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Human Rights, Fact or Fiction?: ‘Human Rights and “the Risk of Freedom”’1

  • John R. Meyer (a1)
Extract

Before the General Assembly of the United Nations Pope John Paul II declared that the quest for freedom points to the existence of ‘natural rights’ that reflect the objective and inviolable demands of a universal moral law. While this assertion was well received by those in attendance, an important question remains: how are we to reconcile this universal vision of human rights with the current plethora of disputable legislated rights? Ernest Fortin claims the problem is rooted in the fact that modern ‘rights talk’ emphasizes individual subjective rights over the objective reality of human nature, and Alasdair Maclntyre even questions the moral value of human rights because they are all too easily manipulated by those who view them as self-evident truths. When you add to these observations the appearance of such controversial individual entitlements as ‘reproductive rights’, ‘sex rights’, ‘the right to same-sex marriage’ and the ‘right to die’, it is not surprising to hear people calling for a silencing of ‘rights talk’.

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2 Cf. John Paul II, Address to the United Nations, ‘Human Rights and “the Risks of Freedom”’, October 5, 1995, in The New York Times, October 6, 1995, p. A 16.

3 The distinction we make here between ‘natural rights’ and legislated ‘human rights’ differs from those who equate ‘basic human rights‘ and ‘natural rights’. In asserting that basic rights are natural rights, Kent Greenawalt understands all rights in non-religious terms (see his Religious Convictions and Political Choice [New York/Oxford: Oxford University Press, 1988], esp. 16–17). John Finnis also considers ‘human rights’ and ‘natural rights’ as synonymous, but he distinguishes between ‘human’ or ‘natural’ rights and ‘moral rights’, with the latter being derived from the former (see his Natural Law and Natural Rights [Oxford: Clarendon Press, 1980], 198199).

4 Fortin, E., ‘“Sacred and Inviolable”: Rerum Novarum and Natural Rights’, Theological Studies 53 (1992): 203233, *223. Russell Hittinger disagrees with Fortin's principal thesis that Rerum Novarum evinces approval of liberalism. John Paul II follows the Leonine tradition of natural right, but he places more emphasis on economic liberty and the creative intelligence of the human person than his predecessor. See Hittinger, R., ‘The Problem of the State in Centesimus Annus’, Fordham International Law Journals (19911992): 952996, * 954.

5 See Maclntyre, A., Whose Justice? Which Rationality?, (London: Duckworth, 1988), 205208; cf. idem, Three Rival Versions of Moral Enquiry (London: Duckworth, 1990). Maclntyre, wrote the following in After Virtue 2 (Notre Dame, IN.: University of Notre Dame Press, 1984), 6970: ‘In the United Nations declaration on human rights of 1948 what has since become the normal UN practice of not giving good reasons for any assertions whatsoever is followed with great rigour. And the latest defender of such rights, Dworkin, Ronald (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 (p. 81). Which is true, but could equally be used to defend claims about unicorns’.

6 The Fourth United Nations Conference on Women claimed that women possess definite ‘sexual rights’ in addition to their ‘reproductive rights’. An important consideration not mentioned there was the ‘marital right’ of the husband to conjugal relations. The ‘marriage debt’ is a conjugal obligation freely assumed by each party in making the natural contract of matrimony; canon law refers to this debt as ius in corpus, the right of the body. In the context of Roman law, ius or‘right’ was akin to the privileges a free man enjoys in the community. Instead of connoting an image of enslavement or unilateral exploitation, ius in corpus indicates the intimacy and mutual benefit derived from the commitments the husband and the wife freely make to one another, entitling each of them to certain privileges such as the satisfaction of a reasonable request for the marital act. On this see Smith, Janet E., Humanae Vitae. A Generation Later (Washington, D.C.: The Catholic University of America, 1991), 302303; cf. Ford, John C. & Kelly, Gerald, Contemporary Moral Theology, vol. 2 (Westminster, MD.: Newman Press, 1964), 5863.

7 On March 6, 1996 the United States Court of Appeals for the Ninth Circuit in San Francisco struck down a law criminalizing physician-assisted suicide. A similar decision was reached on April 2nd by a three-judge panel of the Second Court of Appeals in New York which overturned a ban on physician-assisted suicide in the states of New York, Connecticut and Vermont. There are slight differences between the two decisions. While the Ninth Circuit Court concluded that a terminally ill person has a constitutional right to die, the Second Circuit Court criticized New York state's assertion that it bears a guardian duty to protect life in all circumstances. Both decisions relied on the 1990 Nancy Cruzan case which allowed the withdrawal ofnutrients from a patient living in a ‘persistent vegetative state’. Curiously, the courts determined that this procedure is no different from assisted suicide, judging that ‘the state has acknowledged that terminally ill persons are entitled in a whole variety of circumstances to hasten their deaths, and that in such cases their physicians may assist’. See Origins 25/42 (April 11, 1996): 723725 and National Catholic Register 72/16 (April 21, 1996): 1& 8.

8 See Fortin, E.L., ‘From Rerum Novarum to Centesimus Annus: Continuity or Discontinuity?’, Faith & Reason 17 (Winter 1991): 399412; idem, ‘“Sacred and Inviolable”: Rerum Novarum and Natural Rights’, Theological Studies 53 (1992): 203–233, esp. 219–226; Hittinger, Russell, ‘The Problem of the State in Centesimus Annus’, Fordham International Law Journal 15 (19911992): 952996; idem ‘The Pope and the Liberal State’, First Things 28 (1992): 33–41; ‘The Gospel of Life Symposium’, First Things 56 (1995): 33–35; Schall, J.V., ‘The Teaching of Centesimus Annus’, Gregorianum 74/1 (1993): 1743.

9 William J. Stuntz astutely points out the modern understanding of the First Amendment ‘freedom of speech’ has led to the elimination of restraint in rights talk. Rights now mean ‘the freedom to choose’ or the empowerment of the individual to maximize the ability to act on preferences or choice. It is nobody else's business what I say or do, as long as I hurt no one else. Here to hurt or to harm is defined rather narrowly as tangible injury, but not offenses of a verbal nature, and not offenses to a pre-human nature (such as a fetus). See Stuntz, W.J., ‘When Rights Are Wrong’, First Things 62 (1996): 1418.

10 Swidler, Leonard, Toward A Catholic Constitution (New York: Crossroad, 1996).

11 This is the opinion of a number of Catholic moral theologians influenced by Max Sender's application of phenomenology to ethics. Most notable among them are Charles Curran, Josef Fuchs, Louis Janssens, Peter Knauer, Richard A. McCormick, Timothy O'Donnell, and Bruno Schüller. Perhaps the more important books and articles touching on this theme are the following: Curran, Charles E., ‘Absolute Norms in Moral Theology’, in his A New Look at Christian Morality (Notre Dame, IN.: Fides 1968); idem, Contemporary Problems in Moral Theology (Notre Dame, IN.: Fides, 1970); idem, Ongoing Revision in Moral Theology (Notre Dame, IN.: Fides/Claretian, 1975); Moral Theology: A Continuing Journey (Notre Dame, IN.: University of Notre Dame Press, 1982); janssens, Louis, ‘Ontic Evil and Moral Evil’, Louvain Studies 4 (1972): 115156; idem, ‘Norms and Priorities in a Love Ethic’, Louvain Studies 6 (1977): 207–238; idem, ‘Saint Thomas and the Question of Proportionality’, Louvain Studies 9 (1982): 26–46; Dedek, John, ‘Moral Absolutes in the Predecessors of St. Thomas’, Theological Studies 38 (1977): 654680; idem, ‘Intrinsically Evil Acts: An Historical Study of the Mind of St. Thomas’, The Thomist 43 (1979): 385–413; Fuchs, Joseph, ‘The Absoluteness of Moral Terms’, Gregorianum 52 (1971): 415458; also in Curran, C.E. & McCormick, R.A. (eds.), Readings in Moral Theology, No. I: Moral Norms and Catholic Traditions (New York: Paulist Press, 1979), 94137; idem, ‘“Sin of the World” and Normative Morality’, Gregorianum 61 (1980): 51–76; idem, Personal Responsibility and Christian Morality (Washington, DC: Georgetown University Press, 1984); idem, Christian Ethics in a Secular Arena (Washington, DC: Georgetown University Press, 1984); idem, ‘Naturrecht oder naturalistischer Fehlschluβ?’, Stimmen der Zeit 29 (1988): 407–423; Gula, Richard M., Reason Informed by Faith: Foundation of Catholic Morality (New York: Paulist Press, 1989), 292; Knauer, Peter, ‘The Hermeneutic Function of the Principle of Double Effect’, Natural Law Forum 12 (1967): 132162; McCormick, Richard A., Ambiguity in Moral Choice (Milwaukee: Marquette University Press, 1973); idem, Notes on Moral Theology: 1965–1980 (Lanham, MD.: University Press of America, 1981), 582–584; idem, Notes on Moral Theology: 1981–1984 (Lanham, MD.: University Press of America, 1984); idem,‘Some Early Reactions to Veritatis Splendor’, Theological Studies 55 (1994): 481–506; O'Connell, Timothy, Principles for a Catholic Morality (New York: Seabury Press, 1978); Schüller, Bruno, ‘The Double Effect in Catholic Thought: A Reevaluation’, in McCormick, R.A. & Ramsey, Paul (eds.), Doing Evil to Achieve Good (Chicago: Loyola Press, 1978), 165192.

12 See Curran, Charles E., Transition and Tradition in Moral Theology (Notre Dame, IN.: University of Notre Dame Press, 1979), 343; idem, Moral Theology: A Continuing Journey (Notre Dame, IN.: University of Notre Dame Press, 1982), 144.

13 Kant, Immanuel, Fundamental Principles of the Melaphysic of Morals (Indianapolis: Bobbs-Merrill, 1965), 11.

14 Laurence Thomas explains that for Kant ‘the realization of ourselves as rational creatures is inextricably tied to our acting morally’. Thomas, L., Living Morally. A Psychology of Moral Character (Philadelphia: Temple University Press, 1989), 241.

15 Kant, I., Critique of Practical Reason (Indianapolis: Bobbs-Merrill, 1956), 19.

16 Cf. Immanuel Kant, Metaphysical Elements of Justice, Pt. 1 of Fundamental Principles of the Metaphysics of Morals, 71–72.

17 Brunner, E., The Divine Imperative (London: Lutterworth, 1937), 3740, 55. Brunner relies on the existentialism of Søren Kierkegaard and the personalism of Ferdinand Ebner and Martin Buber. See Dulles, Avery, The Assurance of Things Hoped For: A Theology of Christian Faith (New York/Oxford: Oxford University Press, 1994), 124.

18 Barth, K., Church Dogmatics (Edinburgh: T & T Clark, 1957) II/2 509521.

19 Paul Weiss lists murder, kidnapping, slander, injustice, and betrayal. See his Man's Freedom (New Haven: Yale University Press, 1950), 179.

20 Cf. Kant, Immanuel, Critique of Practical Reason and Other Writings in Moral Philosophy (Chicago, IL.: University of Chicago, 1949), 43.

21 Levinas, Emmanuel, Outside the Subject (Stanford: Stanford University Press, 1994), 119.

22 Kant's second categorical imperative excludes treating a person as a means to an end, but it does not measure up to the demands of Christian charity. See Kant's, ImmanuelGrundlegung zur Metaphysik der Sitten, Eng. trans, by Abbott, T.K., Kant's Theory of Ethics (London: Longmans, Green, 1927), 55.

23 Taken from Matlary, Janne Haaland, ‘Ethics in the Public Debate’, The Catholic World Report 6/10 (1996): 4853, *49.

24 This is discussed by Minogue, K.R., ‘Natural Rights, Ideology, and the Game of Life’, in Kamenka, Eugene & Tay, Alice Erh-Soon (eds.), Human Rights (London: Edward Arnold, 1978) and Strauss, Leo, The Political Philosophy of Thomas Hobbes: Its Basis and Genesis (Chicago: University of Chicago Press, 1952).

25 See Hervada, Javier, Natural Righit and Natural Law: A Critical lntroduction (Pamplona, Spain: University of Navarre Press, 1987), 181182.

26 Cf. Anscombe, G.E.M., ‘Modern Moral Philosophy’, Philosophy 33 (1958). Yves Simon claimed that the changing doctrinal and historical circumstances alter our perception of natural law, further complicating our efforts to discern authentic human rights. See Simon, Y.R., The Tradition of Natural Law. A Philosopher's Reflections (New York: Fordham University Press, 1992), 23.

27 See Kant, I., Über den Gemeinspruch: Das mag in der Theorie richtig sein, taugt aber nicht fur die Praxis (Weischedel) XI, 125172.

28 Thielicke, Helmut, Modem Faith and Thought (Grand Rapids, MI.: Wm B. Eerdmans, 1990), 321.

29 Blackstone, William, Commentaries on the Laws of England, (Philadelphia: G.W. Childs, 1865), Book 1, 138.

30 The Stoic philosophers Cicero and Seneca voiced belief in the unique value of each and every human being based on what we can rightly term natural law. See Grant, M., Roman Literature (Middlesex: Pelican Books, 1958), 6566; Cowell, F.R., Cicero and the Roman Republic (Middlesex: Pelican Books), 269270.

31 Gewirth, A., Reason and Morality (Chicago: University of Chicago Press, 1978); idem, Human Rights: Essays on Justification and Application (Chicago: University of Chicago Press, 1982); idem, ‘The Epistemology of Human Rights’, Social Philosophy and Policy I (1984): 1–24; idem, ‘Are There Any Absolute Rights?’, in Joram Graf Haber (ed.), Absolutism and Its Consequentialist Critics (Lanham, MD.; Rowman & Littlefield, 1994), 129–146; idem, The Community of Rights (Chicago: University of Chicago Press, 1995).

32 See Singer, M.G., ‘Gewirth's Ethical Monism’, in Regis, Edward, Gewirth's Ethical Rationalism (Chicago: University of Chicago Press, 1984), 2338; Bond, E.J., ‘Gewirth on Reason and Morality’, Metaphilosophy 11 (1980): 3653. Alasdair Maclntyre says that Gewirth's argument is fallacious because deriving rights from subjective claims carries no obligation to secure them for others. For numerous other objections and responses to Gewirth's project, presented in a sympathetic light, see Beyleveld's, DeryckThe Dialectical Necessity of Morality. An Analysis and Defense of Alan Gewrith's Argument to the Principle of Generic Consistency (Chicago & London: University of Chicago Press, 1991). Gewirth's position is based on the notion that a mental process of splitting the human person into a metaphysical and an empirical self occurs in moral thinking. This metaphysical split may be inspired by Nicolai Hartmann's view of the mind as constituting the objectivity of reality and the person's subjectivity (Hartmann, N., Das Problem des geistigen seins untersuchungen zur grundlegung der geschichtsphilosophie und der geistesxinssenschaften [Berlin/Leipzig: de Gruyter, 1940], 101104; idem, Ethics vol. III: Moral Freedom [London: Allen & Unwin, 1932], 192–201).

33 See Gamwell, Franklin I., Beyond Preference: Liberal Theories of Independent Associations (Chicago: The University of Chicago Press, 1984); idem, The Divine Good: Modern Moral Theory and the Necessity of God (Dallas: Southern Methodist University Press, 1996), 127, n. 1.

34 See Donnelly, J., The Concept of Human Rights (London: Croom Helen, 1985); cf. Jones, Peter, Rights (New York: St. Martin's Press, 1994), 114115; Thomas Aquinas, De Veritate q. 21, a. 3 ad 2 & Summa Theologiae I, q. 5, a. 1 ad 1; I–II, q. 18, a. 2.

35 Alasdair Maclntyre, After Virtue, 54.

36 See Spaemann, Robert, ‘Is Every Human Being a Person?’, The Thomist 60 (1996): 463474, *466; cf. Frankfurt, Harry G., ‘Freedom of the Will and the Concept of Person’, The Journal of Philosophy 68 (1971): 521; idem, ‘Identities and Externality’, in A. Oksenberg Rorty (ed.), The Identities of Persons (Berkeley, CA.: University of California Press, 1976), 239–252.

37 Maclntyre, A., After Virtue, 219.

38 Gamwell, F.I., The Divine Good, 74.

39 Hibbs, Thomas S., Dialectic and Narrative in Aquinas: An Interpretation of the Summa contra gentiles (Notre Dame & London: University of Notre Dame Press, 1995), 15.

40 Aquinas, Thomas, Summa contra Gentiks I, 17, 3.

41 Robinson, N.H.G., The Groundwork of Christian Ethics (Grand Rapids, MI.: Eerdmans, 1971), 37.

42 See Brady, Bernard V., ‘An Analysis of the Use of Rights Language in Pre-Modern Catholic Social Thought’, The Thomist 57 (1993): 97121.

43 Thomas Aquinas, Summa Theologiae I, q. 5, a. 1 & a. 3 ad 1. Thomas actually anticipated G.E. Moore's naturalistic fallacy. On this see Marshner, William H., ‘Aquinas on the Evaluation of Human Actions’, The Thomist 59 (1995): 347370, *350–351.

44 I. Kant, Fundamental Principles of the Metaphysic of Morals, 17. Germain Grisez and John Finnis apply the analytical vision of G.E. Moore to Thomism, alleging that the predication of the ‘good’ is a purely practical function. They maintain that the ‘basic human goods’ of human flourishing are self-evident, and yet they say that natural rights are consequences of justice. The Grisez/Finnis theory of Thomas’ view of ‘personal goods’ emphasizes the search for ‘fundamental reasons of action’ which are said to be determined by non-inferential acts of understanding. The agent grasps ends and purposes of action that are worthwhile for their own sakes; and these ‘basic human goods’ are self-evident and are not derived from antecedent metaphysical principles. While they do not deny that morality is grounded in nature, they insist that one cannot infer basic human goods and moral norms from prior knowledge of human nature (see George, Robert P., ‘Natural Law and Human Nature’, in George, R.P., Natural Law Theory. Contemporary Essays [Oxford: Clarendon Press, 1992], 3337). Finnis believes the epistemological must be separated from the ontological, and that many modern theories of natural law disregard this distinction and derive duties from man's way of being without demonstrating the reasonableness of such obligations (see Finnis, John, Natural Law and Natural Rights [Oxford: Oxford University Press, 1980], 3342). For critiques of ‘the naturalistic fallacy1 perpetuated by Grisez and Finnis see Schultz, Janice, ‘Is-Ought: Prescribing and a Present Controversy’, The Thomist 49 (1985): 123; Simpson, Peter, ‘St. Thomas on the Naturalistic Fallacy’, The Thomist 51 (1987): 5169.

45 See Murphy's, Mark C.Natural Law, Impartialism, and Other's Good’, The Thomist 60 (1996): 5380.

46 See Rhonheimer, Martin, ‘“Intrinsically Evil Acts” and the Moral Viewpoint: Clarifying a Central Teaching of Veritatis Splendor’, The Thomist 58 (1994): 139, *22; idem, ‘Intentional Actions and the Meaning of Object: A Reply to Richard McCormick’, The Thomist 59 (1995): 279–311.

47 See Thomas Aquinas, Summa Theologiae l-ll, q. 19, aa. 1–10 & q. 20, aa. 1–6, and, more recendy, Veritatis Splendor, 75.1.

48 On this see Knauer, P., ‘La détermination du bien et du mal par le principe de double effet’, Nouvelle Revue Théologique 87 (1965): 356376; idem, ‘Fundamentalethick: teleologische als deontologische Normenbergründung’, Théologie und Philosophie 55 (1980): 321–360.

49 Thomas Aquinas, In Duo Praecepla Caritatis et in Decent Legis Praecepta. De Dilectione Dei: Opuscula Theologica, II, n. 1168; Summa Theobgiae II-II, q. 34, a. 4 & 5.

50 Thomas says that natural law is the ‘ordered complex of “personal goods” which serve the “good of the person”: the good which is the person himself and his perfection’ (Summa Theologiae I-II, q. 100, a. 1).

51 For more information on Thomas' use of context in evaluating moral reasoning see Reichberg's, Gregory M.Contextualizing Theoretical Reason: Thomas Aquinas and Postmodern Thought’, Aquinas 38 (1995): 249272.

52 Rhonheimer, Martin, ‘Intentional Actions and the Meaning of Object: A Reply to Richard McCormick’, The Thomist 59 (1995): 294.

53 Thomas Aquinas, In II Anima, lect. 6; Summa Theobgiae I-II, q. 13, a. 4. See the discussion of Melchin, Kenneth R., ‘Revisionists, Deontologists, and the Structure of Moral Understanding’, Theological Studies 51 (1991): 389416; Finnis, John, ‘Object and Intention in Aquinas’, The Thomist 55 (1991): 127.

54 See Thomas Aquinas, Summa Theohgiae I-II, qq. 18–20.

55 On this see Maclntyre's, essay First Principles, Final Ends and Contemporary Philosophical Issues. The Aquinas Lecture, 1990 (Milwaukee, Wl.: [Milwaukee] Marquette University Press, 1990).

56 Thomas Aquinas, Commentary on the Posterior Analytics, lib. 1, lect. 3; Summa Theologiae II-II, q. 8, a. 1 ad 2.

57 Paul Lehmann denies many basic human rights because he disavows the prescriptive function of morals. Thus he denies the right to life for the unborn because he believes there is a logical gap between ethical principles and their application in concrete situations. The ‘rights’ approach to abortion presupposes a view of conscience cut off from its covenantal context which ‘forces’ us to obey God instead of freely choosing to do so. See Lehmann, Paul, Ethics in Christian Context (New York: Harper & Row, 1963); idem, The Decalogue and a Human Future. The Meaning of the Commandments for Making and Keeping Human Life Human (Grand Rapids, MI.: Eerdmans, 1995).

58 Nussbaum is correct in saying that practical wisdom uses rules only as summaries and guides in Aristotle's account, a view which suggests that those rules need to be flexible and open to improvisation as historical situations dictate (see Santas, G., ‘Aristode on Practical Inference, the Explanation of Action, and Akrasia’, Phronesis 14 [1969]: 162189, *168). I would also agree with her assessment that practical reason is the ability to understand and grasp the salient features of concrete particulars by means of an intellectual insight that is altogether distinct from deductive reasoning. Aristotle himself considered practical knowledge as somewhat akin to sense perception or an analogue of theoretical insight (see Nussbaum, Martha, The Fragility of Goodness. Luck and Ethics in Greek Tragedy and Philosophy [Cambridge: Cambridge University Press, 1986], 298306). But Aristotle also viewed entelechy as the ‘formgiving cause’ of human perfection, the ‘possession of the end [the form] within it’ [literally, ‘internal-end-having’] (cf. Blair, George A., ‘Unfortunately, It Is a Bit More Complex: Reflections on , Ancient Philosophy 15 [1995]: 565580). For more on her critique of Maclntyre see Nussbaum, Martha, ‘Recoiling From Reason’, a review of Maclntyre's, AlasdairWhose Justice? Which Rationality, in The Neiv York Review, December 7, 1989, 3641. Augustine did radicalize the Adam typology of Irenaeus and Origen, claiming that without God's grace our motivation is often disordered. See Greer, Rowan A., ‘Sinned We All in Adam's Fall’, in White, L.M. & Yarbrough, O.L. (eds.), The Social World of the First Christians. Essays in Honor of Wayne A. Meeks (Minneapolis: Fortress Press, 1995), 382394.

59 Thomas Aquinus, Summa Thelogiae I, q. 79, aa. 11–12. For an explanation of this see Honnefelder, Ludger, ‘Rationalization and Natural Law: Max Weber's and Ernst Troeltsch's Interpretation of the Medieval Doctrine of Natural Law’, Review of Metaphysics 49 (1995): 275294, *282–283.

60 See Thomas Aquinas, Summa Theologiael, qq. 84–85; cf. idem, Liber decausis l, 6; De natura generis 2; Hibbs, T.S., ‘Against a Cartesian Reading of Intellectus in Aquinas’, Modem Schoolman 66 (1988): 5569.

61 This understanding of the pursuit of the good is quite distinct from the postulated ‘basic human goods’ espoused by John Finnis and Germain Grisez. See Westberg, Daniel, Right Practical Reason. Aristotle, Action, and Prudence in Aquinas (Oxford: Clarendon Press, 1994), 73. Even if there were agreement on a set of ‘basic human goods’ as they suggest (life, knowledge, play, aesthetic experience, sociability, practical reasonableness, and religion), no necessity attaches to them. Moreover, it is hard to accept that these are intuited goods. Thomas would agree that playfulness and humor do not need to be related to some other purpose in life and that they have their own intrinsic worth, but people can reject play, sociability, religion, or even physical life itself, for the sake of some higher good. On this see VanderMarck, W., ‘Ethics as a Key to Aquinas'sTheology’, The Thomist 40 (1976): 535554.

62 Aquinas, Thomas, Expositio super secundum Epistolam ad Corinthios 3, 2.

63 Gilson, Etienne, Thomist Realism and the Critique of Knowledge (San Francisco: Ignatius Press, 1986), 203204.

64 See Meyer, J.R., ‘Veritatis Splendor: Intellect, Will, and Freedom in Human Acts’, Angelicum 72 (1995): 217242.

65 Scheler, Max, Formalism in Ethics and Non-formal Ethics of Value (Evanston, IL.: Northwestern University Press, 1973).

66 See Ashley, Benedict, Theologies of the Body. Humanist and Christian (Braintree, MA.: The Pope John XXIII Center, 1985), 367370.

67 Rhonheimer, Martin, ‘“Intrinsically Evil Acts” and the Moral Viewpoint: Clarifying a Central Teaching of Veritatis Splendor’, The Thomist 58 (1994): 139, *26. For information on the distinction between ‘immediate’ and ‘ulterior’ intentions, and its importance in using the principle ‘the end never justifies the means’, see Rhonheimer, Martin, La prospeltiva delta morale. Fondamenti dell'etica philosophies (Rome: Armando, 1994); idem, ‘“Intrinsically Evil Acts” and the Moral Viewpoint: Clarifying a Central Teaching of Veritatis Splendor’, The Thomist 58 (1994): 16–27; idem, ‘Intentional Actions and the Meaning of Object: A Reply to Richard McCormick’, The Thomist 59 (1995): 279–311.

68 Thomas Aquinas, Summa Theologiael, q. 18, a. 4.

69 Cf. Pieper, Josef, Living the Truth (San Francisco: Ignatius Press, 1989), 48; Eng. trans, of Wahrheit der Dinge [The Truth of All Things] (Munich: Kösel-Verlage Gmbh & Co., 1966).

70 Sanguined, Juan Jose, Logic and Gnoseology (Rome: Urbiana University Press, 1988), 246249.

71 Thomas Aquinas, De Verilate, q. 24, a. 1 ad 19. John Haldane points out that it is not necessary tojustify tnith claims from a perspectival point of view as Maclntyre attempts to do if one believes in objective truth. Maclntyre's, thought on the universal validity of moral truths maybe changing, as evidenced in his ‘How Can We Learn What Veritatis Spkndor Has To Teach?’, TheThomist 58 (1994): 171195. See Haldane, John, ‘Reason, Truth and Sacred History’, American Catholic Philosophical Quarterly (ACP Association Proceedings), 68 (1994): 173185; idem, ‘Maclntyre's Thomist Revival: What Next?’, in Horton, John and Mendus, Susan (eds.) After Maclntyre. Critical Perspectives on the Work of Atasdair Maclntyre (Notre Dame, IN.: Notre Dame University Press, 1994), 91107. Also see Maclntyre, Alasdair, ‘Moral Relativism, Truth and Justification’, in Gormally, Luke (ed.) Moral Truth and Moral Tradition. Essays in Honour of Peter Geach and Elizabeth Anscombe (Dublin/Portland: Four Courts, 1994), 624; idem, ‘Relativism, Power, and Philosophy’, in Krausz, Michael (ed.) Relativism. Interpretation and Confrontation (Notre Dame, IN.: University of Notre Dame Press, 1989), 182204.

72 Gamwell, F.I., The Divine Good, 188.

73 This is the suggestion of Smith, Janet E., Humanae Vitae. A Generation Later (Washington, D.C.: Catholic University of America Press, 1991), 219220 and Lowery, Mark, ‘A New Proposal for the Proportionalist/Traditionalist Discussion’, Irish Theological Quarterly 61 (1995): 115124, *119. Also see Connery, John, ‘The Teleology of Proportionate Reason’, Theological Studies 44 (1983): 489496.

74 This appears paradoxical and problematic to those who understand the ten commandments as an exhaustive set of rules covering all possible cases (see Layman, C. Stephen, The Shape of the Good. Christian Reflections on the Foundation of Ethics [Notre Dame, IN. & London: University of Notre Dame Press, 1991], 106109). In reality each prohibition of the Decalogue reflects the one commandment about the singular dignity of the person and the duty to love others as oneself (cf. Mt. 19:19; Mk. 12:31) [see Veritatis Splendor, 13.2].

75 Thomas Aquinas, Summa Theobgiae II-II, q. 64, a. 7: ‘The act of self-defense can have a double effect: the preservation of one's own life; and the killing of the aggressor… The one is intended, the other is not’.

76 Ibid., II-II, q. 64, aa. 2 & 7. If the assailed person's intention is (1) to prevent their own death by using means commensurate with those used by the aggressor (Jinis opens) and (2) to defend themselves without killing the aggressor (Jinis opemntis), the accidental death of the latter is not murder.

77 See Summa Theologiae I-II, q. 18, a. 10. Evangelium Vitae 55.2 explains that when an aggressor is killed as the result of legitimate defense that death ‘is attributable to the aggressor whose action brought it about’. The traditional notion of Thomas was that a murderer forfeits his right to life (cf. Summa Theologiae II-II, q. 64, a. 7). This theological opinion has been superseded by the modern appreciation for the incomparable dignity of the human person and the enhanced possibilities of protecting the common good due to better penal systems.

78 Javier Hervada also cites usury as an example of subsequent rights: ‘When money had nothing more than a nature of mere exchange, there did not exist any right to interest in loans…, but when money became transformed into capital the right to interest was made possible’ (Hervada, J., Natural Right and Natural Law: A Critical Introduction, 102).

79 One could cite other similar examples. Progress in medicine increases the measure of the right to health by including therapies and medicines unknown years ago. But a right to higher education is moot in a society of primitive tribes because there is no real possibility of achieving such a good. The enhanced appreciation of the dignity of the human person has affected the state of the person in penal law as well, bringing into question the justice of capital punishment. Similarly, improved means of providing for civil security have tended to diminish the right to bear arms because the historical circumstances of modern society generally do notentail extreme danger to individual integrity.

80 This is the reason why ‘reproductive rights’ is not only a misnomer but a delusion: the object of marital consent is to relinquish one's ius ad operations coniugales to another.

81 Franklin Gamwell appears to omit the notion of duty or obligation from his discussion of relations, and he says that relations constitute human action rather than vice versa: ‘human action ought to pursue maximal relations among all individuals’. This conclusion is the direct result of his belief that the ultimate human telos consists in maximizing the creativity of individuals as such, a creativity that is considered to exist on a metaphysical continuum with the divine good. See Gamwell, F.I., The Divine Good, 187190.

82 Dr. Phillip Bennett said it was wrong to kill a fetus, but he allowed the killing of one fetus in order to save the life of another. The real question is whether one has the right to kill at all, not whether you can kill one to save the other. This case points out the need to ‘redefine’ abortion, not requiring it include the premature expulsion of the fetus. Technical progress allows such procedures in utero without premature expulsion. See The New York Times Tuesday, August 6, 1996, p. A3.

83 See Conner's, Paul recent article entitled ‘Is There a Secular Answer to Euthanasia, American Style?’, Angelicum 73 (1996): 381400.

84 Mclnerny, Ralph, Art and Prudence. Studies in the Thought of Jacques Marilain (Notre Dame, IN.: University of Notre Dame Press, 1988), 134; cf. Thomas Aquinas, Summa Theologiael-II, q. 65, ad 3; II–II, qq. 48 & 49, a. 1 ad 1.

85 Thomas Aquinas, Summa Theologiae I-II, q. 85, a. 1.

86 This is quite distinct from the tendency of some to rely on deontological norms as ethical directives. John Finnis argues that the first principle of practical reason is relatively inert and that its specifications of the primary goods primarily descriptive. See Finnis, J., ‘Natural Inclinations and Natural Rights: Deriving ‘Ought’ from ‘Is’ according to Aquinas’, in Elders, L. and Hedwig, K. (eds.), Lex et Libertas: Freedom and Natural Law According to St. Thomas [Studi Tomistici 30] (Rome/Vatican City: Libreria Editrice Vaticana, 1987), 50.

87 Thomas Aquinas, De Veritate, q. 24, a. 2 c: ‘Qui enim vult fornicari; quamvis sciat in universali fornicationem malum esse, tamen iudicat sibi ut tune bonum esse fornicationts actum, et sub specie boni ipsum eligit’.

88 See Geach, P., ‘The Moral Lawand the Law of God’, in his God and the Soul, (Bristol, ENG.: Thoemmes Press, 1994), 117129; cf. Aristotle, , Nichomachaean Ethics 1107 a16. Lest anyone fault this view by claiming it is an example of Augustinian or Thomistic pessimism, they should read Tobias 6:17 where the angel Raphael warns Tobias that the devil has such power over those who forget God and are wholly intent on satisfying concupiscence that they act as if they were a horse or a mule, brutes without reason.

89 Thomas Aquinas, Summa TheologiaeI–II, q. 94, a. 2; ibid., I–II, q. 100, a. l.John Finnis acknowledges that the self-evident character of some tniths are apparent only to those who have achieved a certain level of intellectual development. See Finnis, J., Natural Law and Natural Right, 12, 29–30.

90 The most cogent explanation of the origin and legitimation of natural human rights is the fact that we were created by an act of God. God himself creates the human person in the womb (Ps. 139:13b); he makes us his possession (cf. Gen. 9:6); and Christ's death ransoms us from the punishment that is our due for sin (cf. Mk. 10:43–45; Mt. 20:26–28). But since human life itself is sacred, and not just because of the ontological relation it enjoys with the Creator, ‘natural’ human rights are grounded intrinsically in the human person and they are not derived solely from our status as creatures. The apostle Paul says that love for neighbor is a sure sign of fulfillment of the law (cf. Rom. 13:10), and we concretize love for neighbor by respecting their personal ‘goods’, that is to say, by never treating them as means to an end and by bearing their burdens (Gal. 6:2). See Barry, Robert, ‘“Imago Dei” and the Sanctity of Human Life’, Angelicum 73 (1996): 217254, *248–249. Jean Porter claims thatrespect for –personal goods’ is not necessary to love another. But this opinion is at variance with Thomas who thought that moral obligation consists more in duty towards the ‘good’ than in duty towards the possessor of the ‘good’. See Maritain, Jacques, An Introduction to the Basic Problems of Moral Philosophy (Albany, NY: Magi Books, 1990), 168170; cf. Porter, Jean, ‘Christianity, Divine Law and Consequentialism’, Scottish Journal of Theology 48 (1995): 415442, *437–442.

91 See Pieper's, Joseph ‘On Rights’, in his The Four Cardinal Virtues (Notre Dame, IN.: University of Notre Dame Press, 1966), 4353.

92 J.S. Mill, Utilitarianism, ch. II. Gregory S. Kavka said this of Hobbes' view of the Golden Rule. See Kavka, G.S., Hobbesian Moral and Political Theory (Princeton, N.J.: Princeton University Press, 1986), 347.

93 See Ricoeur, P., ‘The Golden Rule. Exegetical and Theological Perplexities’, New Testament Studies 38 (1990): 392397.

94 David L. Schindler contends that enlightened liberalism defends a common morality, or some form of natural law and natural right, but only viewed in the abstract and independent from a subjective religious viewpoint. Thus liberalism fails to integrate man's constitutive relation to God with the workings of culture, and the distinction between Church and state is all too often understood in a juridical key, forcing the sacred (i.e., religious morality) out of the secular realm. See Schindler, D.L., ‘The Culture of Love. An Interview with David L. Schindler’, Catholic World Report, October 1994, 4249; cf. Hittinger, John P., ‘Thomism and Liberal Democracy’, in Gallagher, David M. (ed.) Thomas Aquinas and His Legacy. Studies in Phibsojihy and the History of Philosophy. Vol. 28 (Washington, D.C.: The Catholic University Press, 1994), 159; Kasper, Walter, Transcending All Understanding. The Meaning of Christian Faith Today (San Francisco: Ignatius, 1989), 92103.

95 Thomas Aquinas, Summa Theologiae I–II, q. 100, aa. 1, 3 & 11. See Lee, Patrick, ‘Permanence of the Ten Commandments: St. Thomas and His Modern Commentators’, Theological Studies 42 (1981): 422443. Besides the forfeiture of the ‘right to life’ by those who are assailants, another important exception is the right to private property which can be seized for reasons of the common good (Summa Theologiae II– II, q. 58, a. 7, ad 2.; cf. I–II, q. 101, a. 3, ad 2). In both instances the good of the entire community is in view, protecting and promoting the lives of the average citizens.

96 See Habermas, Jürgen, Between Facts and Norms. Contributions to a Discourse Theory of Law and Democracy (Cambridge, MA.: MIT Press, 1996).

97 Glendon, Mary Ann, Rights Talk. The Impoverishment of Political Discourse (New York: The Free Press, 1991); cf. Elshtain, J.B., Democracy on Trial (New York: Basic Books, 1995). For a discussion of Habermas and MacIntyre see Doody, John, ‘MacIntyre and Habermas on Practical Reason’, American Catholic Philosophical Quarterly 65 (1991): 143158.

98 See Schall, James V., The Distinctiveness of Christianity (San Francisco, CA.: Ignatius Press, 1982), Chapter VIII, ‘On the Rediscovery of Charity’, 126–140; cf. Paul, John II, Diva in Misericordia 12. Not all agree that religion contributes to social justice above and beyond certain charitable social services. Rawls, John, in ‘The Idea of an Overlapping Consensus’, Oxfordjoumal of Legal Studies 7 (1987): 8 and Political Liberalism (New York: Columbia University Press, 1993), 224 claims that ‘public reason’ excludes religious insight from the discussion; he favors consensus opinion based on common sense and uncontroversial science. Hollenbach, David, in ‘Religion and Political Life’, Theological Studies 52 (1991): 87106, argues that the radical historicism of John Rawls and Richard Rorty is untenable because it assumes that only historically received and culturally mediated criteria contribute to moral consensus, denying the existence of transcultural moral norms and their articulation in and through tradition. Here Charles Taylor's discussion of context-disengaged goods is interesting (see his ‘Justice After Virtue’, After MacIntyre. Critical Perspectives on the Work of Alasdair MacIntyre).

99 See Laurence Thomas', discussion of moral self-deception as the result of a value deficient self-concept in his Living Morally. A Psychology of Moral Character, 241244.

100 See Sandel, Michael J., Democracy's Discontent: America in Search of a Public Philosophy (Cambridge, MA.: Harvard University Press, 1996); cf. Pangle, Thomas L., ‘Republicanism and Rights’, in Licht, Robert A. (ed.) The Framers and Fundamental Rights (Washington, D.C.: AEI Press, 1992), 102120. Although Sandel's ideas about the importance of community are insightful, especially when considered as a critique of John Rawls, his project is flawed in its failure to explain how the community constitutes virtue and the common good. The human ‘self’ of Sandel is nearly completely subsumed by a ‘communal self’. Other works of Sandel are Religious Liberty—Freedom of Conscience or Freedom of Choice?’, Utah Law Revieiv 3 (1989): 597615; idem, The Procedural Republic and the Unencumbered Self’, Political Theory 12 (1984): 8196; idem, Liberalism and the Limits of Justice (Cambridge: Cambridge University Press, 1982).

101 Himmelfarb, Gertrude, On Looking Into The Abyss. Untimely Thoughts on Culture and Society (New York: Alfred A. Knopf, 1994), 104.

102 Nagel, Thomas, ‘The Cult of the Individual’, a review of Gaylin's, Willard and Jenning's, BruceThe Perversion of Autonomy (New York: The Free Press, 1996), in The New York Times Book Review, September 8, 1996, 24.

103 Scalia, Antonin, ‘Of Democracy, Morality and the Majority’, an address given at the Gregorian University Symposium entitled Left, Right and the Common Good on May 2, 1996, in Origins 26/6 (1996): 90. Although one may question his separation of the moral and the secular, it is true that the establishment of rights on a firm rational basis precedes legislation by the constitutional state. Ultimately, the recognition and promotion of authentic human rights depends upon a good grasp of the nature of natural rights and how we come to discover the positive rights derived therefrom.

104 See Rhonheimer, Martin, ‘Diritti fondamentali, legge morale e difesa legale della vita nello stato costituzionale democratico. L'approccio costituzionalistico all'enciclica Evangelium vitae’, Annales Theologid 9 (1995): 271334, 311–312; cf. Paul, John II, Address to a symposium on Evangelium Vitae and Law, May 24, 1996, in L'Osservatore Romano 22 (May 29, 1996): 3.

105 Richard John Neuhaus believes that an important task of the Church today is to proclaim the transcendent promise of the Gospel, including the idea that the world is incomplete without God's gift of salvation. See Neuhaus, R.J., The Catholic Moment: The Paradox of the Church in the Postmodern World (San Francisco: Harper & Row, 1987), 2324.

106 Glendon, M.A., ‘The End of Democracy? A Discussion Continued’, First Things 69 (1997): 24.

107 See Johnstone's, B.V.Personalist Morality for a Technological Age: The Catechism of the Catholic Church and Veritatis Splendor’, Studia Moralia 32/1 (1994): 121136.

108 Thomas writes that this entitlement surpasses the right to preserve one's own life. See Summa TheologiaeI–II, q. 2, a. 5; cf. Summa TheologiaeII–II,, q. 23, a. 1 ad 2. Some Protestant theologians continue to find the Catholic doctrine of divine grace complemented by moral virtue troubling because they cling to the idea of sola fide el sola gratia. See for example, Meilaender, Gilbert, ‘Veritatis Splendor. Reopening Some Questions of the Reformation’, Journal of Religious Ethics 23 (1995): 225238; idem, ‘Eritis Sicut Deus: Moral Theory and the Sin of Pride’, Faith and Philosophy 3 (1986): 397–415.

109 See Aranda, A., ‘Fe y nihilismo como actitudes existenciales’, Scripta Theologica 24 (1992): 479507; Wojtyla, Karol, ‘II problema del costituirsi della culture atraverso la ‘praxis’ umana’, Rivista di Filosofia Neo-Scolastica 69 (1977): 513524. Romanus Cessario points out that John Paul II adds the modern concepts of self-possession, selfdetermination, and self-governance to the biblical notion of conditional stewardship in his writings on the responsible acting person. See Cessario, R., ‘Moral Absolutes in the Civilization of Love’, Crisis 13/5 (1995): 1823.

1 Title of the address given by Pope John Paul II to the United Nations on October 5, 1995.

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Scottish Journal of Theology
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