quarter century ago that “a new form of rights talk has come into being” in contemporary America, in which rights are “presented as absolute, individual, and independent of any necessary relation to our responsibilities.” This phenomenon might be restated as the displacement of the natural rights teaching of the American founding by a contemporary emphasis on “autonomy” as the ground of human rights. But if human beings are not the fashioners of their own rights, then the modern ideology of autonomy represents a grave moral and political error.
Rights, Positive and Natural
We might begin to approach our problem by observing that rights are of two kinds, positive and natural. Positive rights are those that are “made” by human beingsposited by them and having no other ground than the fact of their being so posited, hence positiveand so their shape and content are entirely our own doing, a matter of our will. In any legal or constitutional order, all questions of positive rights are settled by public authority. The question “where did those rights come from?” and the question “who rules?” have the same answer.
The other kind of rights is naturalmeaning their ground is not in our will but in nature, understood either as our nature, a human nature that is somehow given and not subject to our reshaping, or as Nature with a capital N, an order outside ourselves that likewise cannot be fundamentally changed by any willful action of ours. For about two centuries now, at least since the work of the British legal philosopher John Austin, a struggle in legal thought has been carried on, between those (like Austin) who hold that positive rights are the only kind of rights, and those who hold that the foundation or wellspring of all positive rights is the existence of natural rights. For present purposes, this is the same debate as between those who deny, and those who affirm, that there is a law higher (or deeper) than the laws we human beings make of our own will.
The latterthe teaching of natural law and natural rightsis the view from the American founding. We may take our bearings from the first paragraph of the Declaration of Independence, which speaks of “the Laws of Nature and of Nature’s God.” In its second and most famous paragraph, the Declaration says human beings are “endowed by their Creator with unalienable rights.” What can the men who wrote and signed this document have meant by this?
A right that is unalienable is one that cannot be alienatedthat is, it can be neither taken away nor given away, neither stolen nor surrendered. But I can of course give away all I own. So this must mean that our unalienable rights are not really ours, all the way down, as it were. We do not own them. We do not really own ourselves. And when we consider where these rights come from, in the Declaration’s account, this is not so surprising. We are “endowed by [our] Creator” with them. He gave them to us in such a way that they are part of us, and we cannot part with them. The source of our rights is somethingor rather, Someoneto which, not for which, we are responsible.
This is not the occasion to say more, as a historical matter, about the intellectual formation and inclinations of leading American founders such as Thomas Jefferson. It will suffice here to say that “endowed by their Creator” was not a mere rhetorical flourish or a convenient figure of speech. From the most freethinking Deist (if indeed any of the founders qualified for that label) to the most devout Christian, the testimony of the entire founding generation is that God is the giver of rights to all.
But why speak of rights at all? God made all the creatures of the earth. What sort of creature has rights?
We have skipped over the still more fundamental statement of the Declaration that precedes its mention of rights, the principle “that all men are created equal.” We cannot be certain, right away, how much this helps, for we immediately want to know, “equal how? equal in what respect?”
One answer often giveneven Abraham Lincoln was heard to give it in his debates with Stephen Douglasis that we are equal in our rights. This is true but circular. Equality comes first in the Declaration, and rights come second. We are searching for the basis of our rights, and we have turned to equality to find it; we cannot then define the equality by reference to the rights. Human beings must be decisively equal in some other common characteristic. John Locke, in his Second Treatise, says human beings are born with the “same advantages of nature . . . the same faculties.” What could he have in mind?
A good case can be made that he has mind in mind (in the First Treatise, Locke says God made man an “intellectual creature”). Man is above other creatures of the earth, and set apart from them, by the fact of his mind. Locke said many new things, but this was not one of them. Aristotle, many centuries earlier, had begun his Politics with the observation that man is the rational animal, the creature with logos, and therefore the political animal, the creature capable of ruling and being ruled by the giving of reasons to do good and refrain from evil.
But Aristotle, in his political science, pays far more attention to the differences among men than to what they have in common. It is not to Athens but to Jerusalem that we must look for the original teaching of human equality. Whereas Aristotle sees the logos in man, the Judeo-Christian tradition sees the Logos in the universe. “In the beginning was the Word,” begins the Gospel of John. And “God created man in his own image, in the image of God he created him,” Genesis (1:27) tells us. In what image? A bearded biped? Surely not. In the image of Logos.
Moreover, God is the one most radically free being, the Being that is the ground of all being, the One who is subject to no necessity but is instead responsible for all that is necessity to others. For us to be made in His image means this: that we are rational beings with free will. In this consists our equality. From this come our rights.
The Christian Revolution in Morals and Politics
In his brilliant book Inventing the Individual, Larry Siedentop paints a vivid portrait of the closed world of pagan antiquity. The world of the ancient Greek polis, and of the Roman republic and early empire, was populated by “small family churches,” so to speakeach extended family having its household deities, with the city being a polytheistic melange of these many cults. Family, rank, status, the condition of freedom or slavery, the accident of one’s birththese were the determinants of one’s place in society. The idea of the dignity of the individual as such, let alone the equality of rights, had not yet been discovered.
In his less brilliant but still remarkably rich book From Shame to Sin, Kyle Harper traces the revolution in sexual morality from the class-ridden, exploitative ethic of the pagan Roman empire, to the claims of equal dignity and the promise of redemption in early Christianity. In the pagan ethic, sexual integrity belonged to the freeborn of good family, but to them alone. A free female of good family had her honor, either as a chaste maiden or as a married lady, and it was a most grievous crime to shame her by seduction or force in premarital or extramarital sexual relations, or for her to degrade herself in unchaste relations. For a free male of good family, the one unforgivable stain on one’s honor was to be the passive partner in homosexual relations, as boy or man. But slaves and prostitutes, on the other handand there was no real difference between the twowere people of a lower order, with no such claims of honor, dignity, or integrity. The sex trade effectively was the slave trade, and unfree persons of either sex, including perhaps particularly the very young, were casually exploited for the sexual pleasure of free men with the means and power to take advantage of them. (Free women, for reasons that are obvious on a moment’s reflection, did not have the same privilege of indulgence and sexual power over slaves.)
The emerging faith of Christianity, first as a social force and finally with the support of public authority, made all-out war on the pagan sexual economy. Why and how did it do so? First, it taught a universal doctrine of the freedom of the will, rather than the fatalism of the pagan religions. Second, it rejected the old ethic that only some have dignity, while others are degraded, replacing it with the teaching that all are fallen and in need of salvation. Third, therefore, Christianity offered an opening to redemption. For the pagans, shame or disgrace in the sexual economy was permanent and irremediable; but for the Christians, sins could be forgiven, and virtue lost could be regained. Fourth, Christian faith held the virtue of chastity to apply to both sexes, and taught the proper use of each one’s sexual powers.
In short, Christianity taught the inherent dignity of all, and safeguarded the integrity of each. Back of it all, as the root cause of the moral reforms Christianity brought about, was the imago Dei, the great Logos to which all men and women are held responsible, and the great Agape, the love and mercy promised to sinners, that is, to each and to all.
It is on this basis, as Siedentop demonstrates, that Christianity is responsible for the emergence of a humane liberalism, founded on the equal dignity of the individual, and protecting the freedom of the individual conscience, regardless of social status. “There is neither Jew nor Greek, there is neither slave nor free, there is neither male nor female; for you are all one in Christ Jesus” (Galatians 3:28). The souls of all sinners are of equal concern in the body of Christ. Over time this would come to mean also, in the secular public sphere, the equal claim of every individual to natural rights, the expectation that we are to be governed by the rule of law and not of men, and the limitation of political authority as against the Church’s spiritual authority. All the principles of classical liberalism owe their origins to Christianity, and the essential ingredients, Siedentop argues, were in place by the fourteenth or fifteenth centurybefore the Reformation, the Renaissance, or the Enlightenment.
The Declaration of Independence, therefore, although a product of modern thought, bears, so to speak, the genetic markers of a Western tradition in Christendom that is seldom acknowledged as it should be. It is no wonder that devoutly Christian Americans of the revolutionary periodwho, after the first Great Awakening, greatly outnumbered the self-consciously “enlightened” types represented by Franklin and Jeffersoncould see the God of the Bible and not just “Nature’s God” in the principles of equality and natural rights proclaimed in the Declaration.
Properly understood, then, the American founding principles of natural rights, and contemporary notions of “autonomy” as the basis of rights, are not allies but adversaries. Natural rights entail obligations, of a due respect for others, and a due respect for ourselves. This respect is otherwise known as responsibility, ultimately to the Creator who endowed us with our rights. Like the centurion in the Gospel of Matthew, we are persons under authority (Matthew 8:9). Rights and obligations are brother principles, both owing their existence to the God who made us creatures of equal dignity, possessing the logos that makes our self-government possible.
Contemporary notions of autonomy, by contrast, reject all authority, all obligations outside the individual will. The joint authors of the Supreme Court’s opinion in Planned Parenthood v. Casey stated this view succinctly, in their notoriously false claim regarding the individual liberty protected by the Constitution: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” The authors seemed not to realize that this notion of liberty is wholly unmoored, not only from the Contitution, but also from any intelligible teaching of natural rights. Indeed, as a statement of purest narcissism and solipsism, it fails even to assert an intelligible basis for a positive right in the laws we human beings make. The right announced in Casey presents itself as a bulwark against the tyranny of the majority or of any unjust authority, but it cannot give an account of itself as such. If every individual may live according to his own “concept of existence, of meaning, of the universe,” then the concept shared by the greatest number, or by the most powerful of wills, will be the basis of any law we are capable of making. A mass of untrammeled wills can only be governed by raw force. And so the notion of an unfettered autonomy of the individual is self-devouring, resulting only in tyranny.
But this contemporary idea of autonomy shares its foundation with the philosophy of legal positivism. Both locate the source of all rights in the human will, which for theoretical purposes may as well come into existence ex nihilo, rather than owe its existence to a benevolent Creator. Legal positivism and the autonomous self open a chasm at our feet, excavated by the will of fallen human beings who replace the Creator with their own “creativity.” These human beings look in the mirror and see only themselves, missing the imago Dei that is the truth about themselves.
Thus also the ideology of the autonomous self reopens the world to the patterns of inequality and sexual exploitation that were conquered by the Christian faith of Paul and Augustine. The New York Times columnist Ross Douthat wrote recently that the phenomenon of Fifty Shades of Grey suggests that our autonomy-loving devotees of the sexual revolution believe they can “have the fun of Rome without all the nasty bits.” There seems to be a notion abroad in the land that a free-floating principle of consent, unmoored from any understanding of our nature, can suffice for regulating all relationships. But this belief, like Fifty Shades itself, is a fantasy. Forget the truth about our natural rightsthat they are the endowment of our Creator, the embodiment of our equal dignity, and the remedy of our equal vulnerabilityand we retreat into the exploitative sexual economy, the unfreedom and degradation, of the ancient pre-Christian world. This is not the path a free and just society should choose.
Matthew J. Franck is Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute.
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