Academic journal article
By Hasson, Kevin J.
Harvard Journal of Law & Public Policy , Vol. 27, No. 1
"We agree on these rights," Jacques Maritain once stated, "provid[ed] we are not asked why." (1) He was referring to his work on the 1946 UNESCO Committee on the Theoretical Bases of Human Rights, but he might just as well have been referring to the American intellectual community today: We all agree that there is such a thing as human dignity (who would oppose it?), just so long as we do not have to say why. The "why" of human rights, however, is vitally important. For example, if human rights are widely said to follow from human dignity, then the contours of those rights must depend on the contours of that dignity. Change the basis or the scope of human dignity and the rights, so to speak, go all wrong. This article compares two human rights declarations, one that was unable to state an explicit basis for either rights or dignity, the United Nations' Universal Declaration of Human Rights ("Universal Declaration"), (2) and one that was prepared to argue for both, Vatican II's Declaration on Religious Freedom. (3)
I. UNIVERSAL DECLARATION
In 1946, leading thinkers from around the world gathered under the auspices of the United Nations to determine whether a consensus on, (4) human rights could be achieved. They reached a limited one, agreeing that such rights existed but not on how, in theory, to ground them. (5) As a result, when the Universal Declaration of Human Rights was promulgated two years later, its Preamble reflected this inability to achieve a consensus, by declaring that a "common understanding of these rights and freedoms, is of the greatest importance for the full realization of [the] pledge" (6) to respect human rights, then failing to explicitly define this "common understanding." (7)
Despite the inability of the Committee to establish a basis for human rights, the rise of totalitarianism made the United Nations' human rights project something of an emergency. After totalitarianism, it became necessary to defend, not merely some rights, some truths, or some moral principles, but the very existence of human rights, of truth, and of morality. Maritain and other thinkers knew it was critical to insist, at the moment of the founding of the United Nations, that there are rights--whatever their source--that must be recognized and respected in order to formulate "common principles of action." (8)
The drafters of the Universal Declaration were thus less concerned with attempting to create a theory underlying human rights than they were with the urgent task of agreeing together to protect those rights in practice, (9) leaving for another day a task they still thought vital, that of forging "a common understanding of these rights." (10)
While the Universal Declaration does not lay out a systematic grounding for human rights, it does hint at one. The Preamble implies that the fundamental error behind totalitarianism lies not in political theory, but rather in the human person. Because of a "disregard and contempt for human rights" at the heart of those "barbarous acts which have outraged the conscience of mankind," it was necessary to recognize "the inherent dignity and ... the equal and inalienable rights of all members of the human family [as] the foundation of freedom, justice and peace in the world." (11) This notion grounds the basis for justice in the idea of rights, which is somehow connected with "the inherent dignity" of the person. Consequently, it is not the nature of the state we are considering, but the nature of the human person.
The Preamble repeats this point, observing that in the United Nations Charter the member states "reaffirmed their faith in fundamental human rights, [and] in the dignity and worth of the human person," (12) intertwining again the ideas of human rights and human dignity.
This connection between rights and dignity is no coincidence. As Professor Mary Ann Glendon observes, Maritain himself had insisted that if the future Declaration "were not to be a mere hodgepodge of ideas, it would need a tuning fork or 'key' according to which the rights could be harmonized. …