Avoiding Secularist Minimalism: Jacques Maritain, Part 2

IT IS A MISTAKE in Steven A. Long's view for one committed to the natural law to advocate in the manner of Jacques Maritain a merely practical agreement based upon human rights in the political realm. It may, Long concedes, be a "quasi-starting point provided by providence," but it can hardly be an adequate foundation for civil society, political discussion, and law as a whole. Contrary to modern human rights theory which is unintelligible to itself, the natural law in its totality can provide the foundation requisite to provide an intelligible and reasonable moral and political discourse. The notion of natural law is accessible to Christians of confessions other than Catholic, non-Christians, even, in a significant though incomplete way, to non-theists. But it remains to be said that the natural law of necessity must have a metaphysical basis, a theoretical or speculative basis, and one which, at end, includes the notion of the God of philosophy, "God as First Cause, Final End and extrinsic Common Good of the universe of finite beings." Long, 260 n. 4. Since the natural law is, by definition participation in the eternal law, to remove the reference of the eternal law spells the eventual death knell to the natural law. One cannot lop the head off the theory and expect the body to survive.

The real starting point for any discussion must be God as he is known in nature. God, as First Cause, Final End, and Provident Creator of our human nature. These are truths that are known by reason, they are naturally-known verities, graspable by reason unaided by faith.*

[I]t is the natural philosophy and metaphysics of theism--or at least the judgments upon which these are based--that play the role that Maritain erroneously gave to purely practical cooperation over lists of unordered rights. Such natural philosophy and metaphysics, condition the exercise of practical reason and essential to St. Thomas's doctrine of natural law, provide a basis for common understanding and cooperation. By contrast atheism and agnosticism, which are simple and demonstrable errors, by their nature provide nothing to the common good.

Long, 151. Common life, then, is predicated upon the praeambula fidei, the preambles of faith. In law, those preambles are the natural law. Without it, common life is a mockery. The secularist, who wishes to ostracize God from the chambers of the legislature, the courts of justice, and the public schools, has an odium theologicum or perhaps an odium antitheologicum against the believer. This explains the fervor with which public displays of faith, even the most innocent, are rabidly excised with the force and power of law.

[T]he secularist wishes that religious believers did not exist, and wishes to order public life as though they did not--sometimes by achieving such nonexistence as an effect of policy. The secularist will not be polluted by any mere practical tolerance or effort to reach de facto peaceful accord with his religious neighbors.

Long, 153. The secularist, we should not forget, is a mini-Nero, ready at once, should he have the power, to consign us to the lions or to the flames. He is always pollice verso, with a thumb turned down. At the extreme, we see the believer in a state of servitude or the victim of injustice or even genocide. Normally, however, we see a softer but equally virulent strain, one which has the goal of excluding, by rule, custom, or ridicule, any expression of Christian value. If it were up to the secularist, Christ would no longer be welcome in the Halls of Congress, and he is very close to having accomplished his goal.

Long concludes his analysis of the Maritanian program with the following:

• Purely practical agreement based upon some list of human rights is an unworkable proposition since rights alone, which are derivative concepts, do not provide for any ordering or definitional schema. These schema must come from whence human rights derive, which is the natural law. It is the natural law, therefore, and not human rights detached from the natural law that is the common language of believers and unbelievers alike in civil society, politics, and law. It allows a point of "analogical reference and convergence" between them.
  
• This requires an acceptance of the "speculative foundation, principles, and content of the natural law," which, naturally, spill over into moral and political life and ultimately into law. These are accessible and intelligible to unassisted natural reason. There must be a civil recovery of the natural law, in particular the recovery of those speculative truths upon which it is founded, namely "the praeambula fidei regarding the existence and nature of God as First Cause and Provident Creator," and also "moral teachings rooted in natural teleology." These are philosophical truths, not truths of the Faith or of any confession.
• To accommodate for man as he is in the concrete, there must be some advertence to, if not outright acceptance of, the revealed realities of original and actual sin and man's calling to a life of grace and the beatific vision of God.
  

This sort of program avoids the secularist minimalism which is an unfortunate by-product of the Maritainian modus vivendi. Natural law, and the natura pura upon which it is based, is not a recipe for secularism, but an antidote to it.

For from secularism, the ontological density of nature and its proximate teleology is essential to the overcoming of secularism; essential to the very capacity of the Christian to engage with, and in, the world, and to articulate the intelligibility of revelation to a world in which revelation is often taken to be the fruit of irrational arbitrium decisively alienating man from his own nature.

Long, 155.

How is this to be done? How do we bell the cat? It requires a philosophical conversion, an "epistemological re-turn," one that will require "setting aside the antirealist premises of modernity and postmodernity."

The foundations of Christendom have been destroyed. Now the preambles to that foundation are in shambles. More than the Church has been razed. The very earthen foundations have been disemboweled. What is left is something akin to a bomb crater. The preambles must be filled in with a realist philosophy, a metaphysics that is open to realities beyond the material, namely one that is open to God as First Cause, as Last End, and as Provident Creator of the universe in which we have our home, a universe which includes us, beings with a particular, specific nature, whose end is this First Cause, Last End, and Provident Creator, et hoc dicimus Deum.
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*Indeed such a view is de fide: "Our holy mother, the Church, holds and teaches that God, the first principle and last end of all things, can be known with certainty from the created world by the natural light of human reason." Vatican Council I, Dei Filius No. 2: DS 3004; cf. 3026; Vatican Council II, Dei Verbum No. 6. See also Catechism of the Catholic Church, No. 36.

Avoiding Secularist Minimalism: Jacques Maritain, Part 1

GOD IS THE AUTHOR AND THE PRESERVER of nature. "He rules the world with truth and grace," we sing at Christmas, a world of his creation, under the umbrella of law of his divine providence. God is not God of the world of grace only. God is God of the world of nature also. "Let heaven and nature sing."

For those who are advocates of the classical natural law doctrine, including but not limited to Catholic Christians, nature is thus "a mode of the divine governance." Long, 143. Indeed, the laws of nature and the natural moral law are, in a very essential and real manner, a participation in the eternal law itself. Yet how do we deal with agnostics and atheists who by definition do not accept such a theonomic view of nature? How, moreover, moving beyond philosophy, does one deal with the non-Christian or the agnostic or atheist in the realm of the political, the social life of man in the polis? What role does the natural law play? Does the entirety of the natural law govern public discourse or just a part of it? And if just a part of it, what part?

These questions indeed poses a serious challenge to the advocate of a classical notion of natural law, one that includes the theonomic element that God rules through nature, a rule which is exhibited and intelligible irrespective of confessional doctrines or personal predilections. It is especially problematic for one who believes, like Maritain himself, that that "in practical moral matters, natural truth needs to be subalternated to revelation," and must consider man as he is concretely. Specifically, the natural law must accommodate at least two facts that are known through revelation alone: (i) man's original sin and its effects, and (ii) the obediential potentiality of nature to the whole order of grace, which means an openness to the end of supernatural beatitude. Long, 144. How does someone in in this philosophical, political, and jurisprudential stream converse with, find common cause and socially cooperate with someone who is without such stream? Some from the natural law stream, including Jacques Maritain, have advocated some sort "minimal practical consensus,"* one based largely on the language of the world, namely that of "human rights."** The problem, however, seems to be that in trying to accommodate to the language of "rights," we are leaving out part of the natural law. And by leaving out part of the natural law from public discourse we are setting ourselves up for practical failure.***

Jacques Maritain

Using "human rights" as a region of minimal practical consensus is not the panacea that Maritain optimistically and perhaps even naively considered it to be. One immediately foreseeable problem, of course, is defining what this "minimal practical consensus" is. If it is defined by the Thomist, it may be one thing. If it defined by the secularist, it may be another. If it is defined by and Islamist, it is another thing entirely. In some ways, Maritain's optimism was a matter of historical accident. The consensus which existed in the 1950s and 1960s with respect to "human rights," was largely an accidental holdover of Christendom mixed it with Western liberalism at the height of its global influence. This consensus which gave Maritain such false hope has virtually evaporated as "human rights" have become progressively further removed from any natural law base. How do we achieve consensus when "human rights" are defined to incorporate a right to artificial contraception, to homosexual marriage, to abortion and to other moral enormities? "Human rights" have not provided a stable base from which to begin public discourse.

There are other problems or dangers associated with relying upon a "minimal practical consensus" as a means to encapsulate the prudential and consensus required to have a working social and political life. It tends to privatize the role of revelation and Christian faith, or even theism and natural religion generally, ostracizing them from the public square because it is not part of the "minimal practical consensus."*** The effect on the Christian, moreover, is problematic because it suggests the the believer that his Faith is something that ought to be closeted, privatized. Yet isn't the Christian under compulsory duty to resist such bracketing of beliefs? Predicate super tecta! The Christian is under a duty to proclaim the truths of the Gospel from the housetops right into the public square. (Matt. 10:27). This is not the language of "minimal practical consensus."

In his book Natura Pura, Steven A. Long points to other fundamental problems associated with relying on "rights" as a minimum practical consensus. First, it by definition excludes the theoretical or speculative (metaphysical) from the area of consensus. This by definition excludes the natural law from the consensus because the core of natural law rests upon certain theoretical or speculative metaphysical truths. Second, relying on "rights" is not conducive to any real political discourse, but to incessant political brawling without referee. Rights alone cannot answer the problem, since solutions require not only the acceptance of rights, but also acceptance of an order of ends to properly hierarchize and define those rights. When rights compete, who is to determine which right takes precedence, and on what basis? Most rights are not absolute, and who is to determine what the reasonable scope of a right is, and on what basis?† Indeed:

[T]o be indirectly opposed to the natural ordering that must contextualize the understanding of rights is to be actively disposed to deny human dignity and to act against genuine or authentic human rights (i.e., against just claims that are true in light of the essential hierarchy of human ends, and in relation to the circumstances pertinent to the species or type of the claim.)

Long, 147.

The natural law, specifically the virtue of natural justice, imposes a duty to acknowledge God naturally known--as First Cause, Final End, and Provident--and to give Him thanks both in private and public life. Corollary to this is conception of man as ordered to God, a theoretical or speculative metaphysical truth which imposes itself upon the public square with full rigor. Reason demonstrates that no created or finite good can compel man's will, a "natural datum on which the obediential capacity of the will to be further ordered to God is predicated." Long, 146. Failure to abide by this natural duty, both public and private, is an injustice of the first order. Yet where in the "human rights" consensus do we find anything remotely like this recognized? Indeed, by very definition "human rights" excludes this fundamental obligation of justice. Long asks the rhetorical question:

Does not the state need at least to acknowledge the truth regarding the moral order, as a condition for prudential judgment even of the facts with respect to legislation to be considered, or with respect to cases that come before the bench?

Long, 146. What the natural law obliges, modern "human rights" ignores. That is why, "without invoking the claims of invincible ignorance, principled opposition to theism is always or for the most part going to imply opposition to the natural law." Long, 147.

But the problem goes even further. There are two revealed truths that cannot be ignored by natural law theorists since these revealed truths are fundamental to a sound understanding of the natural law. The first is the Fall of man. The second is the Redemption of man. Without these, we fail to have a sufficient account of the moral situation of man. The "natural law as such . . . requires for its fullest concrete application some reference to the revealed truth," at least this far. Long, 147.

[T]he entire natural order is further ordered by and in grace, and so the effects of the Fall and of grace are pertinent to practical judgment. It is also true that whatever is directly contrary to man's ultimate end is indirectly contrary to the ordering of natural ends that is presupposed to grace. (It is, after all, a precept of the natural law to do whatever He tells you, to use the words of the Blessed Virgin Mary at the Wedding Feast of Cana.)

Long, 147.

(continued)
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*This sort of accommodation is also advocated by those who are entirely disdainful of a natural law philosophy, e.g., the liberal philosopher John Rawls and his notion of "public reason" which seeks to keep out of the public square "comprehensive doctrines" and thereby reach a practical consensus and form of political life in a liberal state and a pluralistic society. Rawls's particular formulation is rather disingenuous, as it is designed to ostracize natural law philosophy and promote the a "comprehensive doctrine" of secular liberalism. Rawls's particular theory has been addressed and criticized by Lex Christianorum (relying on the work of Robert P. George) in three postings: How Liberalism Cuts Out the Natural Law: John Rawls's Sleight of Hand, Part 1, How Liberalism Cuts Out the Natural Law: John Rawls's Sleight of Hand, Part 2, and How Liberalism Cuts Out the Natural Law: John Rawls's Sleight of Hand, Part 3.
**We have treated Maritain's notion of natural law and natural rights extensively in this blog. The entirety of postings may be reviewed by accessing those posts with the label Jacques Maritain and Natural Law and Jacques Maritain and Human Rights.
***Not to mention that we are probably being faithless to the divine injunction: Euntes ergo docete omnes gentes! Go therefore teach ye all nations! (Matt. 28:19)
****This, of course, is not at all what Maritain would have intended. "Maritain would have abhorred . . . the principled closure of the public realm to any Christian or even theistic reference whatsoever." Long, 144.
†Long observes that the reason why rights need something beyond them to determine what he calls the "trumping order" between rights and to determine their prudential application under various circumstances is because "rights" are not primary concepts, but are derived concepts. From whence are they derived? From the natural law, of course. And so it is back to that natural law that one must turn to hierarchize the rights, to understand their scope and purpose, and to determine their prudential application under the ever-changing circumstances man finds himself.

Jacques Maritain and Natural Law: Résumé of Rights

AT THE END OF HIS REFLECTIONS on the theory of natural law and its application to the moral, political, and economic problems that confront modern man, Maritain provides us with a résumé of those rights, natural, based upon the ius gentium, or advised by positive law or the circumstances of the time. It is important to note that not all of these are natural rights. It is also important to understand this within the entire context of Maritain's teaching on natural law, natural rights, and justice. In this post, we will list those rights using, as far as possible, the words of Maritain.

Jacques Maritain

Rights of the International Order

• The right of each State, large or small, to freedom and respect for its autonomy.
• The right to the respecting of solemn oaths and the sanctity of treaties.
• The right to peaceful development (a right which, being valid for all, requires for its development the establishment of an international community having juridical power, and the development of federative forms of organization).

Rights of the Human Person as Such

• The right to existence.
• The right to personal liberty or the right to conduct one's own life as master of oneself and of one's acts, responsible for them before God and the law of the community.
• The right to the pursuit of the perfection of rational and moral human life.
• The right to the pursuit of eternal life along the path which conscience has recognized as the path indicated by God.
• The right of the Church and other religious families to the free exercise of their spiritual activity.
• The right of pursuing a religious vocation; the freedom of religious orders and groups.
• The right to marry according to one's choice and to raise a family, which will in its turn be assured of the liberties due it.
• The right of the family society to respect for its constitution, which is based on natural law, and not on the law of the State, and which fundamentally involves the morality of the human being.
• The right to keep one's body whole.
• The right to property.
• The right of every human being to be treated as a person, and not as a thing.
  

Rights of the Civic Person

• The right of every citizen to participate actively in political life, and in particular the right of equal suffrage for all.
• The right of the people to establish the Constitution of the State and to determine for themselves their form of government.
• The right of association, limited only by the juridically recognized necessities of the common good, and in particular the right to form political parties or political schools.
• The right of free investigation and discussion (freedom of expression).
• The right to political equality, and the equal right of every citizen to his security and his liberties within the State.
• The equal right of every one to the guarantees of an independent judiciary power.
• Equal possibility of admission to public employment and free access to the various professions.*

Rights of the Social Person, and More Particularly of the Working Person

• The right freely to choose his work.
• The right freely to form vocational groups or trade-unions.
• The right of the worker to be considered socially as an adult.
• The right of economic groups (trade-unions and working communities) and other social groups to freedom and autonomy.
• The right to a just wage.
• The right to work.
• Wherever and associative system can be substituted for the wage system, the right to joint ownership and joint management of the enterprise and to the "worker's title."
• The right to relief, unemployment insurance, sick benefits, and social security.
• The right to have a part, free of charge, depending on the possibilities of the community, in the elementary goods, both material and spiritual, of civilization.

Maritain, 96-98.

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*The text has a misprint on page 98, stating "venous" instead of "various."

Jacques Maritain and Natural Law: Rights of Labor, Part 2

WORK MUST BE MORAL, and so the moral life governs the life of work. Ultimately, therefore, the "political sphere," whose principal organ is the State, has competence over the common good, and thus "possesses authority over the economic sphere." Maritain, 91.

The political life and organization of the State affect the common life of human persons and their direction towards a common task, which assumes the strength, peace and harmony of the social body, and which must aim at the conquest of freedom and the establishment of a brotherly city as its supreme ideal; they are of an order superior to the life and organization of economic groups.

Maritain, 91. The common good is, of course, much broader than merely the economic well-being of the human person. Man is more than homo economicus. The common good of man must consider moral, intellectual, and spiritual well-being. So neither moneyed interests, nor "trade-unions, economic institutions, vocational bodies," should direct the political life of a nation, although it goes without saying that they ought to "play a consultative role." Maritain, 92.

There is a danger of economic totalitarianism, socialism, and this is a danger, an unwelcome development that Maritain seeks to avoid. Socialism as it has come down to us is a "totalitarian principle," that entails perversion. Maritain seeks to avoid "the methods of dialectic conflict and paralyzing irresponsibility" of the past. Maritain, 92, 93. Instead of these ways of doing things, Maritain advocates a "pluralist principle." Maritain, 92. The fact is that we need each other and we need each other's ideas and views. What ought to inform the public authority should be as broad, as expansive as possible, so that public authority is not aligned with the interests of any one group, whether they be capital or labor, or anythings else:

[W]e may count upon [the pluralist principle] for a reasonable solution of the school problem and the problem of the harmonious dwelling together of various spiritual families, with their specific moral conceptions, in the bosom of the temporal community. In the economic order it lays the foundation not only for the autonomy of groups and associations . . . but also for the diversity of regime of organization which is suitable to the various typical structures of economic life, in particular, to the structure of industrial economy and to those of agricultural economy.

Maritain, 92.

Maritain closes his reflections on the rights of the working person with a reflection on bondage of one man to another, a bondage which may be legal, economic, or moral. Maritain advances the notion of a fundamental, that is natural and absolute, right of liberty:

[O]ne of the fundamental rights . . . [is] the right of every human being to personal liberty, or the right to direct his own life as his own master, responsible before God and the law of the community. Such a right is a natural right, but it concerns so profoundly the radical aspirations of the person and the dynamism which they entail that all of human history would not be too long for it to develop completely.

Maritain, 93.

This natural right, of course, "implies the condemnation of slavery and forced labor." Maritain, 93. Awareness of this natural right, and the condemnation of slavery and forced labor it implied, was, of course, slow in developing:

[T]he greatest thinkers of Antiquity had not dreamed of condemning slavery, and the medieval theologians considered only slavery in its absolute form as opposed to natural law, where the body and the life of the slave and his primary human rights, like the freedom to marry, are at the mercy of the master.

Maritain, 93. The reasons behind mankind's inability to perceive this arose from the material and technical conditions and "obstacles suffered by spiritual energies in collectively life," which "grievously, and in the manner of a punishment, thwart the normal development of the fundamental right in question." Maritain, 93. In short, it was the result of blindness associated with the Fall of man, with his original sin, which impeded him from seeing the truth.

Of course, bondage and slavery can be more than chattel slavery or and indentured servitude. Bondage or servitude is not always as stark as that. The chains may not be of iron, but of another element, even intangible, such as those involved with serfdom or with the proletariat, "and still other forms." The natural right in question opposes any "form of authority of one man over another in which the one who is directed is not directed towards the common good by the official charged with this duty, but is at the service of the particular good of the one who is doing the directing." Maritain, 93-94. This sort of more subtle servitude may be detected by the fact that the relationship results in "alienating [one person's] activity and giving over to another the benefit (the fruit of his activity) which should rightly be his." Maritain, 94. In other words, "becoming to that extent the organ of another person." Maritain, 94.

With regard to natural law, absolute bondage thus appears as opposed to natural law considered in its primary requirements, and the other more or less attenuated forms of servitude as opposed to natural law considered in its more or less secondary requirements or yearnings, and in the dynamism which it enfolds. This dynamism will be fully gratified only when every form of servitude shall have disappeared--under the "new heavens" of the resurrection.

Maritain, 94. This, of course, means mankind will be working on this for a long, long time, "as human history approaches its term," that is, until Christ's second coming and the end of human history as we know it.

Jacques Maritain and Natural Law: Rights of Labor, Part 1

LABOR, WORK, ECONOMICS, the activity of homo economicus, man the worker, are the last areas that Maritain explores in the book we have been reviewing, Natural Law: Reflections on Theory and Practice. It is clear that this area of the human endeavor has been the subject of human thought in a particularly focused way since the Industrial Revolution, by both secularists and the Church. As both the nation and the world have progressed economically, so also must moral reflection advance. The economic life must not leave the moral life behind. They advance together. For this reason, we have seen the social doctrine, particularly in the area of social and economic matters, of the Church bloom from the issuance by Leo XIII of Rerum novarum in 1891 (Rerum novarum means "Of new things"), to the point that a rather bulky Compendium of the Social Doctrine of the Church could be published by the Pontifical Council for Justice and Peace in 2004.

Labor, work is fundamental to the human person. To a certain extent, as a result of social and historical factors, the laborer, the worker has reached a sort of social adulthood. "The principle phenomenon . . . which emerged in the nineteenth century is the consciousness of self (prise de conscience), achieved by the working person and the working community." Maritain, 86. Maritain sees this self-consciousness, this self-awareness as a sort of moral advance, a "historic gain in the consciousness of the dignity of work and of the worker, of the dignity of the human person in the worker as such." Maritain, 87.

While affecting economic life and the temporal order, this advance is primarily of a spiritual and moral order, and that is what gives it its importance. It is the grasp of consciousness of an offended and humiliated human dignity and of the mission of the working world in modern history. It signifies the ascension towards liberty and personality, taken in the inner reality and their social expression, of a community of persons . . . the community of manual work, the community of human persons charged with this labour.

Maritain, 86-87. The proletariat has come of age, has taken its rightful place among the gods, and is aware, as others have become aware, of its newly-found dignity and place in the banquet of the common good. It wants its share of the ambrosia. Like all changes, this development has been unsettling and, like most things in the world of men, it may be found to have both good and bad elements, positive and negative faces. In confronting this Janus-faced development, Maritain chooses to focus on the smiling, positive developments. The fact is: it happened. What may we learn from it? What part of this historical development is good and should be promoted as a lasting gain?

Janus, the Roman God of Doorways

As a result of this advance, various rights may be said to have been more clearly learned or need to be more clearly learned:

• The right to a just wage, "for a man's work is not a piece of merchandise subject to the mere law of supply and demand."
• The right to work, which means "the right of every one to find work which will afford a living for himself and his family."
• The freedom to organize, to form trade-unions, "free to confederate as they see fit."
• The "right to strike," the "natural weapon" of the worker, limited by needs arising out of "national emergency," which Maritain sees as nothing other than a corollary to the freedom of association. Neither the State nor economic powers are allowed to disarm the worker, though in emergencies, when the common good demands it, its exercise may be prohibited.

For Maritain, these rights are related to the awareness of work's own dignity, the dignity of the human person engaged in work, and the awareness that the worker "stands before his employer in a relationship of justice and as an adult person, not as a child or as a servant." Maritain, 89. This relationship, and the awareness of the rights that come with it, however, is founded on a "moral datum." Maritain, 89. If this is forgotten, then trade-unionism could, "in its turn, run the risk of becoming tyranny." The relationship between capital and labor, then, must be built upon justice, and not power. And this is true whether one looks at the power that labor, if gathered together in unions, has over capital, or the power that capital has over labor.

For all Maritain's solicitude for the laborer, he ought not to be misunderstood. He is not a socialist, and indeed warns against a socialist solution, what he calls a "temptation which arises from old socialist concepts," to the problem between capital and labor. He advocates against a "planned economy," against "collectivization," for a decentralizing solution that is "associative," comes from "producers and consumers from the bottom up," and allows for a greater share of labor in management responsibilities and in the success of the venture.

The temptation . . . is that of granting primacy to economic technique, and by the same token of tending to entrust everything to the power of the State, administrator of the welfare of all, and to its scientific and bureaucratic machinery; which obviously, whether we will or no, leads in the direction of a totalitarianism with a technocratic base.

Maritain, 90. Maritain, then, suggests we re-think the matter of association in the area of business. "When I speak of the associative form of industrial ownership, I am thinking of an association of persons . . . entirely different from the associations of capital which the idea of joint ownership might suggest under the present regime."* Maritain, 90-91. Why can't the capital/labor division be less stark, more blended? Aren't innovative associations--something other than the inherited corporations, where the worker has an interest in the venture (what Maritain calls the "worker's title")--something available to us? Must we think in the historical investment and business patterns thrust upon us by another age? One should think not.**

(continued)
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*Cf. Benedict XVI, Caritas in veritate, No. 46:

When we consider the issues involved in the relationship between business and ethics, as well as the evolution currently taking place in methods of production, it would appear that the traditionally valid distinction between profit-based companies and non-profit organizations can no longer do full justice to reality, or offer practical direction for the future. In recent decades a broad intermediate area has emerged between the two types of enterprise. It is made up of traditional companies which nonetheless subscribe to social aid agreements in support of underdeveloped countries, charitable foundations associated with individual companies, groups of companies oriented towards social welfare, and the diversified world of the so-called “civil economy” and the “economy of communion”. This is not merely a matter of a “third sector”, but of a broad new composite reality embracing the private and public spheres, one which does not exclude profit, but instead considers it a means for achieving human and social ends. Whether such companies distribute dividends or not, whether their juridical structure corresponds to one or other of the established forms, becomes secondary in relation to their willingness to view profit as a means of achieving the goal of a more humane market and society. It is to be hoped that these new kinds of enterprise will succeed in finding a suitable juridical and fiscal structure in every country. Without prejudice to the importance and the economic and social benefits of the more traditional forms of business, they steer the system towards a clearer and more complete assumption of duties on the part of economic subjects. And not only that. The very plurality of institutional forms of business gives rise to a market which is not only more civilized but also more competitive.

**There is a negative to the "worker's title" notion. If the worker shares in the benefits of the venture, then he also shares in the risk of the venture, including the risk of loss.

Jacques Maritain and Natural Law: Political Rights

FROM NATURAL RIGHT MARITAIN SEGUES into political rights or what he calls the "rights of the civic person." Maritain, 80. Directly, these rights arise from "positive law and from the fundamental constitution of the political community." Maritain, 80. Like all law and all institutions, however, political rights are indirectly predicated upon natural law, and this in two ways. First, the positive law, including that law relating to political rights, complements or supplements where the natural law leaves things undetermined. But political rights seem particularly close to the natural disposition or "aspiration inscribed in man's nature." Maritain, 80. It is for very good reason that Aristotle called man a "political animal," a zōon politikon (ζῷον πολιτικόν) or homo politicus. Politics, 1253a7–18. And the political rights of man are an expression of this deep-seated inclination towards the political life, towards the common good of the group.

Maritain understands Aristotle's description of man to be more than merely the truism that man naturally lives or flourishes in society. Aristotle also intended the term to include the natural capacity and desire that men have to lead a political life, to participate, in an active way, in the life of the political community. The right to vote--suffrage--is ultimately Aristotelian in inspiration: "It is upon this [Aristotelian] postulate of human nature that political liberties and political rights rest, and particularly the right of suffrage." Maritain, 81.

Of course, historically, men have not enjoyed participatory democracies over other forms of government, and neither did Aristotle suggest that all men--especially women, slaves, and children--participate in the political life, the leadership life of the polis. (Naturally, all these disenfranchised were active and necessary parts of the polis but they acted, not in public, political roles, but in private, domestic roles.) How then can such a aspiration be as universal as Maritain suggests? Maritain suggests that there is a sort of tug-of-war in man wherein the labors associated with the political life to which man aspires are checked by the desire to renounce such a life and let others take custody over the common good of the community. He suggest that for every Demosthenes in us that wants to participate in political life there is a Cincinnatus who wants to turn back to the plow. There is therefore also a tendency to reject the natural desire to participate, something which Maritain says is against the human dignity that political life implies.

Perhaps it is easier for men to renounce active participation in political life; in certain cases it may have happened that they felt happier and freer from care while dwelling in the commonwealth as political slaves; or while passively handing over to their leaders all the care of the management of the community. But in this case they gave up a privilege proper to their nature, one of these privileges which, in a sense, make life more difficult and which bring with them a greater or lesser amount of labour, strain and suffering, but which correspond to human dignity. A state of civilization in which men, as individual persons, by a free choice designate those who shall hold authority, is itself a more perfect state.

Maritain, 81. For this reason, Maritain values highly the right of universal suffrage, and sees it as "a wholly fundamental political and human value and is one of those rights which a community of free men can never give up." Maritain, 82. Allowing for universal suffrage simply makes for a better social framework, politically-speaking.

In addition to the right to vote, persons have the right to form political groups, "according to the affinity of their ideas and aspirations," and thus form"Freedom of investigation is a fundamental natural right, for man's very nature is to seek the truth."
--Jacques Maritain "political parties and political schools." Maritain, 82. Maritain admits the potential for abuse in these associations, and that political parties can even cause democracy to degenerate into mere partisan bickering and quest for power against the interests of the common good. But abusus non tollit usum. The abuse of political parties does not take away from their proper value.

[The vices in political parties] however, are not essential to the very notion of these groups, whose diversity corresponds to the natural diversity of practical conceptions and perspectives existing among the members of the political community.

Maritain, 82. Moreover, as Maritain trenchantly points out, one-party systems do not remedy, but exacerbate the party problem; one party systems "bring[] to a peak the vices and the tyranny with which the adversaries of democracy reproach the party system." Maritain, 82. "The totalitarian Single Party system is the worst form and the catastrophe of the party system." Maritain, 82. Better is it to put up with the problems of political parties and simply guard against the excesses that frequently arise with them.

More fundamental than the right to vote or the right to political association, is the "right of the people to take unto itself the constitution and the form of government of its choice." Maritain, 83. "The constitution established by the people is the right of the people, as the rights and liberty of the citizen are the rights of the civic person." Maritain, 83. "Such a right," Maritain insists, "is subject only to the requirements of justice and natural law." In the past the constitutions of societies and their governments were "a matter of consent and tradition," largely unwritten, and not principally a matter of "juridical institution." However, the juridical institution of a political constitution, "formulated and established, by virtue of the will of the people deciding freely to live under the political forms thus set up," is a tremendous progress in the "grasp of political consciousness and in political organization." Maritain, 83. It is something that, once learned, ought not to be let go.

The political rights of civic persons also encompass what Maritain calls the "three equalities." Maritain, 83. The "three equalities" are:

• Political equality which assures to each citizen his status qua citizen, and his security and liberties within the State.
  
• Equality of all before law, which implies an independent judiciary, access to courts, and the right to the rule of law, including due process.
• Equal admission of all citizens to "public employment according to their capacity," and free and ready access of all the various professions without racial or social discrimination.
  

Maritain also considers it important to stress, that, though citizens, as compared to aliens or the underage that reside within the State, have certain prerogatives over the non-citizens with respect to the political rights relating to the administration of the State, non-citizens retain rights "of the civic person," rights related to the ius gentium or Law of Nations, rights that come with their living and participating in civilized life. Maritain, 84.

Maritain completes his discussion of political rights and the rights of the civic person by visiting the right of association and freedom of expression, two rights that clearly have importance in the matter of exercising political rights, so closely are these two linked to political expression.

The right of association is a natural right. The right of association has political effects, and so it legitimately can be the subject of State regulation, even prohibition if the common good requires it. The State "has the right to prohibit and dissolve--not arbitrarily, but according to the decision of appropriate juridical institutions--an association of evil-doers or an association of enemies of the public good." Maritain, 84. The natural right of association does not protect crime syndicates or terrorist organizations.

"What we know as freedom of speech and expression," Maritain suggests, "would, in my opinion, be better designated by the term freedom of investigation and discussion." Maritain, 84. "Freedom of investigation is a fundamental natural right, for man's very nature is to seek the truth." Once the truth is found, the knowledge of it may clearly be promoted, and so there is a concomitant freedom to spread ideas. "Freedom to spread ideas which one holds to be true corresponds to an aspiration of nature." Yet, "like freedom of association it is subject to the regulations of positive law." Maritain, 85. Freedom of speech--like freedom of association--is not absolute:

For it is not true that every thought as such, and because of the mere fact that it was born in a human intellect, has the right to be spread about in the community. The latter has the right to resist the propagation of lies or calumnies; to resist those activities which have as their aim the corruption of morals; to resist those which which as their aim the destruction of the State and of the foundations of common life.

Maritain, 85. Maritain is disdainful of censorship and police methods, since these are the "worst way--at least in peace-time--to insure this repression" of illegitimate speech. Better to use a sort of common moral suasion, "that spontaneous pressure of the common conscience and of public opinion, which spring from the national ethos when it is firmly established." Maritain, 85.

It is manifest that the freedom of association and freedom of speech are both essential to the political life fundamental to the State and yet present it with the potential for its destruction if captured by those intent on dissolving the State or injuring the common good. Even in a democracy, the State is justified in protecting itself from those who would harm it, even if it means a limitation on association and speech:

I am convinced that a democratic society is not necessarily an unarmed society, which the enemies of liberty may calmly lead to the slaughterhouse in the name of liberty. Precisely because it is a commonwealth of free men, it must defend itself with particular energy against those who, out of principle, refuse to accept, and who even work to destroy, the foundations of common life in such a regime, the foundations of which are liberty and co-operation and mutual civic respect.

Maritain, 85. What then distinguishes a free society from one that is unfree in the matter of controlling associations and speech when the latter are commandeered toward the destruction of common liberties? "What here distinguishes a society of free men from a despotic society is that this restriction of the destructive liberties takes place, in a society of free men, only with institutional guarantees of justice and law." Maritain, 85.

Jacques Maritain and Natural Law: Charter of Natural Rights

JACQUES MARITAIN PROVIDES us a summary, a charter, as it were, of fundamental natural rights in Section I of Chapter 4 of the book Natural Law: Reflections on Theory and Practice.

Enumerated, they are as follows:

1. The right to existence and life.
2. The right to personal freedom or to conduct one's own life as master of oneself and of one's acts, responsible for them before God and the law of the community.***
   
3. The right to the pursuit of the perfection of moral and rational human life.
4. The right to keep one's body whole (i.e., bodily integrity).
5. The right to private ownership of material goods, which is a safeguard of the liberties of the individual.
6. The right to marry according to one's choice and to raise a family which will be assured of the liberties due it.****
7. The right of association.
8. The respect for human dignity in each individual, whether or not he represents an economic value for society.*
   

"All these rights," Maritain insists, "are rooted in the vocation of the person," that is, the vocation proper to "a spiritual and free agent," a vocation which is ordered and rooted in "absolute values and to a destiny superior to time." Maritain, 78.

This enumeration of rights bear some similarity to the French Declaration of the Rights of Man and the rights contained in the American Declaration of Independence. Yet one must be aware of differences in rendition. The French Declaration of the Rights of Man** was rationalistic in origin. The American Declaration of Independence is somewhat more classical and Christian in character, though it to is marked or marred by the "influence of Locke and 'natural religion.'" Maritain, 78. The rationalism of the French version made the natural law "no longer an offspring of creative wisdom, but a revelation of reason unto itself," and thus changed natural law into "a code of absolute and universal justice inscribed in nature and deciphered by reason as an ensemble of geometric theorems or speculative data." Maritain, 78. Law and justice therefore became more like mathematics, geometry, and physics, and less like philosophy, music, or art. In Maritain's view, the blame is not to be placed entirely on the philosophes, but also on the leadership--civil and ecclesiastic--that supported the Ancien Régime, or, more precisely, refused to correct the corruption of Christian principles that had become ossified. The Christian bones of the French ruling bodies had become brittle, their hearts sclerotic, and their ears deaf to the plight of their neighbor. Maritain really believes the controversial proposition that the "consciousness of the rights of the person [in revolutionary France] really has its origin in the conception of man and of natural law established by centuries of Christian philosophy." Maritain, 79. I feel rather guarded about the accuracy of that statement.


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*Maritain does not put this in "right" form.
**For an English translation of the Declaration of the Rights of Man and the Citizen of 1789, click here. For the text in French, click here.
***Maritain elaborates with respect to religious freedom:

The first of these rights is that of the human person to make its way towards its eternal destiny along the path which its conscience has recognized as the path indicated by God. With respect to God and truth, one has not the right to choose according to his own whim any path whasoever, he must choose the true path, in so far as it is in his power to know it. But with respect to the State, to the temporal community and to the temporal power, he is free to choose his religious path at his own risk, his freedom of conscience is a natural inviolable right.

Maritain, 79.
****Maritain elaborates on the rights of the family:

Here [in the family] the person is no longer considered merely an individual person. It is by virtue of the fact that it is part of a group that special rights are accorded at the same time to it and to the group in question. The rights of the family, the rights of the human person as father or mother of the family, belong to natural law in the strictest sense of the word.
The same must be said of the rights and liberties of spiritual and religious families, which are at the same time the rights and liberties of the person in teh spiritual and religious order. These rights and liberties belong to natural law--not to mention the superior right which the Church invokes by reason of her divine foundation.

Maritain, 80.

Jacques Maritain and Natural Law: On the Limits of the State

CAESAR IS NOT DIVINE, nor is his modern analogue, the Leviathan State, Hobbes's "mortal God." That is why the State is the servant, and not the master, of the natural law, which is just one part of the "universe of truths--of science, of wisdom and of poetry--towards which intelligence tends by itself." Maritain, 75. "The power of the State of of social interest cannot impose itself upon this universe." Maritain, 75. Its power is meant only to "oppose, within the social body, the propagation of errors which might threaten the fundamental ethics of common life and the principles on which it is founded." Maritain, 75. The State has absolutely no competence in the matter of truth, speculative or moral. The diktats of its soulless, heartless, unintelligent, bureaucratic apparatchiki do not extend to the splendor of truth or to matters of the heart.

The secret of the heart and the free act as such, the universe of moral laws, the right of conscience to hearken unto God, and to make its way to Him--all these things, in the natural as in the supernatural order, cannot be tampered with by the State nor fall into its clutches.

Maritain, 76.

Get your hands out of the truth, State! Get your hands out of my heart!

Maritain, like any advocate of the natural law, is not by any means an anarchist. "Doubtless," he states, "law binds in conscience." Maritain, 75. But--and this is a big "but" which the Leviathan state with delusions of grandeur and pretensions toward divinity loathes to hear--but "this is because it is law only if just and promulgated by legitimate authority, not because the majority or the State can become the standard of conscience." Maritain, 76.

State! Government! Legislators! You are morality's servant!

At the service of morality, the State thus "has a moral and not merely material function." A hands-off, liberal State that recognizes no moral master is as loathsome as a State that pretends to be morality's master. The law itself has a pedagogical, "educational function and tends to develop moral virtues." The State may punish if, I follow a blind conscience "and commit an act in itself criminal or unlawful." Maritain, 76. The State, however, has no authority "to make me reform the judgment of my conscience." That is outside of its competence. It cannot plead ignorance.

The State knows this well. And that is why, whenever it goes beyond its natural limits, in the name of some totalitarian pretension, and inters into the sanctuary of conscience, it strives to violate this sanctuary by monstrous means of psychological poisoning, organized lies and terror.

Maritain, 76.

Moreover, the State cannot thrust itself into matters of "personal destiny." Every person has the right to make his own decision regarding these things. Accordingly, the State has no competence, no right to interfere in the "question of choosing one's work, of marrying the man or woman of one's choice or of pursuing a religious vocation."*

The State has the right to defend itself, and therefore, in cases of "extreme peril and for the safety of the community," the state can requisition its citizens' services and demand even that the citizens risk their lives in a just war. It can also "deprive criminals of certain of their rights (or rather sanction the fact that they themselves forfeited them)." But these self-protective rights are easily transgressed, and the State "becomes iniquitous and tyrannical if it claims to base the functioning of civil life on forced labour, or if it tries to violate the rights of the family order to become master of men's souls." Maritain, 77.

The institution of the family is under God, but the institution of the family is above the State.

For just as man is constituted a person, made for God and for a life superior to time, before being constituted a part of the political community, so too man is constituted a part of family society before being constituted a part of political society. The end for which the family exists is to produce and bring up human persons and prepare them to fulfill their total destiny.

Maritain, 77. This does not mean that the State has no role in family life, but its role is decidedly subservient, corroborative.

And if the State too has an educative function, if education is not outside its sphere, this function is to help the family fulfill its mission, and to complement this mission, not to efface in the child his vocation as a human person and replace it by that of a living tool and material for the State.

Maritain, 77.

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*It goes without saying that the State can interfere and prohibit same-sex marriages, since these moral enormities run afoul of natural moral law and, regardless of what the positive law or anyone's misguided conscience says, are nothing less than criminal associations from a moral point of view. Nothing the positive law can do can wash these unions of their foulness. A sodomite is a sodomite is a sodomite. The law cannot "out out" the "damn spot" by denominating these relationships as civil unions or marriage or anything else. It cannot prevent them from crying to heaven with a vengeance (cf. Gen. 18:20; 19:13), however concerted the effort may be to muffle their cries and cover their shame with the heavy robes of positive law. Putting a velvet dress on a corpse doesn't keep it from rotting and smelling rotten.

Jacques Maritain and Natural Law: Orchestrating Natural Human Rights

THERE IS A WATERSHED DISTINCTION between natural law and its ontological immutability, on the one hand, and human knowledge of it, on the other. With respect to the latter, though not the former, there may be "progress and relativity." Lack of knowledge of the natural law, however, can be overcome. But there can be another problem associated with man's knowledge of the immutable natural law in addition to lack of knowledge. Even if one learns of a right afforded by natural law, there is "especially a tendency to inflate and make absolute, limitless, unrestricted in every respect, the rights of which we are aware, thus blinding ourselves to any other right which would counterbalance them." Man is somewhat like a myopic patient at an optometrist who demands corrective lenses so as to see better far away, but in his insistence and zeal to improve his vision he over-corrects, and so walks out hyperopic, unable to see things close by. Man sometimes sees the forest, and not the trees. Sometimes he sees the trees and not the forest. He has trouble seeing both the forest and the trees, but the truth embraces both parts and the whole. Modern man, at least he of "liberal-individualistic" bent, sees only the trees of individualism, and fails to see the forest of life in common. Those with "communistic" or "socialistic" tendencies, see only forest, and fail to see the individual trees. Someone with a "personalist" view, such as Pope John Paul II or Jacques Maritain, will endeavor to embrace both marvelous truths: that the forest is made of individual trees, and the individual trees make up a forest, and it is important to preserve and protect both.

Thus, in practice, we find man struggling, especially during revolutionary periods, between "old" rights and "new" rights, which usually are fights between those who see forest and those who see trees. So, for example, during the American labor struggles in the 20th century, the "old" rights of private property, the "sacred" right of contract were over-exaggerated, and "new" rights of association and a living, just wage under-exaggerated. It is quite arguable, that during the height of labor's power, the opposite was the case: labor's "old" rights evolved into compulsory union membership, and these have impinged upon the freedom of association and the right to work without being forced to join a union. In Soviet Russia, the "old" rights of the laborer suppressed and eclipsed the right to private ownership of property, which upon the fall of communism became the "new" right. Similarly, "new" rights of affirmative action overcame the discriminative "old" rights of racist or sexist foundation which prevented the authentic social and economic development of black Americans or women. And yet now, ironically and equally viciously, the "old" rights of affirmative action or abortion may have resulted in reverse discrimination against white males and the unborn equally as vicious as (and in the case of abortion, more vicious than) the old. Man, it seems, is perennially off-balance.

In this see-saw of rights struggle, Maritain saw in his day the "most urgent problems" arising in the areas of "the rights of the primordial society which is family society," and the "rights of the human being as he is engaged in the function of labor."*

The problem, of course, is that none of these natural human rights--even those that are "absolute"--are unconditional, or limitless, or infinite. It is a horrible, if fundamental mistake, to attribute to any one particular human right unconditionality, absoluteness, and limitlessness that should only be given to a divine attribute. It is wrong to divinize any one human right, and certainly a travesty to divinize a seeming, but not real, human "right."** Such divinization is nothing less than a form of idolatry. Moreover, natural human rights must not be analyzed singly only, but aggregately also, since one human right might find its limit when it touches upon and infringes another human right. Individual human rights have therefore no more claim to right than social or economic human rights. The rights of the individual have no more claim to right than the right of the common good. All have equal claim of right, and their claims must be balanced in a sort of orchestration or harmonious ensemble of rights.

That the various rights ascribed to the human being limit each other, particularly that the economic and social rights, the rights of man as a person involved in the life of the community, cannot be given room in human history without restricting, to some extent, the freedoms and rights of man as an individual person, is only normal.

Maritain, 73. In the balancing of these ensemble of human rights there is much room for diversity and varied judgment, and the goal is not some particular mathematical model, but more a sort of harmonious blend or synthesis. This is the charge of the political leadership, the statesman:

What creates irreducible differences and antagonisms among men is the determination of the degree of such restriction [on various individual, economic, or social human rights], and more generally the determination of the scale of values that governs the exercise and concrete organization of these various rights. Here we are confronted with the clash between incompatible political philosophies. Because here we are no longer dealing with the simple recognition of the diverse categories of human rights, but with the principle of dynamic unification in accordance with which they are carried into effect; we are dealing with the tonality, the specific key, by virtue of which different music is placed on this same keyboard, either in harmony or in discord with human dignity.

Maritain, 73. The prudential judgments in arranging these rights will be affected by one's values. One therefore would expect that a man or a society with a "liberal-individualistic" bent would arrange or orchestrate these rights in a markedly different way than one who envisions a "communistic," for example, or a "personalistic," as another example, type of society. So even if one subscribes to the notion of natural human rights (and there is some question on whether a materialist liberal or a materialist communist can), one's socio-politico-philosophical pre-dispositions or predelictions (what Maritain calls one's "hierarchy of values") could result in an ensemble of these rights that is off tune, and in some cases even anti-human.

Maritain rejects the "liberal-individualistic" and "communist" model both. He plants himself squarely in the "personalist" camp. Lex Christianorum joins him there.

[T]he advocates of a personalistic type of society see the mark of human dignity first and foremost in the power to make these same goods of nature serve the common conquest of intrinsically human, moral, and spiritual goods and of man's freedom of [legitimate] autonomy.

Maritain, 74.
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*One should recall that these statements come from Maritain's Man and the State published in the early 1950s. He clearly did not foresee (who could?) the assault in developed Western societies on conjugal rights and on the right of life itself as societies acquiesced to the hyper-developed and over-exaggerated rights of the "sexual revolution" in the 1960s and 1970s and its claim to the right to artificially contraceptive sex which morphed into the clamor for the right to naturally contraceptive sex of the homosexual at the end of the 20th and the beginning of the 21st centuries.
**Examples of the latter would be a "right" to freedom of expression as to pornography, a "right" to contraceptive or homosexual or other perverse sex, a "right" to an abortion or to euthanasia, or a "right" to scientific research involving human embryonic stem cells. These are apparent, seeming, non-existent "rights" because they involve intrinsically immoral acts that cannot be the bearer of any claim of right any more than a vacuum can support flame.

Jacques Maritain and Natural Law: Distinction Between Possession and Exercise of Human Rights

TO FORGET "THE IMMENSE FIELD of human things which depend upon the variable conditions of social life and on the free initiative of human reason, and which the natural law leaves undetermined." This is the mistake of critics of natural law, at least those critics who see natural law as a sort of natural law code that should be easily fitted between two covers as if it were the Code Napoleon, the work of a short little man instead of the work of God. The positive law, then, one would think would be "a mere transcript traced off from natural law," and a legislator in Congress is like a tourist making a brass rubbing at Westminster Abbey. But the positive law is no such simple rubbing of the natural law because it considers the contingencies in which man-in-society-and-in-history may find himself, and these are highly variable and often present challenging circumstances.

And yet, the positive law, like the ius gentium, is "a prolongation or an extension of natural law, passing into objective zones which can less and less sufficiently be determined by he essential inclinations of human nature." Maritain, 64-65. The movement from natural law, to ius gentium, to positive law is not some sort of discrete, discontinuous movement. Rather, it is a continuous, overlapping process, particularly at the boundaries. "Thus there are imperceptible transitions (at least from the pont of view of historical experience) between Natural Law, the Law of Nations [ius gentium], and Positive Law." Maritain, 65.

What rights of men stem from natural law, what from the ius gentium, and what from positive law?

Examples of rights predicated upon natural law would include:

• Right to existence (life)
  
• Right to personal freedom (liberty)
  
• Right to the pursuing of the perfection of moral life (happiness)*
• Right to private ownership of material goods (property)
  

Examples of rights predicated upon the ius gentium might include (in Rooseveltian terms):

• Freedom of nations to live "unburdened by the yoke of want or distress"
  
• Freedom of nations to live "unburdened by the yoke of fear or terror"
  

An example of rights based upon positive law would be "the right of suffrage," which is a determination of the natural law right "of the people to self-government," as applied in a democratic society. Maritain, 66-67.

Natural human rights--that is, those human rights that are directly sourced from natural law--are inalienable. "They are inalienable since they are grounded on the very nature of man, which of course no man can lose." Maritain, 67. While natural human rights are inalienable, they are not, by nature, absolute, infinite, without some boundary. Natural human rights are not the "infinite rights of God." Maritain, 67. By their very nature, natural human rights are bounded. First, and foremost, natural human rights are bounded by the common good since they have an "intrinsic relation to the common good." Maritain, 67. Though natural human rights are bounded by the common good (since natural human rights aim at the common good), there is a variability of natural human rights in terms of what freedom of restriction that the body politic, which represents the common good, can place upon the individual exercise of natural human right. Some like the pursuit of happiness, i.e., the right to moral perfection, cannot be restricted because any restriction would ipso facto be against the common good. Others--say the right of association, or of free speech, or of worship--may be more or less restricted by the needs of the common good in those situations where "the common good would be jeopardized" if unable to restrict them "in some measure." There are thus, in Maritain's view, natural human rights that are absolutely inalienable and natural human rights that are inalienable only substantially. Maritain, 67.

Even absolutely inalienable natural human rights are subject to limitation, if not to their possession, at least with respect to their expression or exercise. Maritain, 67-68. As examples of how the exercise of absolutely inalienable rights might be restricted, Maritain gives the example of a criminal guilty of a capital offense. "If a criminal [who has possession of the absolutely inalienable right to life] can be justly condemned to die, it is because by his crime he has deprived himself, let us not say of the right to live, but of the possibility of justly asserting this right." Maritain, 68. Thus, as in the example of a criminal who offends the common good, the exercise of even absolutely inalienable rights may, in the proper case, be restricted because of one's actions against the common good.

Restrictions on the exercise of inalienable natural human rights may occur for reasons other than an individual's actions. Contingencies of social structures, caused by "vice or primitiveness," may also restrict the exercise of inalienable natural human rights. As an example, Maritain cites the right to "receive the heritage of human culture through education." Maritain, 68. The exercise of such a right "is subject to a given society's concrete possibilities." Indeed, to demand that such right be exercised in some circumstances may even be "contrary to justice," if the claim of such a right "for each and for all hinc et nunc [here and now]," can only be "realized through the ruining of the social body" or the "encroaching upon major rights." Maritain, 68, 69. Such an exercise of a natural human right in such a context would be ruinous and unjust. Yet the possession of such natural human right, though it may not at any particular time be exercised, serves as a sort of spur to social progress:

[T]he basis for the secret stimulus which incessantly fosters the transformation of societies lies in the fact that man possesses inalienable rights but is deprived from the possibility of justly claiming the exercise of certain of these rights because of the inhuman element that remains in the social structure of each period.

Maritain, 68.

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*The "pursuit of happiness" is nothing other than the "pursuit of the perfection of moral and rational human life." The "pursuit of happiness here on earth is the pursuit, not of material advantages, but of moral righteousness, of the strength and perfection of soul, with the material and social conditions thereby implied." Maritain, 77-78 & n. 38. Not to be forgotten, however, is "the right to the pursuit of eternal good," for "without this pursuit there is no true pursuit of happiness." Maritain, 78.

Jacques Maritain and Natural Law: Historical Excursus on Human Rights

HUMAN RIGHTS HAVE A FOUNDATION, a foundation that their most rabid advocates, or perhaps better, those ideologues who have captured the concept of human rights so as to exploit it, seem to want to hide, forget, or suppress. The ideologues--advocates of abortion rights, homosexual rights, to name but two of such groups--want to take the notion of human rights, put a chain around its neck, and treat it as a beast of burden, goading it to do things it has no business doing, parading it around in a cage, like Tamerlane did to the captured Sultan Bajazet. But to a philosopher such as Jacques Maritain, the philosophical or rational foundation of human rights is of great interest. It is of great interest because it is what explains the importance, even immutability of human rights. At the same time, it delineates their limits. Were the foundations of human rights properly understood, the liberals, the libertines, the radical progressives, the positivists would find themselves without warrant to be spouting their "rights talk." Why? Because, "[t]he philosophical foundation of the Rights of man is Natural Law." Maritain, 53. Not, however, the "natural law" of the Jacobins and French philosophes or of Kant and Hegel, but the "natural law" of Cicero, of St. Paul, of St. Augustine, and of St. Thomas Aquinas.

Like the term "human rights," the term "natural law" was captured and misused by ideologues, ideologues of both conservative and revolutionary leanings, so much so that Maritain exclaims in frustration: "Sorry that we cannot find another word!" Maritain, 53. But we ought not to yield the word, just like we ought not to yield on the word Madonna because of its capture and exploitation by the aging, yet ever-confused, Madonna Louise Ciccone.* We ought to recapture it from those who seek to appropriate it, and learn what it is and what it is not. We must learn to distinguish between the doctrine and theories of the natural law--some of which are truer than others, and some of which may be plain false--and the natural law itself which is immutable.

As we discussed in earlier postings on Maritain, there was a change in the concept of natural law beginning in the 17th century, though it had earlier roots, wherein God and the eternal law were separated from the natural law, except perhaps being a sort of distant, Deistic guarantor of last resort. The natural law, thus, appeared shorn from its moorings, the nature of man and his reason, bobbed up and down on the waves to look fallible, fickle indeed. Ironically, the notion of nature and of human reason became to be thought of as "Nature with a capital N and Reason with a capital R," as if they were "abstract divinities sitting in a Platonic heaven." Maritain, 55. The result of putting Nature and Reason in an independent, idealistic throne, in raising them to the Pantheon as if they were gods, was an unrealistic, untenable, doctrine:

As a result the consonance of a human act with reason was to mean that that act was traced from a ready-made, pre-existing pattern which infallible Reason had instructed to lay down by infallible Nature, and which, consequently, should be immutably and universally recognized in all placed of the earth and at all moments of time.

Maritain, 55. Worse, these wannabe Euclids of morality believed that moral calculation could be done with mathematical or geometric precision. Calculating morality was no different that calculating the circumference of a circle given its radius. Read the fantasies of Condorcet in his Observations de Condorcet sur le vingt-neuvième livre de l'Esprit de Lois:

Since truth, reason, justice, the rights of men, and the interests of property, liberty, and security are the same everywhere, it is difficult to understand why all provinces of a state, and for that matter all states, should not have the same criminal laws, the same civil laws, the same laws regulating trade, etc. A good law must be good for all men, in the same way that a true proposition is correct for everybody.

Comme la vérité, la raison, la justice, les droits des hommes, l’intérêt de la propriété, de la liberté, de la sûreté, sont les mêmes partout, on ne voit pas pourquoi toutes les provinces d’un État, ou même tous les États, n’auraient pas les mêmes lois criminelles, les mêmes lois civiles, les mêmes lois de commerce, etc. Une bonne loi doit être bonne pour tous, comme une proposition vraie est vraie pour tous.

Cf. Maritain, 55 (who quotes Condorcet partially without reference). It is quite apparent that Condorcet forgot the fundamental Aristotelian principle so trenchantly express by William Blake in his "Marriage of Heaven and Hell": "One Law for the Lion & Ox is Oppression". It is inconceivable, and an untenable principle, that law should be the same "for man of the age of cave-dwellers as well as for man of the age of the steam engine, for nomadic tribes as well as for agricultural peoples." Maritain, 55. This sort of Procrustean view of law is, in a word, stupid.

What was the "fatal mistake" of these thinkers in Maritain's view?

Natural law--which is within the being of things as their very essence is, and which precedes all formulation, and is even known to human reason not in terms of conceptual and rational knowledge . . . [was improperly] conceived after the pattern of a written code, applicable to all, of which any just law should be a transcription, and which would determine a priori and in all its aspects the norms of human behaviour through ordinances supposedly prescribed by Nature and Reason, but in reality arbitrarily and artificially formulated.

Maritain, 56.

It was this "fatal mistake" that caused this absurd doctrine as espoused by Condorcet and his ilk, and caused every man's reason and every man's nature to be promulgated as law. Thus:

As Warnkoenig has shown, eight or more new systems of natural law made their appearance at every Leipzig booksellers' fair since 1780. Thus Jean Paul Richter's ironical remark contained no exaggeration: Every fair and every war brings forth a new natural law.

Maritain, 56 (quoting Heinrich A. Rommen's The Natural Law).

These doctrines of natural law--and, like the Gerasenes demon, their name is legion--so attacked by positivists are but straw men. No wonder they burned up in a conflagration once the flames of Hume's skepticism and Austin's positivism touched them.

But the problem got even worse. Instead of re-attaching this emancipated-and-then-divinized human reason and human nature to their eternal source to remedy the problem wrought by the thinkers of the earlier century, thinkers such as Leibniz and Kant tried to solve the problem by emancipating and then divinizing the human will. Typical of liberal thinking: to liberalize still further as a solution to the problems that their initial liberalization caused. "So that finally the human Will or human Freedom" was "also raised to Platonic self-subsistence in that intelligible, though unreachable, empyreal world . . . which was to replace God in actual fact as supreme source and origin of Natural Law." Maritain, 56-57. After these thinkers, "Natural Law was to be deduced from the so-called autonomy of the Will." Maritain, 57. So we have such inanities spouted by even such thinkers as Kant and Rousseau:

"A person," Kant wrote, "is subject to no other laws than those which he (either alone or jointly with others) gives to himself." In other words, man must "obey only himself," as Jean-Jacques Rousseau put it, because every measure or regulation springing from the world of nature (and finally from creative wisdom) would destroy at one and the same time his autonomy and his supreme dignity.

Maritain, 57.**

Such a doctrine is fatal to law, and is fatal to the notion of right. "The rights of the human person," under these notions, "were to be based on the claim that man is subject to no law other than that of his own will and freedom." Maritain, 57. This is self-law, which is no law at all. And so, Maritain appropriately ends his quick historical analysis with this conclusion, which, though lengthy, merits being quoted in full:

This philosophy built no solid foundations for the rights of the human person, because nothing can be founded on illusion: it compromised and squandered these rights, because it led men to conceive them as rights in themselves divine, hence infinite, escaping every objective measure, denying every limitation imposed upon the claim of the ego, and ultimately expressing the absolute independence of the human subject and a so-called absolute right--which supposedly pertains to everything in the human subject by the mere fact that it is in him--to unfold one's cherished possibilities at the expense of all other beings. When men thus instructed clashed on all sides with the impossible, they came to believe in the bankruptcy of the rights of the human person. Some have turned against these rights with an enslaver's fury; some have continued to invoke them, while in their inmost conscience they are weighed down to scepticism which is one of the most alarming symptoms of the crisis of our civilization.

Maritain, 57-58.

To which I can only say, "Amen, Brother Maritain!"


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*Google "Madonna," especially under an image search, and see when you first get a hit on Our Lady, and not the notorious pop singer.
*Maritain quotes Kant's Introduction to the Metaphysicas of Morals, IV.24 and Rousseau's The Social Contract, I.6. The entirety of Kant's quote is:

A person is a subject whose actions can be imputed to him. Moral personality is therefore nothing other than the freedom of a rational being under moral laws (whereas psychological personality is merely the ability to be conscious of one's identity in different conditions of one's existence). From this it follows that a person is subject to no other laws than those he gives to himself (either alone or at least along with others). (Mary J. Gregor, trans.)

Person ist dasjenige Subject, dessen Handlungen einer Zurechnung fähig sind. Die moralische Persönlichkeit ist also nichts anders, als die Freiheit eines vernünftigen Wesens unter moralischen Gesetzen (die psychologische aber bloß das Vermögen, sich der Identität seiner selbst in den verschiedenen Zuständen seines Daseins bewußt zu werden), woraus dann folgt, daß eine Person keinen anderen Gesetzen als denen, die sie (entweder allein, oder wenigstens zugleich mit anderen) sich selbst giebt, unterworfen ist.

The full cite to Rousseau is:

"The problem is to find a form of association which will defend and protect with the whole common force the person and goods of each associate, and in which each, while uniting himself with all, may still obey himself alone, and remain as free as before." This is the fundamental problem of which the Social Contract provides the solution. (G.D.H. Cole, trans.)

Cette difficulté ramenée à mon sujet peut s'énoncer en ces termes: "Trouver une forme d'association qui défende et protège de toute la force commune la personne et les biens de chaque associé, et par laquelle chacun s'unissant à tous n'obéisse pourtant qu'à lui-même et reste aussi libre qu'auparavant." Tel est le problème fondamental dont le contrat social donne la solution.