http://www.philosophiedudroit.org/
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The Dignity of
Persons as a Normative Groundwork of Human Rights:
an Analysis Based
on Franciscan Suggestions
Luca Parisoli*
(Université Paris X, Nanterre)
dignitatem
importat ratione fundamenti tantum
Duns Scotus, Ordinatio,
I, d. 28, q. 1-2[1]
Abstract. My
aim is to propose a a jurisprudential strategy for groundwork of human rights
in the dignity of human persons. It is an old and sound way, in which I was
engaged since some years and I want here to stress some specific aspects: the
relevance of Franciscan personalism, i.e. the metaphysics of freedom and love,
by the survenance of dignity from freedom of human person; the strenght of this
approach in multicultural contemporary world, in that I think it is a very
fruitful strategy for normative discussion today, against the positivistic
discussion which gives no space to personalistic approaches.
0 - Introduction
1 - The anthropology of person
2 - The Franciscan idea of freedom
3 - The supervenience’s strategy
4 - Scotist’s metaphysics of love
5- Criticism of relativistic approach to human rights
0.
The aim of the paper is to propose a jurisprudential strategy in order both to
found human rights on person’s dignity, and to justify their universal value.
In Gewirth’s meaning, in fact, I think there is an important set of absolute
rights to look for[2], whose
existence needs to be defended and grounded on metaphysics in order really to
defend each person as person. In fact, if the existence of universal rights
simply was possible in force of a normative official document that speaks about
them, universal rights would not be different from all other ordinary laws and
then, in my opinion, they would be at least useless.
A
universal right is always in the upper level in comparison with ordinary law:
it is a constraint against ordinary law, as the rights of the English
Parliament in the XVIIIth century were rights against the King, that is against
the first power of the Kingdom[3]; it is
more important and superior to ordinary law; it is something a current
government cannot change ad libitum. This is why I need a metaphysical
inquiry to insure the foundation of universal rights as rights that always
exist before the existence of a government.
It is
an old and sound way, I am directly engaged in since some years. Nevertheless, what
I would like here to stress is the relevance of Franciscan personalism, and in
particular of Franciscan metaphysics of freedom and love as a way to ground
human rights on the metaphysical person. The strength of this approach, in
fact, is that it seems a very fruitful strategy for normative discussion today,
against the positivistic discussion which gives no space to personalistic
approaches, in that it arrives at justifying human rights as the immediate
result of human dignity.
1 - The
anthropology of person
The
Franciscan anthropology of person gives us the thesis that there exist a
special human freedom (a metaphysical freedom) which is at the same time an
intrinsic property of persons and a groundwork of human dignity. In this sense,
all human rights are universal in that they are associated to the person as
metaphysical person (and not as historical human being characterized by
contingent qualities): they are not only directed to protect human dignity, but
they are also universal because their groundwork is a metaphysical one.
Universal
human rights are at least special rights: on the one hand, in fact, we cannot
use them as any other positive right protected in a legal system; on the other
hand, they are based on the human dignity. This is why, nowadays, there are not
only many political, law and moral philosophers who teach us that human dignity
is an essential idea in the philosophy of rights[4], but
there is also the Magistery of the Catholic Church[5] which claims that the person is to be considered
the very base upon which we can construct any theory of rights. But in order to
understand why a person is always worthy of respect and subject of universal
rights, we need a metaphysical conception of person and, in particular, as it
seems to me, the Franciscan conception of persons as metaphysically free
creatures.
According
to Franciscan conception, the starting point in order to understand the
identity of persons is an analysis of human will, that is an analysis of
persons’ capacity to look for values to follow and to understand which is the
aim of each person. The second step is an analysis of metaphysical freedom as
an intrinsic property of persons as persons: we have no person, if she is not
metaphysically free. The third step, is a clarification of the emergence of
human dignity on human metaphysical freedom: each person is in fact worthy of
respect in that she possesses a dignity whose ontological base is freedom. The
final step, is an inquiry into love, as an ontological instrument in order to
assure the existence of (social and political) human communities: I would like
in fact to stress that Franciscan anthropology refuses the Aristotelian thesis
according to which men are social animals by nature. So, the ontological role
of love is necessary to pass, as I will show, from the incommunicability of
person to the community of persons[6].
Let
us then start with an analysis of personal will. In fact, it is personal will
which produces law-norms and which is able to establish a sort of voluntaristic
hierarchy[7] of
person’s values even if it is also limited and restricted by some preliminary
procedures. Only God’s will is in fact completely free from any restriction[8]. This
is why, even if there exist some law-norms fixed by a determinate authority,
that is to say the positive law, we have to recognize that these positive norms
are always hierarchically subjected to God’s norms which are natural norms (in
this sense, Franciscan natural norms are quite different from the Thomist ones,
in that these two philosophical positions give us a different qualification of
the concept of nature)[9]. In
this sense, a positive norm is a good positive norm only when human will, which
creates it, is conform to divine will: in Ockhamist and Scotist language, the
right-reason prescribes to choose what the divine will has chosen for the human
will. But saying that personal will is able to produce law-norms and to
establish a sort of voluntaristic hierarchy of person’s values means, in
Franciscan terms, that it is the very notion of person which founds the idea of
right[10]: it is
the person who is able to know good and evil, and it is the person who is able
to orient her action in that she is a moral agent. In particular, before the
Fall, the person is the groundwork of justice, as a set of natural rights;
after the Fall, the person becomes the base by which we can justify the
existence of a human normative field of rights whose value may be established
only in comparison with natural justice. A person’s value is in fact linked to the
possibility which each person has to rebel against the positive field of laws
when these positive laws hinder her in her march to Heaven. In this sense a
person’s value is directly linked to her metaphysical freedom[11].
2 - The
Franciscan idea of freedom
In
order to understand this metaphysical notion of freedom I need now to clarify a
tripartition about freedom which I see located in Franciscan thought. We are in
fact in front of an ontology and an anthropology of freedom which analyzes
freedom in three categories: 1) metaphysical freedom; 2) free will; 3) moral
freedom[12]. In
this sense, the forth category which we can speak about, that is to say
political freedom, is just a landing-category because this freedom is not a
metaphysical or an anthropological one, but it is just a result of the three
first freedoms[13].
Nevertheless, in order really to understand political freedom and all universal
human rights, I am now analyzing the particular concept of metaphysical freedom[14],
letting aside both moral freedom and free will. On the one hand, in fact, the
notion of free will is quite a trivial notion when speaking of human rights and
their foundation: this notion is necessary to conceive human persons as moral
agents, but it is a quite trivial notion for the analysis of political freedom
as the type of universal rights in that it is an ability of human beings rather
then an intrinsic value. In my opinion, without free will there is no moral
agent, so that any analysis of human behavior is no more “personalist”: I am
conscious that it is possible to disagree, but I assume this as a point of
depart of my paper. In this sense, I think that Peter of John Olivi’s analysis
of free will and moral agent is correct, and I assume this idea without any
more discussion. So, even if free will is a necessary notion in order both to
begin an analysis of universal human rights, and to construct a theory of
person as moral agent, it cannot be a rule if we want (as we do) to analyze
different notions of political freedom (because every notion of political
freedom demands it).
On
the other hand, the notion of moral freedom is too much linked to a moral and
theological perspective and it is not useful to ground universal human rights :
moral freedom is only the freedom of those who accept the right moral system;
it is not something a person has just in that he is a person. In this sense, I
don’t want to suggest that a moral foundation of universal rights is possible
if and only if we choose the best moral system, Christian religion for example,
to support them and, finally, to determine them. I am convinced that universal
rights are the rights of each man, also of persons who don’t believe in the
true (or better) moral system. In this sense, moral freedom is not suitable as
groundwork of universal rights: the moral freedom of a Christian is different
from the moral freedom of a Muslim, because they believe in different sets of
moral truths. My moral freedom is the freedom to realize my moral system: so,
your moral freedom may be different from mine. This is why, moral freedom
cannot be a groundwork of universal rights; moral freedom can be the base only
of a theocratic system.
After
having put aside the notions of free will and moral freedom, we finally arrive
at the concept of metaphysical freedom. Only metaphysical freedom, in fact,
allows us 1) to arrive at a metaphysical groundwork of universal rights against
juridical relativism, and 2) to avoid to propose the model of theocracy as the
only right society. Metaphysical freedom is a notion able to give us a strong
foundation of universal rights, because it is an essential element (an
intrinsic property) of each person, and every man and every woman are persons,
without any reference to their historical and contingent condition. In this sense, metaphysical freedom is a
matter of anthropological foundation of the central notion of law, the rights
of mankind. Metaphysical freedom is not a matter of moral theory: the right and
the good are consequences of metaphysical freedom, but not a criterion of
determination of political legitimacy. The problem of political obligation is
quite complicated, as Simmons teaches us[15]: but I
think that the question of political legitimacy[16] may be
easily solved by means of a metaphysical argument, i.e. by the reference to an
essential anthropological freedom.
Human
dignity is always untouchable in that it is a non-contingent (or essential, or
intrinsic, or present in any possible world) property of person as a
metaphysically free creature[17]; each
lawgiver on this earth has always to respect it because he rules over persons,
not over beasts. In fact, what really counts is the foundation of the
possibility of human moral order: and in the Franciscan School it is the
metaphysical freedom which performs this task. In this sense, freedom is the
ontological, metaphysical and moral foundation of the whole Creation. But
freedom is not only an essential characteristic of the person: the very
ontological statute of the person is inconceivable if we don’t refer to her innate
freedom. In front of God, the person is conceivable only in that she is free:
the very person is freedom. So, the metaphysical freedom is an intrinsic
property of the person, in that without metaphysical freedom there is no
person, since a person is essentially free: the dignity is the issue of a
supervenience of this property on the (metaphysically) free person, i.e. every
person.
3 - The
supervenience’s strategy
After
having shown that metaphysical freedom is an intrinsic property of persons, I
need now to analyze how is it possible to say that each person is worthy of
respect in that she is metaphysically free. But in order to do that, I need to
show that human dignity is directly based on human freedom.
From
a theoretical point of view, in order to arrive at a definition of “Person” we
have to look for a criterion able to
isolate a set of ontological objects that we label by “person” (to look for a
technical groundwork for natural norms - the supervenience as in P. Vallentyne,
“Intrinsic Properties Defined”, Philosophical Studies, 88, 1997, p.
209-219). So, in the formation of the definition of person, the definiens
is a propert-y, -ies criterion, the definiendum is a set of ontological
objects. But when we have defined what is person, the definition of person is
no more a propert-y, -ies criterion, it is a normative definition. So, for
instance, the definition of person of Richard of Saint-Victor - as referred by
Scotus - is, not literally but conceptually: intellectualis naturae
incommunicabilis existentia (De Trinitate, IV, 22, PL 196). According to
him, a person is in fact an existential being with an intellectual and
incommunicable nature. Against Boethius, then, and following the Franciscan
school we can claim that: 1) God is not an “individual”, because He is not
divisible; 2) not every man is rational (cf. Duns Scot Ordinatio, I, d.
23, q. unica, ed. Vaticana V). In this way, in fact, we can not only explicate
our metaphysical experience, i.e. the divine and human personality, but we can
also arrive at a normative definition of “person”[18].
Normativity is in fact a general property of definition concerning every
ontological set of objects in every possibli world (cf. Putnam’s theory of
stereotype natural meaning).
Once
person is defined as a normative notion, and once metaphysical freedom is
analyzed as an intrinsic property of persons (without freedom, there is no
moral agent, and without choice it is impossible to speak of person - God, the
stereotype-image of person, is free), we can arrive also at defining human
dignity. Human dignity is in fact an intrinsic value of each person that
supervenes on her metaphysical freedom. It is because of her dignity that each
person must be respected, exactly as God must to be worshipped. This is why the
violation of dignity is not only a violation of the natural norm “never harm
metaphysical dignity of persons”, but it is also the violation of the divine
norm “never hate - i.e. love - God”.
4 -
Scotist’s metaphysics of love
The
last point in Franciscan position to analyze is the question of love. In fact,
after having defined dignity as an intrinsic value of persons which supervenes
on her metaphysical freedom, and after having used it as a groundwork of
universal rights, I need now to analyze how is it possible for the Franciscan
school to justify the existence of human communities. According to the
Franciscan school, and in particular according to Scotus (Duns Scotus, De
primo principio, trans. E. Roche, St. Bonaventure NY 1949), in fact, persons
are not social animals, but they are rather characterized, as we have seen, by
an ontological incommunicability nature. Nevertheless, at the same time,
persons live in community and are able to communicate because there exist
ontological love. When speaking of love, in fact, Scotus does not speak of a
simple psychological feeling, but rather of the ontological force which allows
persons to communicate each other and to found communities.
As
we can see in many passages from Scotus’ De primo principio, love is
what allows persons to move to the end in that an ordinate will necessary loves
its end. In an ontological deduction of the properties of the metaphysical
object “First Being” to the faith’s object “God”, Scotus writes a geometrical
treatise as a mystical treatise: geometrical in that it is a rigorous set of
theorems and corollaries; mystical in that the activity of First Being is
illustrated essentially by love.
So,
“for the end moves metaphorically as beloved” (II, 4): the First Being is no more,
as in the cosmological aristotelian focus[19], a
First natural Cause - “therefore, the end causes nothing except that which is
caused by the efficient because it loves the end” (II, 5). Our very nature is
outside ourselves, it is the tension towards our perfection as created
creatures, i.e. the supernatural end: everything ordered to an end is exceeded,
“because the end is better than that which is ordered to it. This is proved
because the end as the beloved moves the efficient to cause. A therefore is not
less good than B itself, nor equal; therefore is greater” (II, 16). And if
somebody makes a psychological objection, “some will causes something for the
sake of a lesser good which is loved”, Scotus replies “the conclusion proceeds
from that end which is of the nature of the thing, and such are always the
natural end and the end of an ordinate will. The instance of an inordinate
will, however, does not destroy the conclusion, because the primary cause of
the effect is not of this kind. .. Therefore, everything ordered to an end is
exceeded by some end, even though not by the proximate end for the sake of
which, as beloved, an inordinate proximate agent causes it” (II, 16). The idea
of the elementary action of God is that of a non-natural (non-material, non-causally
determined) action - “if the First Efficient acts for the sake of an end, then
either that end moves the First Efficient as it is beloved by an act of the
will, .., or as it is only naturally loved. The latter is false, because the
First Efficient does not naturally love an end different from Itself, as
something weighty loves the center of the earth and matter loves the form; for
then It would be in some manner ordered to the end because inclined towards
it”. Again, “the First Efficient directs its effect to an end; therefore either
naturally or by loving that end; not in the first manner, because something
which does not know directs nothing except in virtue of something which does
know; for the first ordering is characteristic of a wise being. The First
Efficient does not direct in virtue of anything else, just as it does not cause
in virtue of anything else” (IV, 4). Every action of God is contingent because
He is essentially loving, and to love is not to necessarily acting: “nothing is willed necessarily except that
without which there does not stand that which is willed about the end. God
loves Himself as end and whatever about Himself as end He loves can stand, even
if nothing different from Him exists, because what is necessary of itself depends
upon no other. Therefore from His willing He wills nothing else necessarily.
Consequently neither does He cause necessarily” (IV, 5). The will is the First
activity of the First Being: “it follows first of all that the will is
identical with the First Nature, since an act of willing is only the will .. It
follows secondly that the act of understanding is identical with that Nature,
because nothing is loved unless it is known” (IV, 6). Even if our end is
not-natural, in our natural existence we can to seeks for this end: “our will
can seek or love something greater than every finite end, as also our intellect
can understand such; and there seems to be a natural inclination to love the
infinite good in the highest degree” (IV, 9).
Scotus
analyses human legislative power in comparison to divine power (absolute and
ordered), because the function of the will in the Creator and in the creature
is the same (Ordinatio, I, d. 44, q. unica, ed. Vaticana VI). The
function of ontological love is also the same: God creates and conserves the
being of the world by love (by His action), human beings as persons can
communicated among themselves, and to became a community, by love. Ordered love
is the source of a good community, disordered love is the source of a bad community,
in the same way that the first pity of the Bad Angel was the disordered love
towards God (Lectura, II, d. 6, q. 2, ed. Vaticana XVIII).
* Cette conférence a été présentée à la Franciscan University of Steubenville,
Ohio, U.S.A., pour la Christian Personalism Conference, 10th-11th november
2000.
[1] John
Duns Scotus, Opera omnia, ed. Vaticana VI, § 28; ed. Vivès X, q. 1, n. 7, p. 400.
[2] A.
Gewirth, Are there any Absolute Rights? (1981), in J. Waldron (edited
by), Theories of Rights, Oxford 1984; cf. also Idem, The Community of
Rights, Chicago 1996, and Human
Rights. Essays on Justification and Applications, Chicago 1982; finally, M.
Macdonald, Natural Rights (1949), in Theories of Rights.
[3] K.
Haakonssen, Natural Law and Moral Philosophy, Cambridge 1996.
[4]
J. Teichman, Social Ethics, Oxford 1996; B. Baertsch, La
valeur de la vie et l’intégrité de la personne, Paris 1995.
[5] Image
of Man in Human Rights Legislations, Roma 1985; Droits de l’Homme. Approche chrétienne, Roma 1984, ch. 3 by Georges Cottier, La
réflexion des philosophes.
[6] A. Soto,
The Structure of Society according to Duns Scotus, in Franciscan
Studies 11 (1951) 194-212 and 12 (1952) 71-90.
[7] W. J.
Courtenay, The Dialectic of Omnipotence in the High and Late Middle Ages,
in T. Rudavsky, edited by, Divine Omniscience and Omnipotence in Medieval
Philosophy, Dordrecht 1985; C. K. Brampton, Scotus and the Doctrine of
the “potentia Dei absoluta”, in De doctrina Ioannis Duns Scoti,
“Problemata philosophica” II, Roma 1968.
[8] It is a
very useful guide the anthology Divine Command Morality: Historical and
Contemporary Readings, Toronto 1980. Cf. also for the divine command theory
Andrew of Neufchateau, Questions on an Ethics of Divine Commands, Notre
Dame IN 1997, with an introduction by J. M. Idziak.
[9] M.
Sylwanowicz, Contingent Causality & the Foundations of Duns Scotus’
Metaphysics, Leiden 1996.
[10] This
anthropological analysis is sometime similar to Nozick’s approach in that it is
an apology of the freedom of the individuals (R. Nozick, Anarchy, State, and
Utopia, Oxford 1974), but it is finally quite different. Nozick puts the
notion of absolute right at the foundation of his political thought. At the
contrary, in the Franciscan approach we find the person as absolute freedom at
the base of the system, so that absolute and relative rights are only a
consequence of this absolute freedom. The chief theoretical consequence is that
there is a balance of rights, between natural rights and positive (statutory)
rights: the source of natural rights is God, while the source of positive
rights is the human lawgiver. There are a lot of possible legitimated juridical
systems, as Nozick thinks speaking about individual utopies: some correspond to
natural law, others do not, but all are legitimated by some human mechanism,
even if they have not the same moral value.
[11] I.
Gavran, The Idea of Freedom as a Basic Concept of Human Existence according
to John Duns Scotus, in De doctrina Ioannis Duns Scoti, “Problemata
philosophica” II, Roma 1968.
[12] I have
discussed this question in my book Volontarismo e diritto soggettivo. La nascita medievale di una teoria dei
diritti nella Scolastica francescana, Roma 1999.
[13] M. J.
Perry, Love and Power, Oxford 1991; S. I. Benn, A Theory of Freedom,
Cambridge 1988.
[14] A. B.
Wolter, Native Freedom of the Will as a Key to the Ethics of Scotus, in Deus
et Homo ad mentem I. Duns Scoti, Roma 1972, then in Idem, The
Philosophical Theology of John Duns Scotus, Ithaca 1990.
[15] A. J.
Simmons, Moral Principles and Political Obligations, Princeton 1979; J.
Horton, Political Obligation, London 1992.
[16] J.
Wolff, An Introduction to Political Philosophy, Oxford 1996.
[17] I think
that the notion of supervenience may be quite fruitful in this analysis. For
the notion of supervenience, recentely E.A. Savellos, U.D. Yalçin, edited by, Supervenience.
New Essays, Cambridge 1995, but it is important the reference to G.E.
Moore, The Conception of Intrinsic Value, in Philosophical Studies,
London 1922.
[18] O.
Schachter, Human Dignity as a Normative Concept, in American Journal
of International Law 77 (1983) 848-854, after in Human Rights Law,
edited by P. Alston, Dartmouth 1996.
[19] For the
expression “cosmological focus” and the limits of this notion, J. F. Crosby, The
Selfhood of the Human Person, Washington D.C. 1996, 82 ff.