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By Andrew M. Greenwell, Esq.

9/30/2012 (2 years ago)

Catholic Online (www.catholic.org)

We must recognize as central the 'dignity of the human person, beginning with the centrality of the right to life and to freedom of religion'.

It is only if the principles of the universality and indivisibility of human rights and a "juridical order solidly based upon the dignity and nature of humanity, in other words, upon the natural law" are recognized that international cooperation can occur.  Out of the universal and indivisible rights arising out of man's nature, we must recognize as central the "dignity of the human person, beginning with the centrality of the right to life and to freedom of religion."

Highlights

By Andrew M. Greenwell, Esq.

Catholic Online (www.catholic.org)

9/30/2012 (2 years ago)

Published in Politics & Policy

Keywords: Archbishop Dominique Mamberti, United Nations, Declaration on the Rights of Man, natural law, Andrew Greenwell


CORPUS CHRISTI, TX (Catholic Online) - There was much chatter in the press about the speeches of Mahmoud Ahmadinejad, Benjamin Netanyahu, and Barack Obama, but the press was sparse about the Statement of Archbishop Dominique Mamberti, the Vatican Secretary for Relations with States and Head of the Holy See's Delegation to the United Nations given on September 24, 2012.

In his intervention, Archbishop Mamberti stressed the importance of the rule of law, and called for its extension across the globe, since the rule of law is what protects human rights.  There is, he noted, an "unbreakable link" between the rule of law and human rights. 

The rule of law, of course, has both procedural and substantive components.  Law is not only a verb, but also a noun.  Not only must process be lawful and transparent, laws must also be substantively good, they must contain "substantial principles of justice" which cover "all spheres of social life." 

The word "law" in the phrase "rule of law," "should be understood as 'justice'--what is just, what is a just thing, an element which is proper and inalienable to the nature of every human being and of fundamental social groups."  For this reason, no person, no private or public institution, and, indeed, no state or international organization can be lawless or unjust, including--one must believe--religions, and so one and all "must be subject to law that is 'just, fair, and equitable.'" 

Procedures alone, even democratic procedures, are not sufficient to assure the rule of law, since procedures or processes alone do not guaranty the substance of law.  Democratic procedures can easily be manipulated to result in laws being "an expression of the will of a few," and hence result in injustice.

Moreover, without some substantive standard, we invariably confront "a proliferation of norms and procedures, susceptible in their turn to multiple applications and interpretations even to the point of contradicting each other and placing the certainty of law itself in jeopardy." 

A cacophony of voices of what is good and right leads to disregard of law and, ultimately, to the weakening of the rule of law.

There is therefore need of "objective criteria as a basis and guide for legislative activity."  Without such "objective criteria," the "rule of law is reduced to a sterile tautology, to a mere 'rule of rules,' and not the "rule of law." 

In some cases, the failure to recognize objective criteria has lead to a "legalistic mentality," one based upon a philosophy of law called legal positivism, which results in a "formal and uncritical adherence to laws and rules."  This can quickly result in the abuse of human dignity, as happened in the "totalitarian regimes of the 20th century."

Therefore, the "rule of law" requires a foundation.  And that foundation must be, and can only be, "a unified and comprehensive vision of man."  This vision of man must be one that appreciates "the complexity and richness [of] how people relate to each other."  That is, it must be both personal and social in expanse.

Where, then, are individuals, social and political institutions, and indeed governing bodies, including the United Nations and its member states, to go to understand what is "just" or what is a "just thing" so that the rule of law can be furthered?

While the Universal Declaration of Human Rights provides some "points of reference," the human rights therein referenced "are not of themselves sufficient," particularly if we fail to understand them "in the spirit in which they were formulated and in their historical context."  The Declaration notoriously prescinded from giving the basis of those rights.

But in fact, the underlying basis for the Universal Declaration of Human rights is the "result of a lengthy juridical and political process," one that found in the philosophy and theoretical thinking of the Greeks and the juridical and practical reasoning of the Romans.  Added to this mix were "other elements, such as Judaeo-Christian wisdom, the laws of other European peoples, canon law," Scholastic and Enlightenment philosophies based in large part on Aristotle, and "the political developments" found in the French and American as well as other revolutions.

It is this uniquely Western contribution, this "complex, rich, and intricate edifice, which is simultaneously historical, juridical, and philosophical," upon which the "inviolable and inalienable rights of the human person can and must be appreciated as the essence of the law and to which the rules must refer."

To a certain degree, one must have "faith" in the rule of law, which means necessarily that one must have faith in something "transcendent, something which does not depend on feelings, concessions, recognitions, or accords."  Faith in man's transcendence "becomes the fundamental and indispensable key to understanding rights," including those in foundational documents of the United Nations.

While the rule of law requires faith in this transcendent reality, it is not religious faith that is involved, but rather a faith based upon "philosophical reasoning."  This "philosophical reasoning" allows us access to the "meaning of human existence and of the universe," and allows us to grasp "the existence of human nature," which is what "offers a true and solid basis to the rule of law," namely, the natural law, since human nature is "prior and superior to all social theories and constructions."

Here is the basic fact: "Man is not merely self-creating freedom.  Man does not create himself.  He is intellect and will, but he is also nature, and his will is rightly ordered if he respects his nature, listens to it, and accepts himself for who he is, as one who did not create himself."

It is only through the acceptance of his created human nature, and in no other way, that one may "speak truly of the rule of law."  Without acknowledgment of our created human nature as the undergirding of law, the rule of law is a farce, and we lapse into mere legal positivism. 

Where law is concerned, "positivistic reasoning excludes and is unable to grasp anything beyond which is functional."  At best, positivistic reasoning will "give birth to the 'rule of rules,' a system of norms and procedures built merely upon pragmatic and utilitarian reasons."  This is law based upon a "tautology" a rule of rules alone, one without "permanent values," one "liable to manipulation."

This vision of a transcendent man, a man who has a created nature, whose transcendence and created nature must be the prior basis of any law, is under threat from two sides according to Archbishop Mamberti.

The first threat comes from those who seek to minimize the universality of human rights by advocating "multilateral norms."  In this area we find, for example, the Islamic states, who advocate their own form of human rights which contradict the universal rights based upon the natural moral law in certain particulars.  This cannot be the source of a common governance, of a "common good."

The other threat comes from those who seek to "promote, in the name of democracy, a materialistic vision of the human person united to a mechanistic and utilitarian vision of law."  This is the secularist liberals.

These two--in different ways to be sure--contradict the norms of the natural moral law based upon the transcendent nature of man, and so affect the weakest among us: "children, the unborn, the handicapped, the poor," and so forth.

Two principles must be held on to: the principle of universality of human rights and the indivisibility of human rights.  One for all, and all for one.

One of the most basic rights accorded humans is the right to life.  It is an "unavoidable premise" of the natural law based upon a transcendent and created human nature "that the right to life of every human being--in all stages of biological development, from conception until natural death-- be considered and protected as an absolute and inalienable value, prior to any state's existence, to any social grouping and independent of any official recognition."

Another of these essential indivisible rights is freedom of religion, as this freedom is threatened by both the liberal secularists on the one hand and by the Islamic particularists on the other:

"The response to the great questions of our existence, man's religious dimension, the ability to open oneself to the transcendent, alone or with others, is an essential part of each person and to some degree is identifiable with his or her very liberty. The 'right to seek the truth in matters religious.' without coercion and in full freedom of conscience, must not be treated by states with suspicion or as something merely to permit or tolerate.  On the contrary, the guarantee of such freedom, apart from its actual use, is an inalienable hinge of the rule of law for believer and non-believer alike."

It is only if the principles of the universality and indivisibility of human rights and a "juridical order solidly based upon the dignity and nature of humanity, in other words, upon the natural law" are recognized that international cooperation can occur.  Out of the universal and indivisible rights arising out of man's nature, we must recognize as central the "dignity of the human person, beginning with the centrality of the right to life and to freedom of religion."

-----

Andrew M. Greenwell is an attorney licensed to practice law in Texas, practicing in Corpus Christi, Texas.  He is married with three children.  He maintains a blog entirely devoted to the natural law called Lex Christianorum.  You can contact Andrew at agreenwell@harris-greenwell.com.

---


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