The Blessings of Liberty: Religious Freedom and Human Rights in the Western Legal Tradition
The Blessings of Liberty: Religious Freedom and Human Rights in the Western Legal Tradition (Cambridge University Press, 2021), 1-6
A half-century ago, the world welcomed some of the most remarkable human rights documents it had ever seen. The United States Congress passed the Civil Rights Act of 1964 and the Voting Right Act of 1965. These were America’s strongest statutory rebukes to its long and tragic history of racism, chauvinism, nativism, and religious and cultural bigotry. Born of the civil rights movement and inspired especially by Black Protestant churches, these two acts declared anathema on all manner of discrimination in the voting booth, public accommodations, schools, and the workplace. They called American courts and citizens to give full and faithful protection to the rights of everyone regardless of race, color, religion, sex, or national origin. And they called America back not only to the high promise of the Thirteenth to Fifteenth Amendments, ratified in the aftermath of the Civil War, but also to the founding ideals set out in the nation’s text, the 1776 Declaration of Independence: “that all men [now persons] are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” The 1789 United States Constitution and several state constitutions repeated and elaborated these “unalienable rights,” repeatedly calling them “the blessings of liberty.”
A half century ago, the Second Vatican Council, speaking to and for a half billion Catholics at the time, opened up a new chapter in the church’s mission and ministry with a series of sweeping new papal and conciliar declarations – Pacem in Terris, Dignitatis Humanae, Gaudium et Spes, and Lumen Gentium. The Council firmly rejected the church’s antidemocratic and antirights posture of the 1864 Syllabus of Errors, and instead returned to Pope Leo XIII’s clarion call in Libertas (1888), Rerum Novarum (1891), and other encyclicals for a new “social teachings” movement to transform the church. The church now taught that every human being is created by God with “dignity, intelligence and free will ... and has rights flowing directly and simultaneously from their very nature.” Such rights include the right to life and adequate standards of living, to moral and cultural values, to religious activities, to assembly and association, to marriage and family life, and to various social, political, and economic benefits and opportunities. The church emphasized the religious rights of conscience, worship, assembly, and education, calling them the “first rights” of any civic order. It also stressed the need to balance individual and associational rights, particularly those involving the church, family, and school, which stood as important bulwarks between the individual and the state. The church urged the abolition of discrimination on grounds of sex, race, color, social distinction, language, and religion. And it called on clergy and laity alike to be ambassadors and advocates for the rights and liberties of all persons, especially the “least” of God’s children, as the Bible called them – the poor, needy, sick, and handicapped; widows, orphans, sojourners, and refugees; the incarcerated and incapacitated; and children, born and unborn. The robust advocacy of Vatican II for the rights and liberties, together with parallel movements in Protestantism and in the ecumenical church, all helped to drive a new “third wave of democracy” around the world thereafter.
Finally, a half century ago, the United Nations, embracing almost all 186 nation-states around the world at the time, passed the International Covenant on Civil and Political Rights (1966) and the International Covenant on Economic, Social, and Cultural Rights (1966). Only two decades before passage of these twin covenants, the world had stared in horror into Hitler’s death camps and Stalin’s gulags, where all sense of humanity and dignity had been viciously sacrificed. It had witnessed the slaughter of sixty million people around the world in six years of unprecedented brutality during World War II. In response, the world had seized anew on the ancient concept of human dignity, claiming this as the ur-principle of a new world order. The Universal Declaration of Human Rights (1948) opened its preamble with classic words: “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice, and peace in the world.” The two 1966 international covenants sought to translate the general principles of the Universal Declaration into more specific precepts. The International Covenant on Economic, Social, and Cultural Rights posited as essential to human dignity the rights to self-determination, subsistence, work, welfare, security, education, and cultural participation. The International Covenant on Civil and Political Rights set out a long catalogue of rights to life and to security of person and property, freedom from slavery and cruelty, basic civil and criminal procedural protections, rights to travel and pilgrimage, freedoms of religion, expression, and assembly, rights to marriage and family life, and freedom from discrimination on grounds of race, color, sex, language, and national origin. These documents are binding on the nations that have ratified them. Several regional instruments also proved critical to this rights development, including the European Convention on Human Rights (1950) and the [Inter-]American Convention on Human Rights (1969).
These landmark human rights documents of the mid-twentieth century echoed and elaborated two millennia of rights developments in the Western legal tradition – among other traditions around the world. Western jurists have long talked about rights and liberties and applied them in their legal systems. Classical Roman jurists called them iura and libertates.Anglo-Saxon laws first translated these Roman law terms into the early English language of ryhtes and rita(e), freoles and freo-dom. Early modern jurists translated medieval canon law and civil law discussions of iura humana into the now familiar vernacular terms of human rights, droits de l’homme, Menschenrechte, derechos humanos, diritti umani, and others.
All these terms had wide and shifting definitions, interpretations, and applications over time and across cultures. At its core, however, this Western language of rights and liberties enabled jurists to map in ever greater detail the proper interactions between private parties in society and between private parties and the reigning authorities, whether political, religious, feudal, or economic. Rights defined the claims that one legal subject could legitimately make against another to protect their person, property, business, reputation, and interest, or to compel another to live up to their contracts, promises, and other obligations. Rights and liberties also defined limits to the actions, duties, or charges that authorities could legitimately impose upon their individual and corporate subjects. And rights and liberties language set out the procedures and principles that were to be followed in all of these legal interactions, sometimes casting them in terms of justice, equity, liberty, equality, due process, and other ideals.
While Western jurists sometimes treated vaunted documents like Magna Carta (1215) or the United States Bill of Rights (1791) with reverence, they usually thought of rights in simpler instrumental and utilitarian terms. After all, as Justice Oliver Wendell Holmes Jr. once quipped, a right is “only the hypostasis of a prophecy,” a mere prediction of what might happen to “those who do things said to contravene it.” That prediction depends very much on the ability of a legal subject to press a rights claim, the willingness of the authorities to vindicate those rights, and the capacity of the society to develop a human-rights culture. Human rights “declarations are not deeds,” Judge John T. Noonan Jr. reminds us; “a form of words by itself secures nothing.” Human rights language “pregnant with meaning in one cultural context may be entirely barren in another.” That was true throughout Western history and can be seen today in many Western lands marked by new forms of nativism, populism, tribalism, and authoritarianism.
The human rights instruments of the mid-twentieth century did add measurably to this long tradition of rights. The 1964 Civil Rights Act echoed the norms of due process and equal protection found in the Fifth and Fourteenth Amendments to the United States Constitution and their common-law antecedents going back to Magna Carta and other medieval and Anglo-Saxon charters. But the act also added more specific and expansive protections of rights and helped trigger a massive wave of rights litigation in the American federal courts that is still going on today. The Second Vatican Council’s decrees confirmed the rich teachings about rights by the medieval canonists and early modern Spanish neo-scholastics and their retrieval by Pope Leo XIII’s social-teachings movement. These conciliar documents, however, also offered a more universal defense of the rights and freedoms of all humanity, not just Christians or Catholics, and they helped to render the pope and clergy effective agents and allies in the global struggle for human rights for all. The 1948 Universal Declaration and the 1966 UN covenants drew on and distilled many earlier national and international rights statements, going back as early as the Religious Peace of Westphalia (1648). Yet these new human rights instruments now called further for every state party worldwide to enforce these rights at the risk of international shame and rebuke, if not censure and reprisal. These international documents also grounded human rights and liberties on a more universal theory of human dignity, equality, and fraternity, in place of earlier Christian rights theories based on the Golden Rule, the Decalogue, biblical love commands, or Christian anthropologies of the image of God or the imitation of Christ. Later international human rights instruments added further specificity to rights concerning religion, race, laborers, migrants, refugees, prisoners of war, indigenous peoples, women, and children, and new protections against genocide and torture. Even so, the vast majority of human rights of today are the natural, constitutional, conciliar, customary, and treaty rights of earlier centuries now writ larger and rooted more widely.