Not “Rights” vs. “Freedom” – Reclaiming the Universal Declaration from the Left (and Defending It from the Right)

Posted on | April 12, 2012 by Piero A. Tozzi, J.D. |

The latest issue of the New Criterion contains an article by Andrew C. McCarthy, entitled “Future Tense, VIII: Enter Totalitarian Democracy: On the Difficulties of Making Law in the Modern World.”  Both the article and the author have much to recommend them, and the danger of transnationalist elites imposing anti-democratic social policy McCarthy warns against is very much a real one.

A word of caution is in order before adopting the framework and verbiage proposed by McCarthy in its entirety, however, for he throws out the baby with the bathwater, and his characterization of the “utopian” Universal Declaration of Human Rights of 1948 fails to give a rounded appraisal of that landmark document.  Moreover, his underlying premise of “freedoms” vs. “rights” is historically both incorrect and unessential to adopt in order to get to where the author wants to lead us.

The concept of “rights,” properly understood, was very much part of the Founding Fathers’ vocabulary — as in the “bill of rights” (!!) and “unalienable rights” based on the “Laws of Nature and Nature’s God.”

The tension is thus not between “rights” and “freedoms,” but rather between “negative rights” and “positive” ones — a tension that is reflected in the Universal Declaration of Human Rights.

“Negative rights” are inalienable rights that one holds against the government (and hence are ”negative”) — first and foremost, the right to life, without which there can be no others, as well as subsidiary rights such as freedom of conscience and speech. These rights are grounded in the Natural Law — the “laws of Nature and Nature’s God,” as the Founders put it. No government can take them away, nor create them, but can merely recognize them. When framed as such, “negative” rights are indeed consistent with the “basic human freedoms” formulation preferred and proffered by McCarthy, and such rights should not be needlessly scorned.

“Positive rights,” however, are rights that the State creates, by virtue of positive legal enactment, i.e., via positive law.  The old Soviet constitution was very rich in such rights, such as a “right to education” and a “right to health.” When the State provides rights — rights which it can just as easily take away or condition upon certain conforming actions — the substantive content of such rights, and the ideological mindset of the lawmakers who fabricate such “rights,” become very much a concern.  See, for example, United Nations Special Rapporteur on Health Grover Anand including a “right to abortion” as part of a general “right to health.”  It is such positive “rights,” favored by anti-democratic transnationalist elites, that McCarthy rightfully decries.

The UDHR, following upon the Nuremburg trials, was motivated principally by a desire to protect truly inalienable rights from governmental depredation and from positive law-makers who would deny such rights, such as had happened in Nazi Germany, and indeed happens in modern-day pro-abortion regimes lauded by the health rapporteur.  The UDHR’s chief draftsmen, such as (Orthodox) Charles Malik and (Catholic) Jacques Maritain, were very much attuned to the importance of the Natural Law as a bulwark against State tyranny.  Thus provisions such as Article 19 (“freedom of opinion and expression”), Article 18 (“the right to freedom of thought, conscience and religion”) and Article 4 (“Everyone has the right to life, liberty and security of person”) reflect core negative rights that are grounded in the Natural Law.

The rub was, however, was that to make the document “universal,” and to try to keep the fraying coalition of World War II victors together, the proponents wanted to get the Soviet Union and other “socialist” nations to sign on to the document – something which ultimately did not happen.  (There also was, as McCarthy notes, Eleanor Roosevelt’s desire to memorialize the wooly New Deal positive rights of FDR’s “second bill of rights” in more permanent form.)  Hence the inclusion of positive rights within the document, and the schizophrenic character of the UDHR.

This tension can be seen in Article 26, on education.

Section 26(3) is excellent, and should warm the hearts of homeschooling families as well as parents concerned with the mandating of amoral “sex ed” curricula such as that pushed recently by New York City’s lifestyle liberals: “Parents have a prior right to choose the kind of education that shall be given to their children.”

This statement implicitly acknowledges that parents as the primary educators of their children have a right grounded in nature — it is a “prior” right, i.e. one that preexists the State – a right which the State can only recognize, for it does not create it. It accords with the US Supreme Court’s powerful language in Pierce v. Society of Sisters, that children are “no mere creatures of the State,” and echoes Aristotle, who notes that “The love between husband and wife is evidently a natural feeling, for Nature has made man even more of a pairing than a political animal in so far as the family is an older and more fundamental thing than the state.”

But that same UDHR article also states that “Everyone has the right to education. Edu­cation shall be free, at least in the elemen­tary and fundamental stages.  Elementary education shall be compulsory.”

As with all positive rights that call upon the State to secure them, this provision is problematic, for it potentially elevates the State above family and mediating institutions such as the Church, with the risk that children may indeed be viewed as “mere creatures of the State,” fit to serve the State’s ends.  Since the time of Plato and the vision put forth in his Republic and Laws, the great totalitarian temptation has been to empower the State by separating children from their parents and molding them to serve it and the ideals conjured up by Coercive Utopians.

It is positive “rights” such as these which McCarthy rightfully cautions against when he sees them pitted against “freedoms.”

Yet to rail against the UDHR and “rights” in their entirety is to throw the baby out with the bathwater, thereby conceding a powerful moral narrative and tool for defending human dignity to the very “totalitarian” transnationalist elites McCarthy abhors.

Rather, we should reclaim the UDHR, and the natural law-based negative rights contained therein, using them as a basis for defending of the unborn child and the natural family, while distinguishing between true, fundamental rights which the State is compelled to acknowledge from fabricated ones that can be manipulated.  Such a reclamation project is what contemporary commentators on the UHDR such as Mary Ann Glendon and Habib Malik (the son of Charles) have attempted, and such efforts should be supported.

How to separate the (negative rights) wheat from the (positive rights) chaff is made easier by the division of the UDHR – which as McCarthy notes is “merely hortatory, a tocsin, not a treaty,” and hence non-binding – into two treaties that are binding upon those nations who have duly ratified them: the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights.

The ICCPR is largely a charter of negative rights, which is why it is one of few major human rights treaties which the United States has ratified, while reserving against problematic provisions such as Article 20’s restriction on free speech.  The U.S. has not, however, ratified the loosey-goosey ICESCR, which contains positive rights of the sort the old Soviet Union embraced while it denied the most fundamental of civil and political – or natural and negative – rights.

To concede the UDHR and the rhetoric of rights entirely, as McCarthy would, is a strategic mistake, for then they become solely the domain of the Left, which manipulates language to suit its ends.

The ICCPR and the rights espoused therein, and like portions of the UDHR, are part of the patrimony of all of us who defend true human dignity against counterfeits.

 

 

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Turtle Bay and Beyond is a blog covering international law, policy and institutions. Our experts - at the UN, European Institutions, and elsewhere - explore an authentic understanding of international law, sovereignty, and the dignity of the human person. We expose those who would seek to impose a radical social vision that is contrary to these principles.

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