Written by Dr. Paulos Mar Gregorios
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I am sincerely grateful for this opportunity to bring to you a perspective on Human Rights from outside Western civilization. No one can pretend to represent the non-western world as a whole, because of its extreme diversity within itself. I can represent only my personal views at this time of history. These views have changed and developed through the years, and are likely to change again in the light of wider experience and further reflection. Outside western civilization does not mean, however, outside the Christian tradition. I speak as a humble Christian, though I do not make frequent reference here to my Lord Jesus Christ or to Christian Scriptures. I shall try not to be theological in my approach, though the faith of the Christian Church does provide me with the basic foundation of that approach. I have learned much from and about western Christianity, but I find it quite difficult to follow some of its approaches. And I wi11 not take an activist approach to the question of human rights, though many in my audience would prefer that to a reflective, theoretical approach. By constitution I am unable to act without some reflection, and you must forgive me if you think I am too abstract or even irrelevant.
Let me apologize at the very outset for my poor and inadequate grasp of the noble German language, with which I have struggled since my student days in America. It was mainly a reading knowledge that I sought there to acquire but even in that I have not achieved any great level of proficiency. The present text was first composed in English and then translated into German by my kind hosts here in Brenan. I read it in German in order to save you some time. I hope some of my thoughts come through despite my faulty accent and incorrect pronunciation.
The Concept of Human Rights
Human Rights can be understood only as a concept born in Europe and America in the 18th century. Its ancestry goes much farther back in western history, of course. One could mention the Magna Carta, the Petition of Right (1672), the Habeas Corpus Act (1679) and the Bill of Rights (1689) in England, as well as other pieces of national legislation in European countries. In general the concept of human rights was used to affirm the rights of the new bourgeoisie over against the feudal overlords.
The birth of the concept is integrally related to developments in western history and culture in the 18th century, including the French Revolution of 1789 and the American Declaration of Independence in 1776. Thomas Paine, the English po1emicist, who went to America for thirteen years from 1774 to 1787, published his Rights of Man in 1791.
During his stay in America, where he helped his friend Thomas Jefferson to draft the American Declaration of Independence in July 1776, he served as the Secretary of the Congressional Committee on foreign Affairs. His pamphlet called Common Sense (1776) had a great influence on Jefferson and on American history. It was a defense of republicanism as opposed to Monarchy. The later work on The rights of Man was a scathing response to Edmund Burke's denunciatory Reflections on the Revolution in France (1790). Paine was as uncritically eulogising the Declaration of the Rights of Man, made by the national Assembly of the New Re public of France in 1789, as Burke was uncritically denouncing the French Revolution. If Burke was an undiscerning advocate of the status quo in Britain, Paine was unduly relying on a document on paper with noble ideas which were soon to be belied by the historical reality of the Jacobin tyranny of the French Committee on Public Safety and even more by the reign of Napoleon Bonaparte. It is one thing to put noble ideas into a declaration; it is more difficult to embody these ideas in a political economy. This is a principle we should always keep in mind when we discuss questions like human Rights.
The French Declaration on the Rights of Man had 27 articles. According to Paine, the first three were of the essence:
''1. Men are born, and always continue, free and equal in respect of their rights. Civil distinction, therefore, can be founded only on public utility.
2. The end of all political associations is the preservation of the natural and imprescriptible rights of man; and these rights are Liberty, Property, Security, and Resistance of oppression.
3. The Nation is essentially the source of all sovereignty; nor can any individual, or any body of men, be entitled to any authority which is not expressly derived from it.''
In Paine's view,
''the first three articles are the basis of Liberty, as well individual as national; nor can any country be called free whose government does not take its beginning from the principles they contain, and continue to preserve them pure; and the whole of the declaration of Rights is of more value to the world, and will do more good than all the Laws and statutes that have yet been promulgated.'' (Rights of Man, Everyone's Library edition, 1966, pp.98-99)
The notion of Human rights seems thus to be of basically American, French and English origin. The philosophical foundations of the nation were worked out, however, by none of the three nations mentioned. That job fell to German thinkers, particularly to Kant and Hegel. Immanuel Kant (1724-1804) sought to establish philosophically the burghers' contention that the individual person is always to be treated as an end in himself/herself and not as a means to an end. A deeper and more comprehensive, but by no means easily comprehensible, account came only with Georg Wilhelm Fredrich Hegel's monumental work: Grundlinien der philosophie dea Rechts, which came out in 1821.
The philosophical foundations of the concept of Human Rights in western Liberalism always go back to Kant and Hegel except when western writers avoid philosophy by resorting to Linguistic Analysis or a naive pragmatism. The framework of Hegelian philosophy is so complex that very few, even a German, today fully comprehend it. Everything seems to revolve around Hegel's notions of Begriff and Idee. The Idee is Reality. It is the unity of Der Begriff (the concept) and its existence.
''Der Begrif; und seine Existenz sind zwei Seiten, geschieden und einig, wie Seele und Leib...Die Einheit des Daseins und des Begriffs, des Koerpers und der Seele ist die Idee-.Die Idee des Rechts ist die Freiheit, und um wahrhaft aufgefasst zu werden, muss sie in ihrem Begriff und in dessen Dasein zu erkennen sein." (Phil. des Rechts, #1 Zusatz) .
For Hegel, the basic ground of Human Rights is the idea of freedom, the idea that works itself out in history through a process of temporal development. Kant grounds human Rights in the individual's infinite worth, an assumption of faith and not a matter to be logically demonstrated. Hegel grounds it in the nature or Reality as a whole and in the idea of Freedom as a general aspect of Reality. This too cannot be logically demonstrated but is an assumption of faith, a less individualistic faith than Kant's, but faith. And for that reason, Hegel can say:
''Dieses Recht, so hoch, so goettlich es ist, wird aber in Unrecht verkehrt, wenn nur dies fuer Denken gilt and das Denken nur dann sich frei weiss, insofern es vom Allgemein-Anerkannten und gueltigen abweiehe und sich etwas Besonderes zu erfinden gewusst habe'' (Vorrede).
and "Der Boden des Rechts ist ueberhaupt das geistige und seine naehere Stelle und Ausgangspunkt der :Willie, welcher frei ist, so dass die Freiheit seine Substanz und Bestimmung ausmacht und das Rechtssystem das Reich der verwirklichten Freiheit, die Welt des Geistes aus ihm selbst hervorgebracht, als eine zweite Natur, ist '' (# 4)
Hegel was right in seeing the close interconnections among Human Rights, Human Freedom, Human morality regulating the Human Wi11, and the Law as enacted and enforced by the State System. Thomas Paine was one who regarded the least government as the best government, while for Hegel, the State system was the embodiment of the most advanced stage of human development. Paine, who believed that “'the more perfect civilisation is the less occasion has it for government,” was indeed a believer in God as ''the great Father of all,” but would have denied any foundation for the “Rights of Man”' in any religious convictions. Hegel, on the contrary, got his basic notion of Recht from his Christian convictions, and his fundamentally Christian world-view. The question of the philosophical-theological ground for a notion like Human Rights needs to be debated in the global community; such a debate wi11 not only fundamentally enrich our thought but also Make us see how, starting from different spiritual foundations, humanity can arrive at a pragmatic consensus.
The United Nations and Human Rights
In our own time there have been a large number of declarations and formulations about the Fundamental Human Rights, but it was the setting up of the United Nations in 1945 with Human Rights given a prominent place in its Charter and its promulgation of the Universal Declaration of Human Rights (UDHR) in 1948 that serves as a starting point for any discussion on human rights today.
In the Charter of the United Nations, the preamble (reportedly drafted by Jan Smuts of South Africa) reaffirms the faith of “the peoples of the United Nations” in “fundamental human rights and in the dignity and worth of the human person, in the equal rights of men and women and of nations large and smaller”. Article 1(3) of the Charter states as one of the aims for which the UN is established, as “International co-operation in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion”. Articles 55 and 56 elaborate further these commitments. The UDHR of 1948 spells out further the fundamental rights.
If one asks the question, however, as to the basis and foundation for these great and noble affirmations, one gets into difficulties. Is there a rational or philosophical justification for these affirmations? How does western liberal thought justify Human Rights? How does
Christianity and the other religions of the world ground their concern for human rights? Why did Islamic Saudi Arabia abstain from voting for the UDHR in 1948? Is the liberal consensus the only ground on which these affirmations stand? Has there been a referendum of “the peoples of the United Nations” to check whether there is in fact such a consensus? These are questions that need to be discussed.
It should not be forgotten that when the United Nations organization was formed in 1945 it was largely a trans-Atlantic organization in terms of power and membership. The vote on December 10, 1948 in favor of the UDHR was 48 for 0 against and 8 abstentions. Six communist countries, South Africa and Saudi Arabia had abstained. The drafting committee consisted of USA UK USSR France Austria Lebanon, china and Chile. The last three were at that time totally pro-western, and the USSR did not vote for the UDHR. In china it was the Chiang Kaishek regime then.
The UDHR is thus primarily a western document; hence its emphasis is on individual rights, the social rights being mentioned only in outline. It is true that the UDHR had a great impact on many national constitutions of countries which became independent after 1947. The UDHR has subsequently been supplemented by two other covenants adopted and opened for signature, ratification and accession by the UN General assembly on December 18th, 1966.
1. The International Covenant on Economic, Social and Cultural Rights: and
2. The International Covenant on Civil and Political Rights, with an Optional Protocol.
These covenants, though ratified so far by only few nations, came into force in 1976, but their implementation, even in the few countries which have ratified them, is making very slow progress.
Some Comments and Questions
In view of the limitation of time, I would like to offer just a few brief comments on the UDHR. The four words in the title of UDHR have each its own significance.
1. Rights. The notion of right has come into vogue as a result of the revolt against the autocratic or aristocratic authority of the feudal lords. A right can be moral or legal. A legal right can be enforced only through a law-governed state, and is largely meaningless without an authority capable of enforcing it. Moral rights are integral to any civilization, and quite often people themselves enforce these rights without recourse to court of law or civil authority. In fact we are living in a world where more and more moral demands are met by persuasion than by legal compulsion (eg. conservation of energy in a world of energy shortage).
We should also distinguish between a right and the principle on which it is based. The equal dignity of all human beings is a principle from which many human rights are derived. But no set of legal rights can exhaust the principle. The principle can be embodied in the preamble to a national constitution, but until it becomes something which the people can fully internalize, no amount of law will be able to implement principles like democracy, the dignity of every human person, the unity of humanity and so on. It would therefore be unwise to put all the emphasis on the legislation and implementation of rights; equal emphasis is due to the task of educating the people to uphold the fundamental principles on which the rights are based. Let me Just mention briefly five such principles on which there is a growing universal consensus:
a. The integral unity of all humanity, all life and the whole order of reality. (I have tried to avoid theological words like creation, because these principles should he acceptable to all religions and to all secular people).
b. The freedom, worth and dignity of every human person within economic, social and cultural structures which promote and augment these.
c. Constant progress towards accessible and effective justice for all, within and among nations and peoples.
d. National and international structures which can settle disputes without recourse to war, provide comprehensive security for all peoples without weapons of mass destruction, and can promote peaceful global co-operation in many areas like science/technology, education, media, economic activity, the healing arts, culture, sports and social creativity.
e. The special responsibility of the Human species to care for the biosphere and for an environment which promotes life and health, and to prevent its disruption by careless human stewardship.
It should be clear that in all these five fundamental spheres legislation on human rights can go a long way. But structural change seems more important, if these principles are to be embodied in human life. There are limits to what can be achieved through legislation on fundamental Human Rights.
2. Human. The word "human" in the UDHR is very significant once we realize the full force of this word. We wil1 be reluctant to use words like aliens and foreigners in relation to people living outside our national frontiers. We will have to see that we share a common humanity and a common global citizenship with such people from outside our frontiers and that we are all mutually responsible members of a single global human community. This realization will be a great step forward. But we will also have to see the fact that the word “human” cannot be confined to adult citizens alone. Apart from special women's rights, we will also have to formulate laws about Child Rights. We wi11 then have to engage in a global discussion on difficult issues like when a human life begins, when a fertilized human ovum in utero begins to have rights, whether the human embryo is the property of its parents to be disposed of at their Will, and so on.
The word “human” is a liberating word, but it can also be a confining word. Do only humans have rights? What about the rest of the living world? Do they have any rights? Do animal species have a right to survive? Do animals and birds have a right to be protected from human cruelty and mistreatment? Are there limits to human killing of animals, for sport or pleasure, for food or scientific experiments? Do trees have rights? Or is their right to exist entirely dependent on human need perceptions? Do mountains and rivers have a right to remain undecided and unpolluted by humans? These are indeed difficult questions to resolve unanimously; but the debate must soon begin in every country.
3. Declaration. The UDHR remains only a declaration, and not international law. There are jurists who interpret the UDHR as having the force of universal or international law.
If the UDHR and the two covenants are signed, ratified and acceded to by all nations, they would of course have the force of law. To move from declaration to international law is an urgent need in relation to the UDHR and the two covenants. National governments are still most unwilling to give up their assumed sovereignty at this point and to begin to move decisively and resolutely towards international structures in which the nations invest some authority. The urgent need in each country as well as globally is to press national governments to accede to the UDHR and the two covenants, as an important move towards legally banding international law and structures.
4. Universal. The main thing about the UN declaration is that it is not confined to any one nation, but speaks of all human beings universally. It is an invitation to move out of parochial-national loyalties, to looking at the whole of humanity as one entity. In most of the earlier national declarations about human rights, there was a tendency, not always expressed, to think primarily of the rights of middle class white western persons. Only in the anti- slavery and anti-apartheid movements we saw the recognition that non-white people are also humans and have equal rights with others. The More we become aware that a1l human beings are of equal dignity, the more we can clearly see the sheer irrationality of our narrow national loyalties and of the immorality of making our national interests take precedence over the interests, freedom and dignity of other nations and peoples.
We will have to learn to set our national loyalties within the context of our loyalty to the international and global human community, of which we are members with others. This is not primarily a question of changing laws but of a new global consciousness emerging in people all over the world. But laws are also important. First the constitution of each nation will have to recognize openly and clearly that it is a responsible and free member of the global community of nations. Second, we will need do agree as a community of nations to develop a new global Social Contract and to create the beginnings of a global legislature.
Judiciary and executive. This is implied in the Universal Declaration of Human Rights, but not made explicit. There is not much point in making a universal declaration of human rights, when there exists no global machinery to enforce those rights.
As we have already stated, the concept of Rights is of western origin, though that in itself is no disqualification. But in thinking of Rights, we are likely to think primarily of judiciable rights -- that is legislation and law enforcement. We Christians know that Law can be an enemy of the Gospel, though not in every case and not every law. Do we look for salvation of humanity and the world by Law? The letter kills; the spirit gives life. As Hegel rightly saw, ''der Boden des Rechts ist ueberhaupt das Geistige'' and ''die Freiheit seine subtasz und bestimmung ausmacht"; can we really aspire to a Rechtssystem which is genuinely a Reich der verwirklichten Freiheit, which functions without law and compulsion out of a redeemed human nature clothed with the good as a habitus, practicing the good out of its own grace-filled essence? We Christians and others know that we should not murder, even if there was no law against murder. It is not because the Law says that human beings have rights that we practise love towards all. Rights belong to Law and the State. The love of God and His creation belongs in another category. It is that love of God and his creation that should impel us to seek a world where the five principles we mentioned above are in truth practiced. The Kingdom of God does not fully manifest itself in history; but the kingdom comes every day, and it is as an aspect of that Kingdom that we should pursue the Rights of Man also. The Kingdom come, indeed!