“A false claim of a human right is a claim that fails the test of natural law” - conversation with Robert P. George, Professor of Law at Princeton University
Írta: Dr. Sándor Lénárd
I am honored to greet Robert P. George who is Professor of Law at Princeton University and world renowned scholar in natural law. I thank you for accepting the participation in this interview series. Professor, you have been researching natural law and natural rights for a long time and you are author of many books about this subject. Can you shed some lights on why this approach is relevant and important in addressing the constitutional and legal challenges of our world today?
There are a handful of leading approaches to the question of morality, including political morality. At the heart of any discussion of political morality is the issue of justice. All of the leading approaches to questions of morality address question of justice. What is the nature of justice? How do we distinguish of what is just from what is unjust? Among those approaches is the approach of utilitarianism associated with its founder, Jeremy Bentham. Another approach is the approach associated with Immanuel Kant, sometimes called deontological ethics. And there is the approach that is associated with Aristotle and Saint Thomas Aquinas. This tradition is referred to in different ways, but sometimes as the “natural law” tradition. This is the tradition I have found, all things considered, the most compelling and I have worked to try to develop as well as understand and apply it. This tradition has a great deal to say about all questions of morality and especially questions of justice.
How do we identify human rights? How do we distinguish true from false claims about human rights? What does it mean to claim that there is a human right? How is it that such a thing as human right can exist? How can we grasp the reality of human rights? So this is a very rich tradition of thought. It is also very ancient and it has been developed throughout many centuries by great thinkers. It has its challenges and it is certainly challenged by its competitors just as it challenges its competitors. So among the things that those of us who regard ourselves as natural law theorists have to do is to meet those challenges from competing schools of thought.
I thank you for highlighting in such a clear way the sources and importance of natural-law thinking. You mentioned the idea of human rights. The idea of inalienable fundamental rights was born within the states more than two centuries ago as standard of the law or even standard of constitutions. However, they have become international and now they are increasingly aspiring to shape how states can regulate and how societies should organize themselves. We live in a world where the human rights’ idea became a policy tool for social engineering and has been inflated in a certain sense. How can natural-law theorists react to this modern challenge?
Well, let me tell you where I think the challenge is. And it is a perennial challenge. There is a dominant mode of discourse in every age. In the medieval period, sometimes known as “the age of faith,” the dominant mode of discourse was theological. In the Enlightenment period, sometimes known as “the age of reason” or as “the age of science,” the dominant mode of discourse was rationalist, scientific (or some might say scientististic). Today, the dominant mode of discourse is the discourse of human rights. What we know from historical experiences is that people will articulate or defend their views, make their claims about ethics including the question of justice, in the dominant discourse of the day whatever that discourse happens to be. Whatever people want today when it comes to public policy or cultural norms, they will defend the putative right to it in the language of rights—human rights. So it is incumbent upon us to recognize that, and to identify an intellectually sound way to distinguish valid from invalid claims of human rights. So the first question we have to ask ourselves is this: What is it to claim that something is a human right? It means, at a minimum, that all people are entitled to it simply in virtue of their humanity. In other words, a human right is something that we are entitled to not in virtue of any achievement on our part, not in virtue of any quality or trait that varies from person to person, such as race, sex or ethnicity, intelligence or beauty. Rather, for something to be a human right it must be something to which we are entitled simply in virtue of our humanity. This immediately raises another question. What does it mean to be a human being? We know what it means biologically: it means to be a member of a certain species, Homo sapiens. Do human rights attach to us in virtue of our species membership, or is it something else that makes us human? Aristotle said that our humanity is bound up with our status as rational animals. It is important to understand that this does not mean that only those human beings who have immediately exercisable capacities for self-awareness, deliberation, judgment and choice are to count as true human beings. But it does mean that to be human is to have a human nature. This is something that natural law theorists put a great deal of weight on. What distinguishes us from non-human terrestrial entities, including non-human creatures, is that we are rational animals. Our nature is a rational nature. We are fundamentally organized biologically for self-awareness, deliberation, understanding judgment, choice and related mental activities. We have these capacities in radical (that is, in root) from our very beginning, from the earliest embryonic stage of our existence; and we retain them until our death even if we lose due to dementia or to other cognitive disability the immediately exercisable capacities for characteristically human mental functions. In other words, we have, from the beginning, and retain until death, our human nature. The points I am here making have been developed and defended with great care and depth by natural law theorists from ancient times to the present. Natural-law theorists are fundamentally concerned with human nature and with the goods of human nature and the moral norms that follow as specifications of the rational principle that we should choose and act in ways that are in line with the integral good of human beings.
So is this the reason why the Declaration of Independence of the United States declares that fundamental rights are inalienable?
Yes, that is right. If there are indeed natural rights—human rights—as I believe there are, they are rights that do not come from kings or parliaments. Nor they do come from presidents or courts. We have them in virtue of our humanity. Because they are not gifts of merely human political authorities, no merely human political authority can legitimately violate them or take away. Thomas Jefferson and the Declaration of Independence joined by all the signers, by the American Founders, say that these rights come as “endowments” from “the Creator”—from God, who made human nature just as He made all things. As natural-law theorists often say, if human nature were different, the human good would be different, and human rights (if there were any) would therefore be different. One way of thinking about it is the following. Whether or not there exists a God or a Supreme Being, human beings possess capacities that are traditionally ascribed by religious believers to God or to divinity, namely, freedom of the will and rationality. These are literally God-like powers: freedom and reason. This is the ground of our dignity. And because we have that inherent—and equal—dignity our rights cannot be taken away; nor can they be given away: this is what inalienable (or, to use the spelling in the Declaration of independence, “unalienable”) means.
They are not rights others give us, nor are they rights we give ourselves. We are not the authors of our own rights. A power even higher than ourselves endows us with these rights. So we cannot alienate these rights: the right to life, liberty, and the pursuit of happiness, for example. (But please note that it is important to understand “happiness” in the way it was understood by the Founding Fathers, that is as a morally inflected “happiness.” The pursuit of happiness is the pursuit of goodness, of human well-being and fulfillment, the pursuit of blessedness, flourishing.)
I thank you for shedding lights on the inalienable nature of basic rights. So is it correct to say that natural law should be the standard of human rights and it should govern human rights just as constitutions govern governments?
If we think of human rights as moral rights—rights we have whether or not the law recognizes them—and if we think of them as standards to which the law should aspire, then human rights are natural rights or (to put it another, equally valid, way) rights we have as a matter of natural law. This is what enables us rationally to criticize the positive law of any state or even positive international law. So we can criticize laws as unjust because—and only because—there is a higher law that provides the standard(s) by which we judge human law, the positive law or the law of nations. Natural law is the standard by which we judge those laws as just or unjust; moral or immoral. Martin Luther King, the famous American civil rights activists, famously and unequivocally said that while he believed in obedience to law in most cases, the law could be judged to be unjust by reference to the natural law. And where the human law is judged to be unjust against the standard of natural law, as King rightly judged racist laws of segregation, it loses any power to bind our consciences. So while King said we must obey just laws, we may (in fact, King said we must) disobey unjust laws. Unjust laws do not command us or command our obedience precisely because they fail the test of natural law.
Is this test of natural law applicable to unjust human rights?
Yes, it does apply to claims of human rights. Something is a human right, if it is the case that—as a matter of natural law—people are entitled to it simply in virtue of their humanity. This is what a human right is. However, a false claim of a human right is a claim that fails the test of natural law. It is a claim that is not rooted in the truth about the human being and about human nature and the human good. So if I say I have a human right to kill people because they are short or because their hair is blond then I made a human rights claim but it is a false claim. It fails the test of natural law. The natural law includes no natural right to kill people because they are short or have blond hair. So,
Claims of rights, just like any other sort of moral (or other) claim, can be true or false; right or wrong. We need some standard to judge which are true and which are false. Natural law provides this standard.
We have been experiencing an interesting phenomenon for the last fifty years or so. This is the pressure on the standardization of human rights and even constitutional law around the world. Do you think that natural law can also contribute to not only preserve the true meaning or true claims of human rights but also the unique root, historical path and identity that each society and each nation characteristically have?
I would take us back to the committee that drafted the United Nations Universal Declaration of Human Rights of 1948. That committee attempted, with considerable success, to draw up a list of basic human rights. These are rights that should be recognized and honored by all nation states. However, the committee suggested that the primary responsibility for recognizing and honoring these rights fell not on the international community but rather on each nation. That is because in many cases the effectuation of the right or the recognition of the right would need to be done in a way that is integrated properly into the culture of the nation; a culture that is formed by the history of the nation and by the traditions of the people.
I think the committee that drafted the Universal Declaration of Human Rights had the correct view when it said that, while these standards are standards that we can articulate for all the nations of the world, the primary responsibility for honoring and enforcing these rights lies, and must lie, with the individual nation states.
I thank you for this valuable clarification! A lot of countries around the world, including the United States are now experiencing a conservative era. In your view is there a relationship between natural law and the conservative thinking and if so, what is the nature of this relationship? How can natural law justify and support the solidification of modern conservatism?
This is a very difficult question. Because terms like “conservative” and “liberal” or even terms such as “socialist” and “nationalist” do not have fixed, determinate meanings. They mean different things in different cultures and communities. They mean different things over time. The term “conservative” in the United States today means something very different from what the world “conservative” meant in Europe in the 18th century. It is the same word but it does not refer to the same realities or to the same sets of convictions. So this makes working with these terms very slippery. I think what we are seeing in much of the developed world today is not so much a conservative trend as a populist nationalist trend. I think that is distinguishable from conservatism both in the American sense and in the classic European sense. This populist nationalist movement has carried the day politically in many nations and made large inroads even where it has not won the day yet electorally. I do not want to tie natural law thinking to terms like “conservative” or “liberal” because the meanings of those terms shift. In some respects, if you use the American sense of “conservative” and “liberal” today, the natural-law tradition is conservative while in other respects it is liberal. For someone who is committed to the tradition, it is important not to let any political agenda or ideology hijack or claim to speak for the natural law tradition. Rather, the natural law standard should be the standard against which we judge the goodness or badness, the justice or injustice, the rightness or wrongness of anybody’s policies. The natural-law tradition is not social democratic or Christian democratic…
So is it “colorblind”?
Yes it is colorblind and it is its own thing. But it sets the standard by which we should judge. So for people like me, we do not easily go along with any political agenda. We do not fall into line with any tribe. We are willing to work together with anybody on the points on which we agree. And we will oppose them on the points on which we disagree. What is fundamental to us is the idea that every human being, irrespective of race or sex, age or size, stage of development or condition of dependency, ethnicity or ability, is the bearer of a profound, inherent, and equal dignity. This is what fundamentally matters to the natural-law theorist. So we evaluate laws and policies by asking whether they conform or fail to conform to what we believe the dignity of the human person requires. If they do not honor the dignity of the human person, we oppose them; but if they do honor or advance the dignity of the human person, then we will support them. Still, we do not go along with the entire political agenda of any political party or leader. We do not have our own party; there is no Natural Law party. Instead we have a philosophy — not a political program or ideology. We have a moral code founded on the principle of inherent and equal human dignity. We evaluate the work of parties and politicians and leaders against this moral code.
So natural law theory is not coupled with any specific political agenda. But how do you see the role of natural law in the interpretation of the constitution and the law. In other words, how do you see the role of the Supreme Court along with constitutional courts around the world in adopting a natural-law approach in constitutional interpretation?
I think here it is very important for everyone in the political system to understand that the American Founders themselves were believers in natural law and natural rights. They wrote a Constitution that was designed to give effect to the principles of natural law and to protect rights people have simply in virtue of human nature. So when interpreting the Constitution, it is important to keep in mind that it is a natural-law document and a natural-law approach to politics and to government. That does not mean that judges are given authority to substitute their views of natural law for those of the framers and ratifiers of the Constitution. It is important for the sake of the rule of law – which is itself an important natural law principle – for judges to stay within the limits of powers conferred upon them by the Constitution. And constitutions, such as the Constitution of the United States, typically do not authorize them to substitute their particular judgments of natural law for those of the Constitution’s ratifiers. So it is important for judges, even if they disagree on the natural law philosophy of the American Founders to give effect to the understanding of the Founders. What was ratified and made positive law were their understandings. I think the mistake that is made sometimes by people who regard themselves as natural-law thinkers, is to suppose that the natural law itself dictates the interpretation of the Constitution and empowers judges to read the Constitution in a way that allow the judge to impose his own personal views about natural law. People can—and do—differ about what natural law requires and ordinarily, in a democracy, we have a debate and we have a vote and we decide which view of natural law prevails. But when the Constitution establishes a particular understanding of the natural law as the one that is positive law, judges and all other actors in a political system must respect and honor it—unless or until the Constitution is amended to change it.
This is a very similar approach to originalism or the originalist interpretation of the Constitution.
Yes, I think it is very close to that. The view of constitutional interpretation that I favor and the one that I think is most consistent with what the Constitution itself intends, is the one that looks to the meaning of the Constitution, where it is disputed, in the text, logic, structure and historical understanding of the Constitution. These are the sources of meaning of the Constitution.
If the text is made clear by putting it in historical context, then it enables us to recover the meaning of the text. If the text itself is not clear but we can see the implications of the logic of the text with some effort, then we have found our way to a constitutionally sound conclusion. And sometimes the best way to discern the meaning of the Constitution is to look at the structure of the Constitution and the structure of the institutions of government that was put in place by the Constitution. In the United States we have a Constitution whose structure includes the separation of powers. Very often, it is important to understand the separation of powers to resolve constitutional disputes. Similarly in the United States we have a Constitution whose structure includes “Federalism”. We have a national government that is a government of delegated and enumerated and therefore limited powers, and state governments that are governments of general jurisdiction exercising plenary powers, what we call police powers, the powers to protect public health, safety and morals and advance the common good. Sometimes the meaning of the Constitution becomes clear and constitutional disputes can be resolved by appealing to or adverting to those structural dimensions of the Constitution.
And how do you see the prospects that such an interpretation can prevail in the current composition of the court?
I think the general view that I just outlined is clearly the view of Justice Thomas, of Justice Alito and of Justice Gorsuch. I believe it is very close to the view of Chief Justice Roberts. And although we are still in the early stages of Justice Kavanaugh’s tenure in office, I would say so far it appears he too has a view very close to the one I articulated and embrace. As far as the four other Justices are concerned, they are further away from my view. They have a view that gives more authority and more discretion to judges than I think is warranted under the Constitution itself.
Professor, I thank you so much for this extremely rich and instructive conversation!