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COMMENTS
ON YVES SIMON
Yves
Simon
La
tradizione del diritto naturale: le riflessioni di un filosofo
trans.
F. Di Blasi (Thomas: Palermo, 2004)
Russell Hittinger
William
K. Warren Professor of Catholic Studies, Research Professor
of Law, and Chair of the Department of Philosophy and Religion,
University of Tulsa
At
the outset, I would like to thank Professor Fulvio di Blasi
for undertaking the Italian translation of Yves Simon's The
Tradition of Natural Law.
I should also thank Tony Simon for the opportunity
to write an introduction to the 1992 edition published by
Fordham University Press.
As
you can imagine, I have much to say about this book.
But, in view of the fact that this a panel discussion,
with three other speakers, I shall not monopolize the time
with a long lecture.
Rather, I will take perhaps 20 minutes to place Simon's
work in the context of the theme of this congress:
The ethical traditions of Europe and the USA: Common
roots and possibilities for dialogue.
The
material in Simon's book was given originally as lectures
at the University of Chicago during the winter of 1958. On both sides of the Atlantic, the decade of the 1950s represented
a high-water mark of interest in the philosophy and jurisprudence
of natural law. Simon's
lectures were given just ten years after the U.N. adopted
the Universal Declaration of Human Rights (1948), and five
years before Pope John XXIII's famous encyclical, Pacem
in terris (1963), which outlined some 25 natural, or human
rights that ought to be honored by systems of positive law. Indeed, between 1945 and 1965 there seemed to be a consensus,
at least in the western world, that certain universal principles
of justice ought to be recognized and made juridically effective
not only in the covenants and instruments of international
law, but also in domestic constitutions.
With
regard to our theme of "common roots," it is interesting to
note that, on the American side of the Atlantic, the philosophy
of natural law and natural rights was inspired chiefly by
European émigrés who took posts at American universities during
the 1930s and 1940s. For example, at the University of Chicago, Simon's fellow French
national, Jacques Maritain, as well as Simon's colleague on
the Committee for Social thought, the German, Leo Strauss,
also lectured and wrote on issues of natural law and the foundations
of democratic polity. At Georgetown University, in Washington, D.C., the German theorist,
Heinrich Rommen was a prominent scholar of natural law; at
Louisiana State University, the Austrian, Eric Voegelin; and
at Notre Dame, the Germans, F.A. Hermans and Waldemar Gurian
founded the Review of Politics, which lead to the foundation
of the Natural Law Forum - a journal explicitly devoted
to natural law, and which exists to this very day as the only
scholarly journal on natural law in the United States.
The
influence of these European thinkers was due to the fact that
they had personally experienced the crisis of the 20th
century, and therefore possessed a keen sense of the contest
of ideas and ideologies at stake in that crisis.
Moreover, in marked contrast to their American colleagues,
who were trained mainly in social sciences, and whose philosophy
is best described as a kind of smug pragmatism, studiously
ignorant and dismissive of intellectual traditions prior to
the Industrial Revolution, the Europeans were classically
trained; the Catholics among them also brought to American
universities the intellectual resources of the scholastic
tradition, both medieval and modern.
To be sure, the 18th century founders of
the American Republic had a mature understanding of the different
schools of natural law jurisprudence. A "creed" of natural rights never entirely disappeared from
the American mind. Even
so, when the European scholars began to arrive on American
shores in the late 1930s, serious academic work in the philosophy
and jurisprudence of natural law was virtually dead.
When we pick up and read Simon's Tradition of Natural
Law, we enjoy a window onto an important moment in the
trans-Atlantic dialogue - at this moment the intellectual
light came from Europe.
Now,
I should say just a few words about the crisis that sparked
renewed interest in natural law and natural-law jurisprudence
on both sides of the Atlantic.
The
Nobel Prize winning economist, Friedrich Hayek wrote:
"[T]he deliberate making of law, has justly been described
as among all inventions of man the one fraught with the gravest
consequences, more far-reaching that in its effects even than
fire and gun-powder."
Hayek is right, of course; but he might just as well have
said the modern state.
When we think of modern man we think of the Enlightenment,
the sovereignty of reason, and of ideologies of liberty; we
think especially of his technologies. But his greatest and
most sustained work was the state.
If we ask a modern man who or what is sovereign,
he would not say "reason," "the individual," or "science";
rather, he would say, without hesitation, "the state."
The peoples of Europe and her former colonies were
prepared to make almost any sacrifice to transform their polities
into states.
Modern
states are geared to deliver public goods on a mass scale
inconceivable to polities prior to the 19th century;
not merely the traditional goods of domestic security, religious
conformance, and national honor which defined the horizon
of older regimes, but every kind of material and spiritual
good: from education and scientific research, to medical care,
highways, economic opportunities, and retirement pensions,
to wild-life sanctuaries.
What is most important is that the modern state is
expected to accomplish these prodigious ends not merely efficiently,
but also legitimately and fairly: that is, by means of law.
Even despotic and totalitarian states are careful to
create the appearance of legality for their powers and policies.
States
create law at an astonishing rate. This phenomenon was only accelerated through the crises of
wars and the Great Depression.
For example, the Federal Register, which contains the
laws, administrative regulations, and executive orders of
the United States government, consists annually of more than
87,000 pages. No
legislator could possibly know all the laws he makes; no executive
could know all the laws he must enforce; and no judge could
survey with any scientific or historical rigor all of the
case-law precedents.
These
two factors - the requirement that the state distribute an
indefinite number of goods on a mass scale, and the requirement
that it be done through law - makes the modern state more
rather than less vulnerable to questions and criticisms drawn
from natural law. Simply put, there are more ways, either by omission or commission,
that a state can act unjustly:
some laws might fail to produce a just distribution
of goods, others might produce conflicts within the system
of law itself, while still others might be found prima
facie immoral or unjust. Paradoxically, the scale and complexity of modern legislation
destroys the myth that human law is a free-standing, self-justifying
system, independent of moral law.
Simon's
generation - the World War II generation - saw the modern
state go wrong catastrophically.
World War I saw nine-million people killed in battle,
surpassed within a few decades by the 15 million battle deaths
of World War II. The total death count in the international and domestic wars,
revolutions, and violent conflicts of the 20th
century is about 35,654,000.
If we add to this number the non-battle deaths attributable
to government, perhaps (albeit, a high estimate) 360,000,000
men, women, and children have been shot, beaten, tortured,
knifed, burned, starved, frozen, crushed, or worked to death;
or buried alive, drowned, hung, and bombed.
And this does not even begin to estimate all of the
other non-lethal uses of force over individuals, associations,
churches, and economic activity.
In
1945, after two world wars, the crown jewel of modernity -
the sovereign nation state - was brought before the bar of
moral judgment. The
Protestant theologian, Karl Barth aptly called this the era
of "disillusioned sovereignty."
Throughout the West, it was agreed that the state is to be
limited not only by institutional checks and balances - that
is to say, not only by the artifact of positive law - but
also by human rights. The Universal Declaration of Human
Rights (1948) and the European Convention of Human
Rights (1950) quickly gave expression to this principle:
namely, that a legitimate government is not merely one having
a written constitution, based on popular sovereignty, with
separation of powers, but also a government that makes natural
(or human) rights justiciable.
Not only were new constitutions and international instruments
brought into existence in light of this principle, but long-standing
ones were revised accordingly.
Most
Europeans do not appreciate how profoundly the American constitution
was revised in response to the crisis of the 1930s and 1940s.
In 1943, the Chief Justice of the Supreme Court, Robert
Jackson, declared that the judiciary would assume "the task
of translating the majestic generalities of the Bill of Rights
. into concrete restraints on officials dealing with the problems
of the twentieth century."
Without any formal amendment of the Constitution, and
without any felt need to elaborate the philosophical grounds
of their project, Jackson and his colleagues insisted upon
discovering natural or human rights implicitly embedded in
the text of the U.S. Constitution.
Jackson's jurisprudence more resembled a lesson in
moral philosophy than a lawyerly construction of law; but
such is necessary, he argued, to insure that legal verdicts
conform to the moral order.
Two years later, Justice Jackson was appointed to the
Nuremberg Court, where he was primarily responsible for developing
the legal grounds for the charge of crimes against humanity.
Of
course, what I've said thus far is a very sketchy and incomplete
picture of the political, legal, and ideological environment
surrounding Yves Simon's lectures on natural law at the University
of Chicago. Like
most other natural law theorists of his generation, Simon
understood the practical imperative of the post-war human
rights project. At
the outset, he observes that natural law is "a subject of
direct, intense, daily, and tragic interest to all sorts of
people whose philosophic tools may well be primitive" (14).
The problem of natural law, he contends, emerges first
as a practical rather than a theoretical issue.
Wherever human law causes injustice, or prevents the
remedy of injustice, the question of "what is right and what
is wrong by nature" is irrepressible. Perfect or even adequate
theoretical consensus about natural law is rarely achieved
by philosophers, much less by men and women of action.
Simon's friend, Jacques Maritain famously argued that
lack of theoretical consensus about natural law should not
stand in the way of practical agreement about human rights.
A "practical ideology," to use Maritain's
own words, is feasible because the experiences and practices
of modernity have contributed to a clearer moral sense of
what belongs, of right, to human persons.
For
his part, Simon agreed that much discourse about natural law
is driven by practical necessities that outstrip the kind
of consensus proper to philosophy.
A "treatise on natural law which would be purely philosophic
and in no way influenced by the ideological needs of the time,"
he writes, "is, in fact, almost impossible." (23)
At the same time, Simon worried about the ideological
factor. By "ideology," he did not mean a set of false propositions;
rather, he meant a set of aspirations in propositional form.
When
what is actually an expression of aspirations assumes the
form of statements about things, when these aspirations are
those of a definite group, and when that group expresses its
timely aspirations in the language of everlasting truth -
then, without a doubt, it is an ideology that we are dealing
with. (17)
"An
ideology, considered precisely as such, is a system of propositions
which carry a heavy sociological weight." (20)
For
example, on my side of the Atlantic the aspiration that natural
rights be recognized and secured by the state almost always
carries the additional presumption that natural justice is
realized in individual immunities from state power.
Generally, conservatives favor rights of immunity in
the spheres of property and family, while liberals favor immunity
from the state on issues of self-expression and sexual lifestyle.
Either party would be prone to what Simon calls "belligerent
universalism" (7) - that is to say, the conviction that natural
rights as immunities from state power ought to be realized
everywhere. For
their part, Europeans generally worry about natural rights
more in the idiom of entitlements which flow from human dignity.
Just last summer, the German constitutional court discovered
a fundamental right to receive medication to cure sexual impotence,
and accordingly commanded the government to supply Viagra
to those who qualify.
These
ideological emphases and polemics do not constitute a reason
to be skeptical of a natural-law foundation of human rights.
Since 1948, international human rights instruments
reflect both idioms - that of immunities, and that of entitlements.
In the real practice and life of political communities,
belief in natural rights flowing from human dignity will always
have ideological coloration, depending on contingent historical
and cultural factors.
Speaking only for myself, it is very difficult to imagine
Americans not expressing their belief in natural law in the
idiom of immunities (negative liberties) because this is part
of the lived experience and national character.
While grounded in certain universal ends of human nature
and principles of justice, the expression is partial, and
only ideologically can it pretend to lay claim to the entire
picture. But,
belligerent universalism, un-moderated by reflection and dialogue,
is an enemy of human rights; indeed, it can breed skepticism
about the very goods it attempts to assert.
Simon surveys these problems as well as anyone in his
generation.
The
deeper problem, noted in the opening pages of The Tradition
of Natural Law, is when the aspiration to natural justice
combines with a deep skepticism about human nature. In Simon's day, this skepticism went under the flag of Existentialism
- "the proposition that man has no nature but only history."
(3) The proposition
that human nature is an historical construct is quite fatal
when combined with a belligerent universalism.
On this view, what remains of human dignity, and therefore,
what is entitled to be protected as a human right, is nothing
other than pure freedom, the power to construct identity and
value. However,
rather than terminating in a nihilistic conclusion with respect
to human rights, the human rights project is expected to accommodate
the premise that man has no nature other than what he or she
constructs.
The
different emphases given by Americans and Europeans to the
human rights project inevitably come to mean something entirely
new. From the
proposition that the human good is self-constructed, it will
seem to follow that society or the state has no legitimate
title to impose one or another conception of the human good.
Required to adopt neutrality on this question, society
can only debate the relative merit of laws or policies which
neutrally facilitate individual self-construction.
Human rights can take either the route of an immunity
(against society or the state imposing particular conceptions
of the human good) or that of entitlements (useful goods and
services which equally, that is, neutrally, facilitate individual
choice).
Philosophically,
of course, the proposition that man has no nature but only
a history - that man is constituted only in self-enacted freedom
- is antithetical to the traditions of natural law.
But Simon understood the possibility of an ideological
fusion of the two. He
worried that a deeply and widely felt consensus about the
evils and crimes of despotic and totalitarian states, the
very experiences that made possible the human-rights project
of the post-war period, could also include skepticism that
there exists a natural, and universalizable ground of the
humanum. Fifty
years ago, suspicion that discourse about human nature is
only another expression of state or social or cultural despotism
was idea held by a small coterie of intellectuals.
But this is no longer so.
In the West, it is a respectable, indeed "mainstream,"
opinion that human (natural, fundamental) rights are meant
not to express, but to protect us in the public order
against social, religious, or philosophical convictions that
there exists a unity human nature that precedes, transcends,
and provides norms for individual choice.
Natural justice itself demands that convictions about
human nature belong in the private sphere.
At
the beginning of his lectures Simon says, "Whether there is
such a thing as a universal human nature cannot be dodged;
it is a question that must be settled before proceeding to
the discussion of natural law." (6)
I propose that nearly fifty years after Simon's lectures,
the problem stands pretty much as he positioned it in 1958.
Ordinary experience will provide plenty of reasons
for believing in a moral law prior to that of the state.
Today, on both sides of the Atlantic, the truly acute
problem is neither legal or moral in nature, but anthropological.
The problem that left unresolved by Simon's generation
was how to reach settled convictions about a ground of human
dignity adequate to the almost boundless enthusiasm for the
project of human rights.
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