The Glendon Commission on the true human rights: a turning point to be sustained. Join a discussion on the Observatory website.

Glendon

THE PROVEEDINGS OF THE GLENDON COMMISSION ON THE TRUE HUMAN RIGHTS:

A TURNING POINT TO BE SUSTAINED AND ACCOMPANIED

Rev. Samuele Cecotti

 

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The Commission on Unalienable Rights was created in July 2019 by the US Secretary of State Michael R. Pompeo in order to define the unalienable human rights with which the US State Department is to comply in its foreign policy, and its proceedings were chaired by Prof. Mary Ann Glendon,  a Catholic jurist at Harvard Law School, former president of the Pontifical Academy of the Social Sciences (appointed by St. John Paul II), former member of the President’s Council on Bioethics (appointed by President George W. Bush), and former US ambassador to the Holy See.

The other members of this Commission were: Kenneth Anderson, Russell Berman, Peter Berkowitz, Paolo Carozza, Hamza Yusuf Hanson, Jacqueline Rivers, Meir Soloveichik, Katrina Lantos Swett, Christopher Tollefsen and David Tse-Chien Pan.

The Glendon Commission’s explicit mandate was to distinguish the “true” unalienable human rights from that proliferation of alleged human rights that had been multiplying in number over the last few decades through various forms of interpretation and legislation:

“As human rights claims have proliferated, some claims have come into tension with one another, provoking questions and clashes about which rights are entitled to gain respect. Nation-states and international institutions remain confused about their respective responsibilities concerning human rights.

With that as background and with all of this in mind, the time is right for an informed review of the role of human rights in American foreign policy”[1].

More than a few observers judged the intention of the Commission as an expression of a repudiation of liberalism by the United States (at least by the Trump Administration)[2] and as something counter-revolutionary[3]. Both judgments have to be assessed in critical terms. Certainly, the creation of this Commission on Unalienable Rights, the explicit mandate given to it by Secretary Pompeo, and the work done by the experts headed by Mary Ann Glendon deserve utmost interest, much more than what has been shown by the press and the  intellighenzia (Catholic as well) in Italy.

In today’s dominant ideological climate, the Trump Administration’s intention to clearly distinguish true unalienable human rights from the so-called “new rights” (e.g. the right to abortion, LGBT rights, the right to euthanasia and assisted suicide, etc.) is certainly a very courageous political act, decidedly going against the tide.

In this sense, the work of the Glendon Commission[4], especially if Trump is elected to a second term of office, will be able to represent a turning point with respect to the United State’s activity on the international scene and American interference in the legislative work of other countries in the world. For the past few decades (the Obama Administration represented the apex of this policy) the USA has been exercising a very strong corruptive effect on the legislation of other countries around the world by fostering the so-called reproductive rights, the so-called gender rights, and the so-called rights of absolute individual self-determination. In other words, abortion, contraceptives, sterilization, divorce, civil unions, same-sex marriage, euthanasia, trans-sexuality, etc., are being pushed by the USA as rights all over the world. Often subordinate to the inclusion of these alleged rights in national legislation are direct and indirect forms of aid from the USA and international organizations, thereby blackmailing countries in need of aid (countries that are poor, disaster stricken, in the throes of armed conflict) or quite simply tied down to the USA in military, political, or economic terms.

If the outcome of the Glendon Commission’s work were to really become the criterion of both judgment and action for the US State Department, we would witness a true turning point in US policy, that would thereby cease being the prime world sponsor of the so-called “new rights”.

Does this suffice to speak about the end of the liberal order? Or to speak about counter-revolutionary activity?

In actual fact, when taking a close look at both the mandate given by  Secretary Pompeo and the work done by the Commission, it must be acknowledged that there was never any departure from the liberal framework as such. At the most, it can be said that refused was the liberal-radical outcome of liberalism, with a preference for a classical reading (but also liberal-democratic) of liberalism itself..

The pillars intended to ground this clarification regarding unalienable human rights are explicit in the aforementioned classical reading of liberalism: 1) the mens of the Founding Fathers enshrined in the Constitution of the United Sates, and kept alive through amendments down through two centuries of American history: 2) the Universal Declaration of Human Rights of 1948.

Both sources, however, pose more than one problem, the first of which is never going beyond a conventional foundation which therefore remains a non foundation, or at least a non-ultimate-foundation, since the problem is shifted from the foundation of the alleged right to the foundation of the convention hopefully argued as fundamental-foundational.

To say a right is a right (and all the more so unalienable) because thus assert the Founding Fathers, or because it is written in the Universal Declaration of Homan Rights proves nothing at all about the legitimacy of that right, its being unalienable and universal (human right, the right of each person).  All it proves is that some men (whether signatories of the Declaration of Independence, the Constitution, or the Declaration of 1948) so declared at a certain moment in time. For the very same reason, other men at other times or in another context could declare otherwise, amending, extending, nullifying, or contradicting what had been declared an unalienable human right beforehand. Whether what has been declared is true or false remains the question with no answer.

It is nonetheless true that the fundamental natural rights given and guaranteed by God Himself are in the mens of the Founding Fathers (so evoked by the Glendon Commission because of its constitutional relevance, and because, especially for the those of the original intent school of thought, said mens is an insurmountable binding force for the American legal system at large). This is already an area of contradiction with current western philosophical-juridical culture which stands forth without any grounds in God and has nothing to say about the selfsame idea of natural law.

Nonetheless, it does not suffice to affirm a generic doctrine of natural law to resolve the issue of the foundation and the nature of what are called unalienable human rights. Nor is it enough to make a vague reference to God.

Remaining, therefore, is the problem of the foundation and the nature  which, considering the reference doctrine of natural law, is specified in the issue of what is to be meant by natural law. The response is neither  obvious nor unequivocal.

When people talk about natural law, it is necessary to make at least one major distinction between the classical-Christian doctrine of natural law with its imprint based on realism and modern doctrine of natural law with its imprint based on reason. In other words, there is a doctrine of natural law that presupposes an objective order of justice accessible to man through knowledge of Reality as the manifestation of an ordered universe and normative for the nature of man and created things. This realism-based doctrine of natural law is rooted in Greek philosophy and Roman law, and attains full development in Christianity, where it is embedded in the biblical concept of Creation. The teaching of St. Thomas Aquinas on lex naturalis and work done on natural law during the Middle Ages in the areas of juridical reflection, Canon law and civil law represent the apex in the development of the classical-Christian doctrine of natural law. This doctrine of natural law was to be the constant benchmark for the Magisterium of the Church for centuries.

Then there is the reason-based doctrine of natural law[5] that disregards any metaphysical idea of nature, and hence the concept of Reality in its ontological sense at large. The conceptual framework is that of Cartesian rationalism. So-called natural law thus becomes the product of human reason understood in a rational sense, and therefore far removed from the realism of the classical-Christian doctrine of common law.

For example, there is a conceptual abyss between Thomas Aquinas’ doctrine of natural law and that of Grozio, and this to the extent that it is possible to speak about ambiguity in the expression “natural law” itself. The words are the same, but they indicate two absolutely contradictory conceptual approaches.

The evolution of the Dutch doctrine of natural law and the English one with Locke provided the Founding Fathers with the referential ideological framework in classical Whig liberalism. Therefore, the doctrine of natural law of the Founding Fathers is the heir of Locke and follows in the wake of the modern reason-based doctrine of natural law.

The Universal Declaration of Human Rights is quite clearly in harmony with the Déclaration des Droits de l’Homme et du Citoyen of 1789, that is to say with that juridical Enlightenment so harshly condemned by the Church; for example by Pope Pius VI in the Brief Quod aliquantum.

Is it possible to read the Universal Declaration of Human Rights of 1948 in the sense of the classical-Christian doctrine of natural law? Is it possible to read the so-called “human rights” in the sense of rights imprinted in the nature (normative) of man, and hence rights imprinted by the Creator in  nature itself? These are both open questions.

As we can see, the doctrine of natural law framework proposed by the Glendon Commission is not clear and is certainly not bereft of contradictions and problems. The impression is that with this move, the Trump Administration wanted to remove the “new rights” and the ideological forces promoting them from under the umbrella of international law on human rights and constitutional law (fundamental rights).

This operation itself is politically interesting and certainly worthy of praise for the courage in going against the tide of the radical revolution that has been underway for decades in the western world. This is a candidly conservative operation in wanting to secure the mens of the Founding Fathers and the ratio of the 1948 UN Declaration, while rejecting the relativist and nihilist shift into liberal-radicalism and its most typical expression, that being the dissolution of law in the proliferation of “new rights”. Nonetheless, just like any conservative option that does not fully restore the classical-Christian juridical order, it is weak in terms of philosophy, philosophy of law, and juridical analysis because it does not have a solid theoretical foundation. In order to defuse the dissolutive process proper to liberal-radicalism, it is not sufficient at all to return to classical liberalism or to liberal-democracy. On the contrary, it is necessary to restore the primacy of Reality by asserting metaphysical-gnoseological realism as the conditio sine qua non of law, because only through knowledge (metaphysical) is it possible to derive that natural setting of norms which renders unalienable those rights imprinted in man by his Creator.

In brief, it is a matter of founding the juridical system anew on natural law as understood by St. Thomas Aquinas and medieval Christianity. Inverting the Rawls axiom, it is a matter of restoring the primacy of philosophy (realist metaphysics) over democracy, because the foundation of law must be natural law, which means the objective order of justice imparted by the Creator and known by man with his contemplative reason.

Knowledge of Reality is accessible to man through knowing his own nature and the nature of things. He thereby knows the finalistic order impressed by the Creator, and that order asserts itself as moral and juridical order. The so-called “unalienable rights of man” are either expressions of this objective order of natural and perennial justice, or, instead of being “unalienable rights of man”, they will be a product of convention, that may be extended, amended, or repealed in the same manner.

If the meritorious aim of the Trump Administration is to put a stop to the nihilist shift of liberal-radicalism, the Glendon Commission’s work will most certainly constitute an important development in a political-cultural sense by daring to challenge the secular dogma of “new rights”, even though remaining very weak in terms of philosophy, philosophy of law, and juridical analysis.

The contribution of Catholic Tradition – of the Social Doctrine of the Church – to the understanding of law (and the rights of man in this case) will prove to be increasingly and ever precious in the eyes of those who honestly look for reasons to mount opposition against the radical shift. The lesson of St. Thomas Aquinas will prove to be decisive in this.[6].

Don Samuele Cecotti

 

[1] M. R. Pompeo, Remarks to the press, 8 July 2019,  https://www.state.gov/secretary-of-state-michael-r-pompeo-remarks-to-the-press-3/

[2] P. Annicchino, Is the internatinal liberal order finished?  Washington at work,

https://www.ilfoglio.it/esteri/2019/07/09/news/lordine-internazionale-liberale-e-finito-washington-si-porta-avanti-col-lavoro-264441/

[3] M. Respinti, Reform human rights, https://alleanzacattolica.org/riformare-diritti-umani/

[4] https://www.state.gov/wp-content/uploads/2020/07/Draft-Report-of-the-Commission-on-Unalienable-Rights.pdf

[5] It would be interesting to reflect on the doctrine of natural law of the School of Salamanca, whether it is in continuity with the classical-Catholic doctrine of natural law, or is a precursor of the modern doctrine based on reason. Or, in any case, reflect on connections between medieval doctrine of natural law, baroque Spanish doctrine of natural law, and modern doctrine of natural law.

[6] More than focusing on the school of original intent, it is interesting to take a look at those young US jurists who are beginning to pose the issue of the ethical and metaphysical foundation of law especially Prof. Adrian Vermeu  of Harvard University (cf.. J. Culbreath, In Defense of ‘Common Good Constitutionalism’ https://www.crisismagazine.com/2020/in-defense-of-common-good-constitutionalism).