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Electronic Theses, Treatises and Dissertations The Graduate School

2013 and Human : The Contributions of , Gustavo Gutiérrez, and Martha Nussbaum David Keith May

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COLLEGE OF AND SCIENCES

INDIVIDUAL AND COLLECTIVE HUMAN RIGHTS: THE CONTRIBUTIONS OF

JACQUES MARITAIN, GUSTAVO GUTIÉRREZ, AND MARTHA NUSSBAUM

By

DAVID KEITH MAY

A Dissertation submitted to the Department of in partial fulfillment of the requirements for the degree of Doctor of

Degree Awarded: Spring Semester, 2013

David Keith May defended this dissertation on March 20, 2013. The members of the supervisory committee were:

Aline Kalbian Professor Co-Directing Dissertation

Sumner Twiss Professor Co-Directing Dissertation

Robin Goodman University Representative

John Kelsay Committee Member

The Graduate School has verified and approved the above-named committee members, and certifies that the dissertation has been approved in accordance with university requirements.

ii

I dedicate this project to Heather Nicole May, my lovely wife, and our three wonderful children: Savanna Rose May, Justin Alexander May, and Zoey Elizabeth May. I would also like to dedicate this project to the countless victims of oppression in the world. I hope I can contribute in some small way to the alleviation of their pain.

iii ACKNOWLEDGEMENTS

I owe a number of personal and professional debts to the many people who helped bring this project to its fruition. My first personal debt is one I know I can never repay, though I spend the rest of my life trying. I would like to extend my greatest thanks to my wife Heather.

Without her personal sacrifice on many levels, I could have never completed the project. I would also like to extend my heartfelt thanks to my oldest daughter, Savanna Rose May.

Savanna is eight years older than her next closest sibling, and if it were not for help in caring for her little brother and sister, this project would have taken much longer to complete. I would also like to thank my parents, Debby May and “Buddy” May, for always having faith in me and for the opportunities I was afforded by having such wonderful parents. Thanks also to my sister,

Carla Ilund, for the support she has provided me throughout my life. I have not always been the model little brother, but she has loved me all the same.

I would also like to thank all those within Florida State University’s wonderful Department of

Religion who have helped to see this project to completion. I want to especially thank Drs. Aline

Kalbian and Sumner B. Twiss for co-directing the dissertation. The project could have never developed past the loose connection of thoughts in my head if it were not for their comments and insights. I came to Florida State University in 2004 to pursue a master’s degree in International

Affairs because of my interest in human rights. I did not know at the time that the Department of

Religion would provide the ideal setting for pursuing my interests in this field, but I discovered this fact when I had the opportunity to take seminars with Dr. Twiss in the course of earning my

MA. Dr. Twiss’s copious and insights on all aspects of human rights discourse has magnified my knowledge in this field. My later introduction to the field of Catholic Moral

Theology and Social in Dr. Kalbian’s seminars has shaped my thinking on human rights

iv to a greater extent than I could have ever imagined. I would also like to thank Dr. John Kelsay.

Throughout my years in the Department of Religion, I have marveled at his ability to bring great clarity to complex theoretical material. I can only hope some of that ability has worn off on me.

I would also like to thank Dr. Robin Goodman from the Department of English for her willingness to serve as the University representative and for her comments on the project.

Finally, I would like to thank Professor Terry Coonan, director of The Florida State University’s

Center for the Advancement of Human Rights, for his comments on the project.

v TABLE OF CONTENTS

List of Abbreviations ...... viii

Abstract...... ix

1. Background and Directions...... 1 1.1 Introduction...... 1 1.2 A Brief History of Collective Rights Developments ...... 4 1.3 Purposes and Limitations of The Project...... 7 1.4 Organization of the Study ...... 14

2. The Individual and : From the UDHR to the UNDRIP ...... 23 2.1 Introduction...... 23 2.2 The of the Inherence View of Human Rights...... 24 2.3 The Individual in From the Perspective of the UDHR ...... 34 2.4 Some Problems Concerning ...... 40 2.5 History of the UNDRIP ...... 45

3. Jacques Maritain: The Basis of Human Rights and the Person in Community...... 54 3.1 Introduction...... 54 3.2 The Natural Law Basis of Human Rights...... 56 3.3 Individuality, Personality, and the Person in Community ...... 64 3.4 The “Concrete Historical Ideal”...... 72 3.5 Maritain’s Influence...... 76

4. Gustavo Gutiérrez: Working From the Perspective of the Poor and Marginalized...... 83 4.1 Introduction...... 83 4.2 Rethinking the Role of the Church in Latin America...... 85 4.3 Gutiérrez’s Critique of Maritain, and His Basis in and the Preferential ...... 88 4.4 Praxis and the Role of the Social Sciences in Theology...... 96 4.5 Gutiérrez’s Importance as a Human Rights Thinker ...... 105

5. Martha Nussbaum and the Capabilities Approach...... 114 5.1 Introduction...... 114 5.2 The Need for Universal Values and the Failure of Prevailing Views...... 116 5.3 The Capabilities Approach: and Marx...... 126 5.4 Capabilities and Human Rights ...... 131 5.5 The Capabilities Approach and Rawlsian Political ...... 135 5.6 Global Citizens ...... 139

6. Reconciling Individual and Collective Human Rights ...... 146 6.1 Introduction...... 146

vi 6.2 The Natural Law Basis of Individual Rights ...... 147 6.3 The Basis of Indigenous Group Rights...... 160 6.4 Collective and Self-Determination...... 170 6.5 Cases of Conflict: Individual Rights Versus Collective Rights...... 177 6.6 On the Outside Looking In ...... 183

Afterword...... 190

Bibliography ...... 198

Biographical Sketch...... 206

vii LIST OF ABBREVIATIONS

ATL A Theology of Liberation ECOSOC Economic and Social Council ICCPR International Covenant on Civil and Political Rights ICESCR International Covenant on Economic, Social and Cultural Rights IH Integral MS Man and the State PCG The Person and the Common Good UDHR Universal Declaration of Human Rights UN United Nations UNDRIP United Nations Declaration on the Rights of Indigenous Peoples UNESCO United Nations Educational, Scientific and Cultural Organization

viii ABSTRACT

The proclamation of the Universal Declaration of Human Rights by the United Nations on December 10, 1948 gave birth to the contemporary human rights movement. Despite the worldwide influence the idea of human rights has enjoyed, the concept of human rights has been plagued by a number of criticisms. Among the most pervasive and persistent criticisms of human rights are that they represent an individualist viewpoint and that they are a relative product of Western society that are hardly universal. One purpose of this dissertation is to challenge these criticisms. However, in recent decades the idea of human rights has been expanded past its original individual focus to incorporate the idea of collective, or group rights.

The juxtaposition of universal, individual rights with particular, collective rights raises anew the issues of individualism and universalism in the human rights debate. In this dissertation, I compare the work of the French Catholic Jacques Maritain, the Peruvian theologian

Gustavo Gutiérrez, and the American philosopher Martha Nussbaum in order to yield a contextually sensitive natural law approach to human rights that will serve as a common justificatory basis for individual and collective human rights. This common justificatory basis will be capable of addressing the tensions of individualism and universalism generated by the juxtaposition of the Universal Declaration of Human Rights (1948), which enshrines individual, universal rights, and the more recent United Nations Declaration on the Rights of Indigenous

Peoples (2007), which enshrines more particularistic, group rights.

ix CHAPTER ONE

BACKGROUND AND DIRECTIONS

1.1 Introduction

The conceptual roots underlying the idea of human rights reach back for centuries, but the modern human rights movement was spawned on December 10, 1948.1 On this day, the

United Nations Third General Assembly adopted the Universal Declaration of Human Rights

(UDHR). Forty-eight states from around the world representing diverse peoples voted for the

UDHR’s passage; though eight states abstained in the final vote, no state voted against the document.2 The provisions of the UDHR are echoed in numerous provisions of the constitutions of various countries throughout the world, and it also serves as the bedrock of numerous international and intergovernmental agreements and documents. The UDHR is a landmark document, and the aspirations it gives rise to have found their way into the far reaches of the globe. The language of human rights has been and continues to be important for countless victims of political and economic oppression, and it has inspired the work of non-governmental organizations (NGO’s) and various governmental and intergovernmental bodies.3

Despite the worldwide purchase of the UDHR and the international human rights movement it has generated, the idea of human rights has been plagued by a number of criticisms in the past sixty years. One of the most salient criticisms has been that it represents a specific

1 Understanding the history behind the idea of human rights is important, especially since it is still relevant to the current debate; however, this dissertation is limited to the human rights movement and discourse generated by the various human rights documents coming out of the United Nations organization. 2 Johannes Morsink discusses the abstentions in some depth in Johannes Morsink, The Universal Declaration of Human Rights: Origins, Drafting & Intent (Philadelphia: University of Pennsylvania Press, 1999), 21 – 28. 3 Two of the most well known NGO’s dedicated to human rights work are Amnesty International and Human Rights Watch, but there are literally hundreds of such organizations working worldwide internationally and domestically within specific countries.

1 form of Westernized individualism hardly applicable to many parts of the world where a more communitarian understanding of the person prevails. Those who see in the concept of human rights itself a conception of the individual who stands against the community have criticized the idea of human rights from various angles.4 These critics suggest an alternative vision of the person, one that is thoroughly relational, socially embedded, and whose duties to the community take precedence over their claim to individual rights. This view can be construed either as a descriptive thesis about the anthropology underlying the UDHR or a normative criticism of the very idea of human rights. In either version, these communitarian criticisms of human rights are simply inaccurate insofar as they misconstrue the idea of human rights or they are mistaken to

4 Alasdair MacIntyre is one such critic who famously dismissed the in human rights as “one with belief in witches and unicorns.” Alasdair MacIntyre, After : A Study in Moral Theory, 3rd ed. (Notre Dame, IN: Press, 2007), 69. MacIntyre has taken issue with being categorized as a so-called communitarian. See, e.g., the prologue for the third edition of . Here MacIntyre specifically refers to the versus liberalism debate, and he eschews the communitarian label in an effort to make clear his own specific criticisms of liberalism. Fair enough, categorizations may not sufficiently capture the nuances of a particular thinker, but I think we are justified in classifying MacIntyre as a specific form of communitarian critique. See, e.g., Alasdair MacIntyre, “The Return to Virtue ,” in The Twenty-Fifth Anniversary of Vatican II: A Look Back and a Look Ahead, ed. Russell E. Smith (Braintree, MA: The Pope John XXIII Medical-Moral Research and Center, 1990), 239 – 249, 247. A different sort of communitarian critique of human rights falling under the name “” gained prominence almost two decades ago primarily because it was launched by prominent Asian leaders like Lee Kuan Yew, Prime Minister of Singapore from 1959 – 1990, and Mahathir bin Mohamad, Prime Minister of Malaysia from 1981 – 2003. See and Lee Kuan Yew, “Culture is Destiny: A Conversation with Lee Kuan Yew,” Foreign Affairs 73, no. 2 (1994): 109 – 126; and Mahathir bin Mohamad, “No Freedom Without Responsibility,” New Straits Times. May 20, 1995. http://www.lexisnexis.com .proxy.lib.fsu.edu/hottopics/lnacademic/?verb=sr&csi=151977. Both of these critiques have occurred in recent decades, but the idea that rights are inimical to community is not new. also criticized the idea of natural rights on the grounds that the concept implies an egoistic individual. See Karl Marx, “On the Jewish Question,” in Karl Marx: Selected Writings, ed. David McLellan (Oxford: Oxford University Press, 1977), 52. The idea of natural rights has largely been replaced by human rights, but I think there is a significant enough similarity between the two concepts to warrant my inclusion of Marx as an early version of the communitarian critique. For a brief discussion of the relationship between natural and human rights, see Johannes Morsink, Inherent Human Rights: Philosophical Roots of the Universal Declaration (Philadelphia: University of Pennsylvania Press, 2009), 24.

2 hold that rights can only be associated with individualism. The implications that human rights had on the relationship between the person and their community was an early source of debate in the process that led to the production of the UDHR.

As early as the first meeting of the Commission on Human Rights held at Lake Success,

New York, the Lebanese philosopher raised a series of questions about these issues.5 I will delve into more details about this in chapter two; for now I will only say that even a cursory reading of the UDHR demonstrates this debate was eventually settled in favor of a social conception of the person. A number of articles within the landmark document of the modern human rights movement enshrine a social conception of the person.6 Critics who claim that the UDHR represents a form of “Westernized” individualism go beyond a communitarian critique and raise questions about the universality of the document. This is significant because the very essence of the UDHR is its universality. As with the mistaken view about an individualistic anthropology, the drafting process reveals how attentive the authors of the document were to the world’s cultural variations. In later chapters, I challenge both of these critiques.

Though claims the human rights the UDHR enshrines are individualistic and relative to

“the West” are certainly inaccurate, or at best misguided, the very process of its formulation does raise the question of whether or not the UDHR is sufficiently respectful of the decision making

5 Mary Ann Glendon, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (New York: Random House, 2001), 39. 6 Such articles include article 16, which makes the claim that the is the basic unit of society, article 20, which guarantees the right to association, and article 29, which states that have duties to their communities since the community is where personal development takes place. UN General Assembly, Third Session, Universal Declaration of Human Rights, UN General Assembly Resolution 217A (III), 1948. All of my citations of the Universal Declaration of Human Rights will come from Basic Documents on Human Rights, 3rd ed., ed. Ian Brownlie (Oxford: Clarendon Press, 1992), 21 – 27.

3 processes of particular communities, particularly those that have been historically oppressed or marginalized. The UDHR was designed to protect persons, but the document itself was crafted from the perspective of various , many of them large and powerful. In other words, the UDHR exhibits a top-down approach to human rights that may not give sufficient respect for the perspectives of the actual victims of oppression, which in many cases are smaller communities or marginalized groups within the various states around the world. In later human rights developments, this problem has been brought to the forefront by changes concerning the so-called third generation rights, encompassing collective and group rights.7 Developments in this direction at least hold the promise that the voices of minority and marginalized groups will help shape human rights developments in the future.

1.2 A Brief History of Collective Rights Developments

One of the most important normative and legal principles now associated with third generation rights is the right to self-determination.8 The right to self-determination was already present within the UN framework prior to the passage of the UDHR.9 Self-determination

7 The first-generation rights encompass civil and political rights, the second-generation rights encompass social and economic rights, and the third-generation rights encompass what have been called “collective-developmental rights. See Sumner B. Twiss, “Moral Grounds and Plural Cultures: Interpreting Human Rights in the International Community,” Journal of Religious Ethics 26, no. 2 (1998): 272. Twiss provides a useful typology that further divides each type, or generation, into subtypes. Thus, civil-political human rights include two subtypes: norms related to physical and civil security and norms related to civil-political , or “empowerments”. Socioeconomic rights are also divided into two subtypes: norms related to providing those goods necessary to meet social needs and norms related to providing those goods necessary to meet economic needs. Finally, collective-developmental rights include the following two subtypes: the self-determination of peoples and specific rights for ethnic and religious minorities (ibid.). 8 In this dissertation, I am primarily concerned with the ethical concepts and principles underlying the relevant human rights as opposed to the legal aspects. I will explore self- determination in more conceptual detail later. 9 The idea of self-determination predates the founding of the United Nations, but once again, I am only concerned with developments following the creation of the UN.

4 appears in the Charter of the United Nations in Article 1, paragraph 2 and again in Article 55 under the formula “equal rights and self-determination of peoples.”10 It is debatable, however, whether the mention of self-determination in the UN Charter departs from the state-centric view.

For instance, Gaetano Pentassuglia has argued that these references in the Charter are for the benefit of states, not for smaller, often oppressed groups within states. Pentassuglia also points out that Chapters XI and XII, addressing non-self-governing territories and the trusteeship system, respectively, make use of the term self- but not self-determination.11

However, important developments took place in the 1950’s and 1960’s as many states, primarily in Asia and Africa, underwent a process of decolonization and became members of the United

Nations.12 According to Pentassuglia, this process led to an increased association of the concept of self-determination with decolonization; this linkage was strengthened in international law in

1960 with the passage of UN General Assembly Resolution 1514.13

10 United Nations, Charter of the United Nations (San Francisco, 1945), http://www.un.org/en/ documents/charter/. 11 Gaetano Pentassuglia, Minorities in International Law: An Introductory Study (, : Council of Europe Publishing, 2002), 160 – 161. 12 In her work on the United Nations, Linda Fasulo provides a useful list of the dates each member nation joined the UN. See Linda Fasulo, An Insider’s Guide to the UN (New Haven, CT: Yale University Press, 2004), 215 – 220. In all, forty-eight states from Asia and Africa joined the UN as members throughout these two decades, the vast majority of them coming from the latter continent. Indeed, looking at member state entrance dates to the UN reflects in large degree the different trajectories of decolonization. For instance, many Central and South American member states were either founding members of the UN or entered the UN shortly after its creation. Of course, many Central and South American states gained independence one hundred years sooner than many African and Asian states. 13 Pentassuglia, Minorities in International Law: An Introductory Study, 161. Pentassuglia also mentions Resolution 1541, but I believe 1514 is the more important focus for the current discussion. This particular resolution is entitled “Declaration on the granting of independence to colonial countries and peoples”. The relevant passage is in the second paragraph and it reads: “Conscious of the need for the creation of conditions of stability and well-being and peaceful and friendly relations based on respect for the principles of equal rights and self-determination of all peoples . . . “. UN General Assembly, Fifteenth Session, UN General Assembly Resolution 1514 (XV), 1960, http://www.un.org/documents/ga/res/15/ares15.htm. This resolution is clear that the

5 From the perspective of the development of collective human rights norms, an even more important development for the idea of self-determination was the inclusion of common Article 1 in the International Covenant on Civil and Political Rights (ICCPR) and the International

Covenant on Economic, Social and Cultural Rights (ICESCR); this article states, “All peoples have the right of self-determination.”14 This is significant insofar as these two documents are legally binding and give legal expression to the human rights listed in the UDHR. As

Pentassuglia puts it, these documents recognize self-determination “as a free standing human right.”15 S. James Anaya adds that self-determination’s “linkage with the term peoples in international instruments indicates the collective or group character of the principle.”16 These developments in the concept of self-determination in international documents are important steps for the increased recognition of collective rights in the international context; however, developments regarding indigenous peoples have marked the strongest recognition to date of collective human rights norms within the human rights agenda of the United Nations.17

newly formed states following the decolonization process should enjoy the same right to self- determination that other states in the international system are already enjoying. 14 UN General Assembly, Twenty-first session, International Covenant on Economic, Social and Cultural Rights and International Covenant on Civil and Political Rights, UN General Assembly Resolution 2200A (XXI), 1966. Throughout this dissertation, I take my quotes from these documents from Basic Documents On Human Rights, 114 – 143. 15 Pentassuglia, Minorities in International Law: An Introductory Study, 161. 16 S. James Anaya, Indigenous Peoples in International Law, 2nd ed. (Oxford: Oxford University Press, 2004), 100. 17 It is important to point out, however, that self-determination is also one of the key rights enumerated in the United Nations Declaration on the Rights of Indigenous Peoples. For a far more extensive discussion of self-determination in this context, see Erica-Irene Daes, “The UN Declaration on the Rights of Indigenous Peoples: Background and Appraisal,” in Reflections on the UN Declaration on the Rights of Indigenous Peoples, ed. Stephen Allen and Alexandra Xanthaki (Oxford: Hart Publishing, 2011), 11 – 40; Helen Quane, “The UN Declaration on the Rights of Indigenous Peoples: New Directions for Self-Determination and Participatory Rights?,” in Reflections on the UN Declaration on the Rights of Indigenous Peoples, ed. Stephen Allen and Alexandra Xanthaki (Oxford: Hart Publishing, 2011), 259 – 287; and Anaya, Indigenous Peoples in International Law, 2nd ed., 97 – 184. Anaya’s discussion takes place

6 As early as 1993, Marlies Galenkamp wrote that “the growing attention to those rights

[collective rights] could not have been better illustrated than by the decision of the General

Assembly of the United Nations to declare 1993 ‘Year of Indigenous Rights’.”18 This illustration was greatly magnified on September 13, 2007 when the General Assembly of the UN voted overwhelmingly for the United Nations Declaration on the Rights of Indigenous Peoples

(UNDRIP).19 Interestingly, even some theorists who are opposed to the notion of group human rights altogether recognize that the rights of indigenous peoples present a strong challenge to their views.20 In chapter two, I will say more about the significance of this particular document compared to other relevant developments touching on collective rights.

1.3 Purposes and Limitations of The Project

The growing recognition of collective rights in international law has raised a number of ethical, legal, political, policy, and theoretical/conceptual issues both within the organizations, governmental, intergovernmental, and non-governmental bodies, contributing to the formulation of international moral and legal norms and in the wider academic debate.21 It is hard to imagine any one project being capable of giving an adequate and exhaustive treatment of all the

before the passage of the UNDRIP, but the previous draft declarations of UNDRIP already mention self-determination and were formulated before Anaya’s discussion in this work. 18 Marlies Galenkamp, Individualism Versus : The Concept of Collective Rights (Rotterdam: Rotterdamse Filosofische Studies, 1993), 13 (My brackets). 19 The final vote was 143 states for, 4 states against, with 11 states abstaining. 20 See, e.g., Jack Donnelly, Universal Human Rights in Theory & Practice, 2nd ed. (Ithaca, NY: Cornell University Press, 2003), 215. Donnelly rejects the idea of group human rights even in the case of indigenous peoples. However, he does say when referring to the vulnerabilities of indigenous peoples that “a plausible case can be made that this is a standard threat to human dignity that deserves recognition and protection through internationally recognized human rights.” (ibid.). 21 By policy, I mean whatever implementation strategies are put in place for dealing with practical issues raised by the recognition of some right. So for instance, we may recognize the right to social security on moral grounds, but the best way to go about ensuring this right will be a matter for policy makers.

7 dimensions involved, and I will not try to do so here. At the outset, I will narrow the discussion by limiting my focus to theoretical/conceptual matters stemming from the underlying normative structure of human rights discourse. This is not to say that the legal, political, and policy issues are unimportant, and I will refer to international legal documents often, but I am more concerned with the moral norms underlying these documents than their specific legal aspect. Galenkamp draws the contrast between the legal and normative aspects nicely in a discussion of collective rights; she points out that the legality of collective rights is an empirical matter while the question of their justification is a normative one. We can determine if collective rights are legal by surveying relevant documents. However, this process will not necessarily tell us if there are sound moral reasons for recognizing collective rights.22 I am more interested in exploring whether such reasons exist. This focus on moral norms also rules out any exhaustive treatment of political and policy matters. Here again, these issues are important and not always unrelated to ethical considerations, but moral norms are often overshadowed in the political process, which is characterized by negotiation, compromise, and, very often, political posturing.23 I will make occasional references to the political thought of the thinkers discussed later in the dissertation, but this will not be my primary point of focus. On the other hand, I consider policy matters to be quite secondary to any discussion of rights. How do we know to put in place implementation strategies aimed at securing some right if we do not know the right exist or at least are not given sufficient reasons for holding that such a right exist?

22 Galenkamp, Individualism Versus Collectivism: The Concept of Collective Rights, 14 – 15. 23 This recognition calls into question one of the underlying assumptions of the dissertation. It is possible to argue that the UDHR is the outcome of exactly the type of negotiation, compromise, and political posturing I am calling into question here. The UDHR’s drafting process exhibits such features, but I think it is clear that at least a minimal amount of normative overlap existed amongst the drafters. Otherwise, it is hard to imagine that the document we have today would have made it out of the process. The sense of “political” I am using here is more closely related to how policy decisions are made by those exercising power.

8 However, to be clear, I am not interested in studying the genesis of collective rights in isolation. Rather, I am interested in how the development of these rights revives long-standing criticisms of individual rights and the UDHR discussed above. The UNDRIP lists some fairly specific collective, or group rights that appear to sit in an uneasy tension with the more individualized and universal rights of the UDHR. This focus on the UNDRIP further limits the scope of this project. There is a significant amount of conceptual overlap between the rights of indigenous peoples and other forms of group rights, such as minority rights, but I will leave other types of group rights unexplored, though arguments made in later chapters can also be applied to other types of group rights.24 In some ways, the declarations that form the focus of this dissertation seem to be perfect counterpoises to one another. The UDHR represents a top-down approach to human rights, and the rights it proclaims are focused on individuals. The UNDRIP, though still involving state actors, is far more of a grass roots project given the level of involvement from the intended beneficiaries, and the rights it proclaims are primarily targeted to groups, or peoples.

This contrast between the UDHR and the UNDRIP generates three interrelated, theoretical issues that will I address in this dissertation. The first issue is a metaethical one concerning universalism versus , which encompasses metaphysical and epistemological aspects of rights. The second is a normative and practical one concerning the relationship between the individual and the community. In particular, how is the relationship shaped by human rights as moral norms? The third issue concerns what types of rights are to be

24 Will Kymlicka touches on the overlapping conceptual issues in an interesting discussion of the different trajectories of indigenous peoples and minorities in international law. See Will Kymlicka, “Beyond the Indigenous/Minority Dichotomy?,” in Reflections on the UN Declaration on the Rights of Indigenous Peoples, ed. Stephen Allen and Alexandra Xanthaki (Oxford: Hart Publishing, 2011), 183 – 208.

9 considered human rights. This latter issue is not the primary focus of the dissertation, but it is related to the other two and worth addressing even if only briefly.

The metaethical issue of relativism versus universalism is an outgrowth of the particular perspective of the UNDRIP, which was crafted largely by indigenous peoples themselves. Their involvement raises the issue of whether or not the UDHR is able conceptually to accommodate an approach to human rights that takes into account the particularized perspective of oppressed groups themselves. In other words, is the universal status of these rights threatened by the particular point of view of a ? It should be clear that at the metaethical level a descent into moral and/or cultural relativism would erode any normative role the concept of human rights may play given that the very idea of human rights allows us to make judgments about how communities actually treat individual persons, yet relativism may be tempting if one has in mind the goal of respecting the decision making processes of individual communities.25

Even if a strictly relativistic viewpoint is avoided, the accommodation of particularity presents a paradox for universal human rights.26 These theoretical problems are to be expected of any universal approach that tries to incorporate the perspective of smaller communities. Thus the relationship between the UNDRIP and the UDHR is a complex and potentially controversial one.

To summarize, how can we posit a basis for human rights that does justice to the communal decision making of a particular group while maintaining the critical function of the UDHR?

One can approach the normative issue of the relationship between the individual and society, or the individual and community, from a variety of angles. On the one hand, many

25 For the remainder of this dissertation, I will use the simple term relativism to cover both moral and cultural relativism since the issues addressed in this dissertation entail a confluence of the two. 26 I take this point from Anaya, Indigenous Peoples in International Law, 133. Anaya is speaking specifically of the norm of cultural integrity within a human rights frame.

10 thinkers have been skeptical or outright dismissive of group rights because of the dangers they potentially pose to the rights of individuals or classes of individuals. Two particular normative standpoints, broadly construed, stand out it in this regard: philosophical liberalism and liberal , or, in some cases, a combination of the two. In one example of this type of critique, which combines both standpoints, argues: “It is by no means clear, then, from a feminist point of view, that minority group rights are ‘part of the solution.’ They may well exacerbate the problem.”27 Her liberalism is evident when she argues, “Indeed, they [women] might be much better off if the culture into which they were born were either to become extinct

(so that its members would become integrated into the less sexist surrounding culture) or, preferably, to be encouraged to alter itself so as to reinforce the equality of women–at least to the degree to which this value is upheld in the majority culture.”28 This particular example is an important one because it is made from the perspective of liberal feminism, and it also speaks to the connections that often exist between the individual/society dichotomy and the universalism/relativism dichotomy. In addressing this example, it is important to point out, first of all, that the UNDRIP specifically says in Article 26 that it is to be limited by already existing international human rights norms.29 However, as I will argue more fully in later chapters, the danger still exists that the group rights found in the UNDRIP could pose a threat to the individual rights of the UDHR. To address this problem, I argue in later chapters that the rights of the

27 Susan Moller Okin, “Is Multiculturalism Bad For Women?,” in Is Multiculturalism Bad For Women?, eds. Joshua Cohen, Matthew Howard, and Martha C. Nussbaum (Princeton, NJ: Press, 1999), 7 – 24, 22. Once again, we must be careful to distinguish between minority group rights, explicitly mentioned by Okin in the quote above, and the rights of indigenous peoples. However, the general thrust of Okin’s critique of group rights could be leveled at both types of group rights. 28 ibid., 22 – 23 (Original emphasis; my brackets). 29 It should be pointed out, however, that Okin could not have known this given that the argument she makes above was made eight years prior to the proclamation of the UNDRIP.

11 UDHR must take precedence in cases of conflict. However, this argument once again raises the specter of a communitarian critique of the UDHR, so I also hope to show that the preeminence of the rights of the UDHR does not necessarily imply individualism.

The final issue I will address in this dissertation, though to a lesser degree, concerns the conceptualization of group rights as human rights. Even thinkers who are otherwise sympathetic to the idea of group rights have either been hesitant to categorize group rights as human rights or reject the idea that group rights should be considered human rights.30 As with the other issues mentioned above, I will come back to a fuller treatment of the subject in later chapters, but a few initial comments are appropriate here. First, as Erica-Irene Daes points out, many of the indigenous representatives participating in the process of formulating the UNDRIP viewed the emerging document as a legitimate extension of human rights norms.31 Other important international documents can also be seen as supporting this categorization. According to Patrick

Thornberry, the Vienna Declaration and Programme of Action of the World Conference on

Human Rights supports an “anti-hierarchical, holistic” position on all three generations of human rights and the norms they represent.32 In other words, no type or generation of right (civil- political, social economic, or group-collective) takes precedent over any other type, and all of them are to be understood as human rights. The Vienna Declaration says in paragraph 5, “All

human rights are universal, indivisible and interdependent and interrelated.”33 Given that the

30 See, e.g., Will Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights (Oxford: Clarendon Press, 1995), 5. 31 Daes, “The UN Declaration on the Rights of Indigenous Peoples: Background and Appraisal,” 30. 32 Patrick Thornberry, “Integrating the UN Declaration on the Rights of Indigenous Peoples into CERD Practice,” in Reflections on the UN Declaration on the Rights of Indigenous Peoples, eds. Stephen Allen and Alexandra Xanthaki (Oxford: Hart Publishing, 2011), 61 – 91, 62. 33 World Conference on Human Rights, Vienna Declaration and Programme of Action (Vienna, 1993). http://www2.ohchr.org/english/law/vienna.htm.

12 Vienna Declaration, like other documents mentioned above, lists self-determination of peoples as a right, it seems clear that, from its perspective, collective-group rights are to be included in paragraph 5. Of course, I am not saying we should simply take such statements at face value without further argument, and I will return to such an argument in chapter six.

The central argument of this dissertation is that addressing all three of these issues can best be achieved by formulating an approach to human rights that is capable of making sense of both the rights and approach of the UDHR and the rights and approach of the UNDRIP.

However, as Thornberry points out, “Improving normative synthesis in the field of human rights is not a simple process.”34 I argue that by attending to the UDHR and its drafting process we can benefit from the important groundwork that has already been laid for achieving this synthesis. A further argument, one that will be developed more in chapter two, is that this groundwork forces us to address metaphysical and epistemological questions that more pragmatically minded human rights advocates are likely to find problematic.35 As will be discussed in more detail below, one reason we are forced to address more controversial metaphysical and epistemological claims is a historical one stemming from the fact that these types of claims were not completely ignored by the drafters of the UDHR. This historical claim is important, but I also argue that, on a theoretical level, the metaphysical and epistemological groundwork laid by the UDHR’s drafters helps us to both reconcile the tensions that exist between individual and groups rights

34 Thornberry, “Integrating the UN Declaration on the Rights of Indigenous Peoples into CERD Practice,” 62. 35 A range of thinkers coming from different viewpoints will find such questions problematic as they have been applied to human rights questions. See, e.g., Jack Donnelly, Universal Human Rights in Theory and Practice, 2nd ed., 13 – 21; Michael Ignatieff, “Human Rights as and Idolatry,” in Human Rights as Politics and Idolatry, ed. Amy Gutmann (Princeton, NJ: Princeton University Press, 2001), 3 – 98; and , “Human Rights, , and Sentimentality,” in On Human Rights: The Oxford Amnesty Lectures 1993, eds. Stephen Shute and Susan Hurley (New York: BasicBooks, 1993), 111 – 134.

13 and make sense of the growing resonance the concept of human rights has for individual and collective victims of oppression. However, this groundwork is in need of further theoretical elaboration. Based on the work of others, I argue this groundwork can be developed into a contextually sensitive natural law approach that serves as a common justificatory basis for both individual and collective rights, a justificatory basis capable of reconciling the three tensions discussed above.

Specifically, I will explore three different contributions to the human rights initiated by the UDHR that yield the justificatory basis outlined above. These three approaches are those of the French Catholic philosopher Jacques Maritain, the Peruvian liberation theologian

Gustavo Gutiérrez, and the contemporary American philosopher Martha Nussbaum. Though none of these three thinkers specifically address the question of how to modify the approach of the UDHR in order to make room for the approach and rights of the UNDRIP, each thinker’s approach to human rights does contribute important conceptual resources for thinking about the theoretical problems raised by such an approach, and comparing their work will yield the aforementioned justificatory basis of a contextually sensitive natural law approach to the full range of human rights norms yielded by the relevant documents emanating from the UN.

1.4 Organization of the Study

In chapter two, I will explore the histories of the UDHR and the UNDRIP to provide insight on how the framers, in the case of the UDHR, addressed issues concerning the moral foundations of human rights as well as issues concerning the relationship between individuals and society and questions concerning political authority. Specifically, I will focus on the theoretical issues raised by a section of the UDHR, the Preamble. In this Preamble, there are appeals to both the “inherent dignity” of all humans and the “ of mankind”. Together

14 these references constitute an ontological and an epistemological claim. I will consider whether these concepts can still be of theoretical use when applied to groups or collectivities. Does the translation from the individual to the of actual communities require some modification or elaboration? I find conceptual resources in how the framers conceived of the social conception of the person, as well as how they understood the nature of community. The history of the drafting of the UNDRIP also provides some unique insights into the concept of collective human rights.

In chapter three, I turn to the work of Jacques Maritain and identify central insights that contribute to this theoretical study of collective rights. Maritain is a relevant figure for addressing these issues. He began writing on them not long before the outbreak of World War II and continued into the time of the founding of the UN and the promulgation of the UDHR. In fact, Maritain participated in a UNESCO symposium on the philosophical foundations of human rights while the drafting committee for the UDHR was still doing its work.36 One of Maritain’s most notable contributions to this symposium was his view that people of widely varying philosophical and religious ideas could come to a practical agreement on a list of human rights.

While Maritain did express this view, he also believed that the idea of human rights could only be founded on . As a Catholic Neo-Thomist philosopher, the “true” foundation for human rights according to Maritain is natural law, which he divides into an ontological and an epistemological, or what he calls gnoseological, element. Maritain argues that the ontological element of natural law is simply the “normality of functioning” of any given living thing. All living things, including humans, have certain ends particular to their structure and they can only

36 UNESCO stands for United Nations Educational, Scientific and Cultural Organization.

15 “achieve fullness of being” by pursuing these ends.37 On this view, human rights are necessary so that humans can achieve “fullness of being.” Maritain is clear, however, concerning the epistemological element that the knowledge of natural law is pre-rational knowledge that is progressively discovered with advances in awareness of individual and within historical communities. Thus, Maritain’s thought provides a way of thinking about the theoretical difficulties raised by trying to balance the critical function of a universal approach to human rights with respect for the particular understandings of traditionally marginalized groups.

Moreover, Maritain wrote a good deal in the realm of and his thoughts can also be useful for thinking about the relationship between individuals and .

This issue is generally framed within the context of Maritain’s understanding of the traditional

Catholic notion of the common good. Maritain makes it clear that persons can only flourish within the context of community, but he also tries to construct a political theory that precludes the community from simply using and abusing its members. Furthermore, Maritain also addresses political issues concerning the variety of religious and ethnic groups that may live within one political society. All of this is related to Maritain’s thoughts on human rights insofar as Maritain writes a good deal concerning the best type of society for respecting the dignity of individual persons.38 In spite of his universalizing tendency, much of Maritain’s thinking on these topics is embedded within a theological anthropology that produces tensions regarding the protection of human rights. Another limitation to Maritain’s contribution is that it is not clear his political theory contains the necessary conceptual resources for dealing with concrete differences between various societies around the world. In other words, Maritain’s

37 Jacques Maritain, Man and the State (Chicago: The Press, 1951), 87. 38 Maritain makes a distinction between “individual” and “person” that I will address in chapter three.

16 overly theoretical approach does not always take sufficient account of the concrete problems people actually face. Thus, Maritain’s political theory and understanding of natural law both take into account cultural variation, but his natural law approach is somewhat deductive.

In chapter four, I use the thought of Gustavo Gutiérrez to further develop my thesis about a contextually sensitive natural law approach. Unlike Maritain, Gutiérrez does not explicitly address the basis for such rights or even discuss them to any great extent; however, Gutiérrez’s occasional appeals to human rights, especially as they have developed over time, provide useful insights for understanding a more inductive and culturally sensitive viewpoint. Like Maritain,

Gutiérrez writes from a Roman Catholic perspective; however, Gutiérrez often criticizes positions similar to Maritain’s, and he explicitly defines his approach in opposition to Maritain’s in A Theology of Liberation, perhaps his most important work.39 Indeed, much of Gutiérrez’s work is theological; his goal is to construct a theology that can make sense of the Latin American situation where many countries are predominantly Catholic but are also characterized by grave disparities in wealth. Gutiérrez is highly critical of the “official” theology of the Church because of the way it is couched within the terms of Neo-, a view that he is not authentically Catholic. Rather than focusing on salvation in terms of the “final end” or

“beatitude”, Gutiérrez tries to show how salvation begins as a historical process of liberation for the poor and oppressed. To this end, Gutiérrez consistently stresses the work of God within history, and he uses biblical narratives such as the liberation of the Israelites from in

Egypt in order to make this point. Basically, Gutiérrez tries to eliminate the separation or distinction between the temporal and spiritual spheres; this distinction is a feature we find in

Maritain’s thought. Indeed this causes some tension in Maritain’s thought insofar as Maritain

39 Gustavo Gutiérrez, A Theology of Liberation: History, Politics and Salvation, trans. and ed. Sister Caridad Inda and John Eagleson (Maryknoll, NY: Orbis Books, 1973), 54 – 56.

17 claims that in order to fulfill its spiritual mission the often has to cooperate with the very political authorities responsible for the oppression of their own citizens. The association of the Church with elites who are in many ways responsible for unjust oppression is one of

Gutiérrez’s main criticisms of the predominant theology of his day.

Gutiérrez often appeals to the dignity of human persons, human rights, and even what may be considered a notion of flourishing, but, unlike Maritain, he does not provide much of a theoretical basis for these claims. However, Gutiérrez does make important contributions to the epistemological issues addressed in this dissertation. Part of Gutiérrez’s critique of Maritain is that Maritain’s vision of a “New ” is not sufficient for the Latin American situation.

For Gutiérrez, this is primarily because Maritain conducts his thought from afar, from the armchair as it were. Gutiérrez argues that all theory, including theological analysis, must be conducted from within the perspective of the poor and oppressed. Here Gutiérrez expresses one of the central ideas of his thought, the idea that theology must be critical reflection on praxis.40

In other words, one must enter into active solidarity with the poor and the oppressed and move from their perspective outwards. Thus, Gutiérrez’s thought makes an important theoretical contribution to the effort to build an approach to international human rights that takes into account the more grassroots approach represented by the UNDRIP.

Gutiérrez also makes important contributions to epistemological and political issues insofar as he stresses the necessity of social scientific approaches. Though there is not a well- developed concept of the political in Gutiérrez’s thought, there is a political aspect to his work.

He expresses his economic and political ideas within the terms of dependency theory. Central to his view is a suspicion of large powerful states like the United States as well as international

40 Gutiérrez, A Theology of Liberation, 6 – 13.

18 development organizations. This suspicion of elites reflects Gutiérrez’s moral and epistemological assumptions that theory must be built from within the perspective of the poor and the oppressed themselves rather than from any outside view. His views on these matters will be important to consider when addressing modifications to the international human rights regime by the UDHR. Gutiérrez’s thought is also particularly relevant for thinking about collective or group rights as he provides considerations that can be connected to important normative principles within international law that bear on these rights.

In chapter five, I will turn to the thought of contemporary American philosopher Martha

Nussbaum, specifically focusing on her capabilities approach. Nussbaum considers her capabilities approach to be a species of the human rights approach to . The capabilities approach also shares very similar features with both Maritain’s approach and

Gutiérrez’s, so Nussbaum’s work provides an important secular counterpoint to approaches worked out within the terms of Christian, and more specifically . However,

Nussbaum’s work also contributes to my project in other ways.

Nussbaum’s reliance on numerous sources complicates any study of her; thus, it will be important to distinguish and clarify these. Concerning human rights, Nussbaum begins with an

Aristotelian approach, and supplements it with Marxist ideas. She claims that all human , regardless of culture, require certain basic necessities in order to achieve a life of flourishing, or a life worthy of a human being. Nussbaum bases this claim on what, in the early development of the capabilities approach, she called “internalist essentialism”, a version of essentialism distinct from those tied to metaphysical realism. The basic gist of Nussbaum’s internalist essentialism is that humans can recognize that certain basic necessities are required to live a fully human life.

However, she stresses the human recognition of this fact in opposition to metaphysical-realist

19 essentialisms that wed this recognition to some God’s eye view of the world. Though she eschews the idea that the world can somehow be known apart from a particular perspective, she also develops her internalist essentialism in opposition to relativism.41 Nussbaum’s commitment to development issues leads her to reject relativism as a socially progressive option. For

Nussbaum, certain basic functioning is necessary for all human beings; thus, societies that do not enable their members to achieve this functioning can be morally judged. This idea of functionings is roughly similar to Maritain’s view of natural law, a point I shall develop in later chapters.

While shaped by Aristotelian and Marxist views, Nussbaum sees her capabilities approach as related to a type of political liberalism. Specifically, Nussbaum argues that it is most akin to the political liberalism of because it is a view that can be justified from various different metaphysical schemes, whether religious or philosophical. Thus, Nussbaum’s hope is that her capabilities approach can be the source of an “overlapping consensus” to use the

Rawlsian terminology.42 As mentioned above, Jacques Maritain’s thought exhibits this feature as well. The capabilities approach is also related to Rawlsian liberalism insofar as it emphasizes individual . By insisting on a clear distinction between capability and functioning, she protects individual choice. For example, Nussbaum claims that having access to nutritious food and to opportunities for sexual satisfaction are both basic capabilities, but she recognizes that people may choose to forego both nutritious food and/or sexual satisfaction for a variety of reasons. These reasons are very often religious in nature. Thus, Nussbaum argues people should

41 Martha Nussbaum, “Human Functioning and Social Justice: In Defense of Aristotelian Essentialism,” Political Theory 20, no. 2 (1992): 202 – 246. 42 See, e.g., Martha Nussbaum, Creating Capabilities: The Human Development Approach (Cambridge, MA: The Belknap Press of Harvard University Press, 2011), 89 – 93.

20 be provided the capability for sexual satisfaction, but they should not be forced into functioning as sexual beings.43

In addition to similarities with Maritain’s thought, Nussbaum’s view overlaps with

Gutiérrez’s as well. For Nussbaum, like Gutiérrez, on-the-ground work with marginalized groups and individuals, in her case poor women in India, is important for theory. They both stress the importance of theory and practice. From this perspective, a theory that aims at improving the lives of the less fortunate makes no sense apart from those lives. For example,

Nussbaum has been highly critical of standard development approaches because they often fail to enter into the lives of individual people, especially from traditionally marginalized sectors of society. However, unlike Gutiérrez, Nussbaum presents a somewhat clearer picture of how best to achieve the goals of her capabilities approach by tying that goal to constitutional principles.

Finally, I do not intend to simply highlight the areas of similarity between Nussbaum,

Gutiérrez, and Maritain. I believe that Nussbaum’s approach is helpful independently of the others. She provides important conceptual tools for thinking about the possibility of particularizing a universal human rights approach, while these tools are not found in either

Gutiérrez or Maritain’s work. A quick comparison to Gutiérrez helps to clarify some of

Nussbaum’s points. Gutiérrez stresses the importance of both praxis and solidarity in efforts to build a just society. The vision for this society must emerge from within the perspective of the marginalized. How is it possible for a person from a large and powerful country, or even from a power elite within a poor country, to enter into solidarity with the poor and oppressed? While

Gutiérrez is able to answer that question in terms of Christian theology, such an answer will not be convincing to a non-Christian. Nussbaum, in contrast, does provide a secular response to this

43 Martha Nussbaum, Women and Human Development: The Capabilities Approach (Cambridge, UK: Cambridge University Press, 2000), 87.

21 dilemma. Unlike Gutiérrez who stresses dependency, Nussbaum’s emphasis on interdependency leads her to argue that the skills necessary for becoming global citizens include empathy and the narrative imagination. These are skills that allow us to see the world from the perspective of traditionally marginalized groups or those who are different from us.44 These skills are relevant to my project insofar as they provide a way to value the rights of indigenous groups while still retaining a universal human rights framework.

In my final chapter, I will identify the areas of overlap and convergence between

Maritain, Gutiérrez, and Nussbaum. All three of them make important contributions to the theoretical apparatus of the UDHR in the quest to elaborate a theoretical approach to human rights that integrates the rights proclaimed by the UDHR and the more recent UNDRIP. I will weave together the various strands of their thought as I develop my own approach for addressing the three ethical and conceptual issues discussed above: universalism versus relativism, the relationship between the individual and society, and what rights are categorized as human rights.

The perspectives of the UDHR and the UNDRIP obviously differ to some extent, and even though there is no necessary outright theoretical conflict between the two documents, the three thinkers explored in this dissertation contribute important ideas for resolving any perceived tensions so that the two documents can work together.

44 See, e.g., Martha Nussbaum, Not for Profit: Why Needs the Humanities (Princeton, NJ: Princeton University Press, 2010). An earlier statement of these views can be found in Martha Nussbaum, Cultivating Humanity: A Classical Defense of Reform in Liberal Education (Cambridge, MA: Harvard University Press, 1997).

22 CHAPTER TWO

THE INDIVIDUAL AND COMMUNITY: FROM THE UDHR TO THE UNDRIP

2.1 Introduction

In this chapter, I will explore the drafting history of the UDHR in order to respond to one of the most persistent criticisms of the document, the criticism that the document expresses an individualist viewpoint that abstracts individual members of society from the communities of which they are a part. My response will unfold in two parts. First, I will draw on the work of

Johannes Morsink to argue that there is an individualist component underlying the document.

This component is linked to the metaphysical and epistemological views that ground the majority of the drafters’ understandings of human rights. These views will be relevant as I develop my own approach. Second, I will argue that, despite the individualism evident in the metaphysic and underlying the UDHR, the history of its drafting shows that critics who accuse it of excessive individualism are mistaken.

While I endorse the view that the UDHR does not pit individuals against the respective communities of which they are a part, in the third part of the chapter I will identify several problems with the UDHR’s idea of community. For example, I will show that the drafters did not pay sufficient attention to communal decision-making processes, especially those of marginalized communities. After all, the delegates taking part in the drafting of the UDHR were representatives of states, and in 1948 as today, many states contained numerous minority groups, and some states still maintained control over colonies. As such, the voices of many communities were not heard in the drafting of the UDHR. This in turn raises the question of the universality of the rights proclaimed by the UDHR. This situation has been in some part rectified with developments concerning collective rights, especially with the promulgation of The United

23 Nations Declaration on the Rights of Indigenous Peoples on September 13, 2007; this document gives a voice to those that were previously voiceless in much human rights discourse. However, this document also poses certain challenges for the universality of the human rights listed in the

UDHR. In the fourth part of the chapter, I will outline the history leading up to this document and the failure of the drafters of the UDHR to pass a minority rights article, which is a closely related concern.45 In the final part of the chapter, I will explore the potential for tension existing between these two documents.

2.2 The Individualism of The Inherence View of Human Rights

Before discussing the main subject of the first part of the chapter, it will be helpful to give a brief outline of the drafting history of the UDHR. This will simplify the presentation of later material by providing the reader with a general orientation to the different periods of the drafting history. The UDHR was crafted over an almost two-year period beginning with the first meeting of the United Nations Commission on Human Rights, a subsidiary organization of the

UN’s Economic and Social Council (ECOSOC), in January of 1947 and culminating with its passage in December of 1948.46 In truth, however, it is possible to trace the origins of the

UDHR to the founding of the United Nations in 1945. As Johannes Morsink explains it: “When the United Nations was founded in San Francisco in 1945 there was tremendous pressure on the delegates to that founding conference to include an international bill of rights in the Charter of the United Nations. The national and international pressure for such a bill had been steadily building throughout World War II.”47 As a point of clarification, today the international bill of human rights does not refer to the UDHR alone; it refers to the combination of the UDHR and

45 See note 24 above on the relation between minority rights and indigenous rights. 46 The UN Council on Human Rights replaced the Commission on Human Rights in 2006; the Council on Human Rights is a subsidiary organization of the General Assembly. 47 Morsink, The Universal Declaration of Human Rights: Origins, Drafting, & Intent, 1.

24 the two covenants concerning human rights, the ICCPR and ICESCR. The UDHR is non- binding on the member states of the United Nations while the covenants are binding treaties passed in 1966 and coming into force in 1976.48 The of these separate documents is a result of a decision made by the drafters of the UDHR to address the means of implementing a human rights regime at a later time. However, the main point I want to make here is that, even though the UDHR is a foundational document for the human rights movement, a new world order was being envisioned even before the end of the war, and many believed one of the cornerstones of this new world order should be human rights. Thus, the drafters of the UDHR did not bring the idea of human rights into existence; rather, they merely gave specification to an idea that was already held among many. The UN Commission on Human Rights, hereinafter the

Commission, is itself mandated by the Charter of the United Nations, a document that came into being three years prior to the UDHR.

The drafting process took place in several stages. The Commission, which consisted of representatives from eighteen UN member states, was established in June 1946 and its first job was to come up with an international bill of rights.49 Following the creation of the Commission,

Johannes Morsink breaks down the drafting process into seven distinct stages. Stage one was the first session of the Commission meeting in January 1947; at this meeting it was decided a small drafting group consisting of the newly elected Commission chairwoman (Eleanor Roosevelt of the United States), vice-chairman (P.C. Chang of China), and rapporteur (Charles Malik of

Lebanon) would create a preliminary draft with the assistance of the United Nations Secretariat.

The assistance from the Secretariat was given in the form of the Canadian legal scholar John P.

48 The UDHR is, however, part of customary international law. 49 Glendon, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights, 32.

25 Humphrey, the newly appointed Director of the Division on Human Rights within the

Secretariat.50 Not long after these decisions were made, Humphrey was asked to write the preliminary draft. However, some of the delegates, even among those who had originally supported the decision, expressed their dissatisfaction with the decision to limit the drafting committee to the executives of the Commission, and the drafting committee was soon expanded to eight delegates rather than the original three. The second stage of the drafting process, according to Morsink, begins with Eleanor Roosevelt appointing the newly expanded drafting committee and that committee’s meetings beginning in June 1947. At this stage, the most important decisions made were that Humphrey’s draft was to be the basis of discussion and that

René Cassin would be responsible for revising and logically rearranging the Humphrey draft.

In December 1947, the full eighteen-member Human Rights Commission met for its

Second Session. This meeting begins the third stage in the drafting process. According to

Morsink, this session was attended by far more than the eighteen state delegates because consultants from a wide variety of non-governmental organizations (NGO’s) also attended. The

Second Session of the full Commission produced what is now known as the Geneva Draft since the meeting took place in that city. Stage four began in May 1948 with the meeting of the

Second Session’s drafting committee. Not much was accomplished at this point as far as drafting the UDHR is concerned because the delegates were still embroiled in a debate over whether or not to create a binding covenant. The fifth stage began with the meeting of the Third

Session of the Commission in May and June of 1948. At this point, the Geneva Draft was revised and pared down. The sixth drafting stage involved more than the Commission, for the sixth stage consists of the meeting of the Third Committee of the General Assembly to discuss

50 For this section, I follow Morsink, The Universal Declaration of Human Rights: Origins, Drafting, & Intent, 4 – 12.

26 the draft of the Declaration issuing from the Second and Third Sessions of the Commission. At this point, all UN member states, including those without representation on the Commission, were given another opportunity to make contributions to the UDHR. Eighty-five different meetings of the Third Committee heavily scrutinized the draft. The seventh drafting stage was also the shortest, lasting only a day. This stage is where the Plenary Session of the Third General

Assembly debated the UDHR, and it was adopted the same day on December 10, 1948. Though all of the member states of the United Nations once again had an opportunity to change the

UDHR at this stage, only one minor change was made and the UDHR was then passed by a vote of forty-eight for, zero against, and eight abstentions.51 With this general view of the drafting process in place, we can now turn to the document itself to address the important issues that are the subject of this chapter, beginning with the issue of individualism.

Nearly every article of the UDHR that is positively stated begins with the word

“everyone”, while nearly all those that are stated negatively begin with the words “no one”.

These terms refer to individuals. The word “everyone” can also be read as “each and every individual.” Similarly, Article 1 of the UDHR begins with this sentence: “All human beings are born free and equal in dignity and rights.”52 Put another way, this could be read as “all human individuals are born free and equal in dignity and rights.” Thus, it is clear there is a strong individualistic component to the UDHR. This in turn raises the question of what the basis for individual human rights is. Why do individuals possess rights as individuals rather than as members of a group (other than the entire human family) or as citizens of a particular state? If we broaden our focus beyond the UDHR to the broader human rights discourse it has inspired, the answer to this question has not been clear-cut. One of the main dividing lines separating

51 ibid., 12. 52 UN General Assembly, Universal Declaration of Human Rights.

27 various answers to the question runs between those who argue that there is a metaphysical basis to individual rights and others who argue that should be avoided; those who hold the latter view often maintain the focus on individuals, but they argue the idea of individual human rights should be understood pragmatically and politically.

Michael Ignatieff is an outspoken proponent of the latter view. In Human Rights as

Politics and Idolatry, Ignatieff argues that “it may be tempting to relate the idea of human rights” to metaphysical propositions like the “innate or natural dignity” of all human beings or to argue that “they have a natural and intrinsic self-worth” or “that they are sacred”, but he rejects such propositions because “they are not clear and they are controversial.”53 According to Ignatieff, the lack of clarity is caused by the fact these propositions “confuse what we wish men and women to be with what we empirically know them to be.”54 Ignatieff further argues that these types of statements are controversial because they “confuse what is with what ought to be” and

“they are likely to fragment commitment to the practical responsibilities entailed by human rights instead of strengthening them.”55 Finally, Ignatieff argues the “metaphysical claims about human nature are intrinsically contestable”; Ignatieff then makes a questionable statement when he says: “some people will have no difficulty thinking human beings are sacred because they happen to believe in the existence of a God who created Mankind in His likeness” but “people who do not believe in God must either reject that human beings are sacred or believe they are sacred on the basis of a secular use of a religious metaphor that a religious person will find unconvincing.”56 Ignatieff’s conclusion to this entire line of reasoning is that foundational claims should be avoided because the divisions they create “cannot be resolved in the way

53 Ignatieff, “Human Rights as Politics and Idolatry,” in, 54. 54 ibid. 55 ibid. 56 ibid.

28 humans usually resolve arguments” which is “by means of discussion and compromise”;

Ignatieff counsels us to focus on “what such rights actually do for human beings.”57

Though Ignatieff’s overall point in this section is discernible, his argument is confusing for several reasons. First, earlier in the passage Ignatieff treats words like innate dignity, intrinsic self-worth, and sacred as if they are synonyms. The problem is that words like dignity and self-worth do not always carry or necessarily have to carry the religious overtones that the word sacred generally does. As such the dilemma Ignatieff presents for the non-religious person is a bit of a false dilemma. A religious person may argue that people have innate dignity or self- worth because they are sacred while a non-religious person may argue that people have an innate dignity or intrinsic self worth for other reasons.58 The second issue is more to the point; Ignatieff is essentially arguing that we should avoid certain truth claims because they are controversial.

This general tactic does not seem to be the formula for success or that Ignatieff argues it is according to thinkers like Johannes Morsink.59 For instance, Morsink says: “The point of the present book is to warn the international human rights community-and especially its theorists-not

57 ibid. (Original emphasis). 58 It is instructive that Ignatieff later mentions Michael Perry and other like-minded individuals who have argued that the idea of human rights is, in Perry’s words, “ineliminably religious.” Clearly, since Ignatieff rejects any metaphysical basis for human rights, he does not agree with the overall point being made by religious believers like Michael Perry and Max Stackhouse, whom he also cites, but it leaves us to wonder whether or not their influence has not unduly colored the passage quoted above. For Perry’s claims, see Michael Perry, The Idea of Human Rights: Four Inquiries (New York: Oxford University Press, 1998), 11 – 41. 59 It is tempting to use an analogy drawn from the history of science to make this point. Certainly, Copernicus’s claim that the earth revolved around the sun was controversial for some, as the example of Galileo demonstrates, but it is hard to imagine that science would have progressed without it. However, this analogy will not prove sustainable for those who see a disjunct between the truth claims of science and those of ethics, or those like Richard Rorty who reject appeals to truth in any case. See, e.g., Richard Rorty, “Religious Faith, Intellectual Responsibility and Romance,” in Philosophy and Social Hope (London: Penguin Books, 1999), 148 – 167. Unsurprisingly, Rorty also demonstrates no proclivity for linking human rights with metaphysical claims. See Rorty, “Human Rights, Rationality, and Sentimentality,”111 – 134.

29 to ignore this connection between metaphysical thinking and the forces of rebellion. By ignoring the philosophical roots of the founding text of their movement, many human rights theorists are weakening those forces and making them fight with one hand behind their back.”60 The “forces of rebellion” Morsink is referring to are those who rebel against tyranny and oppression.

However, this issue of effectiveness, though important, is not my main concern. Morsink’s critique of Ignatieff is closely tied to his historical analysis of the drafting of the UDHR. Though

Ignatieff may think it is best to avoid metaphysical questions concerning human rights, the question at this point is whether or not the drafters of the founding document of the human rights movement understood themselves to be avoiding such questions.61 Morsink has answered this question negatively; his argument is that the drafters of the UDHR did subscribe to a particular metaphysic, which he calls the “metaphysics of inherence.”

Attending to Morsink’s arguments here is important. Without understanding that a metaphysic underlies the UDHR, we are not in a position to see the extent of the potential conflict between the individual rights found in the UDHR and the group rights found in the

UNDRIP and the way for resolving it. The metaphysics of inherence consists of two complementary theses; each thesis Morsink refers to as a “universality thesis” because each one concerns the universal nature of human rights.62 “The first universality thesis is a metaphysical one about the way the world is. It states that people everywhere and at all times have rights that are not man-made, but inherent in the human person from the moment of birth.”63 Morsink further argues that this first universality thesis is found in both the Preamble of the UDHR and

60 Morsink, Inherent Human Rights: Philosophical Roots of the Universal Declaration, 4. 61 I agree with Morsink that the UDHR serves a “canonical function” for the wider human rights movement (ibid.). 62 Morsink, Inherent Human Rights, 17. 63 ibid.

30 Article 1. The first paragraph of the UDHR reads: “Whereas 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 in the world.”64 Article 1 begins, “All human beings are born free and equal in dignity and rights.”65 Regarding the other universality thesis, Morsink says: “The second universality thesis is a matching epistemological one which tells us that ordinary people in any of the world’s villages or cities can come to know in a natural manner-unaided by experts- that people everywhere have the moral birthrights spoken of in the first universality thesis.”66

Evidence for the second universality thesis can be found in both the Preamble of the UDHR and

Article 1. The relevant part of the Preamble reads: “Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind.”67

Article 1 says, “They [all human beings] are endowed with reason and conscience.”68

After discussing the opening paragraph’s connections with Enlightenment ideas, Morsink discusses how it is almost counterintuitive that the first paragraph of the Preamble to the UDHR would cause so little trouble. “While it is not surprising that the members of this Preamble

Committee opted to start the Preamble with such clear borrowings from Enlightenment discourse, it is surprising that this most philosophical of recitals caused the least bit of controversy.”69 This surprise is heightened when we further take into account that the communist delegations did not fully reject the language by voting against it; rather, they abstained in the final voting on paragraph 1 of the Preamble in the Third Session. The Third

Committee also passed this paragraph unanimously. Morsink further argues that the word

64 UN General Assembly, Universal Declaration of Human Rights. 65 ibid. 66 Morsink, Inherent Human Rights, 17. 67 UN General Assembly, Universal Declaration of Human Rights. 68 ibid. (My brackets). 69 Morsink, Inherent Human Rights, 27 (Original emphasis).

31 “born” in Article 1 “anchors the doctrine of inherence explicitly in the text of the Declaration.”70

Though some delegations did propose the deletion of the word “born” from Article 1, Morsink demonstrates that these proposals were not based on a rejection of the word “born” and the doctrine of inherence it implied but were based on other considerations.71 Though earlier votes on the word “born” passed with a good deal of opposition, Article 1 was adopted with 45 votes for and 9 abstentions in the final General Assembly vote.72

The implications of the drafters’ understanding that all humans have certain rights by virtue of their birth into humanity are clear. For one, all humans everywhere possess these rights. Second, the rights enumerated in the UDHR are to be understood as moral rights that precede the legal apparatus of any particular state; therefore, they should not be understood as legal rights that can be granted and taken away by state governments. Indeed, states have the moral obligation to secure the rights of their citizens. The main point is that all individual human beings possess human rights because they are born into the human species, not because they are born into a particular community, group, or state. Furthermore, because all humans possess rights irrespective of their state or community membership, clearly there will be instances when individuals will make claims against their particular communities or states. I will have more to say about this later. For now, I turn to the epistemological “universality thesis”.

In his exposition of the second universality thesis, Morsink alludes to the oddity of arguing all humans have inherent rights while leaving the discovery of this fact to groups of experts.73 Morsink further argues that the drafters of the UDHR showed two “epistemic routes”

70 ibid., 28. 71 ibid. 72 ibid., 29. 73 Morsink, Inherent Human Rights, 17 – 18.

32 open to all humans.74 These two epistemic routes are reason and conscience; both of these avenues are mentioned in Article 1, and conscience also makes an appearance in the second paragraph of the Preamble.75 However, it is not merely the presence of these words in the document itself that contribute to Morsink’s argument that the drafters believed the rights in the

UDHR can be known by all humans; Morsink also directs our attention to the intended audience.

Morsink shows that many of the delegates along the various phases of the drafting process were concerned that the document was becoming too long, but these delegates were not concerned about brevity for brevity’s sake; rather, many of them argued the document should be concise and clear enough for ordinary people to understand.76 In other words, all people can understand that they and others possess all of the rights enumerated in the document as long as these basic rights are not clothed in excessively technical language. This is because reason and conscience are natural endowments while understanding technical language comes with education and training.

Morsink further makes the case that the drafters believed our shared moral revulsion at atrocities like the Holocaust is proof of our shared epistemic equipment known as the conscience, though the Holocaust is not specifically mentioned in the document. However, the

Preamble states: “Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind”.77 The important point about the drafters’ recognition of our shared epistemic faculties, however, is the linkage that exists between this recognition and the idea that human rights are inherent in individual humans. As Morsink puts

74 ibid., 55. 75 ibid. The route of conscience was an addition suggested by P.C. Chang who used the Confucian idea of “two-man mindedness”, which was then translated as conscience. See note 95 below. 76 ibid., 56 – 57. 77 UN General Assembly, Universal Declaration of Human Rights.

33 it, “This conscience puts us in touch with a realm of moral values and inherent rights which the drafters articulated in the articles they drafted. This realm is an objective one in that ordinary people from all walks of life and from any of the world’s cultural milieus can (unless blocked) enter it with their own unaided epistemic equipment.”78 Put another way, individuals not only possess inherent human rights, they also know they possess these rights and should know that all other individual humans do as well. Furthermore, all humans should in principle be able to discern when these rights are being violated. The drafters concluded that individuals both possess rights by virtue of their humanity and know they (and everyone else) possess rights by virtue of their innate epistemic faculties: reason and conscience. Though the UDHR contains this individualist component, in the next section I defend the UDHR from the charge that it presents an overly individualistic view of the relationship between individuals and the communities to which they belong.

2.3 The Individual in Society From the Perspective of the UDHR

As mentioned in chapter one, one of the most persistent criticisms of the UDHR is that it represents a one-sided perspective on the topic of human rights, typically taken to be Western in origin. The universality of the document is an important topic of inquiry, but here I am only interested in its connection with the normative question concerning the relationship between the individual and society raised by the idea of human rights expressed in the UDHR. The criticism that the document is not universal and that it is too individualistic in outlook often merge together. As Morsink puts it when discussing the common criticism that the drafting process itself speaks against the universality of the UDHR, “Geography merges with once we realize that many of the new member states from Africa and Asia have a more communitarian

78 Morsink, Inherent Human Rights, 67.

34 political philosophy than that generally held by those nations around the North Atlantic which dominated the drafting process of the Declaration.”79

It was not long into the drafting process before the Commission broached the issue of the individual’s relationship to society. This topic quickly made it onto the agenda at the first session of the Human Rights Commission at Lake Success, New York due to an intervention by

Lebanon’s Charles Malik. In this intervention, Malik drew a connection between questions about human rights and the fundamental nature of man [sic].80 The Yugoslavian, thus

Communist, delegate, Vladislav Ribnikar, responded rather sharply to Malik’s remarks.81

Ribnikar argued that communal interests, dictated by the state, take precedence over individual interests. Malik responded by arguing that the human person takes precedence over any group to which they belong and that an individual’s conscience took precedence over state or group interests.82 This back and forth between Malik and several communist delegates touched off a heated debate amongst the other delegates. Some delegates agreed with the communist position, such as the United Kingdom’s Charles Dukes. Others, such as Eleanor Roosevelt of the United

States and France’s René Cassin, took up a middle position, while others were exasperated that people like Malik had wanted to address the issue at all; this was, for instance, the position of

India’s Hansa Mehta.83 However, it must be made clear that, as a Thomist, Malik was certainly

not advocating any radical individualism; his notion of personhood would include the notion of a person as a social being.84

79 ibid., 97. 80 Glendon, A World Made New, 39. I will be following Glendon throughout this short section. 81 ibid. 82 ibid. Malik’s use of the word “person” is not insignificant. Charles Malik, like Jacques Maritain, was a student of the philosophy of . 83 ibid., 40. 84 Glendon notes the between the words “individual” and “person”. ibid., 42.

35 Morsink sheds light on Malik’s position in the debate by pointing out that Malik was addressing the problem of , not supporting some notion of individualism. Morsink provides a piece of a speech that Malik delivered to the Second Drafting Session that helps us see where Malik’s true concerns were in bringing up the relationship between the individual and society. The passage reads:

The world was faced with a tendency to “statism,” or the determination by the state of all relations and ideas, thus supplanting all other sources of convictions. The state insisted on the individual’s obligations and duties to it. This too was a grave danger, for man was not the slave of the state, and did not exist to serve the state only. This applied also to the relative position of the individual and other groups to which he belonged. There were innumerable other intermediate loyalties which the individual must respect, such as those towards his family, his profession, his friends, and also towards his philosophical laws. The state could not be the exclusive arbiter of truth and . Real freedom sprang from the loyalty of the individual not to the state but these intermediate forms. These must find their place in the general social picture. (SR.21/p. 6).85

We can understand Malik’s concern even more when we take into consideration the insistence of the communist delegates at all of the different stages of the drafting process that the state is the entity responsible for providing human rights protections to its citizens. As Morsink puts it,

“This citation shows that we cannot take Malik’s principle that an individual can stand in judgment over his or her own community as an anticommunitarian observation.”86

Although the topic of the individual’s relationship to society was addressed early on and continued to be touched on at various moments in the drafting process, most of the discussion about the social nature of individual humans took place at the debates surrounding what is now

Article 29 of the UDHR. This article reads: “(1) Everyone has duties to the community in which alone the free and full development of his personality is possible. (2) In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by

85 Quoted in Morsink, The Universal Declaration of Human Rights: Origins, Drafting, & Intent, 242. 86 ibid.

36 law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of , public order and the general in a democratic society. (3) These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.”87

Morsink demonstrates that this more communitarian article has early roots in the drafting process; it can be found in both Humphrey’s original discussion text as well as Cassin’s rewrites of that text. Humphrey’s text construed this communitarian aspect in terms of duties to the state.

Unsurprisingly, given the brief discussion of Malik’s views above, Malik objected to

Humphrey’s way of framing the issue in terms of duties to the state. Cassin did not frame the issue this way, but his rewrites do include a strongly communal flavor. It is worth quoting the first four articles of Cassin’s text to make this point. Article 1 reads: “All men are brothers.

Being endowed with reason, members of one family, they are free and possess equal dignity and rights.” Article 2 reads: “The object of society is to afford each of its members equal opportunity for the full development of his spirit, mind and body.” Article 3 reads: “Man is essentially social and has fundamental duties to his fellow-men. The rights of each are therefore limited by the rights of others. (Alternative) As human beings cannot live and develop themselves without the help and support of society, each one owes to society fundamental duties which are: obedience to law, exercise of useful activity, willing acceptance of obligations and sacrifices demanded for the common good.” Article 4 reads, “In the exercise of his rights, every one is limited by the rights of others.”88 Morsink argues that Cassin’s Article 1 quoted above is not only the predecessor to the current Article 1 of the UDHR but also connects “the

87 UN General Assembly, Universal Declaration of Human Rights. 88 Quoted in Morsink, The Universal Declaration of Human Rights, 243.

37 and duties of Article 29 and the language of the first recital (‘all members of the human family’) and Article 1 (‘spirit of brotherhood’).”89

However, Cassin’s four separate articles were soon altered when some delegates, including chairwoman Eleanor Roosevelt, argued the four articles should be condensed. Ralph

Harry, the Australian representative, also argued the four articles should be condensed, so

Roosevelt asked him to write one article that would condense Cassin’s four articles. However, the rest of the Committee decided that only the last three of Cassin’s articles should be condensed while Cassin’s first article should be preserved. As such, the Committee preserved the following from Harry’s rewrite: “These rights are limited only by the equal rights of others.

Man also owes duties to society, through which he is enabled to develop his spirit, mind and body in wider freedom” (SR.13/p.4).”90 In following sessions, the wording was changed several more times and it was decided that the article concerning one’s duties to the community should be placed at the end of the document rather than the beginning. The vote to place the article on one’s duties to their community at the end of the UDHR rather than the beginning was very close and further shows to what extent more communitarian forms of thinking informed the entire drafting process. Many of the delegates argued that this article should appear at the beginning of the document so that it was made clear that rights can only be enjoyed within the framework of society. Despite the strong support for keeping this article towards the beginning of the document, it was decided with a vote of 8 to 7 and 1 abstention to move the article on duties to the end of the document.91

89 ibid. When Morsink says “first recital”, he is referring to the first paragraph of the UDHR’s preamble. 90 Quoted in Morsink, The Universal Declaration of Human Rights, 244. 91 ibid., 245. According to Morsink, it was P.C. Chang that originally proposed moving the article on duties to the rear of the document. Morsink, citing Abdullahi Ahmed An-Na’im as

38 However, when the article on duties to one’s community made it to the Third Committee stage in the drafting process, the communitarian nature of the article was strengthened yet again by the inclusion of the word “alone” in the document. The article as it arrived from the Third

Session of the Commission read: ‘“everyone has duties to the community which enables him freely to develop his personality’ (E/800).”92 According to Morsink, it was the Australian delegate to the Third Committee, Alan Watt, who proposed the phrase that is now part of Article

29 in the UDHR; Watt’s proposed phrase reads: “in which alone the full and free development of his personality is possible.”93 Though quite a few delegates objected to this particular phrasing, including important members of the drafting committee such as Roosevelt and Chang, the wording also had strong support and carried with a vote of 23 for, 5 against, with 14 abstentions. The fairly strong support for the word “alone” demonstrates that many of the delegates who participated in the shaping of the UDHR believed it was important to make clear that people are to be treated as members of society rather than as abstract individuals. As

Morsink puts it, “This word ‘alone’ may well be the most important single word in the entire document, for it helps us answer the charge that the rights set forth in the Declaration create egoistic individuals who are not closely tied to their respective communities.”94

Closely examining the drafting process allows us to easily refute the oft-made charge that the UDHR paints an unrealistic picture of atomistic individuals, a charge that is often associated with the supposedly Western origins of the document. The charge that the UDHR is a product of a Western point of view is just as easily rejected if we look closely at the diverse backgrounds of

well, expresses some bewilderment that Chang, as a representative of the Confucian tradition, would vote to place duties at the end. For both of these scholars, according to Morsink, Chang’s move seemed to run contrary to a more communitarian-minded tradition like . 92 Quoted in ibid., 246. 93 ibid. 94 ibid., 248.

39 the particular delegates and key figures in the drafting process. For instance, P.C. Chang, a

Chinese delegate, was one of the core figures in the drafting process, and Confucianism often informed his perspective. Of course, it would be absurd to categorize Confucianism as

Western.95 Though both of these charges lack legitimacy, the UDHR does present us with a problematic understanding of community. Once again, I turn to the drafting history in order to focus in on the relevant issues concerning community.

2.4 Some Problems Concerning Communities

A brief look at the drafting history will reveal that the drafters of the UDHR did not ignore the general problem of communities that were either marginalized or lacking the ability to speak for themselves. As Morsink demonstrates, the communist delegates, and in many cases the Soviets in particular, were vociferous in their criticism of and their support for all groups who are generally marginalized. Though communist support for marginalized groups extended not only to ethnic or linguistic groups but to all classes of people that are generally discriminated against, such as women, in this section I will largely confine my discussion to ethnic, national, and cultural communities. There are instances in the drafting process where various delegations showed insufficient respect for communities and their particular decision making processes, and we can still find traces of these insufficiencies in the final product.

The first example concerns the issue of the colonies. During the Third Committee phase the Yugoslavian delegation spearheaded an effort to make sure there was a separate article within

95 For instance, this is evident in Chang’s suggestion that the Confucian concept of “two-men- mindedness” be incorporated into Article 1 of the UDHR. Chang’s suggestion was adopted, although it was rendered as “conscience”. For a brief discussion of Chang’s contribution in this regard see Sumner B. Twiss, “A Constructive Framework for Discussing Confucianism and Human Rights,” in Confucianism and Human Rights, eds. Wm. Theodore de Bary and Tu Weiming (New York: Press, 1998), 27 – 53, 41.

40 the UDHR ensuring that the rights of the UDHR extended to people living in colonies.96

Through the efforts of delegates from colonial powers, such as the British, no separate article on nondiscrimination against people living in colonies made it to the final draft. Instead, it was relegated to the last part of Article 2, which forbids discrimination on many grounds. The relevant part of the article reads: “Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self governing or under any limitation of sovereignty.”97 The story of the demotion of the separate article concerning discrimination against those living in colonies demonstrates that several of the states were reticent to draw too much attention to the rights of those living colonies for fear of empowering the peoples living in them.98 Of course, we could make the point more forcefully by drawing attention to two historical facts: 1) the colonial subjects were not simply free to begin with and 2) delegates representing subject territories were not invited to participate in or provide input into the drafting of the UDHR. Even the communist delegations, with all their insistence on nondiscrimination, did not make this last demand. At worst, some of the drafters of the UDHR did not seem to exhibit too much concern for the self-determination of various cultural groups, and at best, all of the drafters did not seem concerned with making room at the drafting table for such groups.

96 Morsink, The Universal Declaration of Human Rights, 98 – 99. As Morsink points out, the word “colonies” is not actually used in the UDHR. The part of Article 2 dealing with this issue, after the separate article was dropped and in the final version, merely refers to territories that are either “trust, non-self governing or under any other limitation of sovereignty” (ibid.). 97 UN General Assembly, Universal Declaration of Human Rights. 98 Morsink, The Universal Declaration of Human Rights, 99 – 101. Morsink draws attention to the underhanded manner the colonial powers used to try and have a separate article on the colonies removed. I will not go into detail about what exactly they did, but I think Morsink is correct to assume their actions reveal a hidden agenda on their part. I infer from this that the hidden agenda of the colonial powers was to be as quiet as possible about the rights of people living in colonies so that they [the colonial powers] would not be justifying their own overthrow by colonial peoples.

41 The UDHR exhibits problems in other areas as well. Here, I am specifically referring to problems raised by the wording of Article 27. The first paragraph of this article reads:

“Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.”99 It is worth following Morsink at length to highlight the key issue this language raises. “While in the articles on religion and education the drafters showed great understanding for members of minority groups, Article 27 does not exhibit a similar appreciation of the diversity of cultural traditions. The double use of the definite article ‘the’ in the first paragraph is ground for suspicions.”100 Morsink continues by saying “the paragraph does not say, as it might have, that everyone has a right ‘to participate in the cultural life of his or her community.’”101 Morsink then argues that “this pluralistic wording would have allowed for the possibility and the likelihood that being a citizen of a certain state and participating in the cultural life of one’s community are for some people not one and the same thing.”102 Morsink thinks the underlying viewpoint of Article 27 assumes that community is to be identified with the dominant culture of any particular nation-state, which entails no multiculturalism or pluralism. Thus, “the article blurs a line communitarians like to see drawn between the state as a political entity and the nation or community as a cultural unit.”103 This problem comes into sharp focus in some of the other articles. Morsink argues that “with this kind of division of labor between the task of the state and the benefits of the community, Articles

15 and 21 of the Declaration should and do deal with citizenship and participation in government

– that is, politics – and Article 27 should – but does not – deal with the right of everyone to

99 UN General Assembly, Universal Declaration of Human Rights (My emphasis). 100 Morsink, The Universal Declaration of Human Rights, 269. 101 ibid., 269 (Original emphasis). 102 ibid. 103 ibid.

42 participate in the cultural life if his or her ethnic or cultural community or nation.”104 For

Morsink, it is likely that many in minority cultures in a particular state will see themselves as

“loyal citizens of the state”, but they may not identify with “the dominant culture that informs state structures”; the problem is that Article 27 “does not seem to acknowledge that there is a difference between these two ways of relating to the machinery of the modern state.”105

The language of Article 27, though problematic from the standpoint of community, could have been corrected to a great extent even without changing the language of that particular article. For instance, the passage of a minority rights article could have ensured the document enshrined the multicultural or pluralistic vision Morsink claims the document is missing. During the drafting process such a minority rights article was proposed but ultimately defeated. This minority rights article originally had strong support among a diverse group of delegations including India, Australia, and the Philippines.106 After spending some time in the Sub-

Commission on the Prevention of Discrimination and the Protection of Minorities, the wording of the article read: “In states inhabited by a substantial number of persons of a race, language, or religion other than those of the majority of the population, persons belonging to such ethnic, linguistic, or religious minorities shall have the right, as far as compatible with public order and security to establish and maintain schools and cultural institutions and to use their own language in the Press, in public assembly and before the courts and other authorities of the State.”107 The history of this article is rather tortured and twisted. Though the United States was originally the only strong opponent, several delegations vacillated in their early support for a minority rights article. The Australian delegate, A.J.D. Hood, went right to the heart of an issue that would later

104 ibid., 269. 105 ibid., 269 – 270. 106 Morsink, The Universal Declaration of Human Rights, 270. 107 Quoted in Morsink, The Universal Declaration of Human Rights, 272.

43 become central to groups pushing for the passage of the United Nations Declaration on the

Rights of Indigenous Peoples. Hood opposed the minority rights article on the grounds that it

“went beyond the scope of the declaration” by giving “rights to groups as such.”108 Furthermore,

Hood said: “While he did not question the wisdom of the policy of free development of diversified groups in other countries, [he] . . . pointed out that Australia had adopted the principle that assimilation of all groups was in the best interest of all in the long run.”109 Charles Malik, with support from communist delegations, argued that a policy of assimilation was not applicable in all states; these delegations made further pushes for proposals to protect minority rights, but they were rejected in the Third Session.110

Morsink argues that with a better approach on the part of many of its supporters and a stronger lobby the drafters of the UDHR could have passed some kind of minority rights article

UDHR.111 Be that as it may, the fact remains that no such article was passed or became part of the UDHR. However, the International Covenant on Civil and Political Rights (ICCPR), one of the implementation mechanisms passed in 1966, does include a minority rights article. Article

27 of the ICCPR reads: “In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.”112 Though this article could be seen as an important step in the direction of protecting minority groups, especially those that are marginalized, it is not without problems from the perspective of group rights. One issue concerns its specificity; the document

108 Quoted in Morsink, The Universal Declaration of Human Rights, 274. 109 Quoted in Morsink, The Universal Declaration of Human Rights, 274 (Original brackets). 110 Morsink, The Universal Declaration of Human Rights, 274 – 275. 111 ibid., 277 – 280. 112 This quote from the ICCPR is taken from Basic Documents on Human Rights, 3rd ed., 134.

44 is not clear about what measures will be taken to ensure this right is actually enjoyed. It would be hard to consider this a major flaw, however, because it is understandable given that the rights listed in the ICCPR, like the UDHR, needed to be stated clearly. Descending too far into specifics would compromise clarity. The second issue is more serious, and it is one I have already raised with the drafting of the UDHR. Like the process leading to the UDHR, representatives of states conducted the drafting process of the ICCPR, so marginalized and minority groups did not have any input.

Nevertheless, the most serious flaw of this article if one has in mind a defense of group rights is that this article does not actually confer any group rights as such.113 The article refers to individuals, and it confers the rights on individuals. Individuals have the right to participate in their cultural group, but this is not the same as saying the cultural group itself possesses rights to certain things. Not until 2007 with the passage of the UNDRIP is there a human rights document that addresses all three of these issues. This document is fairly specific in its enumeration of rights, the groups (victims) themselves created it in large part, and it confers rights on groups as such; therefore, the document moves forward quite a bit regarding its respect for community and communal decision-making in comparison with the UDHR. In the next section, I will give a brief history of the UNDRIP.

2.5 History of the UNDRIP

The United Nations Declaration on the Rights of Indigenous Peoples was almost forty years in the making, and it represents a successful attempt to appropriate the language of human

113 As mentioned in chapter one, common Article 1 of the two international human rights covenants seems to confer the right of self-determination on groups as such, but it lacks the specificity and the element of beneficiary input that I am claiming to be unique about the UNDRIP.

45 rights to express moral claims made by groups.114 The foundation for UNDRIP began to be laid in 1969 in the former Sub-Commission on the Prevention of Discrimination and Protection of

Minorities.115 That year, one of the items on the Sub-Commission’s agenda was a Special Study on Racial Discrimination in the Political, Economic, Social, and Cultural Spheres; this document also included a chapter discussing actions taken to protect indigenous peoples.116 Based on this chapter, in 1970 the Sub-Commission recommended that a comprehensive study should be conducted on the problem of discrimination against indigenous peoples. This recommendation was then passed on to higher bodies within the UN structure including the Commission on

Human Rights and the Economic and Social Council (ECOSOC); in 1971, the latter body authorized such a study to be made. This study was finally completed more than a decade later between 1981 and 1984; however, due to numerous issues the study was already raising about the status of indigenous peoples, the Sub-Commission recommended in 1981 that a Working

Group on Indigenous Populations (WGIP) be established. The Commission on Human Rights endorsed this proposal and ECOSOC authorized the creation of the Working Group in 1982.117

This working group held its first two meetings in 1982 and 1983. The working group’s mandate consisted of two tasks. First, the WGIP would monitor developments that affected the

114 For this brief history, I follow Daes, “The UN Declaration on the Rights of Indigenous Peoples: Background and Appraisal,” 11 – 40. Erica-Irene Daes served as the Chairperson- Rapporteur of the United Nations Working Group on Indigenous Populations (WGIP) from 1984 – 2001. 115 The Sub-Commission on the Prevention of Discrimination and Protection of Minorities was originally a subsidiary organization of the UN Commission on Human Rights. This Sub- Commission was renamed in 1999 as the Sub-Commission on the Protection and Promotion of Human Rights; today this UN body no longer exists. The Advisory Committee of the UN Human Rights Council has taken its place. See http://www2.ohchr.org/english/bodies/subcom/ index.htm. 116 Daes, “The UN Declaration on the Rights of Indigenous Peoples: Background and Appraisal,” 11. 117 ibid., 11 – 12.

46 rights of indigenous peoples. Second, the WGIP would draft standards designed to protect the rights of indigenous peoples. In 1984, Erica-Irene Daes was elected as the

Chairperson-Rapporteur of the WGIP, and in this capacity she collected the necessary information for creating a Draft Declaration on the Rights of Indigenous Peoples. In September

1984, Daes attended the General Assembly of the World Council of Indigenous Peoples (WCIP) in Panama as a representative of the WGIP.118 Many indigenous representatives at this meeting called for a formal recognition by the UN of indigenous rights, and through numerous consultations between Daes and indigenous representatives, a list of seventeen principles was drawn up. These principles would constitute the basis for a declaration of indigenous rights.119

Also in September 1984, The Fourth General Assembly of the WCIP approved the seventeen principles. The following year, a coalition consisting of the Indian Law Resource Center, the

Four Directions Council, the National Aboriginal and Islander Legal Service, the National Indian

Youth Council, the Inuit Circumpolar Conference, and the International Indian Treaty Council submitted another Declaration of Principles to the 4th session of the WGIP. Both of these sets of principles were to become the basis for creating a Draft Declaration on the Rights of Indigenous

Peoples.

According to Daes, the most common demands made by indigenous representatives for recognition of their rights had to do with land and territory, protection against forced assimilation into the dominant ways of life in a particular state, and the need to protect their distinct cultural identities, heritage, and traditions. Indeed, both the 1984 and 1985 draft principles reflect these concerns. In 1985, Daes, taking into account numerous consultations and the aforementioned

118 The World Council of Indigenous Peoples was an international body working on indigenous rights issues; it had observer status at the United Nations when it existed. 119 Daes, “The UN Declaration on the Rights of Indigenous Peoples: Background and Appraisal,” 12.

47 draft principles, urged the WGIP to formally begin work on a draft declaration. With a formal authorization from the WGIP, Daes created a list of seven principles that would guide the discussion for creating a DRIP. Here are the seven principles:

1. The right to full and effective enjoyment of the fundamental rights and freedoms universally recognized in existing international instruments, particularly in the Charter of the United Nations and the International Bill of Human Rights. 2. The right to be free and equal to all other human beings in dignity and rights, and to be free of discrimination of any kind. 3. The collective right to exist and to be protected against genocide, as well as the individual right to life, physical integrity, liberty, and security of person. 4. The right to manifest, teach, practice and observe their own religious, traditions and ceremonies, and to maintain, protect, and have access to sites for these purposes. 5. The right to all forms of education, including the right to have access to education in their own languages, and to establish their own educational institutions. 6. The right to preserve their cultural identity and traditions, and to pursue their own cultural development. 7. The right to promote intercultural information and education, recognizing the dignity and diversity of their cultures.120

These seven principles were formally authorized by all of the parent bodies of the WGIP in

1985.121 At this point the effort to draft a document protecting the rights of indigenous peoples became a concern for the United Nations more generally. Meetings within the UN that included the WGIP, member states, and indigenous representatives led to the creation of a Draft Universal

Declaration on Indigenous Rights in August 1988. In 1991, a revised draft declaration was presented to the 11th session of the WGIP. Although a draft declaration existed, representatives of states continued to clash with indigenous representatives on a number of issues, particularly concerning the right to self-determination. Non-political issues were also a source of contention.

Debates also continued to took place at a more theoretical level concerning the relationship between collective rights and individual rights. Many government observers

120 ibid., 22 – 23. 121 The parent bodies in order of rank from lowest to highest were the Sub-Commission on the Prevention of Discrimination and Protection of Minorities, the Commission on Human Rights, and the Economic and Social Council.

48 questioned the fit between the collective rights enshrined in the draft declaration and the idea of human rights prevalent in already existing international human rights documents.122 Indigenous representatives, who argued that the push for the collective rights of indigenous peoples was a legitimate extension of prevailing understandings of human rights, countered this notion.123

Following intense discussions on all of these issues, the WGIP finally agreed on a final text of the Declaration and submitted it for adoption by the Sub-Commission on the Prevention of

Discrimination and Protection of Minorities in 1993. The Sub-Commission then decided to submit the document to the Commission on Human Rights so that it could be submitted for consideration by the General Assembly of the United Nations. At this point, the Commission on

Human Rights created another working group to conduct further work on a draft declaration.

After a long delay, the draft declaration was submitted to the Human Rights Council and adopted by that body on June 29, 2006.124 After further wrangling at the Third Committee level of the

General Assembly between indigenous representatives and member states of the United Nations, the UNDRIP was finally adopted and proclaimed on September 13, 2007.

The UNDRIP is a landmark document in many respects, but it is especially unique because of the way it came into being. As Daes puts it, “It should be noted that no other United

Nations human rights instrument has been elaborated with so much direct involvement and active participation by its intended beneficiaries.”125 Although member states were involved in

122 Daes, “The UN Declaration on the Rights of Indigenous Peoples,” 30. 123 Erica-Irene Daes, whose account I am following here, says that indigenous representatives “supported an extension of the traditional Western understanding of human rights” (ibid., 30). It is unclear whether the indigenous representatives or Daes is applying the adjective “Western” here, but as other parts of this chapter have shown, this characterization is certainly open to challenge. 124 ibid., 34. The Human Rights Council replaced the Commission on Human Rights in 2006. 125 Daes, “The UN Declaration on the Rights of Indigenous Peoples: Background and Appraisal,” 12.

49 the process, the UNDRIP was the result of a more grassroots-based attempt to proclaim a set of human rights than the UDHR which relied on a more state-centric process. Of course, we also have a different set of beneficiaries between the two documents. While the beneficiaries of the

UNDRIP are traditionally marginalized or oppressed groups, or collectivities, the UDHR is designed to proclaim the rights of all individuals. A number of articles within the UNDRIP present potential theoretical and practical problems from the perspective of the individual rights enshrined in the UDHR. Below is a list of the most relevant rights:

Article 5: Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their right to participate fully, if they so choose, in the political, economic, social and cultural life of the State. Article 8, paragraph 2: States shall provide effective mechanisms for prevention of, and redress for: (a) Any action which has the aim or effect of depriving them of their integrity as distinct peoples, or of their cultural values or ethnic identities. Article 15, paragraph 1: Indigenous peoples have the right to the dignity and diversity of their cultures, traditions, histories and aspirations which shall be appropriately reflected in education and public information. Article 18: Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain their own decision-making institutions. Article 33: (1) Indigenous peoples have the right to determine their own identity or membership in accordance with their customs and traditions. This does not impair the right of indigenous individuals to obtain citizenship of the States in which they live. (2) Indigenous peoples have the right to determine the structures and to select the membership of their institutions in accordance with their own procedures. Article 35: Indigenous peoples have the right to determine the responsibilities of individuals to their communities. Article 40: Indigenous peoples have the right to access to and prompt decision through just and fair procedures for the resolution of conflicts and disputes with States or other parties, as well as to effective remedies for all infringements of their individual and collective rights. Such a decision shall give due consideration to the customs, traditions, rules and legal systems of the indigenous peoples concerned and international human rights.126

126 All my quotes from the UNDRIP come from the Appendix to Reflections on the UN Declaration on the Rights of Indigenous Peoples, 585 – 597.

50 Interestingly, there is a part in Article 46 of the Declaration that states without apparent irony:

“The exercise of the rights set forth in this Declaration shall be subject only to such limitations as are determined by law and in accordance with international human rights obligations.”127

However, at the level of ethical theory, it is clear that the articles quoted above exhibit a good degree of support for cultural particularity. It may be going too far to say they represent a form of relativism; however, they do give cultural groups, in the form of a right, wide latitude in determining their own values, presumably including moral values. This in turn could pose severe problems from the perspective of the individual rights listed in the UDHR, rights that are more closely tied to a more universal, critical morality. Clearly, giving too much latitude to particular cultures in the determination of moral values would drain all of the normative purpose out of human rights. For instance, a culture may claim the right to oppress a particular class of people within their own culture, women for instance, as part of the more general right to preserving cultural traditions. Surely, this would be considered a violation of the individual rights of the women involved according to the standards of the UDHR.

However, matters of ethical theory are not the only issues at stake here. If we also take into account the numerous rights concerning self-determination in the UNDRIP, we encounter practical problems as well. It is not clear exactly how self-determination rights are to be handled, but more importantly from a human rights perspective, it raises the question of how we work out who has the primary duty to guarantee human rights are being respected. Ronald

Niezen has made the question clear. Speaking of indigenous peoples, Niezen asks us to imagine a situation where indigenous peoples have achieved their goals by having “their claim to self- determination recognized, their rights to land affirmed and honored, their struggle against racism

127 ibid.

51 proactively assured.”128 Niezen argues that the human rights questions concerning indigenous peoples would not be completely answered “because we can assume that, as self-governing peoples, they would be in many ways responsible for upholding the rights of their own people.”129 Niezen’s own suggestion is that the share of responsibility between states and indigenous peoples is a matter of constitutional arrangements.130

These more practical and political problems may be just as difficult to resolve as the ones stemming from ethical theory. If an indigenous group is thought to be violating the rights of some or all of its own members, does this mean the state has the responsibility to intervene? If so, what type of political arrangement does this entail between the power structures of the state and the power structures of the cultural group, and how can cultural groups be protected from illegitimate encroachments by the state in the name of protecting individual rights? Many of the answers to these questions concern matters that are related but fall outside of the limited range of issues addressed in this project. However, even if implementing political and policy strategies to secure rights may pose difficult problems when different levels and types of authority structures are in play, I would make the preliminary statement that indigenous peoples do have the duty to respect the individual rights of the UDHR, even if securing them involves complicated relationships with states. This argument will be addressed more fully in chapter six. None of the theoretical issues raised by the tensions present between the individual rights of the UDHR and the group rights of the UNDRIP are susceptible to easy solutions. However, in the next three chapters, I will present the views of three different thinkers who all have something particular to

128 Ronald Niezen, The Origins of Indigenism: Human Rights and the Politics of Identity (Berkeley: University of California Press, 2003), 98. 129 ibid. 130 ibid.

52 contribute to an approach to human rights that can serve as the underlying justificatory basis for both of these human rights documents thereby doing justice to the moral demands of each.

53 CHAPTER THREE

JACQUES MARITAIN: THE NATURAL LAW BASIS OF HUMAN RIGHTS AND THE PERSON IN COMMUNITY

3.1 Introduction

Jacques Maritain was born in 1882 to Paul Maritain and his wife Geneviéve Favre, daughter of the notable 19th century French statesmen . Paul Maritain was not to play a decisive role in the upbringing of young Jacques; Geneviéve and Paul were separated and then finally divorced in 1885, and in 1904, Paul Maritain committed suicide. Thus, their mother raised Jacques and his sister Jeanne. Though Geneviéve Favre had Jacques baptized as a

Lutheran, Christianity was not to play a decisive role in Jacques’s childhood. As Ralph

McInerny points out in his biography of Maritain, the household run by Geneviéve Favre was influenced more by current social and political ideas than by religious ones.131 Indeed, Maritain was exposed to socialist ideas as a child by the husband of the family cook who was a socialist, though McInerny suggests this influence probably had more to do with Maritain’s need for masculine influence than a genuine understanding of politics.132 However, Maritain’s life and career would take a decisive turn in 1906 when he and his wife Raïssa, whom he had met at the

Sorbonne five years earlier, were baptized into the Roman Catholic Church. As important as

Jacques Maritain’s conversion to Catholicism was, it was Maritain’s introduction to and engagement with the thought of Thomas Aquinas that would mark Maritain as one of the most important Catholic and laymen of the 20th century. Maritain gives us a foreshadowing of the importance Aquinas would have for his own thought in his published diary.

In the entry for September 15, 1910, Maritain writes, “Finally! Thanks to Raissa, I begin to read

131 Ralph McInerny, The Very Rich Hours of Jacques Maritain: A Spiritual Life (Notre Dame, IN: University of Notre Dame Press, 2003), 8 – 9. 132 ibid.

54 the Summa Theologiae. As it was for her, it is a deliverance, an inundation of light. The intellect finds it home.”133

Maritain’s reflections on human rights and political theory are guided by his engagement with Thomas Aquinas; however, social and political matters were not in the forefront of

Maritain’s early writings, which focused on topics such as the philosophy of in relation to the thought of Thomas Aquinas, , the defense of Catholicism, and introductory philosophy, including . The direction of Maritain’s work would turn towards social and political issues, however, following Pius XI’s condemnation of the French political group Action Française on December 20, 1926, a nationalist and monarchist group with which

Maritain had been associated. Maritain’s defense of Pius XI’s decision, which constitutes the book Primauté du spirituel, marks his first major fore into social and political matters, and this book would set the tone for many of Maritain’s major political writings written in the period leading up to World War II and after.134 Maritain also gained practical political experience when near the end of World War II General appointed him as the French ambassador to the Vatican in November of 1944. It is in this capacity that Maritain met and befriended Giovanni Battista Montini, the future Pope Paul VI. However, what is more important for our purposes in this timeframe is Maritain’s appointment to head the French delegation to a UNESCO symposium on the philosophical foundations of human rights held in

Mexico City in 1947. Maritain is often cited in this connection for his view that people of

133 Jacques Maritain, Notebooks, trans. Joseph W. Evans (Notre Dame, IN: University of Notre Dame Press, 1984), 65. 134 Primauté du spirituel is available in English translation as The Things That Are Not Caesar’s, trans. J.F. Scanlan (New York: Charles Scribner’s Sons, 1931). All the original titles, publication dates, and original languages of publication of Maritain’s works are taken from Donald and Idella Gallagher, The Achievement of Jacques and : A Bibliography, 1906 – 1961 (Garden City, NY: Doubleday & Company, Inc., 1962).

55 widely varying philosophical and religious ideas could come to a practical agreement on a list of human rights despite their theoretical disagreements.135 Despite all of this, Maritain was quite prepared to offer his own theoretical basis for human rights, which I will discuss in further detail below.

3.2 The Natural Law Basis of Human Rights

“I am fully convinced that my way of justifying the belief in the rights of man and the ideal of freedom, equality, and fraternity is the only one which is solidly based on truth.”136

Whatever recognition Maritain may have given to theoretical divergences in the realm of human rights, these words make plain that Maritain was not willing to grant the status of truth to these other justifications of human rights norms.137 In keeping with his commitment to the principles of Thomas Aquinas, Maritain’s own human rights justification is based on natural law, yet

Maritain argues that the term “natural law” raises theoretical difficulties because the idea itself has been subject to misunderstanding and error.138 Convinced as he is that the concept of natural

135 See, e.g., Glendon, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (New York: Random House, 2001), 77. For the statement from Maritain himself, see Jacques Maritain, Man and the State, 77. 136 Maritain, Man and the State, 78. 137 Maritain’s views on these matters can be complicated, however, as he often argues that there is an element to truth to even erroneous doctrines. Furthermore, in his political theory, Maritain envisioned his “New Christendom” as being pluralistic in contrast with the Christendom of the Middle Ages. Maritain argues that is no longer possible or desirable to unite society through speculative ideas. Jacques Maritain, Integral Humanism, vol. 11, The Collected Works of Jacques Maritain (Notre Dame, IN: University of Notre Dame Press, 1996), 143 – 345, 262. 138 It is important to point out, however, that Maritain recognizes many sources for the doctrine of natural law. “The genuine idea of natural law is a heritage of Greek and Christian thought. It goes back not only to Grotius, who indeed began deforming it, but, before him to Suarez and ; and further back to St. Thomas Aquinas (he alone grasped the matter in a wholly consistent doctrine, which unfortunately was expressed in an insufficiently clarified vocabulary, so that its deepest features were soon overlooked and disregarded); and still further back to St. Augustine and the Church Fathers and St. Paul (we remember St. Paul’s saying: ‘When the Gentiles who have not the Law, do by nature the things contained in the Law, these, having not the Law, are a law unto themselves . . .’); and even further back to , to the

56 law has been perverted throughout its history, Maritain gives his own understanding of what he considers to be the true doctrine of natural law, and understanding Maritain’s exposition of natural law will be necessary later for understanding how his particular justification of human rights can help make sense of trying to strike a theoretical balance between a universal, critical approach to human rights justification and an approach to group rights steeped in particularism.

Maritain’s conception of natural law has two components, or elements in his terms; the first element of natural law is the “ontological” element while the second is the “gnoseological” element, which can, for all intents and purposes, be called the epistemological element as it refers to how natural law is known. The first element of natural law concerns the nature or structure of things, in this case human nature, though Maritain references other types of natures in order to clarify particular aspects of human nature. Maritain takes it for granted all humans have a specific nature and this nature is the same for all rather than culturally conditioned.139 In addition, Maritain argues that human nature is structured teleologically; that is, humans move towards and strive for certain definitive ends, or goals.140 For Maritain, the most important of these ends is defined within the terms of his Christian, and more specifically Roman Catholic convictions. The ultimate telos for Maritain is supernatural; it is a person’s reunion with God in

Stoics, to the great moralists of antiquity and its great poets, particularly Sophocles.” Maritain, Man and the State, 84 – 85 (Original emphasis). On the issue of the perversion of natural law, Maritain says, “The philosophical foundation of the Rights of man is Natural Law. Sorry that we cannot find another word! During the rationalist era jurists and philosophers have misused the notion of natural law to such a degree, either for conservative or purposes, they have put it forward in so oversimplified and so arbitrary a manner, that it is difficult to use it now without awakening distrust and suspicion in many of our contemporaries. They should realize, however, that the history of the rights of man is bound to the history of Natural Law, and that the discredit into which for some time brought the idea of Natural Law inevitably entailed a similar discrediting of the idea of Rights of man.” (ibid., 80 – 81). 139 Of course, this claim and further claims Maritain will make are not taken for granted by everyone. 140 Maritain, Man and the State, 85 – 86.

57 eternal beatitude.141 When anything, whether living or non-living, is properly achieving its ends, it achieves what Maritain calls the “normality of its functioning”.142 Maritain uses a piano as an example to make this point; when a piano produces properly tuned sounds, it is achieving the normality of its functioning. Maritain adds that when a living thing achieves its specific ends it

“‘should’ achieve fulness of being either in its growth or in its behaviour.”143 In other words, when a living being is achieving its proper ends, we can say that it is flourishing.

There is one significant difference, however, between the natural law governing humans and that governing all other living things. Maritain argues that in the case of human beings the natural law is also a moral law. “The same word should starts to have a moral meaning, that is, to imply moral obligation, when we pass the threshold of the world of free agents.”144 Thus, humans, who possess free will, can choose whether or not to pursue the ends specific to their nature and thus the normality of their functioning. However, it is also important for Maritain that, since the natural law constitutes a realm of moral obligation, the natural law must be knowable, which brings us to the gnoseological element of the natural law. This facet of

Maritain’s treatment of natural law is crucial from the standpoint of trying to determine how to explain the variation in the moral systems of different cultural groups and how to enshrine respect for individual and universal human rights within different cultural frameworks.

To elaborate on the gnoseological element of natural law, Maritain expands on ideas found in the writings of Thomas Aquinas, primarily the idea of knowledge gained through

141 For one of Maritain’s most extensive treatments of this subject and its political implications, see especially Jacques Maritain, The Person and the Common Good, trans. John J. Fitzgerald (New York: Charles Scribner’s Sons, 1947), 5 – 20. 142 Maritain, Man and the State, 86. 143 ibid., 86 – 87 (Original emphasis). 144 ibid., 87 (Original emphasis).

58 connaturality.145 The most important feature of Maritain’s conception of connaturality is that it is knowledge that is non-discursive and thus more akin to intuition. Maritain writes, “In this knowledge through union or inclination, connaturality or congeniality, the intellect is at play not alone, but together with affective inclinations and the dispositions of the will, and is guided and directed by them.”146 For Maritain, this knowledge “is not rational knowledge, knowledge through the conceptual, logical and discursive exercise of Reason.”147 However, “it is really and genuinely knowledge, though obscure and perhaps incapable of giving account of itself, or of being translated.”148 The “affective inclinations” constitute an important component of knowledge through inclination, or connaturality, in each field of human knowledge where knowledge through connaturality operates: mystical experience, poetic knowledge, and moral experience.149 Here we are only concerned with the latter, and it is the most widespread instance of connatural knowledge in Maritain’s view. There is an emotive component in attaining the pre-rational knowledge of the natural, and thus moral, law. “It is through connaturality that moral consciousness attains a kind of knowing-inexpressible in words and notions-of the deepest

145 Thomas Aquinas mentions the idea of connaturality several times in the , though there does not seem to be any systemization of the concept. For a brief overview of the relationship between the concept of connaturality and ethics in the thought of Aquinas, see Thomas Ryan, “Revisiting Affective Knowledge and Connaturality in Aquinas,” Theological Studies 66 (2005): 49 – 68. Maritain does make specific references to the Summa Theologica, as he outlines his original understanding of connaturality. Yet in one place he notes that Aquinas wrote, “As stated above, wisdom denotes a certain rectitude of judgment according to the Eternal Law. Now rectitude of judgment is twofold: first, on account of perfect use of reason, secondly, on account of a certain connaturality with the matter about which one has to judge. Thus, about matters of chastity, a man after inquiring with his reason forms a right judgment, if he has learnt the science of morals, while he who has the habit of chastity judges of such matters by a kind of connaturality.” Thomas Aquinas, Summa Theologica, II-II, http://www.newadvent.org/summa/. 146 Jacques Maritain, “On Knowledge Through Connaturality,” in The Range of Reason (New York: Charles Scribner’s Sons, 1952), 22 – 29, 23. 147 ibid. 148 ibid. 149 ibid., 24 – 29.

59 dispositions-longings, fears, hopes, or despairs, primeval loves and options-involved in the night of subjectivity.”150 Thus, humans possess a primordial awareness of those things that are conducive to achieving the normality of their functioning, or the fullness of being. This primordial awareness is linked to the faculty of the will, and thus desire.151 Humans are naturally attracted to those things that are conducive to achieving the normality of their functioning and that will help them flourish, but this knowledge is not always certain and is very often mistaken.152

Despite the non-discursive nature of this early awareness of the dictates of natural law, it would be inaccurate to say that this knowledge remains incapable of articulation. Here, Maritain has a historically progressive understanding of the knowledge of natural law. According to

Maritain, the knowledge of the natural law flowers forth in the moral conscience as time progresses.153 In addition to the role that conscience plays in sharpening our knowledge of the natural law, moral philosophy can also play the same role. “Philosophers and philosophical theories supervene in order to explain and justify, through concepts and reasoning, what, from the time of the cave-man, men have progressively known through inclination and connaturality.

Moral philosophy is reflective knowledge, a sort of after-knowledge.”154 For Maritain, the idea of human rights is a result of the historical progression of our knowledge of natural law; he

150 ibid., 26. This operates on the supernatural level as well insofar as Maritain argues that mystical experience of union between the mystic and God relies on charity rather than conceptual knowledge (ibid., 24). 151 Catherine Green, “It Takes One to Know One: Connaturality-Knowledge or Prejudice?,” in Jacques Maritain and the Many Ways of Knowing, ed. Douglas A. Ollivant (Washington, D.C.: The Catholic University of America Press, 2002), 43 – 55, 53. 152 Maritain, Man and the State, 89 – 90. 153 For Maritain, this process culminates “only when the Gospel has penetrated to the very depth of human substance.” Maritain, Man and the State, 90. 154 Maritain, “On Knowledge Through Connaturality,” 28 (Original emphasis).

60 claims that until the 18th century natural law theorists focused more on the obligations flowing from the natural law rather than the rights flowing from the same.155

However, what is more important from the perspective of thinking about contributions to human rights theory that various cultural communities can and do make is Maritain’s brief mention of the vehicles of the progressive knowledge of natural law. According to Maritain,

“the knowledge of the primordial aspect of natural law was first expressed in social patterns rather than in personal judgments: so that we might say that the knowledge has developed within the double protecting tissue of human inclinations and human society.”156 This helps explain not only the variety of justifications for human rights norms but also Maritain’s belief that people who hold different speculative ideas can nevertheless come to a practical agreement concerning a list of human rights.157 Maritain also uses it to explain why certain features of human life are universal despite the amount of variation that may exist on the surface. To use one of Maritain’s examples, all societies recognize that society must be run in accordance with some rules and prohibitions to keep chaos and anarchy in check.158 This particular view of natural law can take into account important features of group life necessary for positing group rights while at the same time maintaining a more universal approach that provides the critical leverage for identifying the violation of individual rights. The gnoseological element is primarily responsible for taking into account the particularity of various groups. The progressive flowering forth of connatural knowledge very often takes place through ways of thinking that are in many cases distinctive to certain groups, and groups are free to justify human rights norms in culturally

155 Maritain, Man and the State, 94. This historical view can be usefully contrasted with the brief historical argument that Alasdair MacIntyre makes against the idea of human rights in After Virtue. See MacIntyre, After Virtue: A Study in Moral Theory, 3rd ed., 69. 156 Maritain, Man and the State, 92. 157 ibid., 77. 158 ibid., 93.

61 distinctive ways. On the other hand, these distinctive justifications must take into account and respect individual rights as this is a demand of the ontological element and the epistemological element working together. If individuals are not free to pursue the ends necessary for achieving

“fulness of being”, their rights are being violated.

Unfortunately, none of these reflections on Maritain’s views concerning natural law tell us how respecting human rights achieves the force of moral obligation through the general moral force of the natural law. Addressing these questions will also lead us in the direction of how

Maritain understands the rights of persons in relation to community. Fortunately, Maritain is more specific in linking human rights with natural law. To get at this particular issue, we must remember that for Maritain human nature is teleologically structured, so humans work towards definite ends. When these ends are the proper ends for humans to pursue due to the specific nature of human beings, they take on the character of moral obligation. One end specific to human nature according to Maritain is the preservation of being, so we can move from this end to the right to life. “The precept: thou shalt do no murder, is a precept of natural law. Because a primordial and most general end of human nature is to preserve being-the being of that existent who is a person, and a universe unto himself; and because man insofar as he is man has a right to live.”159 To take a life is to go against one of the natural ends of human beings.160 Maritain also recognizes a number of social and economic rights stemming from the concept of the human being “as a social person engaged in the process of production.”161 Here, Maritain specifically mentions the right to join unions, the right to a just wage, the right to social security, the right to

159 Maritain, Man and the State, 88 160 Maritain, Man and the State, 101 – 102. Maritain does make exceptions for criminals, despite the fact that he also argues that some rights are absolutely inalienable. Even though the right to life is absolutely inalienable, Maritain makes exception for the justly convicted murderer with a distinction between the possession of a right and the exercise of a right. 161 ibid., 104.

62 insurance and sick benefits, and others.162 Maritain also mentions the right to education, which he appears to link to the human capacity for culture.163

However, it is still necessary to explain how the natural law acquires the force of moral obligation.164 This can be framed within the question of how we move from the realm of facts to the realm of values.165 In other words, how is it that we move from the nature of humans to the moral obligations of humans, even if pursuing the ends of human nature may be good for this or that individual person? For Maritain, as for Aquinas, the importance of the natural law stems from it being a part of eternal law. “It is essential to law to be an order of reason; and natural law, or the normality of functioning of human nature known by knowledge through inclination, is law, binding in conscience, only because nature and the inclinations of nature manifest an order of reason,- that is of Divine Reason.”166 For Maritain, natural law derives its force from the eternal law and human rights must be respected because of God’s right that God’s creatures be respected.167 The problem here, though, is that natural law governs more than just humans, so it may be wondered what more significance humans possess when compared to any other creature in nature; to address this question, we must examine Maritain’s theological anthropology.168

162 ibid., 104. 163 ibid., 102. 164 Here I am only concerned with the natural law particular to humans. 165 Concerning the fact/value distinction, I am aware that not everyone accepts this distinction in the first place, but I frame it in these terms because it is the simplest way to approach the topic now under consideration and Maritain himself touches on it in his discussion of human rights and natural law, even if only briefly. See Maritain, Man and the State, 96 – 97. 166 Maritain, Man and the State, 96 (Original emphasis). 167 ibid. 168 Maritain was generally insistent that he was a philosopher, though a Christian one, not a theologian; however, I believe the term theological anthropology as opposed to philosophical anthropology is justified. Maritain writes: “Man is not in a state of pure nature, he is fallen and redeemed. Consequently, ethics, in the widest sense of the word, that is, in so far as it bears on

63 3.3 Individuality, Personality, and the Person in Community

Maritain’s distinction between individuality and personality helps to ground the significance of persons. Maritain describes the distinction as humans moving between two poles, one material and one spiritual.169 For Maritain, the terms individual and individuality correspond to the material pole while the terms person and personality correspond to the spiritual pole. He argues that corporeal beings are a unity consisting of both form and matter, with individuality corresponding to matter. Furthermore, without form animating matter, corporeal beings cannot become what they are.170 In other words, matter alone is of little value. In the case of human beings, the human soul is the form animating the human body. Human souls are differentiated from one another because each soul is meant to belong to a particular body.

Maritain also seems to suggest that egoism, or , derives from matter and not from form.171 Individuality leads to grasping for one’s self whereas personality is essentially social.

Respect is due to human beings primarily through personality.

To explain personality Maritain refers to the notion of love. Speaking of loving someone else Maritain says, “What I love is the deepest , the most substantial, hidden existing

all matters of human action, politics and economics, practical psychology, collective psychology, sociology, as well as individual morality,- ethics in so far as it takes man in his concrete state, in his existential being, is not a purely philosophic discipline. Of itself it has to do with theology, either to become integrated with or at least subalternated to theology.” Jacques Maritain, An Essay on , trans. Father Edward H. Flannery (New York: Philosophical Library, 1955), 39. This book was originally published in French in 1933 under the title De La Philosophie Chrétienne. Maritain’s views on this particular subject were the topic of discussion in the Thomistic study group he helped form, but his views concerning “moral philosophy adequately considered” did not meet with unanimous assent among the circle’s participants. See McInerny, The Very Rich Hours of Jacques Maritain: A Spiritual Life, 110 – 115. 169 Jacques Maritain, “The Human Person and Society,” in Scholasticism and Politics, trans. Mortimer J. Adler (New York: The Macmillan Company, 1940), 56 – 88, 58. See also Jacques Maritain, The Person and the Common Good. 170 ibid., 60. 171 ibid., 61.

64 reality in the beloved – a metaphysical centre, deeper than all qualities and essences which I can discover and enumerate in the beloved. That is why such enumerations pour endlessly from the lover’s mouth.”172 Furthermore, “This centre is in some way inexhaustibly a source of existence, of goodness and of action, capable of giving and of giving itself, - and capable of receiving not only this or that gift from another, but another self as gift and giver.”173 The foundation for this

“metaphysical centre” is spirit rather than matter, and the interiority of the centre is also the seat of free will and the free act, which further exalts humans above all other creatures.174

But this is not all. The primary reason that human rights should be respected concerns persons’ ordination to their final end. Though persons by their nature are called into human society, their ultimate goal is to enter into society with God.175 Maritain says, “Finally, we turn to religious thought for the last word and find that the deepest layer of the human person’s dignity consists in its property of resembling God-not in a general way after the manner of all creatures, but in a proper way. It is the image of God.”176 Maritain connects this to one’s final end when he says, “For God is spirit and the human person proceeds from Him in having as principle of life a spiritual soul capable of knowing, loving and being uplifted by grace to participation in the very life of God so that, in the end, it might know and love Him as He knows and loves Himself.”177 Two things follow from the fact that persons have spiritual souls destined for union with God; a person’s rights are prior to human society and are not dependent on their establishment by human law and a single person is more important than the whole of human

172 ibid., 62 (Original emphasis). 173 ibid. (Original emphasis). 174 Jacques Maritain, The Person and the Common Good, 10. 175 ibid., 12. Maritain describes the communion with God that takes place in beatitude as a friendship. 176 ibid., 32. (Original emphasis). 177 ibid.

65 society, indeed the whole of the material universe.178 This tension that necessarily exists between the individual person and the group of which they are part is according to Maritain capable of a solution. Certainly, in a particular society this may not be the case, but for Maritain, the ideal society is one in which there is a between the rights of individuals and the common good of society.179

To begin with, Maritain, following both Aristotle and Aquinas, argues that humans are naturally social. He believes this on the basis of both matter and spirit. On the material side, humans are vulnerable and weak in the face of nature and require the help of their fellow humans to survive. This pertains to basic needs such as food and shelter.180 However, the primary reasons for the natural sociability of humans pertain to the spiritual component of the human composite. For Maritain, both intelligence and love are the result of the spiritual nature of human beings, and they are things that require communication with others. “But why is it that the person, as person, seeks to live in society? It does so, first, because of its very perfections, as person, and its inner urge to the communications of knowledge and love which require relationships with other persons. In its radical generosity, the human person tends to overflow into social communications in response to the law of superabundance inscribed in the depths of being, life, intelligence and love.”181 In order for humans to live up to their highest potentialities as humans, they require society not only for education but also for the opportunity to achieve

178 Maritain, The Person and the Common Good, 53. 179 Maritain discusses the various different errors concerning the relationship between the individual and community in the last section of The Person and the Common Good. Once again, Maritain’s understanding of the solution is one of historical progression. The harmony that should exist between the individual and the community grows over time especially in the growing awareness of human rights and the spread of modern democracy. See Maritain The Person and the Common Good, 68. Elsewhere Maritain says, “human rights have an intrinsic relation to the common good.” Maritain, Man and the State, 101. 180 Maritain, The Person and the Common Good, 38, 50. 181 ibid., 38.

66 perfection in the moral life. As rational animals, human beings can only achieve the fullness of their dignity when they are in the company of others.182

However, the question of what to do when there is a tension between the person and society remains open. This tension is complicated in Maritain’s thought by the fact that he recognized not only individual rights, as discussed above, but also group rights, particularly those of national groupings. “The Nation has rights, which are but the rights of human persons to participate in the peculiar human values of a national heritage.”183 Maritain had a particular understanding of the term “nation”, which hinges on the preliminary distinction between society and community. Both types of social relations center on “an object, either material or spiritual, around which the relations among human persons are interwoven.”184 In the case of a community this object is a given and precedes reason, while for a society it is achieved as an exercise of reason. In other words, communities are generated independently of human intelligence and will and “social relations proceed from given historical situations and environments: the collective patterns of feeling-or the psyche-have the upper hand over personal consciousness, and man appears as a product of the social group.”185

Thus, a community is more closely related to the givenness of nature due to its relationship with fixed biological and geographical factors. A society on the other hand is achieved through human effort; society is not something given; rather, it is something to be built. Maritain again uses teleological language to describe society since its object is “an end to be aimed at”.186

According to Maritain, a society, however small or large, is a product of reason, and thus

182 ibid., 38 – 39. 183 Maritain, Man and the State, 6. 184 ibid., 3. 185 ibid., 3 – 4. 186 ibid., 3 (Original emphasis).

67 freedom. Societies are not a given as are communities. Humans enter societies by choice.187

Here, the social group does not produce humans as with communities; humans produce the social group.

According to Maritain, nations are communities rather than societies, though they are a particularly important and complex type of community.188 The nation is further removed from natural social groupings than a racial community. Maritain says of the nation:

It is something ethico-social: a human community based on birth and lineage, yet with all the moral connotations of those terms: birth to the life of reason and the activities of civilization, lineage in familial traditions, social and juridical formation, cultural heritage, common conceptions and manners, historical recollections, sufferings, claims, hopes, prejudices, and resentments. An ethnic community, generally speaking, can be defined as a community of patterns of feeling rooted in the physical soil of history; it becomes a nation when this factual situation enters into the sphere of self-awareness, in other words when the ethnic group becomes conscious of the fact that it constitutes a community of patterns of feeling-or rather, has a common unconscious psyche-and possesses its own unity and individuality, its own will to endure in existence.189

Maritain also seems to indicate that the nation is but a mere shadow of a society. The nation

“has elites and centers of influence-no head or ruling authority; structure-no rational form or juridical organizations; passions and dreams-no common good; solidarity among its members, faithfulness, honor-no civic friendship; manners and mores-no formal norms and order.”190 The most significant element of his analysis for our purposes is the idea that a nation lacks a common good: an end to be achieved.

Maritain claims that nations, or national groups, possess rights, and he clarifies the term nation to mean a community rather than a society. Yet, how exactly are individual rights balanced with group rights? Maritain discussed this point in his The Person and the Common

187 ibid., 3. Societies can be as small as a labor union or as large as the entire body politic of a particular nation state, the United States for example. 188 ibid., 5. 189 Maritain, Man and the State, 5 (Original emphasis). 190 ibid., 6.

68 Good (PCG), which was published four years before he drew the distinction between community and society in Man and the State (MS).191 In PCG, it would appear that Maritain’s discussion of the relationship between the individual and the group is within the context of a society, not a community, and, as discussed above, the nation is a community. This assumption is based on

Maritain’s notion of the common good in PCG, the common good being something communities lack.192 While I think it is possible to clarify the picture by taking into account Maritain’s further statements in MS, I want to discuss Maritain’s account of the ideal balance between the individual and society found in PCG.

The first thing to consider about Maritain’s notion of the common good is that it a goal to be worked towards and thus a work of reason. The common good is not something that can be found; rather, it is something to be made. At first blush, the notion of “common good” would seem to be inimical to the rights of individuals, but Maritain is quick to clarify that the common good is a far cry from totalitarian societies that sacrifice individuals for the sake of the collective whole. Society as a whole benefits from it as do the individual members of the society. For

Maritain, the common good “is the good human life of the multitude, of a multitude of persons; it is their communion in good living. It is therefore common to both the whole and the parts into which it flows back and which, in turn, must benefit from it.”193 Each member of society receives numerous benefits of the common good. In addition to the sound infrastructure that we would expect to find in any well-run society, the common good includes other benefits such as

“the body of just laws, good customs, and wise institutions, which provide the nation with its

191 Hereinafter PCG and MS, respectively. 192 Maritain, Man and the State, 2. Maritain acknowledges that prior to Man and the State, he often used the terms community and society interchangeably, so this further adds to the confusion. 193 Maritain, The Person and the Common Good, 41 (Original emphasis).

69 structures; the heritage of its great historical remembrances, its symbols and its glories, its living traditions and cultural treasures.”194 In addition, the common good “includes the sum or sociological integration of all the civic conscience, political and sense of right and liberty, of all the activity, material prosperity and spiritual riches, of unconsciously operative hereditary wisdom, of moral rectitude, justice, friendship, happiness, virtue and heroism in the individual lives of its members.”195

In order to build such a , the group necessarily makes demands on its individual members, but the members should also benefit from the common good of the group.

Maritain expresses the back and forth nature of this relationship using the language of “whole” and “parts”. In addition, the earlier distinction between individual/material and person/spiritual must be kept in mind here. As material, individual members of society are only parts of the common good and thus inferior to it because the common good is a whole. However, as spiritual persons, individual members of society are superior to the common good because spiritual persons are wholes, and more important wholes than the whole of the common good.196 Viewed as material individuals, society can make certain demands of its citizens. For instance, citizens can be asked to sacrifice their lives for the common good in a just war, especially when the destruction of the society is at stake.197 Furthermore, each citizen can be asked to give back to society because of the benefits it has received from society. Maritain uses an educational example to make this point. A mathematician “has learned mathematics by reason of the educational institutions that social life alone makes possible”, so “the community can in given

194 ibid., 42. 195 ibid., 42. 196 ibid., 50 – 51. Once again this follows from the person’s ordination to their final end, which is beatitude. 197 ibid., 58 – 59.

70 circumstances, require the mathematician to serve the social group by teaching mathematics.”198

Though the society can make such demands of its individual citizens, it can only do so in so far as there is a common good. For Maritain, individuals can only be called on to serve the common good if the benefits of the common good are redistributed to individual persons. “But the good of the whole is what it is, and so superior to the private good, only if it benefits the individual persons, is redistributed to them and respects their dignity.”199 Thus, in the common good benefits ebb and flow between individuals and the group.

Maritain’s comments concerning the relationship between the individual and the group are of limited use for understanding what the relationship of individual rights to group rights is.

Can a marginalized and/or oppressed group, whether cultural or economic, override the rights of individuals for the sake of group rights? What about cases where the preservation of group identity is at stake? How are violations of group rights to be addressed?200 Maritain had argued after all that cultural groups have rights, even though he believes that individual rights take precedence over the rights of cultural groups. On the one hand this is because cultural groups do not aim for a common good, and individuals can only be called on to make sacrifices for the group when it is a question of serving the common good. On the other hand, in his later work

Maritain argues for progressively higher syntheses of national groupings. He believes that political societies can give rise to national groups.

For example Maritain argues that the United States was originally a body politic, or society, which has given rise to a “multinational Nation.”201 For Maritain, this process is

198 ibid., 63 – 64 (Original emphasis). 199 Maritain, The Person and the Common Good, 51. 200 Maritain considers both national (cultural) groupings and economic classes as communities rather than societies. See Maritain, Man and the State, 3. 201 Maritain, Man and the State, 8 (Original emphasis).

71 desirable. “A genuine principle of nationalities would be formulated as follows: the body politic should develop both its own moral dynamism and the respect for human freedoms to such a point that the national communities which are contained within it would both have their natural rights fully recognized, and tend spontaneously to merge in a single higher and more complex National

Community.”202 As a work of reason, the common good of such a synthesized society takes precedence over the cultural groupings contained within it which are more dependent on natural connections than the workings of reason; cultural groups should have their rights respected, but the rights bestowed on individuals by the common good have the priority and only the common good can demand sacrifices from its members in order to assure its survival. Maritain never makes the claim that cultural groupings can demand sacrifices on the part of its members in order to preserve the identity of the group.

3.4 The “Concrete Historical Ideal”

In the writings discussed, Maritain offers conceptual clarifications of specific aspects of the problem. His grand vision of the type of society that respects both types of rights appears in an earlier and influential work of political philosophy, Integral Humanism (IH).203 It is here that we can see a specific elaboration of the type of society that respects both individual and group rights. As the notion of a “concrete historical ideal” suggests, Maritain hoped that his ideas would come to fruition in a concrete work; they were designed to be more than conceptual clarifications. Integral Humanism addresses many issues, all related around to a central theme.

It is both a response to and an engagement with Marxist thought, as well as a rejection of the

202 ibid. 203 Integral Humanism was published in French in 1936 as Humanisme Intégral: Problémes Temporels et Spirituels D’une Nouvelle Chrétienté, though the first version was in Spanish. See note 134 above. Hereinafter IH. “Concrete historical ideal” in the heading to this section is taken from this work.

72 nostalgia that a number of Catholics had for the Christendom of the Middle Ages.204 Maritain’s proposal for a new Christendom offers insight into what a just society would entail. He claims that this would be a new Christian inspired civilization, one that would apply the principles of

Medieval Christendom analogously to new temporal manifestations. Thus the structural features of the new Christendom will not be identical to the Middle Ages.205

It strove for unity, a unified civilization existing under the umbrella of Christianity.206

Today’s reality precludes this option.207 Thus a new Christendom must have a pluralistic structure that meets contemporary needs. Here, Maritain exhibits skepticism towards political centralization that will remain a feature in his later works as well.208 The pluralism of the body politic extends to both types of groups: communities and societies.209 Maritain says: “I have in mind not merely the just degree of administrative and political autonomy which should belong to regional units, without, of course sacrificing to region or to nationality higher political ideas and values: it is evident that problems concerning national minorities call of themselves for a pluralist solution.”210 Maritain goes further: “I have in mind above all an organic heterogeneity

204 Maritain, Integral Humanism, 240 – 241. Maritain provides three reasons for why a historical age, in this case Medieval Christendom, that has passed cannot be returned to. First, a fully lived experience cannot be lived again. Second, even the “errors” of the modern world aimed at some good, and the suffering caused by those errors cannot have been for nothing. Third, since God governs the world, the end of a historical epoch is part of God’s design. 205 Maritain, Integral Humanism, 239 – 240. According to Maritain, the original aim of writing Integral Humanism was to inspire Christian political action in the construction of a new European civilization based on Christian principles, but he also argued later that many of the ideas expressed in the work were also applicable and relevant to the American context. See Jacques Maritain, Reflections on America (New York: Charles Scribner’s Sons, 1958), 174 – 175. 206 Maritain, Integral Humanism, 244 – 246. 207 For the possibility of a return, see note 204 above. 208 This is especially true of Man and the State. 209 A more extended elaboration on what Maritain means by body politic can be found in Maritain, Man and the State, 9 – 12. 210 Maritain, Integral Humanism, 256.

73 in the very structure of , whether it is a question, for example, of certain economic structures or of certain juridical and institutional structures.”211 In IH Maritain argues against totalitarian conceptions of society and it is clear that, for him, the best way to prevent against totalitarian centralization is to make sure that the body politic is able to sustain a robust group life.212 Maritain cites approvingly the principle of introduced into by Pius XI’s . “So, too, it is an injustice and at the same time a grave evil and a disturbance of right order to transfer to the larger and higher collectivity functions which can be performed and provided for by lesser and subordinate bodies. Inasmuch as every social activity should, by its very nature, prove a help to members of the body social, it should never destroy or absorb them.”213

It would seem Maritain would support some type of autonomous rule for various collectivities and oppressed groups like the world’s indigenous peoples: he argues for a pluralist solution for national minorities and also believes that the various religious groups could co-exist in the new Christendom. Maritain says: “it is in the field of the relations between the spiritual and the temporal that the pluralist principle which I believe to be characteristic of a new

Christendom would have its most meaningful application.”214 Maritain further elaborates when he says: “In matters in which the civil law is most typically related to a conception of the world

211 ibid. 212 See also Jacques Maritain, “Democracy and Authority,” in Scholasticism and Politics, trans. and ed. Mortimer J. Adler (New York: The Macmillan Company, 1940), 89 – 117. “Lastly, that which organic democracy will wish to efface from existence by its very root, is power without authority. This is precisely what must be suppressed, and cannot be suppressed by a mere declaration of principles. An appeal to the initiative of the State aggravates the evil. The only efficacious means is the enlargement of rights and of the power of action of persons, and spontaneous groups of persons, and the state of tension thus developed.” (ibid., 102). 213 Pius XI, Quadragesimo Anno, in Catholic Social Thought: The Documentary Heritage, ed. David J. O’Brien and Thomas A. Shannon (Maryknoll, NY: Orbis Books, 2005), 42 – 79, 60. 214 Maritain, Integral Humanism, 257.

74 and of life, legislation would then grant a different juridical status to the various spiritual within the same body politic.”215 Unfortunately, Maritain is not very specific by what he means by giving each religious group a separate juridical status, but he seems to be arguing that in matters of civil law each religious group ought to maintain a degree of autonomy in handling their own affairs. This, however, could prove to be problematic from the standpoint of individual rights.216 However, Maritain further argues that over time things should progress in the direction of one moral law governing all. “The legislative power of the commonwealth itself in its political wisdom would adapt this juridical status, on the one hand, to the condition of the groups and, on the other hand, to the general line of legislation leading toward the virtuous life, and to the prescriptions of moral law, to the full realization of which it should endeavor to direct as far as possible this diversity of forms.”217

The lack of specification in IH may be due to the fact that Maritain is developing his own conception of humanism, the person, and society within the context of a critique of both liberal individualism and in its various forms. In other words, Maritain is trying to navigate a middle path between anarchic individualism and a totalitarian destruction of the individual; therefore, much of his vision is laid out in terms of opposition, so his positive prescriptions are often short on details. Nevertheless, though groups may enjoy some rights

215 ibid. Here, Maritain betrays a bit of inflexible dogmatism because he argues that different are to be tolerated in the body politic because of the principle of the lesser evil. This is hardly the most positive endorsement of religious liberty, a point made by Martha Nussbaum in Martha Nussbaum, Liberty of Conscience: In Defense of America’s Tradition of Religious Equality (New York: Basic Books, 2008), 24. 216 The danger these types of arrangements for cultural groups pose for individual rights is often discussed. See, e.g., Yash Pal Ghai, “Constitutional Asymmetries: Communal Representation, Federalism, and Cultural Autonomy”, in The of Democracy: Constitutional Design, Conflict Management, and Democracy, ed. Andrew Reynolds (Oxford: Oxford University Press, 2002), 141 – 170, 166. 217 Maritain, Integral Humanism, 258.

75 within a New Christendom, individual rights also play a large role and are not to be trampled on by the rights of the group. “We encounter here the second central fact, a fact of the ideological order, by which the modern age is opposed to the Middle Ages. For the idea of force in the service of God is substituted the idea of the conquest or realization of freedom.”218 For Maritain freedom is the: “autonomy of persons, a freedom that is one with their spiritual perfection.”219

Though Maritain does not use the language of rights per se as he does in later works, certain freedoms ought to be guaranteed in order that a person can achieve their spiritual perfection.

Maritain does not provide a detailed lists of these freedoms in IH, but he does mention core rights such as freedom of religion, freedom of expression, and certain economic rights, such as the right to property. However, Maritain does not conceive of the latter right in terms of a capitalist economy, and in fact, he calls for the dissolution of and its replacement with a system of worker co-ownership and co-management.220

3.5 Maritain’s Influence

As mentioned above, Integral Humanism is often short on details; it provides the conception of a society that allows both for group rights and individual rights, but it does not comprehensively flesh out the details of how to balance these rights. Nevertheless, the importance of IH lies in its general call for Christians to work towards creating a better society based on Christian principles, a society that would avoid the errors of both liberal individualism and , Maritain’s two intellectual foes throughout IH. It outlines a “” that would go on to influence numerous political groups in the rise of throughout both Europe and Latin America; in fact, the work “guided an entire generation of

218 ibid., 265. 219 ibid. 220 Maritain, Integral Humanism, 270 – 272.

76 progressive Catholic intellectuals”221. It has also been described as “the Bible of the new generation of Christian Democrats.”222 Maritain’s thought specifically influenced Christian democratic movements in Latin America, a point relevant to our discussion of Gustavo

Gutierrez.

221 The term “third way” refers to navigating a middle course between liberal individualism and communist collectivism; it has been used to describe both Catholic social teaching, and similar terms have been used to describe Christian democratic movements that have been inspired by Catholic social thought. For its application to Catholic social teaching, see Charles Curran, Catholic Social Teaching 1891 – Present: A Historical, Theological, and Ethical Analysis (Washington, D.C.: Georgetown University Press, 2002), 198 – 199. Curran does point out, however, that Pope John Paul II rejected this description of Catholic social teaching in his encyclical . There, Pope John Paul II says, “The Church’s social doctrine is not a “third way” between liberal capitalism and Marxist collectivism, nor even a possible alternative to other solutions less radically opposed to one another: rather, it constitutes a category of its own.” Pope John Paul II, Sollicitudo rei socialis, in Catholic Social Thought: The Documentary Heritage, ed. David J. O’Brien and Thomas A. Shannon (Maryknoll, NY: Orbis Books, 2005), 395 – 436, 425 (Original emphasis). Paul Sigmund specifically applies the term “third way” to Jacques Maritain in Paul Sigmund, “The Transformation of Christian Democratic Ideology: Transcending Left and Right, or Whatever Happened to the Third Way?,” in Christian Democracy in Latin America: Electoral Competition and Regime Conflicts, ed. Scott Mainwaring and Timothy R. Scully (Stanford, CA: Stanford University Press, 2003), 64 – 77, 66. Edward J. Williams uses the terms “third force” and “” to describe a middle course taken by Latin American Christian democratic movements that were inspired by Catholic social thought. See, Edward J. Williams, Latin American Christian Democratic Parties (Knoxville, TN: The University of Tennessee Press, 1967), 3, 41. However, Williams points out that some groups reject the notion that the third position is merely navigating the path between liberal individualism and capitalism on the one hand and communist totalitarianism on the other. Instead, the dichotomy is portrayed as a choice between Christianity and . See Williams, Latin American Christian Democratic Parties, 41. The general thrust of Integral Humanism seems to indicate that Maritain would support this way of looking at the problem, especially if we consider the distinction he makes between anthropocentric humanism and theocentric humanism. See Maritain, Integral Humanism, 169. For Maritain, both liberal individualism, along with capitalism, and communism were examples of the mistakes of anthropocentric humanism. For its influence on “progressives”, see Gerd-Rainer Horn, “Left Catholicism in Western Europe in the 1940’s,” in Left Catholicism 1943 – 1955: Catholics and Society in Western Europe at the Point of Liberation, ed. Gerd-Rainer Horn and Emmanuel Gerard (Leuven, Belgium: Leuven University Press, 2001), 13 – 44, 26. 222 Yvon Tranvouez, “Left Catholicism and Christian in France (1945 – 1955),” in Left Catholicism 1943 – 1955: Catholics and Society in Western Europe at the Point of Liberation, ed. Gerd-Rainer Horn and Emmanuel Gerard (Leuven, Belgium: Leuven University Press, 2001), 91 – 101, 99.

77 Maritain personally visited Latin America in 1936, specifically Argentina and Brazil.223

Spanish language versions of important works of Maritain’s political philosophy also appeared around this time. In fact, the first version of Integral Humanism published was the Spanish edition, as the book was essentially a compilation of six lectures given at the University of

Santander in Spain in 1934; another Spanish language version appeared in Buenos Aires in 1936 and it helped influence Christian democratic movements not only in Argentina, but in Venezuela as well, most notably the Venezuelan Christian Democratic Party (COPEI).224 Maritain’s work

A Letter on Independence, which also described his proposed “third way”, was also published in

Spanish in Buenos Aires in 1936 and reprinted in Chile where it influenced nascent democratic democratic parties.225 Maritain’s influence was particularly strong on the Chilean Christian

Democrat Party (PDC), created in 1957, which was an outgrowth of a merger between the earlier

Falange Nacional and other Social Christian Conservative Parties.226 Maritain’s influence in

Latin America was clearly significant. Here, I will limit my discussion to a brief look at Chile.

Maritain’s influence in Chile is connected to the formation of the PDC. Though the party was not formed until 1957, its historical roots in the National Falange, founded in 1938, are the important point of focus.227 Indeed, the roots run deeper still as many of the founders of the

223 Maritain notes an interruption in his notebook to make this trip. Maritain, Notebooks, 168. 224 For the publishing information, I rely on Donald and Idella Gallagher, The Achievement of Jacques and Raïssa Maritain: A Bibliography 1906 – 1961, 59 – 60. For its influence in Venezuela, I am citing Sigmund, “The Transformation of Christian Democratic Ideology: Transcending Left and Right, or Whatever Happened to the Third Way?,” 67. 225 ibid. 226 Scott Mainwaring and Timothy R. Scully, “The Diversity of Christian Democracy in Latin America,” in Christian Democracy in Latin America: Electoral Competition and Regime Conflicts, ed. Scott Mainwaring and Timothy R. Scully (Stanford, CA: Stanford University Press, 2003), 30 – 63, 32. 227 These historical roots are discussed in Carlos Huneeus, “A Highly Institutionalized Political Party: Christian Democracy in Chile,” in Christian Democracy in Latin America: Electoral

78 Falange were once members of the National Association of Catholic Students (Asociación

Nacional de Estudiantes Católicos, ANEC). This organization was essentially a student Catholic

Action organization that met to study Catholic social teaching and in some cases try and implement it.228 One of the most important members of this group and subsequently member of the PDC and President of Chile from 1964 – 1970 was . In 1934 Frei was on a trip to Europe where he heard Jacques Maritain lecture at the Institut Catholique in ; this encounter had a profound influence on the future president.229

Indeed, Frei and Maritain would maintain a friendship and correspondence for the rest of

Maritain’s life. In The Peasant of the Garonne, one of Maritain’s last and most controversial works, Maritain made the following statement: “I know only one example of an authentic

‘Christian ,’ and that is what President Eduardo Frei is attempting in Chile, and it is not sure that he will succeed.”230 Maritain went on to say that there were only “three worthy of the name” in the Western World, Eduardo Frei, , and himself.231 Frei, for his part, continually acknowledged the role Maritain played in his own thought and political career saying that Maritain “occupied a central position in [my] thought.”232

Maritain would continue to exert an influence on Frei after the former’s death in 1973 and Frei’s

Competition and Regime Conflicts, ed. Scott Mainwaring and Timothy R. Scully (Stanford, CA: Stanford University Press, 2003), 121 – 161. 228 Kirk A. Hawkins, “Sowing Ideas: Explaining the Origins of Christian Democratic Parties in Latin America,” in Christian Democracy in Latin America: Electoral Competition and Regime Conflicts, ed. Scott Mainwaring and Timothy R. Scully (Stanford, CA: Stanford University Press, 2003), 78 – 117. Father Oscar Larson directed the group (ibid.). 229 Sigmund, “The Transformation of Christian Democratic Ideology: Transcending Left and Right, or Whatever Happened to the Third Way?,” 67. 230 Jacques Maritain, The Peasant of the Garonne: An Old Layman Questions Himself about the Present Time, trans. Michael Cuddihy and Elizabeth Hughes (New York: Holt, Rinehart and Winston, 1968), 23. 231 ibid. 232 Quoted in Edward A. Lynch, Religion and Politics in Latin America: Liberation Theology and Christian Democracy (New York: Praeger Publishers, 1991), 69 (Original brackets).

79 exit from political office, which took place in 1970. In 1977, Frei wrote a book entitled Latin

America: The Hopeful Option in which he discusses the political and economic problems facing

Latin America and makes some proposals concerning their solution. Out of the one hundred and one citations in this work, eighteen of them were to the works of Maritain.233 In the work Frei agrees with Maritain’s general orientation that the creation of a new democratic society that respects human dignity and human rights must be built on a vision of “integral humanism” based in the Christian notion that humans are spiritual as well as material beings.

This general vision was highly influential for Christian democratic movements in Latin

America in general, but Frei represented most clearly the hope for Christian democracy. “Many people in Latin America viewed Frei’s victory as the start of a new era, in which the Christian

Democrats would steer a course between the right-wing of Peronist-like parties and

Castro- communism. The Christian Democratic victory in Venezuela four years later raised hopes for such a pattern even further.”234 Other scholars have pointed out that “after Eduardo

Frei’s electoral triumph in Chile in 1964 and ’s four years later in Venezuela,

Christian Democratic parties appeared to be a promising new political force.”235 This optimism was further boosted by the fact that Frei achieved a rare feat in Chile’s multiparty system by winning the presidency with an absolute majority.236 Since Maritain’s thought was already an

233 Eduardo Frei, Latin America: The Hopeful Option, trans. John Drury (Maryknoll, NY: Orbis Books, 1978). This work was originally published in Spanish in 1977 as América Latina: Opción y esperanza. 234 Lynch, Religion and Politics in Latin America: Liberation Theology and Christian Democracy, 76. 235Philip J. Williams and Guillermina Seri, “The Limits of : The Rise and Fall of Christian Democracy in El Salvador and Guatemala,” in Christian Democracy in Latin America: Electoral Competition and Regime Conflicts, ed. Scott Mainwaring and Timothy R. Scully (Stanford, CA: Stanford University Press, 2003), 301 – 329, 302. 236 Sigmund, “The Transformation of Christian Democratic Ideology: Transcending Left and Right, or Whatever Happened to the Third Way?,” 70.

80 influential intellectual force over the Christian Democratic movement in much of Latin America,

Maritain’s influence only grew with the electoral successes of the Christian Democratic parties and leaders he inspired.

However, over time both emerging currents of thought challenged Maritain’s ideas and the broader movement of Christian democracy for being inadequate for dealing with major problems confronting Latin American societies. Critics noted the weakness of the tendency towards abstraction that can be seen in both Maritain’s work and the Christian Democratic movement. One author argues this tendency towards abstraction always posed the danger of

“losing contact with the of politics”; the criticism is more pointedly made at Maritain when the same author continues by saying “neither Christ nor Maritain, sadly enough, offer concrete programs to solve concrete problems.”237 The dénouement of the argument is that

“over-reliance on either in the political arena can spell disaster.”238 The marginalization and oppression of large groups of people in Latin America has traditionally been one such concrete problem in that context, and one of the most influential developments in Latin America that arose in response to this problem was liberation theology. Like much of the Christian

Democratic movement in South America, Latin American liberation theology also has roots in

Catholicism, but liberation theology diverges from other Catholic inspired political and social movements in important ways.

One insight on these divergences can be seen in a contrast between one of liberation theology’s most prominent voices, Gustavo Gutiérrez, and Maritain. A contrast between them points to important considerations for thinking about how to balance individual and group rights, especially in light of Gutiérrez’s main aim to develop a theology on behalf of the poor and the

237 Williams, Latin American Christian Democratic Parties, 239 – 240. 238 ibid.

81 marginalized in Latin American society. Though these particular groups are victims of primarily economic oppression, Gutiérrez’s thought on the subject has potential implications for any oppressed group, especially indigenous groups, who are vulnerable to such oppression; thus, his thought can provide insight on the particular problem of this work. Unlike Maritain, Gutiérrez does not provide a theoretical basis to his concept of human rights, nor does the concept always play a large role in his thought, though this changes over time. One of the most important divergences between the two thinkers is over the role that the Roman Catholic Church should play in political and economic struggles, particularly in the face of injustice. Though ecclesiastical differences between two Catholic thinkers may not seem to have a direct bearing on our problem, Gutiérrez’s divergence on the issue is also linked to an epistemological and a moral position that does have such a bearing, and I will explore this position in the next chapter.

82 CHAPTER FOUR

GUSTAVO GUTIÉRREZ: WORKING FROM THE PERSPECTIVE OF THE POOR AND MARGINALIZED

4.1 Introduction

It might seem that Gustavo Gutiérrez and Jacques Maritain share several similarities.

Both initially pursued studies in the natural sciences but left their respective fields to pursue academic careers more closely related to their Roman Catholic faith.239 Like Maritain, Gutiérrez also received a first rate education in Europe on his “Theological Grand Tour” through universities in Belgium, France, and Italy; although, he was born and raised in Peru. Gutiérrez received his master’s degree in Louvain, Belgium in psychology and philosophy.240 As a student in France, Gutiérrez was exposed to la nouvelle théologie, or “the new theology”, of other notable French Catholic thinkers such as , Jean Daniélou, and .241

Both Maritain and Gutiérrez were interested in outlining the role of the Roman Catholic Church and of individual Christians in the modern social and political world. Moreover, both men engaged with the thought of Karl Marx and its relation to Christianity, though there are important differences in the way each thinker treats .

Despite the initial similarities between them, there are also important divergences between the two thinkers. The first concerns the perspective from which the two men write. As

239 Both Jacques and Raïssa Maritain had originally planned to take degrees in the natural sciences at the Sorbonne. See McInerny, The Very Rich Hours of Jacques Maritain: A Spiritual Life, 14. Gustavo Gutiérrez originally planned to pursue a career in medicine and studied medicine while in Peru before deciding to enter the priesthood and the study of philosophy in Chile. For Gutierrez’s biographical information in this section I follow Robert McAffee Brown, Gustavo Gutiérrez: An Introduction to Liberation Theology (Maryknoll, NY: Orbis Books, 1990), 22 – 25. 240 Robert McAffee Brown uses the term “theological grand tour” in Brown, Gustavo Gutiérrez, 23 – 24. Gutierrez was ordained to the priesthood in 1959. 241 ibid., 25.

83 mentioned in chapter three, Maritain’s major concern was to outline an approach to Christian engagement with the modern world for the primary purpose of reconstructing European society along Christian lines, a vision that he later applied to the United States. Contrastingly, Gutiérrez was concerned with what the theological task means for the poor and exploited of Latin America.

Gutierrez found contemporary theology too engrossed in addressing the problem of the nonbeliever, a challenge that he believed was taken up by Dietrich Bonhoeffer, who addressed the question of how to proclaim God in “a world come of age.”242 For Gutiérrez, this was not the primary problem facing theology in Latin America. Gutiérrez says: “In Latin America, however, the challenge does not come first and foremost from the nonbeliever. It comes from the nonperson. It comes from the person whom the prevailing social order fails to recognize as a person-the poor, the exploited, the one systematically and legally despoiled of their humanness, the ones who scarcely know they are persons at all.”243

Unlike Maritain’s more distant academic approach, Gutiérrez views things from the perspective of those who are oppressed. “The gospel read from the viewpoint of the poor, the exploited classes, and their militant struggles for liberation, convokes a church of the people. It calls for a church to be gathered from among the poor, the marginalized.”244 This perspective leads to the second difference between Gutiérrez and Maritain, namely what being Christian means for the social task and what role the Roman Catholic Church should play in this task.

Gutiérrez departs explicitly from Maritain on this question, a difference that highlights a tension in Maritain’s thought on human rights. A third way that Gutiérrez differs from Maritain is that

Gutiérrez provides no explicit theoretical basis for human rights as Maritain does, though

242 Gustavo Gutiérrez, The Power of the Poor in History, trans. Robert R. Barr (Maryknoll, NY: Orbis Books, 1993), 57. 243 ibid. 244 ibid., 21.

84 Gutiérrez does appeal to the concept from time to time. Nevertheless, Gutiérrez’s theological reflections can illuminate questions about individual and group human rights.

4.2 Rethinking the Role of the Church in Latin America

As we saw, Maritain’s theory of human rights, though grounded in natural law, has its ultimate basis in a theological anthropology that sees persons as beings for whom beatitude with

God is their ultimate end. This basis may appear to be appealing as a justification for those who are theistically inclined, but in fact, it gives rise to tensions in Maritain’s thought about the role the Church is to play in the temporal sphere. Maritain argued that the Church “concentrates her mighty power in a struggle that is at once hard and obscure, on the humble duty of the protection of souls.”245 He argues the Church may have to deal with governments with dirty hands so that people will not do “too much serious hurt to their spiritual welfare”; he claims that people who are critical of the Church for that reason are “blind who attack her on this score, being ignorant of times and seasons.”246 The net effect of this position is that the Catholic Church will deal positively with political regimes whose treatment of its citizens is problematic from a human rights perspective as long as the salvation of souls is at stake. Of course, Maritain is not far off from the position of the Church itself if we consider that the Vatican signed a concordat with

Hitler’s Germany in the year the above quote was written and one with Mussolini four years earlier.247 However, this is not the only problem Gutiérrez will address concerning church-state relations in the Latin American context.

245 Jacques Maritain, Freedom in the Modern World, vol. 11, The Collected Works of Jacques Maritain (Notre Dame, IN: University of Notre Dame Press, 1996), 3 – 115, 76. This position appears early in Maritain’s social and political writings; Freedom in the Modern World was originally published in French in 1933. 246 ibid. 247 Thomas Bokenkotter, A Concise History of the Catholic Church (New York: Doubleday, 2004), 386 – 387.

85 He raises a related issue, also discussed by Maritain. “It is fairly clear that reform and revolution of the temporal regime are not the affair of the Church, which has not a temporal but an eternal and a spiritual end above and beyond political and social issues. The Church takes particular care not to become an adherent of any particular regime or class or party.”248 This neutrality concerning social and political matters is precisely what Gutiérrez criticizes as false neutrality in the behavior of the Church in Latin America. The Church’s entanglement with the dominant classes and its failure to firmly denounce the injustices committed by the dominant classes in Latin America make the Church’s, and Maritain’s, claims to neutrality appear rather dubious. In discussing this particular issue, Gutiérrez gives a very brief history of the Church in

Latin America starting with the Counter-. Gutiérrez argues that developments since the Counter-Reformation “led the church to solidify its ties with established authority, thus enjoying the latter’s support and forming a common front against their presumed enemies.”249

The Church made a “last ditch effort to prolong an outdated brand of Christianity” in an increasingly pluralistic society; in the process it “became an easy and compliant prey for those who used it to protect their own selfish interests and the established order, in the name of the

‘Christian West.’”250 The problem from Gutiérrez’s perspective is that those who “protect their own selfish interests” do so by exploiting and oppressing the poor and marginalized of society.

For Gutiérrez, this situation leads to an estrangement between the poor and oppressed and their own land; it places the poor in a “foreign land” and a “land of death”.251 Although this oppression has political dimensions, for Gutiérrez, it is primarily economic. What is important

248 ibid., 77. 249 Gutiérrez, The Power of the Poor in History, 27. 250 ibid. 251 Gustavo Gutiérrez, We Drink From Our Own Wells: The Spiritual Journey of a People, trans. Matthew J. O’Connell (Maryknoll, NY: Orbis Books, 1984), 11.

86 for the moment, however, is Gutierrez’s critique of the Latin American Church’s role in the system of oppression. The Church’s ties with the established order in Latin America lead to a situation where the Church fails to forcefully condemn injustice and economic exploitation. For

Gutiérrez, the Church is as morally culpable as the oppressors for its silence and failure to act on the behalf of the poor and oppressed.

Taking a cue from Marxism, Gutiérrez perhaps makes this point most forcefully in his discussion of the Church’s attitude towards violence and failure to see the conflictual nature of the political life. For Gutiérrez, “universal love” should not be confused “with a fictitious harmony.”252 Gutiérrez argues that the gospel teaches one to love their enemies, but in the Latin

American context this means recognizing “the fact of class struggle” and accepting “the fact” that one has “class enemies to combat.”253 According to Gutiérrez, “there is no way not to have enemies”, though they should not be excluded from Christian love.254 The failure to see the conflictual nature of Latin American political and economic oppression leads the Church into an ambiguous and morally problematic position on violence in relation to Christian love. After discussing the turning point from the above view presented by the Latin American Episcopal

Conference held in Medellín, Colombia in 1968, Gutiérrez says: “This view allows for a study of the complex problems of counterviolence without falling into the pitfalls of a double standard which assumes that violence is acceptable when the oppressor uses it to maintain ‘order’ and is bad when the oppressed invoke it to change this ‘order.’”255 The overarching point Gutiérrez is making pace Maritain is that, in the Latin American context at least, the Church is not really

“above and beyond social and political issues” when by its complicity with injustice it indirectly

252 Gutiérrez, The Power of the Poor and History, 48. 253 ibid. 254 ibid. 255 Gutiérrez, A Theology of Liberation, 108.

87 lends support to an unjust regime. Gutiérrez’s critique of false neutrality is important for highlighting the tension in Maritain’s thought, and it is also important for understanding much of

Gutiérrez’s thought insofar as he rethinks the topic of salvation to allow the Church to make a more committed stand on behalf of the poor and marginalized of society. However, the ecclesiological critique is a specific instance of a more general concern. Gutiérrez’s primary concern is to outline what being Christian means for one’s commitment in the social and political realm, and this is where Gutiérrez explicitly departs from Maritain’s approach, an approach

Gutiérrez was very familiar with given its influence in the Latin American context. Addressing this issue clarifies Gutiérrez’s contributions to the topics raised by this dissertation.

4.3 Gutiérrez’s Critique of Maritain, and His Basis in Solidarity and the Preferential Option for the Poor

Gutiérrez critiques an important distinction, or nest of distinctions, Maritain makes in

IH.256 The primary one is between three different planes of activity: the spiritual plane, the temporal plane, and a third, intermediary plane. On the first plane, Christians are involved in sacramental and church life; this life pertains strictly to salvation. On the second plane, the temporal plane, humans are strictly engaged in the work of civilization, things that are not eternal.257 Corresponding to this distinction is another that Maritain makes between acting “as a

Christian as such” and acting “as a Christian”.258 When a Christian acts as a Christian as such, they “engage” the Church, which more or less means they represent the position of the Catholic

Church, and the Catholic Church stands above the temporal plane. When acting as a Christian, the Christian is informed by Christian principles when involved in concrete political activity, but they do not represent the Church since it is not the Church’s function to descend into concrete

256 Maritain, Integral Humanism, 337 – 345. 257 ibid., 337. 258 ibid., 338.

88 political activity. However, on the intermediary plane, the Church does provide general moral principles impacting on economic, political, and social life.259

Gutiérrez respects Maritain’s position as an initial attempt to change the way individual

Christians and the Church engage with modern political and economic circumstances, but he ultimately finds the approach lacking. He writes, “this approach amounted to a timid and basically ambiguous attempt”, which “gave rise to fundamentally moderate political attitudes”.260

Gutiérrez critiques Maritain’s and like-minded approaches as not sufficiently motivated by the

“desire to become oriented towards radically new social forms.”261 Gutiérrez is especially concerned about the effects of the “distinction of planes model” in the Latin American context.

“Concretely, in Latin America the distinction of planes model has the effect of concealing the real political option of a large sector of the Church-that is, support of the established order.”262

Gutiérrez is worried about false neutrality, and thus offers an alternate vision of Christian commitment in political and economic matters, one that is sensitive to economic oppression.

As noted, Gutiérrez’s reflections begin from a different starting point. Whereas Maritain starts from abstract principles distanced from real life and applies them to a European context;

Gutiérrez starts from experience, more specifically of the poor and oppressed.263 In his early writings, he speaks primarily in terms of economic oppression, but later writings include other dimensions as well. For example, in later works Gutiérrez says: “It is this that is really meant

259 Here Maritain approvingly mentions the encyclicals of Leo XIII and Pius XI. ibid., 340. Maritain does not name specific encyclicals, but it is virtually certain that he has in mind “social encyclicals” such as Leo XIII’s and Pius XI’s Quadragesimo Anno, both of which exhibit this position. 260 Gutiérrez, A Theology of Liberation, 56. 261 ibid. 262 ibid., 65. 263 Cristina Traina, “Gustavo Gutiérrez and Social Solidarity,” in Feminist Ethics and Natural Law: The End of Anathemas (Washington, D.C.: Georgetown University Press, 1999), 246 – 287, 247.

89 when we talk of poverty and of the destruction of individuals and peoples, cultures and traditions. In particular, it is what is meant when we speak of the poverty of those most dispossessed: Amerindians and Latin American blacks, and the women of these doubly marginalized and oppressed sectors of the population.”264 The experience of the oppressed remains a constant point in Gutiérrez’s writings. It would be difficult to find real and effective solutions to the violations of human rights taking place in Latin America without entering into solidarity with the oppressed. As Cristina Traina puts it, “The moral claim grounds and precedes all epistemic claims.”265 However, to be true, this statement relies on a certain amount of circularity insofar as the moral commitment to the poor and oppressed relies on knowing that people are being oppressed.266 In other words, we must be able to find in Gutiérrez’s writings some dimension of moral epistemology, and here it is interesting to note that, though Gutiérrez does not provide an explicit theoretical basis for human rights, he does take it for granted that we have the ability to know when such rights are being violated. Here, Gutiérrez is similar to

Maritain in that he shares the natural law assumption that people have “the universal capacity for moral insight.”267

Certainly, Gutiérrez does not discuss this topic systematically in his writings, but there is enough evidence to make this assumption valid. For instance, in a criticism of Maritain,

Gutiérrez says: “For example, Maritain asks how a non-Christian can participate in a political party inspired by Christian principles; but he does not consider the more relevant question in

264 Gutiérrez, We Drink From Our Own Wells, 10. 265 Traina, “Gustavo Gutiérrez and Social Solidarity,” 248. 266 To be fair, Traina does recognize the circularity of Gutierrez’s thought, circularity she attributes to the dialectical nature of Gutierrez’s thought. See, e.g., 248 – 249. 267 ibid., 246. I say somewhat similar because, whatever room there may be for moral intuitions in Gutiérrez’s thought, the moral insights are not linked to inclination or the desire for the good in the way they are in Maritain’s thought, a point made by Cristina Traina (ibid., 259).

90 today’s world: Under what conditions can a Christian participate in a political party which is alien and perhaps even hostile to a Christian viewpoint?”.268 He implies that non-Christians possess important moral insights without being informed by special revelation. This view is further strengthened by Gutiérrez’s view that Christians can fruitfully engage with the thought of

Karl Marx and revolutionaries like Ernesto . Despite all of this, Gutiérrez couches his argument that we must start from a moral commitment to the poor, comprising the notions of solidarity and the preferential option for the poor, in explicitly theological language: and it is part of his faith and overall Christian commitment to the liberation of the poor and oppressed.

For one thing, he sets the very source of oppression and injustice in theological terms.

He writes, “an unjust situation does not happen by chance” because “there is human responsibility behind it”.269 Gutiérrez further claims: “this is the reason why the Medellín

Conference refers to the state of things in Latin America as a ‘sinful situation,’ as a ‘rejection of the Lord.’”270 However, sin is not to be understood in individual terms “asserted just enough to necessitate a ‘spiritual’ redemption which does not challenge the order in which we live.”271 Sin is ultimately “a social, historical fact” that is caused by an “absence of brotherhood and love in relationships among men, the breach of friendship with God and other men, and, therefore, an interior, personal fracture.”272 These “collective dimensions of sin”, as Gutiérrez calls them, manifest themselves in the social, political, and economic violation of human rights.273 He also claims that the fundamental moral commitment to the liberation of the poor and oppressed is motivated by Christian considerations.

268 Gutiérrez, A Theology of Liberation, 59 n.12. 269 Gutiérrez, A Theology of Liberation, 175. 270 ibid. 271 ibid. 272 ibid. 273 ibid.

91 For instance, Gutiérrez often makes the point that the God of the Bible is a God who liberates the oppressed. Thus, the story of the liberation of the Jewish people from captivity in

Egypt described in the book of Exodus features prominently in Gutiérrez’s thought.274 Gutiérrez says: “One must keep in mind that the God of the Bible is a God who not only governs history, but who orientates it in the direction of establishment of justice and right. He is more than a provident God. He is a God who takes sides with the poor and liberates them from slavery and oppression.”275 Gutiérrez buttresses this viewpoint with many biblical passages, primarily from the prophets but also from the book of Exodus and other instances of God’s intervention in history to free the poor and oppressed. For instance, the image of Christ as the liberator of the poor and oppressed also figures prominently in Gutierrez’s writing.276

However, Gutiérrez goes further than just to say that God is a liberator of the poor and oppressed; for Gutiérrez, God actually prefers the poor. Citing Bartolomé de Las Casas,

Gutiérrez says: “The poor are beloved of God with a love of predilection because: ‘God has a very fresh and living memory of the smallest and most forgotten’ (Carta al Consejo, 1531, O.E.

5:44b). This preference, then, ought to be a norm of life for the Christian.”277 Elsewhere

Gutiérrez says: “Accustomed as we are to a religious perspective based on merits and rewards, sins and punishments, the God who loves the poor because they are poor bewilders us. And yet the Gospels are clear on this point: the despised of this world are the ones whom the Lord

274 Gutiérrez, The Power of the Poor in History, 6. 275 ibid., 7. 276 See especially Gutiérrez, A Theology of Liberation, 168 – 178. It is interesting to note the contrast between the way Gustavo Gutiérrez speaks about God and the way Jacques Maritain speaks about God. Maritain’s God-talk is often rather abstract; the God of the Bible or the God of history is largely absent in contrast with Gutiérrez. 277 Gustavo Gutiérrez, Las Casas: In Search of the Poor of Jesus Christ, trans. Robert R. Barr (Maryknoll, NY: Orbis Books, 1993), 61.

92 prefers.”278 He relies on the Old Testament theme of Yahweh as the liberator of the oppressed, but he also develops the theme using the language of the Incarnation. Gutiérrez says, “Jesus

Christ is precisely God become poor.”279 Continuing on, Gutiérrez says, “He [Jesus] chose to live with the poor. He addressed his gospel by preference to the poor. He lashed out with invective against the rich who oppressed the poor and despised them.”280 God’s preference for the poor is what ultimately grounds Gutiérrez’s argument that Christian commitment in social and political matters must start with the poor.

“The gratuitous love of God requires that we establish an authentic justice for all, while giving privileged place to a concern for the unimportant members of society – that is, for those whose rights are not recognized either in theory (by a set of laws) or in practice (in the way society conducts itself).”281 Demonstrating a moral commitment to the poor is generally couched within a traditional Christian injunction to love one’s neighbor, which is in turn grounded in the love of God. “To love Yahweh is to do justice to the poor and oppressed.”282 Here, Gutiérrez is inspired by the portrait of the final judgment given in the Gospel of Matthew in which actions that are taken, or not taken, on behalf of the poor are equated with actions directed toward Jesus.

Commenting on this text, Gutiérrez says: “It is not enough to say that love of God is inseparable from the love of one’s neighbor. It must be added love for God is unavoidably expressed through love of one’s neighbor.”283

278 Gustavo Gutiérrez, The God of Life, trans. Matthew J. O’Connell (Maryknoll, NY: Orbis Books, 1991), 115. 279 Gutiérrez, The Power of the Poor in History, 13 (Original emphasis). 280 ibid. 281 Gutiérrez, The God of Life, 117. 282 Gutiérrez, A Theology of Liberation, 194. 283 ibid., 200 (Original emphasis).

93 The problem is, of course, that loving the neighbor with universal, Christian love seems to sit uneasily with the bias towards the poor in the preferential option and the Marxist inspired recognition of . The question becomes: How can love of neighbor retain its universal scope when it is directed preferentially to the oppressed? Gutiérrez says:

The universality of Christian love is only an abstraction unless it becomes concrete history, process, conflict; it is arrived at only through particularity. To love all men does not mean avoiding confrontations; it does not mean preserving a fictitious harmony. Universal love is that which in solidarity with the oppressed seeks also to liberate the oppressors from their own power, from ambition, and from their selfishness: “Love for those who live in a condition of objective sin demands that we struggle to liberate them from it. The liberation of the poor and the liberation of the rich are achieved simultaneously.” One loves the oppressors by liberating them from their inhuman condition as oppressors, by liberating them from themselves. But this cannot be achieved except by resolutely opting for the oppressed, that is, by combating the oppressive class. It must be a real and effective combat, not hate. This is the challenge as new as the Gospel: to love our enemies. This was never thought to be easy, but as long as it was only a question of showing a certain sweetness of character, it was preached without difficulty. The counsel was not followed, but it was heard without any uneasiness. In the context of class struggle today, to love one’s enemies presupposes recognizing and accepting that one has class enemies and that it is necessary to combat them. It is not a question of having no enemies, but rather of not excluding them from our love. But love does not mean the oppressors are no longer enemies, nor does it eliminate the radicalness of the combat against them. “Love of enemies” does not ease tensions; rather it challenges the whole system and becomes a subversive formula. Universal love comes down from the level of abstractions and becomes concrete and effective by becoming incarnate in the struggle for the liberation of the oppressed. It is a question of loving all people, but not in some vague, general way, but rather in the exploited person, in the concrete person who is struggling to live humanly. Our love for him does not “abstract” him, it does not isolate him from the social class to which he belongs, so that we can have “pity” on him. On the contrary, our love is not authentic if it does not take the path of class solidarity and social struggle. To participate in class struggle not only is not opposed to universal love; this commitment is today the necessary and inescapable means of making this love concrete. For this participation is what leads to a classless society without owners and dispossessed, without oppressors and oppressed.284

This notion of a classless society where present conflicts will be overcome and people will base their social relationships on love for one another rather than power and domination provides the

284 Gutiérrez, A Theology of Liberation, 275 – 276.

94 rationale for the present need for preference insofar as preference for the poor is supposed to be a finite period of time determined by the presence, or absence, of oppression. The idea is not only tied to the general Christian idea of loving one’s neighbor; Gutiérrez also relates it to the theme of salvation history.

According to Gutiérrez, the moral commitment to the poor and oppressed and the creation of a socialist society where domination no longer exists has eschatological relevance in terms of the Kingdom of God. Gutiérrez asks: “What is the relationship between salvation and the process of the liberation of man throughout history?”.285 For one thing, salvation is not exclusively related to the salvation of the soul; it embraces “all the dimensions of existence.”286

Furthermore, as Cristina Traina points out, Gutiérrez’s way of relating the order of salvation and the sphere of political activity is quite different from Maritain’s. Traina says, “Human beings are constructed of interdependent dimensions that, unlike Maritain’s planes of existence, can be neither separated nor ranked.”287 Gutiérrez says: “While liberation is implemented in liberating historical events, it also denounces their limitations and ambiguities, proclaims their fulfillment, and impels them effectively towards total communion.”288 He argues: “the historical, political liberating event is the growth of the Kingdom and is a salvific event; but it is not the coming of the Kingdom, not all of salvation.”289 Gutiérrez argues his approach is made “from a dynamic viewpoint, which has nothing to do with the one which holds for the existence of two juxtaposed

‘orders,’ closely connected or convergent, but deep down different from each other.”290 There are many implications of this viewpoint for Gutiérrez’s theology as a whole, but the relevant

285 Gutiérrez, A Theology of Liberation, 149. 286 ibid., 153. 287 Traina, “Gustavo Gutiérrez and Social Solidarity,” 259. 288 Gutiérrez, A Theology of Liberation, 177. 289 ibid. (Original emphasis). 290 ibid.

95 point is that his theological anthropology does not allow for a trade-off between the moral commitment to the poor and salvation. The relationship between Gutiérrez’s thought and human rights discourse is based in the moral commitment to the poor. This commitment presumes a certain epistemology.

4.4 Praxis and the Role of the Social Sciences in Theology

Just as the moral commitment to the poor is inseparable from theology in Gutiérrez’s thought, so is his epistemology, for his contributions to epistemology are embedded within the context of how to go about the tasks theology. However, since the moral commitment to the poor and the appeal to human rights that accompanies it are an integral part of the theology, we can extrapolate from the task of theology to the task of constructing a discourse of human rights.

We have already seen one aspect of Gutiérrez’s epistemology, namely the idea that we just know when violations of human rights are occurring. However, in this section, I am more concerned with the relationship between Gutiérrez’s thought and the task of actually addressing human rights violations. Gutiérrez’s variation from Maritain and like-minded approaches is not primarily based on any difference concerning a moral commitment to those who are oppressed.

Maritain clearly supported the idea that humans have rights that should not be violated, and as mentioned above, Gutiérrez respected Maritain’s efforts. However, Gutiérrez takes issue with any approach that 1) does not start from the of the poor and oppressed themselves and 2) tries to extrapolate political and economic solutions from one context for use in another context, especially when the challenges the respective contexts face are dissimilar. Both of these issues involve a complex intertwining of ethical and epistemological concerns.

Gutiérrez perhaps most forcefully makes the connection between the moral commitment to the poor and epistemology in his work on Bartolomé de Las Casas. As Gutiérrez puts it: “The

96 perspective of the insignificant and oppressed (‘whom we see’) always withdraws us from the world of abstract principles– from a false pretense of loving ‘the God we have not seen’–and stands us willy-nilly on the flinty terrain of evangelical practice and truth (see I John 4:20).”291

Elsewhere Gutiérrez says: “What he [de las Casas] is engaged in at this point is not mere intellectual hairsplitting, the fine-tuning of an abstract principle, with a view to applying that principle to reality and to reflection upon reality. It is far more than this. Direct contact with persons who were suffering endowed Bartolomé’s perspective with a vital content.”292 Here,

Gutiérrez is touching on a theme he developed earlier. He outlines several different tasks of theology. The classical tasks of theology are in his terms “theology as wisdom” and “theology as rational knowledge”. The third task, “theology as critical reflection on praxis”, is the most relevant to this study.293 Gutiérrez’s ideas about praxis were inspired by diverse thinkers including , Pope John XXIII, , and Karl Marx; he also mentions the in connection with John XXIII. The central thrust of praxis is that theological reflection must be rooted in action, more specifically action starting with solidarity with the oppressed, but this is not all. Theology must also be attuned to its own historical epoch; in other words, it must be able to read “the signs of the times”.294

Reflection is not just a way of trying to understand the world that one lives in, and both action and reflection on action are not simply ways to while away the time. Action and reflection on action should be endowed with transformative power. This is one of the areas where Marx’s influence on Gutiérrez is most prevalent. Gutiérrez cites Marx’s well known

291 Gutiérrez, Las Casas, 41. 292 ibid., 85 (My brackets). 293 Gutiérrez, A Theology of Liberation, 3 – 15. 294 ibid., 6 – 8. I think we can read Gutiérrez’s citations of the Second Vatican Council and John XXIII as his demonstration of his continuity with Catholic teaching.

97 statement that “The Philosophers have only interpreted, the world in various ways; the point, however, is to change it.”295 Furthermore, Gutiérrez weds this element of transformation to the eschatological element in his theology. “Finally, the rediscovery of the eschatological dimension in theology has also led us to consider the central role of historical praxis.”296 Gutiérrez further says: “Faith in a God who loves us and calls us to the gift of full communion with him and brotherhood among men not only is not foreign to the transformation of the world; it leads necessarily to the building up of that brotherhood and communion in history.”297 This is an example of the place that utopian thought has in Gutiérrez’s thought. A Traina has pointed out:

“Here is utopianism in the Peruvian tradition, cooperatively analyzing and passionately denouncing injustice, constructing a common vision for the future, and devising means to cross from here to there.”298 The gist of the idea of praxis is that theoretical knowledge plays an indispensable part in the collective journey to building a better future by transforming the present, but theoretical knowledge is secondary and it must be continuously reflected on and even criticized to make sure it is facilitating the liberation process. “Theology is reflection, a critical attitude. Theology follows; it is the second step.”299 For example, this is why Gutiérrez is critical of ecclesiastical views that, like Maritain’s, are ultimately responsible for further oppression of those who are already oppressed. Construing the Church’s highest task as a task of salvation in merely spiritual terms has the effect furthering oppression.

Demonstrating the moral commitment to the poor is not the only moral concern related to the concept of praxis. In addition to this component, the poor and the oppressed have the moral

295 Quoted in Gutiérrez, A Theology of Liberation, 18 n. 31(Original emphasis). 296 ibid., 10 (Original emphasis). 297 ibid. 298 Traina, “Gustavo Gutiérrez and Social Solidarity,” 258. 299 Gutiérrez, A Theology of Liberation, 11 (Original emphasis).

98 right to have their voices heard and to make a contribution to theology, and they also have a right to be distinct. As Gutiérrez puts it: “This kind of theology, arising from concern with a particular set of issues, will perhaps give us the solid and permanent albeit modest foundation for the theology in a Latin American perspective which is both desired and needed.”300 Elsewhere

Gutiérrez says: “However, the construction of a different society, and a new human being, will be authentic only if it is taken by the oppressed themselves. Hence the whole project must start out with their values.”301 It should be clear by these statements that solidarity with the oppressed and the preferential option for the poor should be free of any type of paternalism. For Gutiérrez, taking part in the liberation process does not entail imposing one’s values system on others.

Another important aspect of Gutiérrez’s approach compared to Maritain’s is Gutierrez’s reliance on social-scientific analysis.

For Gutiérrez, changing the conditions in Latin America that lead to the oppression of the poor and ethnically marginalized relies on a clear-headed analysis of the factors leading to oppression and solutions that fit that particular context. This analysis relies heavily on the social sciences, a feature that is largely absent from Maritain’s explication of the “concrete historical ideal”. It would be wrong and overly simplified to try and propound a solution that has worked in one context and try to wed it to a completely different context. This is evident in Gutiérrez’s critique of developmentalism. “The developmentalist policies current at that time were supported by international organizations. From their point of view-characterized by structural- functionalist categories-to develop meant to be oriented towards a model abstracted from the more developed societies in the contemporary world.”302 For Gutiérrez, this approach fails in the

300 ibid., 14 (Original emphasis). 301 Gutiérrez, The Power of the Poor in History, 46 (My emphasis). 302 Gutiérrez, A Theology of Liberation, 82.

99 Latin American context for several reasons. For one, the approach is ahistorical. It is impossible for a society with particular historical experiences to repeat the experiences of other societies that are completely different. Furthermore, the approach has only led to a growing gap between rich and poor nations.303 For Gutiérrez, these issues are interrelated and can only be explained with the proper social scientific analysis. To this end, Gutiérrez relies on dependency theory and

Marxist analysis.

For Gutiérrez, the developmentalist approach fails to take into account that the development of the richer countries has come at the expense of the poorer countries. In the past, the dominant countries have exploited the weaker ones primarily through siphoning off their natural resources. Although overt colonization has primarily come to an end in the Latin

American context, the growth of world capitalism and the increasing power of large, multinational corporations has continued to play a role in creating a situation where poorer nations are dependent on richer ones. In the era of global capitalism, there exists a “center” comprising the dominant nations and a “periphery” made up of the weaker ones.304 In this system, the poorer countries of the periphery have been reduced to exporting raw materials to the richer countries of the center and serving as markets for the finished goods flowing from the center.305

The poorer nations thus become doubly dependent. On the one hand, they rely on the richer nations as markets for what little bit of trade they can procure in the area of raw materials, and they also rely on the richer nations for the types of goods that are the hallmark of more technologically advanced societies. However, for Gutiérrez, external domination is only half the

303 ibid., 85. 304 ibid., 84 – 87. 305 Gutiérrez, The Power of the Poor in History, 187.

100 problem. The dominant countries of the center also rely on dominant elites within a particular poor country in order to facilitate their exploitation of the poorer country. As Gutiérrez puts it:

“The bourgeois interest of the industrialized countries, in complicity with dominant groups on the local scene, only instituted a more refined exploitation of the Latin American masses–some of whom actually found themselves in conditions worse than under the old colonial domination.”306 Gutiérrez does not stop at dependency theory, however, because he further connects dependency theory to Marxist thought via class analysis. This reliance on Marxist analysis is another one of the major differences between Maritain and Gutiérrez, one I have already alluded to, in their respective engagements with Karl Marx’s thought.

Maritain engaged with Marx to some degree in Integral Humanism, but he tended to treat

Marxism more as a philosophy or metaphysic than he did as a tool of social analysis. For instance, Maritain argues that “Communist social solutions” are inseparable from as a metaphysical position.307 Maritain says: “Communism as it exists, above all the Communism of the Soviet republics, is a complete system of doctrine and life claiming to reveal to man the meaning of his existence, answering all the fundamental questions posed by life, and manifesting an unparalleled power of totalitarian envelopment”; Maritain then takes the step of labeling

Communism an “imperious religion”.308 In Maritain’s view, whatever value Marxism may have in a social scientific sense is lost, at least for a Christian, because one cannot parse out the various elements of Marxism taken in its entirety. For Gutiérrez on the other hand,

306 ibid. 307 Maritain, Integral Humanism, 175. A similar position is to be found much later in the Magisterium’s response to liberation theology. See Sacred Congregation for the Doctrine of the Faith, Instruction on Certain Aspects of the “Theology of Liberation” (Boston: St. Paul Editions, 1984) and in Pope Paul VI’s Populorum Progressio, which Maritain influenced. 308 Maritain, Integral Humanism, 175.

101 disconnecting the various aspects of Marxism is possible because “the commitment was to

Marxism as a tool of analysis rather than a metaphysics, or philosophy”.309

Gutiérrez acknowledges his indebtedness to Marx on the subject of praxis, but one of the most important features of Gutiérrez’s use of Marx, the focus on the class struggle, comes a bit later. One reason that reformist efforts have failed to liberate the poor and oppressed in

Gutiérrez’s view is that these reform efforts have not recognized the true nature of political and economic reality. “The class struggle is part of our economic, social, political, cultural, and religious reality. Its evolution, its exact content, its nuances, and its variations are the object of analysis of the social sciences and pertain to the field of scientific rationality.”310 Further on

Gutiérrez criticizes the viewpoint of those who refuse to see the reality of class struggle; he does not explicitly make reference to any of the social encyclicals of the Catholic Church, but it seems clear that it is the viewpoint of those encyclicals that Gutiérrez has in mind. “Those who speak of class struggle do not ‘advocate’ it–as some would say– in the sense of creating it out of nothing by an act of (bad) will. What they do is recognize a fact and contribute to an awareness of that fact. And there is nothing more certain than a fact.”311

The upswing of Gutiérrez’s engagement with Marxism is that he believes poorer nations are not dependent on richer ones because of some historical accident. Rather, the dominant classes, both external and internal to a particular country, struggle to keep the oppressed in their positions of oppression. This viewpoint colors not only Gutiérrez’s views on violence, which I have discussed above, but it also informs his political and ethical recommendations for the liberation of the oppressed. “Paradoxically, what the groups in power call ‘advocating’ class

309 Paul E. Sigmund, Liberation Theology at the Crossroads: Democracy or Revolution? (New York: Oxford University Press, 1990), 8. 310 Gutiérrez, A Theology of the Liberation, 273. 311 ibid., 274.

102 struggle is really an expression of a will to abolish its causes, to abolish them, not cover them over, to eliminate the appropriation by a few of the wealth created by the work of the many and to not to make lyrical calls to social harmony.”312 Furthermore, abolishing the causes of oppression is achieved by the creation of a socialist, classless society.313

The general use of Marxist analysis has been a source of controversy for liberation theology and has drawn criticism from both the Magisterium of the Roman Catholic Church and outside observers. In one of the official response to liberation theology, the Magisterium critiques the use of Marxist analysis on the grounds that it is not really scientific, whatever claims liberation theologians like Gutiérrez make for it. For instance, on the subject of class struggle, the Congregation for the Doctrine of the Faith (CDF) argues in Instruction on Certain

Aspects of the “Theology of Liberation”: “In this context, certain formulas are not neutral, but keep the meaning they had in the original marxist [sic] doctrine. This is the case with the “class- struggle”. This expression remains pregnant with the interpretation that Marx gave it, so it cannot be taken as the equivalent of ‘severe social conflict’, in an empirical sense.”314 This view is reminiscent of Maritain. Criticisms of liberation theology’s use of Marxism come in other variants. For instance, Paul Sigmund criticized liberation theology’s early use of Marxism as oversimplified. Speaking of liberation theology’s use of both dependency theory and Marxist analysis Sigmund says:

If this seemed to be a reductionist and simplistic approach to a complicated problem, it was. Over time and in dialogue with likeminded Christians, the liberation theologians later became aware that capitalism was not the only obstacle to liberation. By the mid- 1970’s they were reminded often that in a continent in which Indians, mestizos, and women had been exploited for centuries, the problem of liberation involved

312 ibid. 313 ibid. 314 Sacred Congregation for the Doctrine of the Faith, Instruction on Certain Aspects of the “Theology of Liberation”, 18.

103 psychological, ethnic, racial, and gender factors as well as economic structures. As in mainstream Marxism, it was possible to relate those oppressions to economic causes–but since the commitment was to Marxism as a tool of analysis rather than a metaphysics, or philosophy, there began to be a willingness to consider other types of oppression as independent variables.315

Fortunately, Sigmund does recognize that the use of Marxism in various versions of liberation theology, including Gutiérrez’s, does not remain static.316 However, Sigmund is also critical of

Gutiérrez’s Marxist inspired bent towards revolutionary change of social structures because of its vagueness. Commenting on Gutiérrez, Sigmund says: “This is heady stuff–and it is radical in its formulation, if somewhat vague about details of execution. It poses the problem-revolution or reform-without answering it directly but with a clear tilt in the direction of the revolutionary alternative.”317

From a purely social scientific perspective, Sigmund’s criticisms are more to the point than the response given by the CDF. Whatever the CDF’s views concerning the possibility of separating Marxist social analysis from Marxist ideology, it is clear that their concern is primarily with Marxism’s incompatibility with the Catholic faith. Certainly, Gutiérrez believed it was possible to separate Marxist analysis from the rest of Marxism, and he argued that a critical attitude should be maintained vis-à-vis Marxism. Following a discussion of important thinkers and their influence for the task of liberation in ATL, thinkers as varied as René

Descartes, G.W.F Hegel, Karl Marx, Sigmund Freud, and , Gutiérrez says: “We

315 Sigmund, Liberation Theology at the Crossroads, 8. 316 We can find evidence of Gutiérrez’s recognition of other forms of oppression in later works such as We Drink From Our Own Wells and Las Casas: In Search of the Poor of Jesus Christ. In the latter work, Gutiérrez recognizes that a significant component of the Spanish argument for colonization of the New World was based on cultural grounds, especially concerning purported human sacrifices by Native Americans. Gutiérrez spends several pages discussing Las Casas’s defense of the Native Americans on this score. See Gutiérrez, Las Casas, especially pages 202 – 208. 317 Sigmund, Liberation Theology at the Crossroads, 34.

104 are not suggesting, of course, that we should endorse without question every aspect of the development of ideas. There are ambiguities, critical observations to be made, and points to be clarified.”318 However, Sigmund’s observation about the vagueness of the details is correct insofar as a call for the creation of a socialist society is fairly general. However, I am less concerned to discuss the adequacy of Gutiérrez’s choice of Marxism as a tool of social analysis as I am to show that he at least makes the attempt to explore the relevance of social scientific analysis for understanding the causes of oppression. Though I would not argue that Maritain fails to recognize the importance of such analysis, there is a relative lack of it in his work. Now,

I will pull together the various threads of Gutiérrez’s work to demonstrate their relevance for human rights discourse. As I mentioned before, Gutiérrez only occasionally makes references to the concept of human rights, and he certainly does not provide any theoretical basis for such rights, but his thought can make important contributions for conceptualizing human rights.

4.5 Gutiérrez’s Importance as a Human Rights Thinker

I said above that there is no systematic discussion about anything pertaining to human rights in Gutiérrez’s major works, and indeed, he does not appeal to the concept often.

Nevertheless, I think it is possible to glean important insights concerning human rights discourse from Gutiérrez’s writings. The first insight concerns a generalized critique of the way in which human rights are justified. The UDHR itself was formulated in a way that allowed human rights norms to be justified in a variety of ways, and as discussed in chapter three, one of the hallmarks of Maritain’s thinking on human rights is that people could come up with a practical list of human rights while disagreeing on the manner in which they are justified. The upshot of this line of thinking is that human rights norms can be supported by a variety of philosophical or religious

318 Gutiérrez, A Theology of Liberation, 32.

105 doctrines. However, what is absent in Maritain’s thought is a discussion of the way in which these doctrines are formulated. In other words, Maritain does not take into account that often times philosophical and religious doctrines are formulated by elites and may even help re- inscribe patterns of domination and oppression. This is especially true when a particular religious or philosophical doctrine is wedded to a particular historical, social, economic, and political context and is applied to a different context.

This problem is brought out by Gutiérrez’s critique of views like Maritain’s. Recall that in chapter three I showed that the ultimate basis of respect for human rights for Maritain is the fact that humans are creatures consisting of both body and soul and as such are destined for reunion with God in beatitude. So far this may not seem especially problematic, but Maritain used this theological anthropology to move on to say that the Catholic Church, in her mission of savings souls, may have to cooperate with powers that have unclean hands. This notion is

Gutiérrez’s primary critique of the Catholic Church’s activities in Latin America; the Church does not firmly denounce a situation of “institutionalized violence” because of its own institutional prerogatives. However, Gutiérrez does not criticize Maritain directly on this point nor would he accuse Maritain of acting in bad faith. In fact, as Traina has pointed out, Gutiérrez accepts the same exitus-reditus anthropology as we would find in Maritain and many others who hold more explicitly to a Thomistic line.319 That is, Gutiérrez accepts that people have their origin and end in God in the same way that Maritain does. However, by reworking the idea of salvation, Gutiérrez tries to eliminate a kind of hierarchy of dualism by showing that salvation is not only about the soul. Suffice it to say that Gutiérrez’s thought contains significant parallels that help us to see that when we are dealing with any type of theoretical justification for human

319 Traina, “Gustavo Gutiérrez and Social Solidarity,” 253.

106 rights, whether it is theological or philosophical, we must be careful to discern whose voice is being represented.320 Gutiérrez sought to avoid approaching theology from the perspective of

Eurocentric elites; instead, his focus tries to incorporate the voices of those who are generally excluded from the theological task.321

It is clear that Gutiérrez has a strong preference for the voices of the poor and the marginalized sectors of society, and this leads to the second contribution that Gutiérrez makes to human rights discourse. Gutiérrez’s primary focus is on the level of the community; he focuses on the marginalized and poor as a group rather than as individuals, and he often emphasizes the power of community action in addressing situations of oppression. Furthermore, at certain points Gutiérrez defends a generalized right of oppressed classes and cultures to be different from dominant classes and cultures. Indeed, at many points in Gutiérrez’s writings, there even appears to be an anti-individualist bias. Theologically, this anti-individualism shows up in

Gutiérrez’s treatments of sin and . I have already quoted Gutiérrez on the subject of refocusing one’s attention from an individual treatment of sin to a social one.322 At certain points, he is highly critical of what he considers to be an individualized spirituality that ignores the communal dimensions of Christianity.323 Taken as a whole, the various strands of

320 Some liberation theologians have criticized the notion of human rights as representing an elitist, capitalist mentality. See Mark Engler, “Towards the ‘Rights of the Poor’: Human Rights in Liberation Theology,” Journal of Religious Ethics 28, no. 3 (2000): 347. 321 It is a matter of debate how much Gutiérrez really escapes an elitist view. After all, Gutiérrez did receive much of his theological training in European institutions, and his works contain numerous references to more academically minded theologians of the “new theology” school. Also, as Traina points out, Gutiérrez is still “answering the concerns of the professional theological community.” Traina, “Gustavo Gutiérrez and Social Solidarity,” 277. This dissertation is not the place to give a full answer to this question, but I would argue that Gutiérrez’s work and life among the poor in Peru put him into closer contact with the poor and oppressed than the majority of his contemporaries. 322 See note 271 above. 323 Gutiérrez, We Drink From Our Own Wells, 14 – 15.

107 Gutiérrez’s thought come together to provide the impetus for a strong affirmation of group and collective rights.

One reason that Gutiérrez’s thought lends strong support for group rights is that Gutiérrez understands individual persons to be socially embedded.324 As Gutiérrez puts it: “For it is within the context of the political that the human being rises up as a free and responsible being, as a truly human being, having a relationship with nature and with other human beings, as someone who takes up the reins of his or her destiny, and goes out and transforms history.”325

This image of the human person as a being that realizes its fullest potentiality within the context of interaction with other human beings does not diverge to any great extent from traditional

Catholic social thought. However, the last line of the above quote also points to the Marxist influence contained within Gutiérrez’s thought; this influence is further responsible for

Gutiérrez’s focus in the direction of group rights rather than individual rights. In fact, Gutiérrez, like Marx, is highly critical of what he considers to be a bourgeois conception of rights. “At the same time, a structural analysis better suited to Latin American reality has led certain Christians to speak of the ‘rights of the poor’ and to interpret the defense of human rights under this new formality. This alternative language represents a critical approach to the laissez-faire, liberal doctrine to the effect that our society enjoys an equality that in fact does not exist.”326 Further on, Gutiérrez more explicitly connects an emphasis on formal equality with the bourgeoisie and individualism. Following in Marx’s legacy, Gutiérrez connects the demand for individual freedoms, or rights, with the rise of capitalism when he says: “Both the demand for individual

324 Unlike Maritain, Gutiérrez does not devote any discussion to making a distinction between individuality and personality, but I think he would at least agree to the general thrust of Maritain’s distinction on this score even if he did not agree to specific details. 325 Gutiérrez, The Power of the Poor in History, 47. 326 ibid., 87.

108 freedom and the demand for social equality, then, have ties with the new economic forms.

Fundamental to bourgeois society is the right to private ownership, which will be primarily a matter of private ownership of the means of production.”327 For Gutiérrez, rights conceived in this way are responsible for much of the oppression in the Latin American context, and though

Gutiérrez often makes the appeal to human rights, it is primarily to the need for economic rights.

Even where the presence of civil and political rights may be in focus, Gutiérrez maintains the emphasis on economic rights. For instance, Gutiérrez discusses the historical rise of democracy in positive terms, but he goes on to say: “for this democratic structure of society to be real, just economic conditions are necessary. If they are absent, both within the underdeveloped countries and in their external relationships with the developed countries, explosive tensions are created on a national and international level alike.”328 However, because of Gutiérrez’s general critique of the capitalist “system” economic rights are more or less conceived of in collective terms insofar as his solution to the severe violation of human rights caused by the lack of basic economic necessities is the creation of a socialist society where the ownership of the means of production is placed in collective hands. Indeed, Gutiérrez has the tendency to put his faith in the power of grassroots, collective action.329 However, over time

Gutiérrez’s defense of the economic rights of the marginalized is broadened to include a defense of the cultural rights of marginalized peoples; the subject of Gutiérrez’s work comes to include a criticism of cultural in addition to the critique of economic exploitation. For instance, in Las Casas Gutiérrez shows that what is at stake in the Spanish colonization of the

327 ibid., 175. 328 Gutiérrez, The Power of the Poor in History, 49. 329 For instance in the Comunidades de base or base Christian communities. Gutiérrez does not spend a great deal of time discussing these communities, though they are mentioned from time to time. For a brief discussion of the base communities see Brown, Gustavo Gutiérrez: An Introduction to Liberation Theology, 116 – 120.

109 “New World” is not only the economic exploitation of the Indians but cultural domination as well. Gutiérrez says: “To defend life is not merely to salvage persons one by one. The natural universe, social relationships, the story of a people – all of these are part and parcel of human life itself.”330 One of the prevalent fears of Gutiérrez and like-minded thinkers is that continuing neo-colonization in Latin America will drown out the stories of indigenous groups and marginalized sectors of the population like mestizos and the descendants of African slaves.

This later focus on ethnically and culturally marginalized groups pertains to one of the most persistent critiques of human rights discourse, namely that it reflects a western bias and does not take into account the values of other cultures. For instance, this critique has been present in the debate over “Asian values” mentioned above.331 Such debates are often disingenuous attempts at criticism perpetrated by self-serving politicians who find it in their best interests to criticize the notion of human rights. However, Gutiérrez’s work reminds us that human rights discourse stands to benefit from an honest discussion of the role that “other” ways of thinking have in supporting human rights norms, especially when these other ways of thinking come from marginalized sectors of the population who do not usually have a voice in the face of dominant ways of thinking. The discourse of human rights will not only be enriched by the contributions of those who are currently without a voice but starting from a position of solidarity with the oppressed and from their experience will help guard against any type of paternalism in human rights advocacy. Human rights norms do not simply exist as a means for human rights advocates to defend the victims of abuse; they also exist for the victims of abuse to defend themselves. In other words, agency is an important moral value to be taken into consideration, and sometimes this agency will be exercised collectively, for instance when an indigenous group

330 Gutiérrez, Las Casas: In Search of the Poor of Jesus Christ, 79. 331 See note 4 above.

110 defends their ability to exist as a group in the face of threats to their existence as such. However, other applications of this general principle come to mind as well, in the aftermath of gross human rights violations for instance. Should legal trials be the most important focus, or is it important to give primary consideration to a particular culture’s own processes of reconciliation and holding people accountable? I raise it as an example of where the collective voice of societies that have been rampaged by gross human rights violations like genocide may be lost in the push for trial and punishment if the societies themselves are not the ones doing the pushing.332

Finally, Gutiérrez’s discussion about the preferential option for the poor raises important questions about the universality of rights and the so-called socio-economic rights. Often, even the richer more developed states in the world fail to provide for the full range of rights listed in the UDHR because certain sectors within their populations live with dire economic need. The presence of a poor class that needs to be preferred is already an indication that human rights norms are not being fully realized. While Gutiérrez’s call for the creation of a socialist society may not be the answer, it seems clear that, at the very least, an honest discussion is needed about the redistribution of wealth across and within the borders of states in order to bring people up to a basic level of sustenance. The problem is that on a certain view of rights this may seem morally problematic and even constitute a challenge to the universality of rights in the way that the preferential option for the poor constitutes a challenge to the universality of Christian love.

Just as Gutiérrez recognizes the conflict and tension that exist here, we must recognize conflictual situations may have to be confronted in order to guarantee the full range of human rights listed in the UDHR. This does not mean that both types of rights, civil/political and social/economic, should be traded off when the two conflict. However, it does mean we must

332 These topics are discussed in great depth by Martha Minow, Between Vengeance and Forgiveness (Boston: Beacon Press, 1998).

111 recognize that the lack of basic economic necessities is no less a violation of human rights than torture and political imprisonment.

Gutiérrez’s work raises important questions and considerations for thinking about human rights. The moral commitment to the poor and marginalized and its attendant epistemology is an important counterbalance to abstract theorizing about human rights. Gutiérrez’s thought also addresses practical questions about human rights implementation from culture to culture or society to society and questions about the exercise of collective agency as well. Furthermore,

Gutiérrez’s disagreements with Maritain caution us that even well intended attempts at human rights justification may cause their own sets of problems depending on contextual factors.

However, Gutiérrez’s own contributions to human rights discourse are problematic in different ways. First, Gutiérrez does not provide any critical tools for balancing the rights of individuals with those of the group; his focus on collective agency and societal level analysis is problematic from the standpoint of individual rights. Indeed, Gutiérrez has a tendency to romanticize the viewpoint of the oppressed and marginalized as if these groups as a class could not be responsible for more micro levels of oppression, on the level of the individual for instance. Not only does Maritain’s theological anthropology help correct such a deficiency but also his focus on normal human functioning in the context of the ontological dimension of natural law.

However, the comparisons between Maritain and Gutiérrez raises its own set of problems insofar as the contributions they both make to human rights discourse are largely couched within the language of Christianity. Gutiérrez’s focus on the moral commitment to the poor is certainly important, but it is also framed within his general understanding of what it means to be a

Christian, especially in the Latin American context. Indeed, it is not possible to separate

Gutiérrez’s political and economic analysis, both of which have a more direct bearing on the

112 issue of human rights, from his theology because he is ultimately engaged in constructing an alternate theology to the ones that have prevailed in the Latin American Church and in a

European context. The point is that both Maritain and Gutiérrez’s thought may be problematic from the standpoint of those who do not accept their Christian assumptions. Though entering into solidarity with the oppressed is an important point, Gutiérrez provides no conceptual tools for how to achieve this outside of the Latin American context, a context where many people have historically subscribed to Roman Catholicism, and Gutiérrez’s notion of solidarity is wedded to this fact. In chapter five, I will turn to the thought of the contemporary American philosopher

Martha Nussbaum. Though Nussbaum shares similarities with both Maritain and Gutiérrez, her thought pulls from a variety of sources, none of which are tied to a specific religion, and much of her thought is focused on developing the necessary skills for becoming global citizens capable of entering into solidarity with the marginalized in a wide variety of cultures. As such, Nussbaum makes important contributions to the discussion of human rights beyond both Maritain and

Gutiérrez.

113 CHAPTER FIVE

MARTHA NUSSBAUM AND THE CAPABILITIES APPROACH

5.1 Introduction

In chapters three and four, we examined two contributions to thinking about the relationship between individual human rights and group human rights that are distinctively

Roman Catholic. In fact, though both Jacques Maritain and Gustavo Gutiérrez provide important insights for thinking about this issue, both thinkers’ work must be set within the context of trying to work out the relationship between the Roman Catholic Church and the world surrounding it.

In this chapter, I will explore the capabilities approach to human rights as it has been developed by one of its pioneers, the contemporary American philosopher Martha Nussbaum, who is currently the Ernst Freund Distinguished Professor of Law and Ethics at the University of

Chicago.333 Nussbaum’s capabilities approach pulls from a variety of sources, but, unlike our other thinkers, Nussbaum eschews wedding the approach to a specific metaphysic, a point she often stresses. In introducing the capabilities approach in one of her seminal works on the topic,

Nussbaum says: “I shall identify a list of central human capabilities, setting them in the context of a type of political liberalism that makes them specifically political goals and presents them in a manner free of any specific metaphysical grounding.”334 Nussbaum argues: “the capabilities approach can be the object of an overlapping consensus among people who otherwise have very different comprehensive conceptions of the good.”335

333 Martha Nussbaum has collaborated closely with the economist Amartya Sen who has also used the concept of capabilities within the context of development economics. Nussbaum has repeatedly said that she views it as a version of human rights thinking. See, e.g., Martha Nussbaum, “Capabilities and Human Rights,” Fordham Law Review 66 (1997): 273 – 300. 334 Nussbaum, Women and Human Development: The Capabilities Approach, 5 (Original emphasis). I will give reasons for disputing this claim in chapter 6. 335 ibid. (Original emphasis). Here, Nussbaum is influenced by John Rawls.

114 Given the fundamental differences in starting points between Maritain and Gutiérrez on the one hand and Nussbaum on the other, what may be gained by including her in this project?

The most straightforward answer to this question is that Nussbaum provides valuable insights for thinking about how to reconcile tensions that may exist between individual rights and the group rights of the world’s indigenous peoples. Many of these insights are provided by Nussbaum’s defense of a type of universalism against various forms relativism. However, the striking similarities in thought that exist between Nussbaum and both Maritain and Gutiérrez are also noteworthy. Though I will delve into these similarities in some detail in chapter six, I will mention two at the outset.

First, Nussbaum’s idea that all humans need certain things to live a truly human life is very similar to Maritain’s ontological element of natural law, which basically posits that humans need certain things in order to achieve the normality of their functioning as humans. Second,

Nussbaum’s work is also similar to Gutiérrez’s in that it has been worked out and modified to some extent within the context of a traditionally marginalized sector of society, in this case women in India. Though more similarities exist, I simply raise these two to make the preliminary suggestion that looking at Nussbaum’s work in comparison with that of Maritain and

Gutiérrez may yield similar theoretical contributions to thinking about individual and group human rights from different perspectives. In other words, we may be able to formulate the outlines of a framework for reconciling any tensions that may exist between the two types of rights, a framework that can be supported from multiple perspectives. However, exploring these issues in greater depth is the goal of chapter six.

For now, I want to point out that discussing the similarities between Nussbaum, Maritain, and Gutiérrez is not the only reason for engaging in a close study of Nussbaum’s work.

115 Nussbaum also makes singular contributions to the questions raised by this dissertation. Many of these contributions are not specifically addressed in Nussbaum’s work on the capabilities approach, but they are related. Like Gutiérrez, Nussbaum stresses sensitivity to cultural context, especially when a given cultural context is particularly problematic for a marginalized group within that context, but Nussbaum also contributes a good deal of reflection on the type of education, moral and otherwise, that is needed in order for people to become global citizens who are both capable of understanding other cultures as well carefully scrutinizing other cultures, including their own, when elements within those cultures fail to promote the well being of individuals in addition to the well being of society. In the last section of this chapter, I will explore Nussbaum’s contributions in this area by looking at some of her other works that do not specifically address the capabilities approach. For now, however, I will outline the capabilities approach.

5.2 The Need for Universal Values and the Failure of Prevailing Views

The capabilities approach is quite complex due to the fact that Nussbaum develops it to a great extent in response and criticism to particular issues such as relativism in philosophy and various competing models for measuring of life across states in international development economics.336 Like Jacques Maritain, much of Martha Nussbaum’s work on the capabilities approach has been informed by her involvement with international organizations.

Specifically, Nussbaum spent many years as a research adviser at WIDER, which stands for

World Institute for Development Economics Research, a part of the United Nations University

336 This complexity is especially prevalent in the field of economics insofar as Nussbaum’s version of the capabilities approach is similar to and different from that of her collaborator, the economist Amartya Sen. For the purposes of this dissertation, it is not necessary to delve too deeply into the relationship between Sen’s approach and Nussbaum’s. Also, in political science and international relations theory the words nation and state have different technical meanings, but I will use them interchangeably here.

116 (UNU).337 Nussbaum’s initial encounter with WIDER came in 1986 with her attendance at a conference, but she became more involved as a Research Advisor from 1987 to 1993. Research advisors were expected to head up particular projects and organize conferences associated with the project; each advisor was expected to spend one month out of every year at WIDER headquarters in Finland.338 However, Nussbaum, like Gutiérrez, has interacted closely with a group that has been traditionally marginalized by society, in Nussbaum’s case poor women in

India, as noted above. Nussbaum has worked closely with women involved in the Self-

Employed Women’s Association (SEWA), an organization that helps poor women become self sufficient through self-employment by providing credit and other aid.

Much of Nussbaum’s work at WIDER concerned the relationship between normative ethical philosophy and development economics. It is largely based on the recognition that the concept of development, especially as it concerns the encroachment of one set of values onto another, is laden with normative judgments. “Indeed, the very idea of development-whether seen from within a culture or in the stylized impersonal context of development economics-is inevitably based on a particular class of values, in terms of which progress is judged and development is measured.”339 Given the fact that it is not just development economics in question but international development economics, not only will comparisons be made about the level of development between different societies and states, but the question is also raised about the clash of values between “traditional” societies and the values of those working in the field of

337 For this brief section on Nussbaum’s involvement with WIDER, I follow her narration of this involvement in Martha Nussbaum, “ and International Feminism,” Ethics 108 (1998): 762 – 796. 338 ibid., 767. 339 Martha Nussbaum and Amartya Sen, “Internal Criticism and Indian Rationalist Traditions,” in Relativism: A Contemporary Anthology, ed. Michael Krausz (New York: Columbia University Press, 2010), 431 – 456, 431 – 432.

117 development economics, people who are often associated with a “Westernizing” mentality. As such, much of Nussbaum’s work at WIDER, along with a close collaborator of hers, the Indian economist Amartya Sen, was spent defending the idea that we can come up with a set of cross- cultural norms against the attacks of cultural relativists.340 Thus, the capabilities approach is already well poised for addressing the issue of relativism as it bears on the relationship between individual and group rights.

However, this particular intellectual debate is not the only important one addressed by the capabilities approach; the capabilities approach also makes important contributions to the discussion on human rights concerning the relationship between political/civil human rights on the one hand and social/economic human rights on the other. Both Nussbaum and Sen work within the context of a critique of standard economic models for comparing quality of life across different states. The capabilities approach is important in this regard because of one of its central ideas, namely the idea that humans need both political and economic rights to live a fully human life and that no trade offs between the different types of rights should be made. Both of these arguments, the one concerning relativism and the one concerning development economics, will be hashed out in more detail below.

The starting point for discussing the capabilities approach is Nussbaum’s defense of universal values in the face of attacks from relativist viewpoints.341 For Nussbaum, much of this work is related to the lives of women in India. Two of these criticisms are made from the

340 As Nussbaum points out in several of her works on the capabilities approach, her and Sen’s major intellectual sparring partners on this topic were , a Harvard economist associated with left wing economics, and Marglin’s wife Frédérique Apffel-Marglin, a cultural anthropologist and Professor Emerita of Smith College. See specifically Nussbaum, “Public Philosophy and International Feminism,” Ethics 108, no. 4 (1998): 767. 341 For this section, I largely follow Nussbaum, Women And Human Development, 34 – 59.

118 standpoint of those who attack the idea of universal values as “Westernization”, which is the notion that promoting universal values is just one more attempt by states in “the West” to colonize other states. Some of these attacks, such as the one Lee Kuan Yew makes, are easily dismissed as attempts by autocratic rulers to dismiss ideas that challenge their power.342 Other criticisms related to the Westernization charge paint an idyllic picture of more traditional societies that are disrupted by the encroachment of Western culture. As Nussbaum points out, these types of criticisms not only ignore the reality of suffering in cultures prior to colonization but ignore movements for change that have indigenous roots.343 As with the case of Lee Kuan

Yew, one has to wonder whose agenda is being advanced and interests served when charges of

Westernization are made. Though these types of criticisms may be easily dismissed as disingenuous, other more serious criticisms from a relativist viewpoint exist. Nussbaum addresses three such criticisms: the argument from culture, the argument from diversity, and the argument from paternalism.344

The argument from culture proceeds from the plausible view that certain ways of life have been in place for centuries, and outsiders cannot assume that their set of values will provide a better quality of life than the local ones will. To use Nussbaum’s example, it cannot be assumed that the lives of women in India will be enhanced in any way by the introduction of a different set of norms that perhaps challenge the existing norms. Nussbaum’s response to this is multifaceted. First, the capabilities approach makes allowance for choice; if women choose to live lives governed by traditional norms, they should be allowed to do so.345 However, and this

342 ibid., 37. Nussbaum mentions this example, but the concept of Asian values is critiqued in Amartya Sen, “Human Rights and Asian Values,” The New Republic, July 14/21, 1997, 33 – 41. 343 Nussbaum, Women and Human Development, 38. 344 ibid., 41 – 59. 345 ibid., 42 – 43.

119 leads to the second point, traditions are often more complex than they may initially appear, and determining whether women are actually choosing traditional lives is vastly complicated.

Cultures are not monolithic entities, and they very often have their own counter-narratives; thus, challenges to traditional norms do not always originate from outside of a particular culture. As such, universal norms that challenge certain cultural norms may already have indigenous analogues.

Another challenge to a universal normative framework is the argument from diversity.

This argument simply posits that cultural diversity is a good as such that is threatened by a universal normative framework. The argument from diversity laments the erosion of cultural traditions that often occur when those traditions are exposed to a different set of values or come in contact with other ways of doing things.346 Nussbaum’s response is that, although we should appreciate the richness that diversity provides to life, we should not abandon our critical faculties nor fail to challenge harmful cultural norms just because they are there. Nussbaum’s reasoning here is consequentialist in nature; speaking of cultural norms, she says: “we have to assess the contribution they make against the harm they do. And this requires a set of values that gives us a critical purchase on cultural particulars.”347 Furthermore, much of Nussbaum’s work focuses on the plight of women in countries like India where a rigid, male-dominated sex hierarchy often prevails. This hierarchy in turn leads to the poor treatment of women ranging from

346 Nussbaum mentions an example of this type of thinking taken from her experience at WIDER. Frédérique Marglin blamed the introduction of the smallpox vaccine to India for the disappearance of the cult of Sittala Devi, the goddess that people prayed to in order to avoid smallpox. When the objection was made that it was better to be healthy than ill and alive than dead, the counter response was that this was a Western, binary way of seeing things. See Nussbaum, “Human Functioning and Social Justice: In Defense of Aristotelian Essentialism,” 203. 347 Nussbaum, Women and Human Development, 51.

120 malnourishment to mental and physical abuse. For Nussbaum, it is not clear why this type of diversity should be preserved.348

Lastly, Nussbaum addresses the argument from paternalism. According to this argument, forming a cross-cultural, normative framework inevitably leads to the failure to respect the choices people make. What this argument is saying is that any universal framework that we could come up with is bound to be imposed. However, as Nussbaum points out, universal values and respect for choice are not mutually exclusive; in fact, they are compatible. “But we can say already that a commitment to respecting people’s choices hardly seems incompatible with the endorsement of universal values. Indeed, it appears to endorse explicitly at least one universal value, the value of having the opportunity to think and choose for oneself.”349 There are several ways to address the problem of paternalism. First, Nussbaum’s capabilities approach allows for individual choice. Second, the people that the capabilities approach is designed to help, such as women in India, are often already the victims of a paternalistic system because they are not allowed to make their own decisions in a male dominated society. The question is not so much about paternalism as such; rather, it is about whether or not a particular type of paternalism is harmful or not.350 Also, the capabilities approach itself is an attempt to provide the necessary conditions for people to be able to make choices.351 Thus, the capabilities approach appears to be well poised to fend off standard arguments against universalism.

Of course, even if it is possible to successfully argue for the necessity of a set of cross- cultural norms for addressing the well being of people, this does not settle the question of what type of approach we would want to take. In addition to providing an argument for why we need

348 ibid., 51. 349 ibid. 350 ibid., 52 – 53. 351 ibid.

121 cross-cultural norms to begin with, the capabilities approach is also developed as a critique of standard approaches to the subject, especially the standard approaches in the field of development economics. The crudest such approach in Nussbaum’s view, but one that has also been highly influential in the field of economics, is comparing the GDP per capita between individual nations. Nussbaum’s critique of this approach has been heavily influenced by her collaboration with Amartya Sen and the work of Jean Dréze, another development economist who has done extensive work in India.352 This approach to development is fairly straightforward; one simply has to take the aggregate GDP of a particular state and divide it by the total population. It is often assumed that those states with the highest GDP per capita provide the highest quality of life for their citizens. This assumption is itself often generated by the assumptions of so-called trickle down economics. According to this view, even when the wealthy and elite members of society are responsible for generating economic growth, everyone in the society, including the poorest members, will benefit.353

Nussbaum’s critique of the GDP per capita approach is multifaceted, but we only need to be concerned with her two most important critiques. The primary problem is that the GDP per capita approach says nothing about how resources are actually distributed. Thus, it is possible for a particular state to have a very high GDP per capita and still have gross inequalities; those at the top may have a very high quality of life while others are barely surviving, if they are surviving at all. The GDP per capita approach also masks inequalities that are driven by discriminatory policies. Very often inequalities are the result of discrimination against particular ethnic, religious, racial, gender, and even linguistic groups; Nussbaum suggests the first four

352 Most of this section draws from Nussbaum, Creating Capabilities: The Human Development Approach. 353 ibid., 47 – 48.

122 types of discrimination, but there are conflicts between various groups within a state that have strong linguistic components; the examples of Belgium and Quebec are instructive.354

Furthermore, the GDP approach operates under the assumption that the only way to measure development is in economic terms. As such, GDP per capita numbers do not account for other values such as a wide range of political liberties. As Nussbaum points out, if we were to compare China and India, we would see that China’s GDP per capita exceeds that of India’s, but the citizens of China do not enjoy the same political liberties that India’s citizens do.355 Though this summary of Nussbaum’s critique of the GDP per capita approach to measuring quality of life across states has been rather simplified, the noted objections make clear that the GDP approach is inadequate.

There are, however, other approaches to measuring and comparing the quality of life of the citizens of various states. One such approach is ; in the case of Nussbaum’s critique, we are specifically dealing with a type of preference utilitarianism since the maximization of utility is equated with the satisfaction of people’s preferences.356 Though

Nussbaum considers this approach to be a step up from the GDP per capita approach, the utilitarian approach still has its drawbacks. First, like the GDP approach, the utilitarian approach does not always take into account the most marginalized sectors of a particular society; as long as the overall balance of preference satisfaction is good, the suffering of a small group of poor and marginalized persons is tolerable and may even be purposefully created as a strategy for maximizing overall utility. Second, Nussbaum argues that the utilitarian approach also fails to account for the incommensurability of goods in the same way the GDP approach does. Here, the

354 ibid., 49. 355 ibid., 47. 356 ibid., 50 – 51.

123 critique is that both the utilitarian approach and the GDP approach are overly simplified in that they take a plurality of goods that are not always easily compared and try to subsume them under one measurement. Nussbaum acknowledges that corrections can be made for both of these objections to utilitarianism and some utilitarians as far back as made important strides in this direction, so it is important to focus on the third criticism.357

The third criticism aims at one of the underlying assumptions of preference utilitarianism, and that assumption is that we can always accurately gauge what people’s preferences actually are. The utilitarian approach does not account for preference deformation or adaptive preferences, which is basically the recognition that people’s preferences are strongly correlated with the social expectations of their particular context. For example, poor women in India may not express a preference for education or job training, but this lack is very often the result of the fact that women in India are not expected to work outside of the home or require education because their job is to take care of the home.358 Thus, we may rightfully suspect that such women do not really prefer to remain uneducated or disallowed from working outside of the home because we further suspect that they have not really been engaged in an informed choice among different preferences. It is not clear then that taking into account people’s expressed preferences and the satisfaction of those preferences is a very useful way of comparing the quality of life between different societies or within different sectors of the same society. The main point to take away from the failure of preference utilitarianism is Nussbaum’s argument that all humans should be guaranteed a basic set of goods regardless of whether those goods are

357 ibid., 53 – 54. 358 Here as elsewhere Nussbaum relies heavily on the work of Amartya Sen but also Jon Elster. ibid., 54 – 55. In Women and Human Development, Nussbaum also adds to the list of influences on this score Richard Posner, Jean Hampton, , and Thomas Scanlon. Nussbaum, Women and Human Development, 118.

124 actually preferred or not.359 Nussbaum’s fourth critique of the utilitarian approach is important, but it need not detain us here. Instead, I will turn to Nussbaum’s critique of what she calls

“resource-based approaches”.360

Like the GDP approach, resource based approaches focus on income and wealth.

However, unlike the GDP approach, resource based approaches are actually concerned with the fair distribution of income and wealth rather than just an aggregate number divided by the size of a given population, and they also address Nussbaum’s concerns about guaranteeing a basic set of goods. In Nussbaum’s earlier works on the capabilities approach, she takes John Rawls’s idea of

“primary goods” as the most famous such approach, and, though she finds it more adequate than the other approaches, she argues that it has its own shortcoming.361 “By measuring who is better off and who worse off in terms of resources, the Rawlsian model neglects a salient fact of life: that individuals vary greatly in their needs for resources and in their abilities to convert resources into valuable functionings.”362 The overall criticism here is that the resource approach, like the other approaches Nussbaum has already dealt with, still does not account sufficiently for the particularity of individuals and circumstances. For example, we may encounter a situation where a particular resource, say food, is distributed equally between individuals. In this case, things would seem to be distributed in a fair, or just, way. However, this does not account for the fact that person A may actually need more food than person B because person A is a child who needs more protein in their diet than person B; though Rawls’s approach at least makes important strides towards recognizing the value of individuals as compared to the GDP approach and the

359 For a full discussion, see Nussbaum, Women and Human Development, 111 – 166. 360 Nussbaum, Creating Capabilities: The Human Development Approach, 56. 361 For instance, contrast Nussbaum, Women and Human Development, 65 – 69 with Nussbaum, Creating Capabilities, 56 – 57. 362 Nussbaum, Women and Human Development, 68.

125 utilitarian approach, it does not yet move far enough towards the recognition of each and every person’s need for flourishing.363 “To sum up: We want an approach that is respectful of each person’s struggle for flourishing, that treats each person as an end and as a source of agency and worth in her own right.”364 The failure of all of the above approaches to provide an adequate framework for making cross-cultural comparisons about people’s quality of life contributes to

Nussbaum’s desire to formulate her own capabilities approach to human development.

5.3 The Capabilities Approach: Aristotle and Marx

On the surface, the capabilities approach seems simple and straightforward. It does not simply ask about the amount of resources that individuals are able to control; rather, the capabilities approach asks the question: “What are people actually able to do and to be?”.365 For

Nussbaum, the capabilities approach is not only an approach to comparing quality of life across different states; it is also a theory of basic justice.366 Indeed, Nussbaum argues that, for her purposes, this second purpose of the capabilities approach is more fundamental than the first.367

The underlying basis of the capabilities approach is the Aristotelian idea that all human beings need certain things in order to function in a truly human way and to live a life of flourishing.

According to Nussbaum, we know this through our fundamental intuitions.

The intuitive idea behind the approach is twofold: first, that certain functions are particularly central in human life, in the sense that their presence or absence is typically understood to be a mark of the presence or absence of human life; and second – this is what Marx found in Aristotle – that there is something that it is to do these functions in a truly human way, not a merely animal way. We judge, frequently enough, that a life has been so impoverished that it is not worthy of the dignity of the human being, that it is a life in which one goes on living, but more or less like an animal, unable to develop and

363 ibid. 364 ibid., 69. 365 Nussbaum, Creating Capabilities, 59. 366 ibid., 18. In Women and Human Development, Nussbaum argues that it is only a partial theory of justice. Nussbaum, Women and Human Development, 75 – 76. 367 Nussbaum, Women and Human Development, 6.

126 exercise one’s human powers. In Marx’s example, a starving person doesn’t use food in a fully human way – by which I think he means a way infused by practical reasoning and sociability. He or she just grabs at the food in order to survive, and the many social and rational ingredients of human feeding can’t make their appearance.368

Furthermore, Nussbaum argues that our fundamental intuitions concerning lives that are fully human cross cultural boundaries. Nussbaum backs up this claim by referring to the world of .

“This idea of human dignity has broad cross-cultural resonance and intuitive power. We can think of it as the idea that lies at the heart of tragic artworks, in whatever culture. Think of a tragic character, assailed by fortune. We react to the spectacle of humanity so assailed in a way very different from the way we react to a storm blowing grains of sand in the wind.”369

Nussbaum pushes further when she says: “For we see a human being as having worth as an end, a kind of awe-inspiring something that makes it horrible to see this person beaten down by the currents of chance – and wonderful, at the same time, to witness the way in which chance has not completely eclipsed the humanity of the person.”370 For Nussbaum, all too often humans are not simply “beaten down by the currents of chance” but also by the actions of their fellow human beings when they are denied the things necessary for them to live a fully human life.

The capabilities approach is thus above all a list of things that are necessary for one to live a fully human life, a list of capabilities necessary to function in a truly human way.

368 ibid., 71 – 72. 369 ibid., 72 – 73. 370 ibid., 73. For another statement, see Martha Nussbaum, “Human Functioning and Social Justice”, 215. “It aims to be as universal as possible, and its guiding intuition, in fact, directs it to cross religious, cultural, and metaphysical gulfs. For it begins from two facts: first, that we do recognize others as human across many divisions of time and place. Whatever the differences we encounter, we are rarely in doubt as to when we are dealing with a human being and when we are not. The essentialist account attempts to describe the bases for these recognitions, by mapping out the general shape of the human form of life, those features that constitute a life as human wherever it is. Second, we do have a broadly shared general consensus about the features whose absence means the end of a human form of life.” Nussbaum, “Human Functioning and Social Justice”, 215.

127 Furthermore, this list of capabilities applies to all humans in every culture, which is why

Nussbaum spends a good deal of time defending a universal normative framework against attacks from relativism. However, the capabilities approach is also designed to be flexible enough to accommodate cultural variations and has been modified in accordance with specific circumstances. One area of modification, for instance, has been in the area of property rights.

Nussbaum confesses that her own understanding of the central role of property rights was based on a “connection with a libertarian attack on the distribution of wealth and income.”371

Nussbaum does not agree with the libertarian position because it “is indifferent to the interest of poor people in having some property in their own names”, so she did not give property rights an important role in her earlier thinking about capabilities.372 However, Nussbaum changed her position because of her conversations with Indian women, women who did attach a great deal of importance to property rights; this experience led Nussbaum to see that “property rights play an important role in self-definition, in bargaining, and in developing a sense of self.”373 Indeed, in early versions of the list, property rights are absent.374

The most recent version of the list is based on the fact that there are many different areas of life relevant for functioning in a truly human way. Thus, the list is divided into ten central capabilities; Nussbaum argues that achieving a threshold level of each capability is what a dignified human life requires. She acknowledges there may be other human capabilities, but she argues these are the ones that are the most important for any truly human life.375 Here is a detailed list of the central capabilities:

371 Nussbaum, Women and Human Development, 156. 372 ibid. 373 ibid. 374 For instance, see the list in Nussbaum, “Human Functioning and Social Justice,” 222. 375 ibid., 28 – 32.

128 1. Life. Being able to live to the end of a human life of normal length; not dying prematurely, or before one’s life is so reduced as to be not worth living. 2. Bodily Health. Being able to have good health, including reproductive health; to be adequately nourished; to have adequate shelter. 3. Bodily integrity. Being able to move freely from place to place; to be secure against violent assault, including sexual assault and domestic violence; having opportunities for sexual satisfaction and for choice in matters of reproduction. 4. Senses, imagination, and thought. Being able to use the senses, to imagine, think and reason – and to do these things in a “truly human” way, a way informed and cultivated by an adequate education, including, but by no means limited to, literacy and basic mathematical and scientific training. Being able to use imagination and thought in connection with experiencing and producing works and events of one’s own choice, religious, literary, musical, and so forth. Being able to use one’s mind in ways protected by guarantees of freedom of expression with respect to both political and artistic speech, and freedom of religious exercise. Being able to have pleasurable experiences and to avoid nonbeneficial pain. 5. Emotions. Being able to have attachments to things and people outside ourselves; to love those who love and care for us, to grieve at their absence; in general, to love, to grieve, to experience longing, gratitude, and justified anger. Not having one’s emotional development blighted by fear and anxiety. (Supporting this capability means supporting forms of human association that can be shown to be crucial in their development.) 6. . Being able to form a conception of the good and to engage in critical reflection about the planning of one’s life. (This entails protection for the liberty of conscience and religious observance.) 7. Affiliation. (A) Being able to live with and toward others, to recognize and show concern for other human beings, to engage in various forms of social interaction; to be able to recognize the situation of another. (Protecting this capability means protecting institutions that constitute and nourish such forms of affiliation, and also protecting the freedom of assembly and political speech.) (B) Having the social bases of self-respect and nonhumiliation; being able to be treated as a dignified being whose worth is equal to that of others. This entails provisions of nondiscrimination on the basis of race, sex, sexual orientation, ethnicity, caste, religion, national origin. 8. Other species. Being able to live with concern for and in relation to animals, plants, and the world of nature. 9. Play. Being able to laugh, to play, to enjoy recreational activities. 10. Control over one’s environment. (A) Political. Being able to participate effectively in political choices that govern one’s life; having the right of political participation, protections of free speech and association. (B) Material. Being able to hold property (both land and movable goods), and having property rights on an equal basis with others; having the right to seek employment on an equal basis with others; having the freedom from unwarranted search and seizure. In work, being able to work as a human being, exercising practical reason and entering into meaningful relationships of mutual recognition with other workers.376

376 ibid., 33 – 34.

129 If we compare the list of the capabilities with the list of basic human rights given in the

Universal Declaration of Human Rights, we will see that the capabilities list includes many of the things we would associate with both the civil/political rights and social/economic rights of the UDHR.377 Furthermore, Nussbaum argues that the list is geared towards individuals above all, much like the UDHR. “Capabilities belong first and foremost to individual persons, and only derivatively to groups. The approach espouses a principle of each person as an end.378

Though the capabilities list applies first and foremost to individuals, it is far from individualistic, and this is so for two reasons. One of these reasons has to do with the manner of justification for the entire capabilities approach, and I will address this when I come to discuss its justification in more detail. The other reason has to do with Nussbaum’s point that two capabilities on the list “play a distinctive architectonic role” because “they organize and pervade the others.”379 One of these architectonic capabilities is practical reason, but the other, affiliation, is the relevant one at the moment. Nussbaum does not specifically address the idea of group rights; however, she does support a social conception of the person, like one of her major influences, Aristotle. Affiliation “pervades the other capabilities” and “the person is respected as a social being” when all the capabilities including affiliation are respected.380 Furthermore,

“affiliation organizes the capabilities in that deliberation about public policy is a social matter in

377 It is important to point out, however, that Nussbaum rejects the distinction between these so- called first generation rights and second-generation rights; instead, she argues that civil/political and social/economic rights are much more integrated than that distinction allows for. See Martha Nussbaum, “Capabilities, Entitlements, Rights: Supplementation and Critique,” Journal of Human Development and Capabilities, 12, no. 1 (2011): 33. The capabilities list is not nearly as explicit about issues such as the right to a fair trial as the UDHR is, but it seems that this particular right would be covered if we looked at portions from several different areas of the capabilities list. 378 Nussbaum, Creating Capabilities, 35 (Original emphasis). 379 ibid., 39 (Original emphasis). 380 ibid., 39.

130 which relationships of many kinds (familial, friendly, group-based, political) all play a structuring role.”381 Surely, one group that plays an important structuring role is one’s cultural group, though Nussbaum’s view seems to envision various networks of affiliation; her own work, for instance, has been heavily influenced by women’s in India.382 However, the main point I wish to make here is that, though the capabilities approach corresponds more closely to the idea of individual rights than it does group rights, the group is still an important point of focus. I will return to the importance of the group in a later section; for now, I want to focus on Nussbaum’s connection of the capabilities approach with the idea of human rights.

5.4 Capabilities and Human Rights

I have already pointed to the similarities between the capabilities list and the UDHR, but

Nussbaum explicitly discusses the relationship between capabilities and human rights, so it is important to highlight this discussion in more detail. Nussbaum consistently argues that she views the capabilities approach to human development as a species of human rights, and although she is critical of the concept of human rights, she argues that the capabilities approach can help supplement the concept of rights rather than replace it altogether.383 In the process of discussing the relationship between human rights and the capabilities approach, Nussbaum addresses several theoretical difficulties generally found in the literature on human rights. These theoretical areas include what particular feature or features of humanity ground human rights, the relationship between rights and duties, and whether or not there are natural rights that preexist governments that recognize such rights. For the first area, the one concerning what human

381 ibid., 40. 382 This is especially apparent in Nussbaum, Women and Human Development. 383 For the consistency of Nussbaum’s views on these issues, compare Nussbaum, “Human Rights Theory: Capabilities and Human Rights,” 273 – 300 with Nussbaum, “Capabilities, Entitlements, Rights: Supplementation and Critique,” 23 – 37.

131 features ground rights, Nussbaum eschews such typical criteria as rationality. Instead Nussbaum argues that “the basis of these entitlements” lies “in the bare fact of being a living human being: being born from human parents, and having a minimal level of agency or capacity for activity.”384 It is helpful to remember that the capabilities approach asks about what people are able to do and to be. Even if not all human beings are capable of achieving the same things, most humans have at least some potential that can be developed further so that they can achieve the greatest level of flourishing they are capable of.

Furthermore, Nussbaum argues that rights (capabilities) preexist any government structure that may recognize them as they are simply due to humans based on human dignity, and government institutions are constrained by rights, though they also have the duty to secure them.385 Though Nussbaum’s argument on this score is akin to the idea of natural rights, especially if we focus on her ideas concerning human dignity, she has other, more specific theoretical reasons for arguing that rights preexist governments, one concerning economic redistribution between states. “In the absence of a world state (a goal that I do not support), we can speak of duties to secure the capabilities to everyone in the world only if we do think of them as prepolitical in this way. Approaches that make all entitlements the artifact of political organization have a very difficult time justifying redistribution from richer to poorer nations.”386

Like many other human rights approaches, Nussbaum also believes that duties are correlative with rights; however, she is not very specific as to who holds the duty to secure rights.

Sometimes states have such duties, but ultimately “the whole world is under a collective

384 Nussbaum, “Capabilities, Entitlements, Rights: Supplementation and Critique,” 25. People in a persistent vegetative state or an anencephalic child would lack these entitlements because the minimum level of agency is absent (ibid.). 385 ibid. 386 ibid., 26.

132 obligation to secure the capabilities to all world citizens, even if there is no worldwide political organization.”387 Nussbaum does argue that governments very often are the entities with the obligation to secure rights, but she also departs from the state-centric approach typically associated with the United Nations by arguing that private actors like non-governmental organizations, corporations, and even individuals are also under the obligation to secure the capabilities for everyone.388

It is important that Nussbaum takes a clear stand on many of the conceptual gray areas of the idea of human rights, but it does not yet tell us anything about the precise relationship between the concept of a capability and the concept of a right. To get at this relationship, we must attend to the distinction Nussbaum makes between basic capabilities, internal capabilities, and combined capabilities.389 Basic capabilities are innate capabilities that humans are born with, though they may not always be in their full state of development. Among these basic capabilities, Nussbaum includes things like hearing, seeing, and practical reason. Internal capabilities, on the other hand, are more developed states of capability. In this case, the capabilities are developed to the level of maturity at which the person can actually function.390

For Nussbaum, developing internal capabilities may be a simple process of time and maturity, but it is often the result of interaction with one’s environment. For instance, education helps one develop their internal capability for speech.391 Finally, we come to combined capabilities; these

387 ibid. 388 ibid. 389 I follow the discussion of this distinction in Nussbaum, Women and Human Development, 84 – 86 since it is explained in greater detail there. 390 For reasons that will become clear later, I have not discussed the distinction Nussbaum makes between capability and functioning, but I will briefly mention it here so this section will be clear. Though an individual may be perfectly capable of speaking their native language, they may not actually function as a capable language speaker they may choose to remain silent. 391 Nussbaum, Women and Human Development, 84.

133 are the capabilities Nussbaum says encompass human rights. Combined capabilities are “defined as internal capabilities combined with suitable external conditions for the exercise of the function.”392 Thus, combined capabilities are related to features of an individual’s social world including one’s interaction with cultural norms and government entities. To make this clear,

Nussbaum uses the example of a woman’s sexual functioning. Even if a woman does not live in a cultural setting where female genital mutilation is regularly practiced, she may not have the combined capability for sexual functioning even if she has the internal capability. The reason for this may be the result of a society where a child bride is widowed but is not allowed to take another husband.393 Nussbaum also provides the example of political speech.394 Citizens of a particular nation may be provided the education necessary for becoming competent language users, yet they may still be denied the right (combined capability) to function as competent language users when it comes to criticizing their government.395 Indeed, part of such a citizen’s education process may be indoctrination to the effect that to criticize one’s government is either morally wrong, illegal, or both.

According to Nussbaum, all of the capabilities on the list are to be understood as combined capabilities, and for her, combined capabilities are what in many situations we should think of when we think of what a human right is. Nussbaum’s ideas about combined capabilities suggest two points about her human rights thinking more generally. First, Nussbaum’s rejection of the typical first-generation, civil/political rights and second-generation, social/economic rights distinction becomes clearer. For instance, if we were to follow the distinction and focus in on a

392 ibid., 84 – 85 (Original emphasis). 393 In India for instance. ibid., 84 – 85. 394 ibid., 85. 395 Nussbaum does not use this example, but China readily comes to mind as an example of such a society.

134 traditional civil/political right such as free speech, it becomes clear that a citizen is not truly capable of exercising free speech without both education and, perhaps even more fundamentally, health, but both education and health typically fall under the heading of social/economic rights.

However, the more important point for our purposes is that a more integrative understanding of human rights highlights the importance of social interaction in the securing of the entire panoply of rights. Though an individual’s environment may prove hostile to their rights, the paradox of rights is that rights also cannot become fully functional without the help of one’s social environment. For instance, if we look at Nussbaum’s example of free speech and focus in on the importance of education, we are reminded of the importance of our associations with others, particularly as we grow and develop out of infancy. Thus, rights are not simply a check against our social environment; they also provide opportunities for constructive engagement. In the next section, where I explore Nussbaum’s understanding of the relationship between the capabilities approach and political liberalism, we will see more precisely how this engagement should be structured from Nussbaum’s point of view.

5.5 The Capabilities Approach and Rawlsian Political Liberalism

From early on in Nussbaum’s thinking on the capabilities approach, she has often contrasted her positions with the late political philosopher John Rawls.396 However, Nussbaum has also argued that the capabilities approach should be closely allied to a Rawlsian type political liberalism in two closely related ways. The first way is in the importance Nussbaum assigns to choice, and the second concerns the mode of justification for the capabilities approach, which, over time, Nussbaum has increasingly associated with Rawls’s notion of an “overlapping

396 See, e.g., Nussbaum, “Human Functioning and Social Justice: In Defense of Aristotelian Essentialism,” 214 – 215. Also see Nussbaum, Women and Human Development, 65 – 69.

135 consensus”.397 We can focus in on Nussbaum’s views concerning the importance of choice by attending to the distinction she makes between capability and functioning. One of Nussbaum’s main purposes for making this distinction is to respond to liberal fears about the implications of the capabilities list on people’s autonomy.398 However, Nussbaum argues: “Where adult citizens are concerned, capability, not functioning, is the appropriate political goal.”399 It is important first of all to understand why Nussbaum says capability is a political goal. “The aim of the project as a whole is to provide the philosophical underpinning for an account of basic constitutional principles that should be respected and implemented by the governments of all nations, as a bare minimum of what respect for human dignity requires.”400 Thus, the capabilities list is analogous to the Bill of Rights of the United States Constitution.401 As such, states have the responsibility for guaranteeing the capabilities. However, in most cases, the state should not force people into actually functioning in a certain way. To use Nussbaum’s examples, though the state should make sure that the capability for eating nutritious food and sexual pleasure are available, the state should not force people into eating or engaging in sexual activity if they choose not to, say for religious reasons concerning fasting or celibacy, respectively.402

397 This connection receives a brief mention in Nussbaum, “Human Functioning and Social Justice: In Defense of Aristotelian Essentialism,” 223, but is developed in more depth in various parts of Nussbaum, Women and Human Development. 398 Nussbaum, “Human Functioning and Social Justice: In Defense of Aristotelian Essentialism,” 225. 399 Nussbaum, Women and Human Development, 87 (Original emphasis). 400 ibid., 5. 401 I make this comparison with the caveat that the Bill of Rights obviously does not include socio-economic rights. 402 ibid., 87. Indeed, Jacques and Raïssa Maritain provide a representative example. Though both Maritains presumably had the capability for sexual expression in their marriage, for reasons related to their Catholic faith, they chose to take a vow to live as brother and sister thus

136 On the other hand, Nussbaum does argue that very often functioning is the goal with respect to children because certain things are requisite for providing capabilities later in life, for instance an adequate primary and secondary education.403 When we understand the importance

Nussbaum assigns to the capabilities/functioning distinction, we are also in a place to understand why, along with affiliation, Nussbaum assigns an architectonic role to practical reason, for one reason for allowing choices is so that people can pursue their own conceptions of the good.

“Second, this respect for choice is built deeply into the list itself in the architectonic role it gives to practical reasoning.”404 This is so because practical reason helps individuals form a conception of what constitutes the good life and gives them the ability to make the necessary choices for achieving that life. This also brings us to the relationship between the method of justification for the capabilities approach and Rawlsian liberalism.

Nussbaum argues that the method of justification for the capabilities approach is akin to

Rawls’s notion of “reflective equilibrium”, where “the aim is to find a stable fit between judgments and theoretical principles.”405 Nussbaum also says: “Like Rawls, I view my arguments as essentially Socratic in character: I appeal to the interlocutor to consider that certain ways of life that human beings are forced to lead are not fully human, in the sense of being not worthy of the dignity of the human being.”406 Because, as I have already discussed, Nussbaum argues that our fundamental intuitions concerning human dignity cross cultural barriers to a large extent, she also thinks, like Rawls, that this way of proceeding with the capabilities approach can

foregoing sexual activity in their marriage. See McInerny, The Very Rich Hours of Jacques Maritain: A Spiritual Life, 53. 403 Nussbaum, Women and Human Development, 90. 404 Nussbaum, “Human Functioning and Social Justice: In Defense of Aristotelian Essentialism,” 225. 405 Nussbaum, Creating Capabilities: The Human Development Approach, 78. 406 ibid.

137 span a wide range of metaphysical views, both religious and secular. As such, Nussbaum argues the capabilities approach may become the basis of an “overlapping consensus.”407 Ultimately, then, the capabilities list may be justified by many reasons stemming from a wide variety of cultural, philosophical, and religious backgrounds. Thus, there is at least the potential that cultural groups will determine to a large extent how the capabilities approach is interpreted in a particular setting.

However, this point inevitably raises the question of how we are to respond to a cultural tradition that seems to be inimical to the idea of human rights, or in this case capabilities. It is not clear in all cases that allowing such a pluralistic mode of justification will achieve the desired results. But we must remember that what counts as a tradition is not always clear; the concept raises numerous problems. “More generally, as we ponder the whole issue of pluralism and cultural values, we should bear in mind that no culture is a monolith. All cultures contain a variety of voices, and frequently what passes for ‘the’ tradition of a place is simply the view of the most powerful members of the culture, who have had more access to writing and political expression.”408 Nussbaum continues: “Before we could have a decent empirical account of ‘the’ views of a culture, we would need to search out the views of minorities, women, rural people, and other groups whose views are likely to get short shrift in canonical accounts.”409 As true as this may be, it may still be wondered how we mesh together an account that is universalist and critical with various cultural traditions, even if we recognize the complexity of a tradition. Put another way, how do we go about criticizing those elements of a tradition that are antithetical to the idea of human rights while still respecting aspects of the cultural tradition? Elsewhere,

407 ibid., 79. 408 ibid., 107. 409 ibid.

138 Nussbaum, along with Sen, has sketched a method for doing so. They argue that a method for morally critiquing other cultures should “satisfy various criteria of appropriateness.”410 The first criterion is that the critique should be “internal”, that is, “using resources inside the culture itself in order to criticize certain aspects of that culture.”411 The second criterion is that the method should be “immersed”; “its norm of should not be one that involves the detachment of the judging subject from the practices, the , even the emotions of the culture.”412

However, the method must also be “genuinely critical, subjecting traditional beliefs and practices to critical examination.”413 It seems clear, though, that anyone wanting to employ this type of method to a cultural tradition other than their own, and, to a more limited extent, their own, must possess a wide range of both moral and analytical skills, a fact both Sen and Nussbaum have recognized.414 Fortunately, Nussbaum has also written rather extensively on how to develop the necessary skills needed to employ this type of method.

5.6 Becoming Global Citizens

Much of Nussbaum’s discussion of these topics can be found in her two large works on the topic of liberal arts education in many of the world’s colleges and universities, and, to a more limited extent, primary and secondary schools. These works, in chronological order, are

Cultivating Humanity: A Classical Defense of Reform in Liberal Education and Not For Profit:

Why Democracy Needs the Humanities.415 Nussbaum connects neither of these works directly to the capabilities approach, though certain critical remarks about development economics found in

410 Martha C. Nussbaum and Amartya Sen, “Internal Criticism and Indian Rationalist Traditions,” 440. 411 ibid. 412 ibid. 413 ibid. (Original emphasis). 414 (ibid., 447 – 448). 415 See note 44 above for bibliographic information on these works.

139 her work on the capabilities approach are repeated in Not For Profit.416 Each work responds to slightly different problems, but the overall aims and recommendations are the same.417 The main aim of each work is to show the importance of the humanities for creating citizens who are capable of interacting with others, others who come from very different backgrounds, on a foundation of mutual respect and understanding. However, because Nussbaum is also committed to a universal normative framework, honing one’s critical faculties is also an important aspect of any good humanities education. The need for this type of education is created by two political realities, which are sometimes closely related. First, the world has in the past decades become increasingly interdependent, which has in turn created more opportunities for people to encounter others from unfamiliar cultural backgrounds. Second, citizens living in democratic nations will need an education capable of helping them to be active participants in the democratic political process. In many cases, this goal will require the same skills necessitated by the first political reality because large like India and the United States are pluralistic in nature, encompassing groups and individuals from a variety of backgrounds.

A citizen living here in the United States is likely to encounter many people different from themselves in many ways on a day-to-day basis, and increasingly, many people living in the United States are interacting with citizens from other world states through family ties or other relationships. To confront these realities, Nussbaum has recommended that liberal education

416 See especially Nussbaum, Not For Profit, 19 – 24. 417 Cultivating Humanity is more concerned to defend certain changes in liberal education such as the focus on other cultures against perceived threats from conservative forces concerned with maintaining a more traditional regiment of humanities education. Not For Profit, on the other hand, is a defense of humanities education in general against perceived threats from those who see the humanities as irrelevant in a world that needs academic disciplines aimed at producing profit and economic growth in a competitive global marketplace. I say “perceived threats” only because I have not conducted the extensive research on these topics that Nussbaum has, so I will not pretend to be able to make a judgment on her claims. However, for my purposes, it is not necessary to do so.

140 incorporate not only the study of other cultures but also incorporate programs like women’s studies and African American studies in order to focus on groups of people who have often been traditionally marginalized from the system of higher education altogether. However, studying numerous facts and figures about other cultures or other groups will not go very far in terms of

Nussbaum’s normative purposes, a large part of which involves tailoring a universal normative framework to more particular social and cultural contexts. Indeed, as the old cliché “know your enemy” reminds us, learning about other cultures or those who we perceive to be different from us may merely facilitate our domination or exploitation of them.418 We can attain what seems to be a very sophisticated knowledge of those different from us without using any of that knowledge for benign purposes. However, Nussbaum does not recommend that we merely learn facts and figures about other groups. Facts and figures do not produce a true understanding of others, and without really understanding those who are different from us, a contextually sensitive, yet universal and critical, approach to human rights, like the capabilities approach would not be possible. Furthermore, facts and figures alone will not help in creating a genuine concern for others. Additional resources, moral and critical, are needed for such a purpose.

Nussbaum argues in Not For Profit that some of the most important skills needed for a thriving democracy are the cultivation of our moral emotions and the restraint of those emotions that lead us to want to dominate and exploit others. In short, Nussbaum explores particular features of humanity that lead to the marginalization, whether based on gender or based some other feature, of certain groups and individuals, which in turn leads to the denial of basic human rights, or capabilities. For Nussbaum, many of the problems begin early in childhood.419 She

418 Nussbaum spends some time discussing the desire of some to dominate and exploit others. See, e.g., Nussbaum, Not For Profit, 27 – 30. 419 ibid., 30.

141 believes that many of the anxieties associated with early childhood help lead to in-group/out- . However, and this is an important point, it is also clear this tendency is often reinforced by societal norms. As such, for many reasons our psyches may be predisposed towards in-group/out-group thinking, but it is not clear this predisposition must inevitably bear fruit in the unfair marginalization of others, and in many, if not perhaps most, cases societal factors determine to what extent it will do so.

Overcoming these factors is important for two reasons. First, it may be hard for marginalized groups or classes of people within a particular society to marshal the resources needed to overcome whatever adversities prevent them from being able to make the types of choices the capabilities open for them without help from international actors, non-governmental organizations (NGO’s) for instance, or even international state actors. Of course, this raises a classic and persistent problem in ethics, which is how to expand our moral concern to those with whom we have no close attachments such as family ties, friendships, or even common citizenship. One very important function of NGO’s, especially NGO’s concerned with promoting human rights, is raising awareness of human rights problems for those who may otherwise not be too concerned by what takes place thousands of miles away in a foreign country. The problem of expanding our moral concern as widely as possible is exacerbated when an in-group/out-group mentality prevails. The lack of moral concern for those far away may be simple neglect, but it may also be the result of stereotypes or biases cultivated by one’s own society. The second reason why it is important to overcome those factors that lead to marginalization within and across societies is more direct; it should strike us as rather obvious that the type of outside intervention mentioned above is responding to a problem. Of course, if the problem does not exist to begin with, there is no need for intervention. Thus, it is also

142 important to address the intra-cultural dynamics that perpetuate injustices like marginalization and exploitation. This is why it is important to take into consideration Nussbaum and Sen’s understanding of tradition; understanding the conflicting voices within a society is crucial to pinpointing the sources of affronts to human dignity.

From Nussbaum’s point of view, one of the most important skills to develop in order to cultivate a genuine concern for others is what she calls the narrative imagination; she argues that the best way to develop this is through literature and the arts. Indeed, we have already seen

Nussbaum’s reference to the world of art concerning our fundamental intuitions concerning human dignity. The most important purpose for developing the narrative imagination is so we can “think what it might be like to be in the shoes of a person different from oneself, to be an intelligent reader of that person’s story, and to understand the emotions and wishes and desires that someone so placed might have.”420 Translated into Gutiérrez’s terms, this skill helps us to enter into solidarity with others. This goes beyond merely understanding certain aspects of the context within which others operate; through the use of narrative imagination, one really tries to enter into the mental world of another. According to Nussbaum, the arts help us to develop the necessary emotional and imaginative resources to achieve this task.421 Among these resources are fancy, wonder, and sympathy, which all contribute to our understanding and interactions with others. “In these various ways, narrative imagination is an essential preparation for moral interaction. Habits of empathy and conjecture conduce to a certain type of citizenship and a certain form of community: one that cultivates a sympathetic responsiveness to another’s needs, and understands the way circumstances shape those needs, while respecting separateness and

420 Nussbaum, Not For Profit: Why Democracy Needs the Humanities, 95 – 96. 421 ibid. 101.

143 .”422 But to a large extent the goal is not merely to recognize the different mental worlds of others but also to understand that others are very often like us. As such, one of the most important qualities to develop is compassion, a quality that “promotes an accurate awareness of our common vulnerability.”423 In an ideal world, an adequate education that trained people’s capacity for understanding, respect, and compassion would overcome all of the various obstacles that lead to capability failure for many of the world’s citizens; however, we know that there are always forces working against the inclusion of certain people and these forces often employ arguments in favor of their position. As such, it is also important to develop our critical faculties, as Nussbaum makes clear.

In Nussbaum’s view, the paradigmatic example of someone who challenges the received wisdom in order to follow the dictates of reason is . The ability to analyze arguments and detect their fallacies is one of the most important skills one can develop according to

Nussbaum. However, Nussbaum is not speaking of abstract arguments; rather, she connects philosophical thinking to our everyday lives.424 A large part of our everyday life is determined by our political context. In Nussbaum’s view, philosophical thinking and “Socratic self- examination” are indispensable tools for a thriving democracy, one that is not simply a forum for competing interests but one that is genuinely focused on the common good of all of its citizens.425 Though in Cultivating Humanity Nussbaum does not specifically link Socratic reasoning, democracy, and the capabilities approach, making the connections is not difficult if we keep in mind the distinction being drawn between traditional wisdom and Socratic reasoning.

Returning to the example of women in India, the traditional wisdom concerning women in India

422 Nussbaum, Cultivating Humanity: A Classical Defense of Reform in Liberal Education, 90. 423 ibid., 91. 424 ibid., 17. 425 ibid., 19.

144 is that they have no independent value apart from their husbands; very often women (or girls) are thought to be a burden to their own families. This traditional wisdom is open to questioning from a philosophical point of view; if reasons for it are given at all, such reasons can be challenged. However, it would be difficult to challenge traditional gender norms in India at all if it did not have a democratic form of government. Clearly, this does not mean that injustices cannot happen at all in a democratic form of government; caste and gender norms in India and the history of African-Americans in the United States are clear examples of injustice within democracies. However, it does seem clear that the type of Socratic questioning Nussbaum has in mind stands a far better chance of being heard in a democracy than it does in an authoritarian form of government where questioning of this type is simply illegal. Thus, it seems easier to challenge traditional norms that lead to marginalization and exploitation and capability failure within the context of democracy.

The central lesson of Nussbaum’s view is that the factors leading to the violations of human rights, or capabilities failure, are the result of social practice. Furthermore, these patterns of social practice are ingrained into the members of a society from an early age. In many parts of the world, young girls are denied the opportunities for formal education, but they are “educated” to the fact that their plight is very often tied to housework and child rearing. Reversing these patterns would be impossible without developing the moral and critical skills Nussbaum has in mind. However, I will say something more about this role for education in the next chapter. In this final chapter, I will explore in greater depth the connections between the three thinkers I have looked at in chapters three, four, and five. The hope is that out of this analysis a justificatory framework for making sense of the relationship between individual and group rights will emerge.

145 CHAPTER SIX

RECONCILING INDIVIDUAL AND COLLECTIVE RIGHTS

6.1 Introduction

In chapter two, I highlighted the tensions that exist between the individual human rights claims of the UDHR and some of the collective human rights claims of the UNDRIP. I also pointed out that the UNDRIP itself contains several articles stating that the rights enumerated on behalf of indigenous peoples are to be limited by already existing international human rights standards.426 Nevertheless, the UNDRIP understandably does not provide any underlying theoretical approach for reconciling or balancing some of its collective rights claims with the individual-focused rights claims of the UDHR. As I also pointed out in chapter two, several articles of the UNDRIP pose theoretical problems from the perspective of the individual human rights enshrined in the UDHR. In chapters three through five, I discussed the thought of Jacques

Maritain, Gustavo Gutiérrez, and Martha Nussbaum, who address particular aspects of the problem in their thinking on human rights and political theory. Throughout these chapters, my aim has been to lay out each thinker letting each one speak for her or his self with as little reference to the other thinkers as possible. Additionally, thus far I have not applied the various aspects of each thinker’s work in any systematic way to the overarching problems addressed in this dissertation. Each thinker has something to contribute to our understanding of both individual and collective human rights and how these types of rights can be balanced and related to each other in a way that addresses the issues of individualism and universalism.

In this chapter, my aim will be to weave together the various strands of Maritain,

Gutiérrez, and Nussbaum to elaborate an approach to human rights that does justice to both

426 For instance, articles 34 and 46 of UNDRIP mention the limitations imposed on indigenous rights by international human rights norms.

146 individual human rights and collective human rights, specifically the rights of indigenous peoples. In the first part of the chapter, I will focus on the basis of individual rights in this approach, focusing specifically on addressing the issue of relativism versus universalism. One of the underlying assumptions of this project is that the protection of individual human rights requires a universalist approach. In the second part of the chapter, I will shift my focus towards the basis for group rights. Each thinker contributes something towards understanding why group rights enshrine important moral concerns demanding our attention. In the third part of the chapter, I will further draw from these thinkers and others to argue that individual human rights must take precedence in cases of conflict between the two types rights.

However, I also argue that this prioritization of individual rights over collective rights in cases of conflict is not susceptible to the frequently heard charges that the idea of human rights is an example of Western individualism. The primary gist of this argument is that human rights are not moral claims pitting individuals against the communities to which they belong; rather, they are best understood as moral claims that must be met in order for individuals to be fully participating members of their respective cultures and communities because of the type of being humans are. In other words, human rights, collective and individual, should be understood in connection with the recognition that humans are social beings. Understood in this way, we can connect the rights claims of the UNDRIP with those of the UDHR. In the concluding part of the chapter, I offer some thoughts concerning how supporters of all types of human rights can do justice to the moral claims of individuals and the world’s indigenous peoples.

6.2 The Natural Law Basis of Individual Rights

In chapter two, I discussed the underlying metaphysical basis of the UDHR, which

Johannes Morsink has named the “metaphysics of inherence”. According to Morsink, the

147 metaphysics of inherence consist of two universality theses; one of these theses is ontological while the other one is epistemological. In this section, I argue that, if we glean the thought of

Gutiérrez, Maritain, and Nussbaum in these specific areas, we can discern the outlines of a contextually sensitive and viable natural law approach with ontological and epistemological elements to serve as the underlying foundation for individual human rights. Admittedly,

Nussbaum does not use the term natural law, and I suspect she would be uncomfortable in doing so because of her desire to keep her metaphysical commitments to a minimum. Indeed, as I pointed out in chapter five, Nussbaum has argued that her approach is “free of any specific metaphysical grounding”.427 However, we can discern a metaphysical grounding in the capabilities approach; this grounding may be minimal, but it is not absent. Furthermore, I do not think it is essentially incorrect or unfair to describe this grounding, and the capabilities approach taken as a whole, as a type of natural law approach. It will, however, be necessary to highlight some of the major differences between Nussbaum on the one hand and Gutiérrez and Maritain on the other insofar as the natural law elements to be found in the work of Maritain and Gutiérrez are wedded to broader theological concerns while Nussbaum’s thought is not.428

Like the metaphysics of inherence, a natural law approach can be broken down into ontological and epistemological elements. As I have already shown in chapter three, Maritain explicitly makes this separation in elaborating his understanding of natural law. The basic core of the ontological component of natural law is the claim that human beings have ends specific to their nature as humans; if an individual is not achieving the ends specific to human nature, their life is not fully human. Put another way, such a life would not be a flourishing human life

427 Nussbaum, Women and Human Development: The Capabilities Approach, 5. 428 We must keep in mind, however, that Gutiérrez does not explicitly reference any particular understanding of natural law either, as discussed in chapter four.

148 because this human being would not be, to use Maritain’s words, achieving the “normality of their functioning.” Though I will fully discuss the normative force of the natural law in a few moments, at the level of ethical theory, this ontological claim provides an important check against relativism insofar as these human ends apply to all humans irrespective of the cultural groups they are born into. All humans are born with potentialities that need further development to become actualities. Once again, this way of framing the issue will not sit equally well with all three thinkers; Nussbaum in particular eschews such blatant teleological language.429

Indeed, in comparison to Maritain, both Gutiérrez and Nussbaum downplay metaphysics in order to focus on a more existentialist and historical view. For instance, in discussing certain theological developments that mark improvements from the distinction of planes model discussed in chapter three, Gutiérrez says, “But this is still to consider it on a metaphysical, abstract, and essentialist level, involving moreover complicated and ultimately fruitless academic arguments.”430 Gutiérrez further says, “A significant stage was introduced with the recovery of the historical and existential viewpoint.”431 Though these small snippets do not clarify the more general context in which Gutiérrez wrote these lines, it is clear given Gutiérrez’s overall concerns that the primary problem is that metaphysical speculation distracts one’s attention from the concrete actions needed to fulfill one’s moral commitment to the poor. Like Gutiérrez,

Nussbaum also has reasons for keeping her metaphysical commitments more implicit. Jean

Porter, for instance, speculates that Nussbaum downplays such commitments in order to make

429 “As I interpret Aristotle, he understood the core of his account of human functioning to be a freestanding moral conception, not one that is deduced from natural teleology or any non-moral source. Whether or not I am correct about Aristotle, however, my own neo-Aristotelian proposal is intended in that spirit – and also (clearly unlike Aristotle’s) as a partial, not a comprehensive, conception of the good life, a moral conception selected for political purposes only.” Nussbaum, Women and Human Development, 76 – 77. 430 Gutiérrez, A Theology of Liberation, 70. 431 ibid. (Original emphasis).

149 her theory as universal as possible.432 Given Nussbaum’s embrace of Rawls’s notion of an overlapping consensus, this interpretation is correct if incomplete.433 In some of her work,

Nussbaum seems to argue that metaphysics must be rejected if metaphysical realism is. “This conception is emphatically not metaphysical; that is, it does not claim to derive from any source external to the actual self-interpretations and self-evaluations of human beings in history.”434

These differences among the three thinkers are important, especially concerning how each one moves from the recognition of human nature and human need to the realm of normative obligation, but the fact that each one recognizes that all humans share basic features in common and need certain things to flourish in a fully human way is significant. The primary significance of this recognition is that it provides a check against the encroachment of relativist views that would either deny these commonalities outright or place too much emphasis on the cultural determination of what constitutes human flourishing. As Nussbaum has pointed out in her work, relativist views not only disallow cross-cultural normative judgments, they can also lead to real suffering, for instance among women whose need for flourishing is often skewed in comparison to men. We find this recognition not only in Nussbaum’s critique of relativism but also in her critique of preference utilitarianism insofar as women’s preferences are often deformed because of the cultural forces working against them. Without definite accounts of what it means to function in a fully human way, it would be too easy to argue that what it means for woman A to function properly in culture X is different from what it means for man B to function properly in culture X, or even that what it means for woman A to function in culture X is different from

432 Jean Porter, Nature as Reason: A Thomistic Theory of the Natural Law (Grand Rapids, MI: William B. Eerdmans Publishing Company, 2005), 150. 433 Indeed, Nussbaum explicitly says as much in Nussbaum, “Human Functioning and Social Justice: In Defense of Aristotelian Essentialism,” 215. 434 Nussbaum, “Human Functioning and Social Justice: In Defense of Aristotelian Essentialism,” 215.

150 what it means for woman B to function in culture Z. However, the recognition of a common human nature does not rule out more specific cultural input as each thinker recognizes that the how of achieving human flourishing must be attentive to concrete and local circumstances.

The ontological element is important for thinking about the basis of individual rights, but the epistemological aspect is equally important and is more fully discussed across the three thinkers than the ontological element. In fact, and perhaps somewhat paradoxically, Nussbaum’s contributions to the ontological aspect are more explicit and numerous than Maritain and

Gutiérrez’s contributions to the ontological element. Though Maritain speaks of the normality of human functioning, he only spends a little time in explaining what that entails. As for Gutiérrez, we can only presume that he is operating with some account of human nature and flourishing because of his diagnosis of the problems confronting the poor.435 As discussed briefly in chapter four, Gutiérrez’s moral commitment to the poor must rest on the recognition that the poor are lacking the necessary economic resources for living a fully human life, and we are left to presume that this recognition is tied to some connection Gutiérrez is making between the need for these resources and human nature insofar as he uses the word “nonperson” to describe those who lack them.436 Fortunately, all three thinkers are quite explicit in discussing the epistemological element. However, Maritain and Nussbaum provide more extensive reflections on how we know when a life is not being lived in a fully human way, both relying on some notion of intuition.

Our fundamental intuitions play a large role in Nussbaum’s thinking concerning our basic capabilities. For Nussbaum, we can intuit certain core features of humanity necessary for living

435 Cristina Traina draws attention to this lack in Gutiérrez’s thought in Traina, “Gustavo Gutiérrez and Social Solidarity,” 269. 436 See note 243 above.

151 a life with human dignity; these moral intuitions serve as Nussbaum’s “justificatory basis”, to use Morsink’s phrase.437 As pointed out in chapter five, Nussbaum argues that we can intuitively grasp when there are affronts to human dignity because of a lack of capability development.

“We can agree that the capabilities approach does indeed rely on intuition-although not on uncriticized preferences, as its critique of Utilitarianism makes plain. That is, some deep moral intuitions and considered judgments about human dignity do play a fundamental role in the theory, although they are never immune from criticism in the light of other elements of the theory.”438 Nussbaum’s reliance on intuition to support the capabilities approach is a point of contention. For instance, in her brief mention of the capabilities approach in her own work on the natural law, Jean Porter criticizes Nussbaum’s reliance on intuition.

As Porter puts it: “Capabilities are not developed in isolation; rather, they are exercised in an orderly and reciprocally conditioned way, in and through the pursuit of a way of life which will always necessarily be to some extent culturally specific. Our moral intuitions about the claims attached to these capabilities will always be conditioned, to a greater or lesser degree, by our moral judgments regarding an overall way of life.”439 The gist of Porter’s arguments is that

Nussbaum’s list of capabilities is not as universally plausible as Nussbaum thinks it is because

Nussbaum fails to fully appreciate the power of cultural context in shaping one’s moral intuitions and evaluative judgments. In addition to this claim, Porter backs up this argument with the further claim “that Nussbaum’s list of basic capabilities has been shaped by her prior moral convictions.”440 Here, Porter points to not only specific capabilities Nussbaum includes on her

437 Morsink, Inherent Human Rights: Philosophical Roots of the Universal Declaration, 175. 438 Martha Nussbaum, Frontiers of Justice: Disability, Nationality, Species Membership (Cambridge: MA: The Belknap Press of Harvard University Press, 2006), 83. 439 Porter, Nature as Reason, 150. 440 ibid., 150 – 151

152 list but also to ones that Nussbaum omits; for example, Nussbaum omits the capabilities for cruelty and aggression though they are human capabilities because of her prior moral conviction that these are morally problematic.441 Morsink briefly addresses this same dilemma and appeals to Thomas Aquinas’s notion of natural inclinations in order to resolve it. I propose resolving the dilemma with a similar move by appealing to Maritain’s understanding of how we come to know the natural law.

As alluded to in chapter three, the “gnoseological” element in Maritain’s understanding of natural law also seems to be a form of intuitionism insofar as it appeals to that are not demonstrable, but it differs from Nussbaum’s in important respects because it more closely connects our fundamental intuitions with our nature as human beings through our inclinations.442

For Maritain, at some fundamental level all humans desire the good specific to their nature, but, as discussed in chapter three, this knowledge is not straightforward for all humans at all times.

“And the very history of moral conscience has divided the truly essential inclinations of human nature from the accidental, warped or perverted ones.”443 Moreover, this process also takes into account the social nature of human beings. “I would say that these genuinely essential inclinations have been responsible for the regulations which, recognized in the form of dynamic schemes from the time of the oldest social communities, have remained permanent in the human race, while taking forms more definite and more clearly determined.”444 By making a move towards Maritain’s epistemology, we can address several of the criticisms leveled at Nussbaum.

First, we can concede to Porter’s criticism that one’s moral intuitions are very often determined

441 ibid., 151 – 152. 442 Maritain’s understanding of fundamental intuition is more introspective. Nussbaum’s way of speaking about our moral intuitions seems to be more closely related to the idea of conscience. 443 Jacques Maritain, Natural Law: Reflections on Theory and Practice, ed. (South Bend, IN: St. Augustine’s Press, 2001), 20 – 21. 444 ibid., 21.

153 in large part by culturally specific views about overall ways of life while maintaining that there are more universal intuitions rooted in our human inclinations that may be obscured by cultural factors but never fully lost.445 This understanding helps ground our moral intuitions more historically in that it takes into account the importance of historical facts and experiences in bringing these intuitions to the surface. Second, and closely related to the first point, this understanding helps us to more fully explain the achievement of the UDHR in its epistemological aspect by arguing that the drafters of the UDHR, though coming from different social, cultural, and metaphysical backgrounds, were able to agree on a list of human rights because the UDHR is centered around these intuitions as they have developed through time and

445 Indeed, if Nussbaum more closely tied our intuitions to our inclinations, it could be more easily argued that she does fully recognize how these intuitions are largely shaped by our culture, in her criticism of preference utilitarianism for instance. Understood in this way, I also think it is possible to forge closer links between Maritain’s thought and some of Nussbaum’s expressed views. For example, Nussbaum says, “The problem with this idea is that preferences are not exogenous, given independently of economic and social conditions. They are at least in part constructed by those conditions. Women often have no preference for economic independence before they learn about avenues through which women like them might pursue this goal, nor do they think of themselves as citizens with rights that were being ignored; before they learn of their rights and are encouraged to believe in their equal worth.” Martha Nussbaum, “Capabilities and Social Justice,” International Studies Review 4, no. 2 (2002): 127 – 128. Once again, we can turn to Porter’s brief treatment of Nussbaum in order to make the important connections that can be drawn here. Porter argues that it is not so clear how to interpret Nussbaum’s appeal to her work with Indian women as evidence of cross-cultural intuitions because these women are involved with Western development organizations; the conclusion Porter draws from this is that we cannot be sure that Nussbaum’s capabilities list is not culturally conditioned by Western ways of thinking just because it has been worked out in conversation with Indian women. See Porter, Nature as Reason, 150, n. 5. It may be true that these women have been affected by their encounters with Western agencies, but in order for Porter’s criticism on this point to have full force, she would need to explain in a way that precludes universal explanations why the values these women are exposed to have such resonance for these women. In other words, these values may happen to be presented from a Western perspective, but that does not mean they are particularly Western. Drawing on Maritain’s understanding of our basic human inclinations, we could argue that these women are drawn to these values because of their underlying inclination towards them, but a process of enculturation that deemed them to be second-class citizens obscured their knowledge of them, knowledge brought to the forefront by their cross cultural exchanges.

154 experience and flowered forth in our collective moral consciences.446 It also helps explain “a most important fact” that “many oppressed peoples-regardless of their cultural locations and differences-have little difficulty accepting the idea of universal human rights”.447 Thus, these moral intuitions bring together the victim’s perspective and the perspective of observers to human rights abuses, a point that will become more important when I address Gutiérrez.

Here, it is worth pointing out that all three thinkers express some notion of the development of moral knowledge as a continual process that moves between our fundamental intuitions and moral judgments and the world of experience and action. Since I have already mentioned this regarding Maritain’s thought, I will turn my attention towards Nussbaum and

Gutiérrez. Nussbaum and especially Gutiérrez contribute important nuances to our understanding of this process. In one sense, Nussbaum’s appeal to Rawls’s concepts of reflective equilibrium and overlapping consensus comes close to views espoused by Maritain.448

However, Nussbaum makes a more explicit connection between the respective moral judgments

446 There is nothing original in this argument; it is essentially a restatement of Maritain’s position, and others have discussed the importance of this aspect of Maritain’s thought. In particular, see Sumner B. Twiss, “History, Human Rights, and Globalization,” Journal of Religious Ethics 32, no. 1 (2004): 39 – 70, 64 – 65. Twiss initially discusses Maritain’s view in connection with the “pragmatic agreement” underlying the UDHR, a feature of Maritain’s thought often pointed to. See note 135 above. However, Twiss later returns to Maritain in a passage that points us in the direction of the importance of Maritain’s epistemological views. Twiss says, “I believe that Maritain is ascribing this type of practical apprehension [of human rights norms] to cultures and traditions across the world, suggesting that they have yielded convergent practical convictions that have been tested, shaped, retested, and reshaped, culminating in a practical moral wisdom recognizable across cultural differences – that is, a set of convictions which are stable, indeed unshakeable, because they are in a even wider reflective equilibrium with shared facts, beliefs, and commonalities.” (ibid. My brackets). 447 Sumner B. Twiss, “Religion and Human Rights: A Comparative Perspective,” in Explorations in Global Ethics: Comparative Religious Ethics & Interreligious Dialogue, eds. Sumner B. Twiss and Bruce Grelle (Boulder, CO: Westview Press, 2000), 155 – 175, 158 – 159. 448 The similarities between Rawls and Maritain on certain points are noteworthy and some have borrowed notions from Rawls to discuss the views of Maritain. See, e.g., Twiss, “History, Human Rights, and Globalization,” 65 – 66. Whatever similarities exist, I simply want to make

155 of those who are most vulnerable from a human rights perspective and those who, in a sense, stand outside of a particular context of oppression, the observers of oppression. As discussed in chapter five, Nussbaum argued that our moral judgments might be modified due to theoretical considerations or vice versa. However, our own moral judgments are not the only ones to be considered. Recall, for instance, Nussbaum’s modification of her approach to property rights in light of conversations she had with Indian women.

However, Gutiérrez more closely connects these two viewpoints through the key concepts of praxis and the preferential option for the poor. It is important to keep in mind, however, that Gutiérrez’s thought, like Maritain’s, is deeply embedded within theological assumptions, so I am only highlighting certain relevant parallels. Recall from chapter four that

Gutiérrez argues theology should be a critical reflection on praxis. In other words, theology is a particular kind of theoretical or conceptual elaboration that is secondary to the active moral commitment to the poor and oppressed, but entering into solidarity with the oppressed would imply that Gutiérrez at least implicitly holds that humans possess a “moral sense.”449 Traina argues, based on her interpretation of Gutiérrez: “this moral sense includes, if not principles, at least a moral instinct capable of approval, horror, and other moral reactions.”450 For Gutiérrez, this “moral sense” is sharpened when we enter into the perspective of the oppressed, that is, when there is some convergence between the observer and victim points of view. Gutiérrez argues: “Seeing things ‘as if we were Indians’ – that is, from the viewpoint of the race, customs, cultures, and religious practices of the Indians – makes us more sensitive to the injustice of the

clear that there is nothing essentially problematic about using Rawlsian terminology to describe Maritain’s views as long as we keep in mind that we do so anachronistically. 449 Traina, “Gustavo Gutiérrez and Social Solidarity”, 249. 450 ibid.

156 treatment being inflicted on the autochthonous population, as well as to the rejection of evangelical values that this violation of their rights implies.”451

It must be kept in mind that action (in solidarity with the oppressed) and reflection on action is a dynamic process; taking into account Gutiérrez’s views concerning the need for social scientific analysis helps us to remember this process is dynamic in part because social and historical contexts change, and each situation we are confronted with is complex. Like Maritain and Nussbaum, Gutiérrez provides important insights for understanding how the awareness of human rights norms and the justifications for them develop over time, both of which are connected to epistemic universality.

As important as different aspects of each thinker’s thought are, it is not easy to connect any one of them to Morsink’s notion of inherent human rights in a simple and straightforward way. In other words, we must bridge the gap between their thinking about human functioning and intuitions and the normative force underlying the idea of inherent human rights.452 We have already seen in chapter three that Maritain bridges this gap quite explicitly; there is some notion of inherent human rights in Maritain’s thought. However, the way Maritain bridges this gap is theologically specific and thus not universally plausible; similar problems exist for Gutiérrez.

Trying to bridge the gap between Nussbaum’s capabilities approach poses complex challenges of its own. Nussbaum speaks of the relationship between her approach and human rights, but it is not clear whether she would hold there are inherent human rights.453 Perhaps the closest she

451 Gutiérrez, Las Casas: In Search of the Poor of Jesus Christ, 456. Here, Gutiérrez’s thought seems to be referring more some type of group rights, but I think the point he is making is applicable to individual rights as well. 452 To avoid confusion, Nussbaum’s approach to the capabilities approach is clearly normative, but she goes to great lengths to stress its use for political purposes rather than as ethical theory. 453 Consider this passage: “On the other hand, when we say, as we frequently do, that citizens in country C ‘have the right of free religious exercise,’ what we typically mean is that this urgent

157 comes to the idea of inherent human rights is in her appeal to human dignity.454 Though all three thinkers present unique challenges when trying to connect their thought to the idea of inherent human rights, I argue that combining Nussbaum’s more extensive account of human functioning with Maritain’s understanding of knowledge through inclination provides an adequate foundation for the rights found in the UDHR.455

I agree in large part with Morsink’s move to make the capabilities the underlying ontological structure of the rights listed in the UDHR. As Morsink puts it: “they [the human rights listed in the UDHR] all are organically linked to an ontological network of capabilities, a network that fleshes out the widely used concept of human dignity.”456 Put another way: “The advantage of adding capabilities to an analysis of the Declaration is that it gives us a clear way of saying something about the adjective ‘human’ in the clause ‘human rights.’”457 Without a definite account of what type of creature humans are or can become, the idea of human rights would appear to be out of place. Morsink says: “Our discussion has shown that capabilities are indeed metaphysically prior to human rights, for the latter are birth rights that ride on those

and justified claim is being answered, that the state responds to the claim that they have just by virtue of being human. It is in this sense that capabilities and rights should be seen to be equivalent: For I have said, combined capabilities are the goals of public planning.” Nussbaum, “Capabilities and Human Rights,” 293. This passage is confusing; on the one hand it seems to endorse a notion of inherent human rights when it speaks of a “claim that they have just by virtue of being human.” On the other hand, it is not clear to me that most human rights advocates, or many others for that matter, would say that what they typically mean when they say someone has a right to something is that the person is actually enjoying the right. Perhaps it just Nussbaum’s particular way of phrasing it, but it seems that most human rights advocates would say someone retains their right to something whether they are actually enjoying it or not, which is why they are advocating on behalf of those people who are not actually enjoying their rights. The way Nussbaum puts it makes it appear that people only have the right if it is recognized. Similar points are made by Morsink, Inherent Human Rights, 174 – 175. 454 See note 370 above. 455 To my mind, Nussbaum and Maritain’s views concerning proper human functioning are essentially the same, but Nussbaum’s capabilities list is much more detailed. 456 Morsink, Inherent Human Rights, 173 (My brackets). 457 ibid., 172.

158 capabilities and come along with them.”458 This minimalistic natural law basis provides one key component in the argument against a moral relativist’s view that would deny moral universals like human rights. However, this ontological component is not sufficient on its own. All humans must also be capable of knowing that certain universal features of humans should be developed so that people can live fully human lives and that grave moral wrongs are being committed against those who are denied the development of their capabilities. We can not assume that even where a uniform ontological structure of human nature exists, everyone realizes this fact or the moral conclusions to be drawn from it. Indeed, we could point to numerous examples where this knowledge is either denied, apparently unknown, or actively suppressed.459

Morsink has argued that moral intuitionism provides the best epistemological basis for the idea of conscience in the UDHR, and that this basis dovetails nicely with the capabilities approach. I do not deny this, but I would add that, if we are going appeal to moral intuitions as one part of a justificatory basis for human rights, Maritain’s particular understanding of our fundamental intuitions is better equipped for this purpose. In his own discussion of moral intuitionism, Morsink discusses what he calls “contextual intuitionists”.460 Morsink says that these intuitionists “hold that people’s moral intuitions are mostly or even totally shaped by the cultural milieu in which they were raised, without there in addition being a transcendent element that would allow for and even sanction the kind of cross-cultural judgments that the drafters of

458 ibid., 185. 459 In the first instance we would place those who either deny a common human nature or believe that this nature is so much a product of cultural influence as to not really be universal; in the second instance we would include those cultures that deny, in an innocent way devoid of any acknowledgment that a moral wrong is occurring, certain people, such as women, numerous moral claims attached to their humanity; and in the third instance, we would include those like the Nazis and the Hutus in the Rwandan genocide who went to great lengths to dehumanize their obviously human victims. 460 Morsink, Inherent Human Rights, 101.

159 the Declaration made when they condemned the Nazi and Japanese horrors”.461 Further on,

Morsink adds: “In our favor speaks the fact that when their own dignity is violated in some gross way, ordinary people frequently exhibit just the kind of transcendence that these contextual intuitionists hold not legitimate or declare unsubstantiated.”462 I argued above that Maritain’s understanding of knowledge through connaturality provides an understanding of why the victims of oppression often exhibit such transcendence. Therefore, just as Morsink argues that

Nussbaum’s capabilities approach provides the metaphysical basis for inherent human rights on the ontological side, I would further argue that Maritain’s understanding of knowledge through inclination provides the same basis on the epistemological side because it answers more questions than does Nussbaum’s intuitionist approach. However, Nussbaum and Maritain are similar in their recognitions that these intuitions form the core of larger justificatory schemes where people of different ethical, metaphysical, and religious backgrounds support them from their own “speculative” viewpoints. This allowance for cultural diversity can also be counted among some of the contributions Maritain, Gutiérrez, and Nussbaum make towards our understanding of how to balance universal, individual rights with the particularism of group rights. With our basis for individual rights in place, I will now turn to an elaboration of a basis for group rights, specifically the rights of the world’s indigenous peoples.

6.3 The Basis of Indigenous Group Rights

Looking back on chapters three, four, and five, we have seen that Maritain, Gutiérrez, and Nussbaum all have a strongly social conception of the person. Maritain, for instance, drew on the work of Aquinas to give various explanations for why humans are naturally social.

Gutiérrez, though not as theoretically explicit about the social nature of the person, certainly

461 ibid. 462 ibid., 102.

160 understood and addressed the importance of community life. Finally, Nussbaum included affiliation as one of the central capabilities on her capabilities list; she often stresses the importance of social engagement with others.463 However, stressing the social nature of human beings is only one part of a larger justificatory scheme for specifically supporting the group rights of indigenous peoples. This is because there is no necessary connection between recognizing the social nature of humans and indigenous group rights; the demand for the recognition of indigenous group rights goes beyond the simple ability or desire to associate with others. Put another way, we may recognize a right to associate with others based on a social conception of the person, but the right to associate with others falls short of the more robust claims of indigenous groups. Exercising my right to association by joining an environmental group is not quite the same as exercising a right to enjoy a total way of life associated with a particular culture, political structure, economy, territory, and community. Of course, it is possible to speak of a culture of , but this culture is capable of being, and often is, generalized across numerous cultures taken in a more comprehensive sense of the word, involving linguistic, ethnic, religious, political, economic, and ethical dimensions. In other words, the culture of environmentalism is not distinctive to any one group. It is this element of distinctiveness that was lacking in Articles 27 and 29 of the UDHR and its use of the word “the” before “community”. As already discussed in chapter two, this particular way of phrasing the issue trends more towards homogeneity than heterogeneity.

However, this issue of homogeneity is not merely a conceptual deficiency of the UDHR; it is an empirical fact. Throughout the centuries, numerous indigenous groups have become

463 For a shorter but important statement of Nussbaum’s (and Amartya Sen’s) views concerning the social nature of humans and societal interaction, see Martha C. Nussbaum and Amartya Sen, “Internal Criticism and Indian Rationalist Traditions,” 431 – 456.

161 victims of encroachments from larger, more powerful cultural groups through colonization and conquest. Where this process has not led to the destruction or near destruction of entire groups, it is has often led to the assimilation of these groups to larger, more dominant cultures.464 In addition to the loss of physical territory, the ways of life of indigenous peoples, ways of life often tied very closely to physical territory, have been destroyed. The language of the UNDRIP captures these problems in its rationale for the protection of indigenous peoples.465 Of the three thinkers examined in earlier chapters, it is the thought of Gustavo Gutiérrez, and to a lesser extent Martha Nussbaum, that fits best with the aspirations of indigenous peoples, the challenges to individual human rights norms these aspirations place before us, and the promulgation of these aspirations in the UNDRIP.

Conceptually, the human rights claims of indigenous peoples present a challenge to the universality of human rights because they single out particular groups for special protection.

We can also point to the UN Declaration on the Elimination of Discrimination Against Women as an important human rights document that has this feature. How do we justify these instances of special protection? This dilemma parallels the theological dilemma Gutiérrez faced in

464 Recall, for instance, the position of the Australian delegate A.J.D. Hood who argued against a minority rights article because the position of Australia was that the assimilation of indigenous groups would be in the best interests of all in the long run. See note 109 above. 465 Several of the paragraphs in the Preamble to UNDRIP capture the element of what I have called “distinctiveness”. Paragraph 2 reads: “Affirming that indigenous peoples are equal to all other peoples, while recognizing the right of all peoples to be different, to consider themselves different, and to be respected as such.” Paragraph 3 reads: “Affirming also that all peoples contribute to the diversity and richness of civilizations and cultures, which constitute the common heritage of humankind.” UN General Assembly, United Nations Declaration on the Rights of Indigenous Peoples (Original emphasis). The historical problems confronting indigenous peoples are mentioned in Paragraph 6, which reads: “Concerned that indigenous peoples have suffered from historic injustices as a result of, inter alia, their colonization and dispossession of their lands, territories and resources, thus preventing them from exercising, in particular, their right to development in accordance with their own needs and interests.” (ibid., Original emphasis).

162 speaking of the “preferential option for the poor”, an idea that was later expanded beyond this exclusive economic focus to include culturally oppressed group. I demonstrated in chapter four that this dilemma arises for Gutiérrez in the context of his discussion concerning the nature of

Christian love. The dominant theological tradition Gutiérrez is engaging with understood

Christian love to be universal on two interrelated levels. On one level, God’s love for all humans is universal. Due to the nature of this first level, at the second level the love individual

Christians have for other humans should be universal as well. Thus, the idea that God actually prefers the poor, which implies that Christians should as well, poses challenges to the idea of universal love. However, Gutiérrez also gave an argument for why the preferential option was compatible with universal love; this argument is based on the idea that certain classes of people such as the poor, women, and certain cultural groups, are particularly vulnerable to oppressive forces. Love maintains its universality because oppressors are also loved but in such a way as to be liberated from their role as oppressors. Thus, the goal is to bring into being a society where preferential love is no longer necessary because oppressors and the oppressed no longer exist.

Attending to Gutiérrez’s explanation for the cause of these vulnerabilities connects this dilemma to the one posed by singling out indigenous peoples for special treatment. Gutiérrez’s basic argument on this point is that historic and ongoing injustices have pushed certain groups to such a level of marginalization that they have become vulnerable to forces that are largely out of their control, forces that have been responsible for human rights abuses, both economic and political, on a massive scale. Gutiérrez’s discussion of this problem takes place primarily within the context of his discussion of dependency theory and class analysis; here, he makes the point that the spread of “international capitalism” has created a situation whereby underdeveloped nations continuously fall victim to the growing power of more developed nations. The spreading

163 gap between the richer nations and the poorer ones creates a situation where many people have simply become “nonpersons”.466 This is analogous to Nussbaum’s terminology; these are groups of people that have fallen beneath the “threshold level of each capability, beneath which it is held that truly human functioning is not available to citizens”.467 Though Gutiérrez’s reliance on dependency theory is primarily operative at the state level, he does recognize interstate and intrastate factors of exploitation, so it is not necessarily invalid to expand his discussion to the case of indigenous peoples within the borders of one state. Furthermore, there are significant parallels between his analysis and factors influencing the current plight of many of the world’s indigenous peoples.

One does not have to accept Gutiérrez’s reliance on either dependency theory or Marxist analysis to recognize the phenomena that he describes. Today, these issues are largely discussed using the term “globalization”. For example, in explaining what has changed vis-à-vis a legacy of domination of indigenous peoples, Sumner Twiss argues “that the processes of globalization- from-above”, which involves various players including the World Bank, International Monetary

Fund, and transnational corporations, have sped up the process of the destruction of indigenous peoples and brought many of them to the edge of extinction.468 Elsewhere, Twiss argues that we should be especially sensitive concerning the group rights of indigenous peoples “because they are vulnerable and fragile in the contemporary world.”469 The increasing vulnerability of

466 See especially Gutiérrez, A Theology of Liberation: History, Politics and Salvation, 84 – 88; and Gutiérrez, The Power of the Poor in History, 44 – 46. For Gutiérrez’s discussion of the “nonperson”, see Gutiérrez, The Power of the Poor in History, 92. 467 Nussbaum, Women and Human Development, 6 (Original emphasis). 468 Sumner B. Twiss, “History, Human Rights, and Globalization,” 44. Twiss, following Richard Falk, distinguishes between globalization-from-above, which includes powerful political and economic actors, from globalization-from-below, which he associates with various non- governmental organizations and UN organs. 469 Sumner B. Twiss, “Religion and Human Rights: A Comparative Perspective,” 170.

164 indigenous peoples has long been recognized.470 We can see that this notion of vulnerability lies at the heart of Gutiérrez’s call for both the preferential option for the poor and the closely related concept of solidarity. Thus far, however, I have primarily alluded to the political and economic dimensions of indigenous vulnerabilities. Far more important from the perspective of indigenous peoples is their cultural destruction.

Though political and economic encroachments by more powerful agents, whether state or economic actors, have been responsible for the usurpation and destruction of indigenous peoples’ land and resources, it would be mistaken to understand the injustices against them in solely economic terms. The importance of the land and resources of indigenous peoples can in some degree be understood in instrumental terms; land and resources allow indigenous peoples to maintain cultural ways of life, though the relationship is reciprocal since these ways of life and the land associated with them are in some sense inseparable. The UNDRIP makes this instrumental connection clear in its Preamble. Paragraph 10 of the rather lengthy Preamble reads: “Convinced that control by indigenous peoples over developments affecting them and their lands, territories and resources will enable them to maintain and strengthen their institutions, cultures, and traditions, and to promote their development in accordance with their aspirations and needs”.471 Indeed, the majority of the articles of the UNDRIP concern the protection of indigenous peoples’ cultural institutions, including political ones.

One of the most important of these articles is Article 18, which ensures that indigenous people have a seat at the table when decisions are being made that affect their political, economic, and cultural interests. “Indigenous peoples have the right to participate in decision-

470 Twiss points to specific case studies. 471 UN General Assembly, United Nations Declaration on the Rights of Indigenous Peoples (Original emphasis).

165 making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions.”472 As has been pointed out in chapter two, making room at the table for indigenous groups in the drafting of the UDHR was not on the agenda of the delegates participating in that process. The fact that the UNDRIP involved so much participation by the victims of oppression is one of the most significant features of the document because it allowed these groups to express themselves from their cultural point of view, and I think highlighting the reasons for this significance will give us a better understanding of the logic of indigenous group rights.

Each of the reasons for viewing things from what has been called the “people’s perspective” interlock with one another to some degree.473 The first reason is mentioned by

Twiss in the context of formulating a global ethic; this global ethic covers more than just human rights, but it can be applied to many human rights concerns as well. As Twiss puts it: “The wager of the people’s perspective is this: problems can be more accurately diagnosed from this point of view and thus solutions better discerned in the long run.”474 This more practical reason could apply to a wide range of human rights issues. For instance, myriad contextually unique challenges exist to realizing the rights of Article 23 of the UDHR (enumerating work related rights) on a universal scale. The failures of international agencies like the International

Monetary Fund and the World Bank to address these types of economic problems of many of the world’s poorer economies because of a lack of contextual understanding have been well documented in both scholarly literature and books written by experts in the field for a more

472 ibid. 473 I draw the term “people’s perspective” from Sumner Twiss, “Global Ethics and Human Rights: A Reflection,” Journal of Religious Ethics 39, no. 2 (2011): 206. 474 ibid.

166 general audience.475 It is unlikely that those outside of a particular context will have much success in addressing problems internal to that context without either significant input from insiders or letting insiders address the situation on their own.476

The second reason, like the first, involves the relationship between the viewpoint of those outside of a particular social and cultural context and the viewpoint of those within a particular social and cultural context. However, this second reason moves beyond the technical dimensions and practical focus of the reason above by taking on a more philosophical, or perhaps ideological, and moral dimension; it is captured in Gutiérrez’s focus on conflict and his call for solidarity with the poor and oppressed. Gutiérrez consistently calls for drawing on the “cultural categories” of the marginalized and oppressed rather than the oppressors precisely because they are victims.477 In other words, viewing things from the outside would be to rely on cultural systems that are very often the cause for the victimization of those who are oppressed. This

475 One of the most illustrative examples of this problem comes from the latter genre in a book written by Jeffrey Sachs, a well-known development economist who also writes for a general audience. In one passage, Sachs says, “The rich world dominates the training of Ph.D. economists, and the students of rich-world Ph.D. programs dominate the international institutions like the International Monetary Fund (IMF) and the World Bank, which have lead in advising poor countries on how to break out of poverty. These economists are bright and motivated. I know. I have trained many of them. But do the institutions where they work think correctly about the problems of the countries in which they operate? The answer is no.” Jeffrey Sachs, The End of Poverty: Economic Possibilities for Our Time (New York: Penguin Books, 2005), 74. Sachs later connects this criticism with a lack of contextual understanding. Further along, Sachs says, “It has taken me twenty years to understand what good development economics should be, and I am still learning. Fortunately for me, and for the countries where I have worked, I realized from the very start of my advisory activities that my formal training was not adequate to the task. While I had learned an important set of tools in my advanced studies, I had not learned the contexts in which to apply them.” (ibid., 75). Unsurprisingly, Sachs’s work is not immune from criticism, but I believe this insight that it is important to know one’s context, in economics and other areas, is on track and widely shared. 476 However, this latter option is not likely to be successful where insiders lack the necessary resources or knowledge, but in these cases, there should still be significant input from those inside the context being affected. 477 Gutiérrez, The Power of the Poor in History, 45.

167 causation may or may not be the result of intentional wrongdoing on the part of people and institutions within the dominant culture. It is clear that, in the former case, Gutiérrez aims his criticism of the structure of international capitalism and the dominant cultures associated with it at those he considers responsible for intentional wrongdoing, the agents and institutions who exploit others for their own gain. However, it is also possible for the cultural categories and values of dominant cultures to be used for exploitative purposes even when those cultural categories were originally benign and seemingly applicable to another context.478

This latter point is the crux of not only Gutiérrez’s critique of Jacques Maritain but of all theology that does not have its starting point in the viewpoint of the oppressed. This is why

Gutiérrez enjoins solidarity with the marginalized. I think it is clear that Maritain’s Christian inspired philosophy was originally employed for moral purposes, namely the reconstruction of

Europe following the demise of and totalitarianism. Whether we agree with his religious principles or not, Maritain at least believed he was laying out the path to a more harmonious society that can be enjoyed by people of all religions. Maritain also laid much of the groundwork for the Roman Catholic Church’s embrace of democracy and human rights in the mid-twentieth century. However, Maritain’s theologically inspired philosophy was formulated to address a different set of problems than the problems faced in the Latin American context, and

478 A Theology of Liberation provides one of the most illuminating passages of this viewpoint. Gutiérrez writes, “A broad and deep aspiration for liberation inflames the history of mankind in our day, liberation from all that limits or keeps man from self-fulfillment, liberation from all impediments to the exercise of his freedom. Proof of this is the awareness of new and subtle forms of oppression in the heart of advanced industrial societies, which often offer themselves as models to the underdeveloped countries. In them subversion does not appear as a protest against poverty, but rather against wealth. The context in the rich countries, however, is quite different from that of the poor countries: we must beware of all kinds of imitations as well as new forms of imperialism-revolutionary this time-of the rich countries, which consider themselves central to the history of mankind. Such mimicry would only lead the revolutionary groups of the Third World to a new deception regarding their own reality. They would be led to fight against windmills.” Gutiérrez, A Theology of Liberation, 27.

168 elites within the Latin American context were able to exploit Maritain’s thought for their own purposes. Thus, it cannot always be assumed that ideas are free floating in relation to their context in such a way that they can be applied to any context. Of course, Gutiérrez does not go so far as to endorse a purely relativistic view in this regard, so we should be careful about reading him in that way. Instead, we should learn from Gutiérrez’s critique that we must always be mindful that very often our way of conceptualizing issues may reinscribe patterns of domination and oppression. Others have made similar points. For instance, Abdullahi An-

Na’im, in a critique of Susan Okin’s essay “Is Multiculturalism Bad For Women?”, says:

“Theorizing of the kind reflected in Susan Okin’s essay (or Samuel Huntington’s Clash of

Civilizations) sometimes influences public policy and thereby affects the lives of individuals and communities. Moreover, such influence often extends beyond, and sometimes contradicts, a theorist’s own intentions.”479 Even well meaning normative arguments can go awry in practice.

Finally, we have what may be called the argument from agency.

This argument is a persistent theme in Gutiérrez’s writings.480 The “liberation” that

Gutiérrez and other liberation theologians speak of should be understood as self-liberation.

According to Gutiérrez, human beings individually and collectively should be capable of controlling their own destiny and having their voices heard. It is precisely this ability to control one’s destiny that is lost when one does not enjoy a sufficient level of material wellbeing.481

Interestingly, for all his disavowal of essentialist thinking, Gutiérrez often speaks as if agency,

479 Abdullahi An-Na’im, “Promises We Should All Keep in Common Cause,” in Is Multiculturalism Bad For Women?, eds. Joshua Cohen, Matthew Howard, and Martha C. Nussbaum (Princeton, NJ: Princeton University Press, 1999), 59 – 64, 59. 480 Clearly, Nussbaum also values agency since she argues that a minimal capability for agency is the basis of all other capabilities, but I am more concerned with it in its individual and collective dimensions at this point, so I maintain the focus on Gutiérrez. 481 Here as elsewhere in other chapters, this reminds us of the interconnectedness of social/economic and civil/political rights.

169 , and transformative power are definitive of what it means to be human, exercised both individually and collectively.482 Gutiérrez frequently speaks of agency in individual terms, but there is also a social dimension to agency. Gutiérrez discusses Las Casas’s defense of Native

American religious practices including human sacrifice in terms of the right to religious freedom.

Gutiérrez argues this right is not merely the right of individuals; rather, it is the “right of an entire people.”483 He cites a passage from Las Casas referring to the collective struggle against

Spanish colonization and Spanish attacks on native religious practices and immediately reiterates the collective nature of the rights of Indians.484 Throughout Las Casas Gutiérrez attributes many of the views in this particular work to Las Casas, but it is clear they reflect in large degree

Gutiérrez’s own viewpoints. Whether this is because of the influence Las Casas has on

Gutiérrez’s thought or because Gutiérrez is projecting his own views backward in time is a matter of debate; I suspect it is both. However, the main point I am making is that, even though

Gutiérrez does not elaborate in any detail, it seems clear that he supports some notion of collective agency.

6.4 Collective Agency and Self-Determination

This notion of collective agency connects Gutiérrez’s thought to the important collective human rights norm of self-determination, which I discussed historically in chapter one.

Understanding the conceptual elements of self-determination is important for understanding the ultimate impetus for recognizing the rights claims of the world’s indigenous peoples. In his work on the status of indigenous peoples in international law, James Anaya says: “self- determination is identified as a universe of human rights precepts concerned broadly with

482 See particularly the section entitled “Man, the Master of his Own Destiny” in Gutiérrez, A Theology of Liberation, 27 – 33. 483 Gutiérrez, Las Casas: In Search of the Poor of Jesus Christ, 205. 484 ibid., 206.

170 peoples, including indigenous peoples, and grounded in the idea that all are equally entitled to control their own destinies.”485 Anaya argues that the connection between the word “peoples” and self-determination shows “the collective or group character of the principle [of self determination].”486 Put another way, “self-determination is concerned with human beings, not simply as individuals with autonomous will but more as social creatures engaged in the constitution and functioning of communities.”487 It is important to note, however, that these communities take on a variety of forms, a fact often overlooked in the discussion surrounding the self-determination of peoples because of the various ways the word “peoples” has been narrowly defined. In particular, Anaya is critical of three narrow, or “restrictive” to use his terms, conceptions of the word “peoples” in its connection with self-determination.

The first conception associates “peoples” with the history of decolonization.488 Here, the self-determination of peoples is associated with the push for independent statehood for former colonies. The second conception of self-determination for peoples includes the focus on former colonies with the addition of the whole populations of independent states. For Anaya, this conception is still problematic because it does not take into account the various subgroups existing within the boundaries of one state. A third view makes a connection between “mutually exclusive territorial communities” and ethnicity based on the belief that mutually exclusive sovereign territories should coincide with areas of ethnic cohesion.489 Anaya takes issue with all three of these conceptions for various reasons, but his primary criticism of all three of them is that they have a “limited underlying vision of a world divided into mutually exclusive

485 Anaya, Indigenous Peoples in International Law, 2nd ed., 98. 486 ibid., 100 (My brackets). 487 ibid. 488 For this section I will be following Anaya, Indigenous Peoples in International Law, 100 – 101. 489 ibid.

171 ‘sovereign’ territorial communities.”490 Therefore, “the limited conception of ‘peoples,’ accordingly, largely ignores the multiple, overlapping spheres of community, authority, and interdependency, that actually exist in the human experience.”491 Anaya further claims:

“humanity effectively is reduced to units of organization defined by a perceptual grip of statehood categories; the human rights character of self-determination is thereby obscured as is the relevance of self-determination values in a world that is less and less state centered.”492

Thus, Anaya’s conception of the relationship between “peoples” and self-determination is based on the empirical observation that people often belong to a “broad range of associational and cultural patterns”.493 Under this conception, self-determination is not limited to statehood; rather, it operates at various levels and applies to different spheres of autonomy while the word peoples “should be understood to refer to all those spheres of community, marked by elements of identity and , within which people’s lives unfold-independently of considerations of historical or postulated sovereignty.”494 Here, we should keep in mind that multiple and sometimes overlapping associational relationships (collectivities) flow from the social nature of human beings as well as the various dimensions of life human beings are likely to participate in. It is interesting to note in this regard, that Article 5 of the UNDRIP says:

“Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their right to participate fully, if they

490 ibid., 101. 491 ibid. 492 ibid. 493 Anaya, Indigenous Peoples in International Law, 101. 494 ibid., 103. I originally started this discussion with Gutiérrez, but Anaya’s discussion of the various spheres of associational and communal interaction is reminiscent of Maritain’s argument that a New Christendom should be pluralistic in its outlines. See Maritain, Integral Humanism, 255 – 263.

172 so choose, in the political, economic, social and cultural life of the State.”495 Self-determination, then, is not always a call for independent statehood even though it is a call for a greater degree of collective autonomy designed to protect distinctive forms of collective agency in the midst of a wider collectivity that at best may not share the same distinctiveness or at worst is actively opposed to it.496

This can be made clearer by shifting our focus towards the self-determination side of the relationship between self-determination and “peoples”. Anaya breaks the principle of self- determination down into two aspects, the substantive aspect and the remedial aspect.497 The substantive aspect concerns the normative aspects of self-determination while the remedial aspect concerns measure to be taken when the important norms linked to self-determination are violated. In this sense, several of the reasons for supporting the rights of indigenous peoples discussed above fall under the remedial aspect, such as the rectification of historic injustices.

Support for the rights of indigenous peoples based on their vulnerabilities in the contemporary world is also connected to the remedial aspect. Here, I want to focus primarily on the substantive aspect of self-determination. Anaya further divides the substantive aspect into the

“constitutive aspect” and the “ongoing aspect”.498 Both of these aspects are related to the fact that “self-determination comprises a standard of governmental legitimacy within the modern human rights frame.”499 Given Anaya’s discussion of the word “peoples”, however, we need to

495 UN General Assembly, The United Nations Declaration on the Rights of Indigenous Peoples. 496 Given the participation of states in the formulation of the UNDRIP, it may initially seem as if indigenous peoples did not call for independent statehood because of the protest of states, but Erica-Irene Daes has pointed out that the vast majority of indigenous peoples do not have the desire to secede from the states they are located within. See Daes, “The UN Declaration on the Rights of Indigenous Peoples: Background and Appraisal,” 27. 497 Anaya, Indigenous Peoples in International Law, 104 – 110. 498 ibid., 104 – 105. 499 ibid., 104.

173 take into account that this governmental legitimacy is operative within many different spheres of political and governmental authority.

Of the constitutive aspect, Anaya says: “self-determination requires that the governing institutional order be substantially the creation of processes guided by the will of the people, or peoples governed.”500 This aspect is in play “when institutions are born or merged with others, when their constitutions are altered, or when they endeavor to extend the scope of their authority”.501 The constitutive aspect sets conditions on the procedures involved in these changes “such that the end result in the political order can be said to reflect the collective will of the people, or peoples, concerned.”502 The procedures leading to the birth or modification of institutions should be participatory and consensual. The ongoing aspect on the other hand has to do with the ongoing maintenance and development of an already existing institutional authority.

Of the ongoing aspect, Anaya says: “self-determination requires that the governing institutional order, independently of the processes leading to its creation or alteration, be one under which people may live and develop freely on a continuous basis.”503 Furthermore, the ongoing aspect

“requires a governing order under which individuals and groups are able to make meaningful choices in matters touching upon all spheres of life on a continuous basis.”504

This ability of individuals and groups to make meaningful choices connects self- determination to other specific norms also discussed by Anaya. One of the most important ones for recognizing the human rights claims, including the constitutive aspect of self-determination, of the world’s indigenous peoples is the norm of cultural integrity. This norm underlies much of

500 ibid., 105. 501 ibid. 502 ibid. 503 Anaya, Indigenous Peoples in International Law, 105. 504 ibid., 106.

174 the UNDRIP. Cultural integrity is also an important component of joint Article 1 of the

International Covenant on Civil and Political Rights and the International Covenant on

Economic, Social, and Cultural Rights. The first paragraph of this article reads: “All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”505 The inclusion of this norm and its connection with “peoples” in both covenants elevates it to the status of a collective human right, and I think there are strong reasons for classifying it as such, though some theorists have denied they should be classified as human rights or have been hesitant to label collective or group rights as human rights. 506

505 United Nations General Assembly, International Covenant on Civil and Political Rights, 125. 506 See e.g., Will Kymlicka, Multicultural Citizenship, 5. Kymlicka is specifically talking about minority rights, but minorities would fall within the category of peoples. Perhaps paradoxically, I would agree with much of what Kymlicka has to say concerning minority rights, but his exclusion of the rights of minorities or other similar groups from the category of human rights is, in my mind, based on a misunderstanding of human rights. Kymlicka says in the context of discussing minority rights: “The problem is not that traditional human rights doctrines give us the wrong answer to these questions. It is rather that they often give no answer at all. The right to free speech does not tell us what an appropriate language policy is; the right to vote does not tell us how political boundaries should be drawn, or how powers should be distributed between levels of government; the right to mobility does not tell us what an appropriate immigration and naturalization policy is.” (ibid.) Here, Kymlicka is committing at the level of collective human rights what Johannes Morsink has called the “fallacy of implementation”. Morsink defines the fallacy of implementation as “the pulling of the measures of implementation into the very definition of what a human rights is.” Morsink, Inherent Human Rights, 5. Given the apparent differences in starting points between Kymlicka on the one hand and Morsink and I on the other on how best to define what a human right is, other views may be more to the point. Yozo Yokota, for instance, does not reject outright the categorization of collective rights as human rights, but he is not prepared to endorse the view that they are. Yokota says: “While admitting that such collective rights are rights clearly recognized and established under international law, it is not generally agreed whether they belong to ‘human rights’. Human rights stem from human dignity. Groups usually do not share the same dignity with individuals. It is absolutely correct to talk about peoples’ rights, but to argue that they are a part of human rights, more theoretical elaboration may be needed in order to obtain general support.” Yozo Yokota, “Reflections on the Future of Economic, Social, and Cultural Rights,” in The Future of International Human Rights, eds. Burns H. Weston and Stephen P. Marks (Ardsley, NY: Transnational Publishers, Inc., 1999), 201 – 223, 203.

175 In addition to recognizing the social nature of human beings and the norm of self- determination, or collective agency flowing from it, one of the strongest reasons for recognizing the numerous collective human rights of indigenous peoples, including those related to self- determination, land, and culture is because these cultures provide structure and meaning to their individual members.507 Recognizing the social nature of humans is only one part of a justificatory basis for indigenous peoples’ rights because humans generally attach great importance to social groups of a particular type, those embedded within distinctive ways of life consisting of political, economic, geographical, and cultural dimensions.508 Indeed, focusing solely on the social nature of humans would not seem to place us in any different category than other animals; in this case, it would make little sense indeed to speak of collective human rights.

Maritain, Gutiérrez, and Nussbaum do not simply recognize the social nature of human beings; they also recognize the importance of the distinctive patterns of human association we typically describe with the word “culture.” A brief return to Maritain is instructive. Recall from chapter three that Maritain argues that nations have rights because persons have the right to participate in a national heritage. Persons have deep connections to these communities, connections that are not easily explainable, which I think Maritain intends to capture in his use of the phrase “the collective patterns of feeling-or the collective unconscious psyche”.509 As Kymlicka puts it: “I suspect that the causes of this attachment lie deep in the human condition, tied up with the way humans as cultural creatures need to make sense of their world, and that a full explanation would involve aspects of psychology, sociology, linguistics, the , and even

507 See also Twiss, “History, Human Rights, and Globalization,” 45. 508 To avoid further use of this circumlocution, I will subsume the other dimensions under the general term “culture” throughout the rest of this section. 509 See note 189 above.

176 neurology.”510 Indeed, participating in a culture has many dimensions including political, economic, linguistic, ethical, religious, and philosophical ones.

Of course, this argument demands that we recognize the rights of all cultural groups, but the supplemental arguments discussed above, covering what Anaya called the remedial aspect of self-determination, do give a great deal of weight in favor of the rights of the world’s indigenous peoples whose cultures, providing frameworks of meaning for millions, are often in grave danger of extinction. This seems especially true in cases where the traditional lands of indigenous peoples are threatened, given that so many of their rights hinge on this one. In this regard, it seems clear that indigenous peoples should be granted control over their lands and protection against further encroachments. How this achieved in a current international system of independent, sovereign states relies on a number of complex contextual and empirical factors, so

I offer no specific proposals here. The main point I want to make is that the destruction of these cultures may be a from the viewpoint of the cultural richness of the world, but its most tragic aspect lies in the fact that it destroys something that provides meaning and value for a great many people.

6.5 Cases of Conflict: Individual Rights Versus Collective Rights

I have given several reasons above for according a high priority to the recognition of the collective human rights of the world’s indigenous peoples expressed in the UNDRIP; these groups daily face the threat of physical destruction and/or cultural assimilation. However, as I

510 Will Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights, 90. I will also venture my own thoughts in the form of an anecdote. Not long after moving to Tallahassee, FL, I was walking in a local park when I observed a vehicle with a Columbia County, Georgia license plate. I felt a certain measure of excitement since this is where I lived the majority of my life, and certainly the formative years. I am not quite sure why I felt this excitement, and I think it had little to do with the possibility of it being someone I knew as I considered this unlikely. Instead, I would attribute it to the lure of shared experiences.

177 have pointed out in previous chapters, some of the rights proclaimed in UNDRIP may, when exercised, be inimical to the rights of individual members of the community. Ronald Niezen gives an illustrative example. Niezen recalls a time when he was speaking with an elderly Cree woman in Québec who was telling him how she met her husband as a young woman. This woman’s father came and summoned her to come meet a visitor while she was cleaning fish by the river. As it turned out, the visitor was the son of one of her father’s hunting partner, and her parents said she would be marrying this man; the ceremony followed this announcement.511

Niezen rightly points out that this incident would constitute the violation of this particular woman’s human rights under Article 16, paragraph 2 of the UDHR, which says that all people have the right to choose their spouse.512 The question for us is: Which type of rights takes precedence in this situation, the cultural rights of indigenous peoples, or the rights of the individual? If we accept the basis for individual rights outlined in the first part of this chapter, individual rights must take priority, but it would be mistaken to assume this judgment is based on some supposed individualistic or antisocial biases.

Much of the problem in this regard, I think, is the conceptualization of rights as moral claims individuals hold against their societies. They are better conceived of as moral claims to one’s society since the development of one’s individual capabilities is a prerequisite for becoming a fully functioning member of society. Individuals who are never educated, or given the ability to make political choices, or those individuals living in dire poverty, or who do not enjoy adequate health and nutrition are not capable of being social beings in the fullest sense.

However, it may be the case that in some instances rights will be claims individuals make against their communities. I turn to Maritain to make this point more fully. Specifically, I am

511 Niezen, The Origins of Indigenism: Human Rights and the Politics of Identity, 98. 512 ibid.

178 employing Maritain’s distinction between a society on the one hand and a community on the other. Recall from chapter three that Maritain more closely associates the latter term with cultural determinants. However, I depart in some ways from Maritain’s rationalistic definition of society. Instead, I am thinking of society here in terms of the interactions that flow from the fact that humans are naturally social. Though there is no necessary connection between support for individual human rights and so-called atomistic individualism, support for individual rights does set conditions for the way social interactions take place.

In this regard, Maritain’s association of the term society with the idea of the common good is instructive. As discussed in chapter three, citizens have duties and can be called on to make sacrifices to the societies in which they live as long as the society maintains the common good, the benefits of which flow back to every citizen. This understanding of the common good dovetails nicely with the second paragraph of Article 29 of the UDHR, which states: “In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.” Following this idea, we can argue that all societies, including the world’s indigenous peoples, can make demands of their members, but only where each member’s rights are protected.513 Thus, an article such as Article 35 of the UNDRIP would

513 It is important to note that I just collapsed the distinction Maritain makes because he would consider the world’s indigenous peoples to be more closely related to what he calls a community. However, I am essentially arguing that a community can simultaneously be a society when a cultural community protects the rights of each of its members and only imposes the types of duties on them that any well run society makes of its members. As Dwight Newman puts it in his critique of Kymlicka’s distinction between internal restrictions and external protections, “That a group exercising some powers of governance establishes reasonable traffic rules, say, surely does not impose unacceptable internal restrictions, or the distinction would be untenable and recognize a somewhat amputated vision of group rights that precludes a fostering of shared

179 need to be interpreted in this spirit in order to stay within the bounds of individual human rights protections. Article 35 states: “indigenous peoples have the right to determine the responsibilities of individuals to their communities.”514 The violation or non-violation of individual human rights conditions which instances we determine to be a valid exercise of a cultural rights claim of an indigenous people and which instances we do not. However, if we do accord a good deal of priority to the rights claims of the world’s indigenous peoples for the reasons listed above, conditions are also set for how we come to these judgments and how reforms should take place to bring indigenous traditions in line with the individual rights found in the UDHR and international law.

Clearly there are cultural arguments existing amongst some indigenous peoples that would deny the need to recognize individual human rights as a prerequisite for life in the society because the community defines social roles. For instance, some cultures may argue that there is no need to guarantee women the right to the type of education outlined in the UDHR and

Nussbaum’s capabilities approach because this type of education will not serve them in their capacity as bearers and nurturers of children and maintainers of the household. Or we could focus on the example by Niezen relayed above, which accords the role of deciding a spouse to the mother and father. These are, of course, examples of relativist challenges to individual, universal rights, and it raises the problem of whether or not the human rights approach exemplified in the UDHR can be reconciled with the rights proclaimed by the world’s

identities.” Dwight Newman, Community and Collective Rights: A Theoretical Framework for Rights Held by Groups (Oxford: Hart Publishing, 2011), 18. Also, I do not support Maritain’s argument that ideally communities (or nations) will undergo a process of synthesis with one another to make more homogenous units. Where this process occurs without imposition and forced assimilation, I see no problem with it, but I see no reason to make the normative judgment that this process is desirable. 514 United Nations General Assembly, The United Nations Declaration on the Rights of Indigenous Peoples, 595.

180 indigenous peoples since these would seem to be cases falling under the cultural protections of the UNDRIP.

Addressing the problem requires a preliminary observation. A culture or set of culturally embedded traditions is not something free floating from societal interactions, which take place among individual humans. A particular person may be born into an indigenous community dominated by a particular culture, but this does not give the culture an ontological reality distinct from the ongoing societal interactions of individual human beings, all of who possess rights based on the type of creature humans are.515 Viewed from another angle, a particular woman may be born into a society dominated by a culture that denies her the types of human rights outlined in the UDHR, but the existence of the cultural arguments giving rise to this denial is dependent on the repeated affirmations of the individual members of this society whether as individuals or in concert with one another. Cultures and the values they give rise to are thus dynamic. Even when cultures do not evince any actual change, their maintenance is dependent on the ongoing activity of individuals or groups of individuals. In other words, when cultural traditions that are inimical to members of a particular culture continue to survive, there must be a cause for this survival; this cause is simply the repeated affirmations through words and/or actions of at least some members of the culture in question. Many others in the debate over relativism and its impact on universal human rights have elaborated on this view of culture, which relies on the notion of ongoing contestation and internal plurality.

I have already discussed Nussbaum’s view in this regard. Burns H. Weston makes a related point when he says, “Of course, as already intimated, a preliminary issue is the threshold

515 This observation connects the idea of inherent human rights with the previous discussion of self-determination in its substantive aspect. It is not clear that the ideas of legitimacy and consensual government in both the constitutive and ongoing aspect make very much sense where we do not recognize that humans possess certain rights.

181 question of whether or not the practice in question is a cultural practice as distinct from one that might be, say, idiosyncratic to the particular governing elite involved.”516 The point is, the mere existence of a cultural argument denying the individual rights of a specific subset of the cultural group, women for instance, does not mean that this position can be attributed to the culture as a whole. Indeed, the very notion of “the culture as a whole” essentializes what is at bottom a rather disparate reality lacking an independent ontological basis distinct from the individual people who subscribe to or participate in a particular culture and its practices. As such, all of the rights in the UNDRIP that protect the cultural traditions of the world’s indigenous peoples are only exercised legitimately when they reflect the “shared interests” of all of the members.517 To connect this to Weston’s point above, the line between legitimate and illegitimate claims of cultural rights must be drawn where cultural rights are used by a particular elite to impose their understanding of the culture and its defining characteristics in a way that violates the dignity and rights of some segment of the group, which often involves the elites positing of some internal or external threat to the cultural values of the group.518 Surely, the resonance of the moral claims

516 Burns H. Weston, “The Universality of Human Rights in a Multicultured World: Toward Respectful Decision-Making,” in The Future of International Human Rights, eds. Burns H. Weston and Stephen P. Marks (Ardsley, NY: Transnational Publishers, Inc., 1999), 65 – 99, 84 (Original emphasis). 517 I take this concept of shared interests from Twiss, “History, Human Rights, and Globalization,” 45 – 46. This concept has to do with the relations between indigenous peoples and outside groups on the one hand and relations among individual members inside the group of indigenous peoples on the other. So, to use Twiss’s example of patriarchy leading to discrimination against women in the group, “patriarchy and discrimination would not be seen as being in the shared interests of all members, as would, by contrast, be the shared interests of all in the avoidance of genocide and ethnocide.” (ibid., 46). 518 This links us back to the “Westernization” charge so familiar in human rights discourse. Returning to Burns Weston, Weston argues, “True, cultural relativists also often express themselves in ways that contradict and therefore subvert their own credo–as when, for example, non-Western and sometimes even Western proponents of cultural pluralism evince absolutist outrage at the supposed moral decay of the West.” Weston, “The Universality of Human Rights in a Multicultured World: Toward Respectful Decision-Making,” 74.

182 expressed in the rights of the world’s indigenous peoples amongst “people of conscience” has nothing to do with the enforced imposition of a more particularized understanding of what constitutes the defining characteristics of the indigenous peoples in question.519 Put another way, cultural arguments have very little resonance when we recognize that there are individuals within a particular society who are so marginalized because their rights are not respected that they are incapable of becoming fully participating members of their society who help determine the cultural values of the group.

6.6 On the Outside Looking In

Following Maritain, Gutiérrez, and Nussbaum, I argued above that the foundation of the individual rights found in the Universal Declaration of Human Rights is best construed as a form of natural law coupled with a distinctive form of moral intuitionism, itself part of natural law. By now, it is possible to argue that the basis of collective rights is also to be found in the natural law in its ontological dimension, stemming from the social and cultural nature of human beings.

Thus, important collective human rights principles like self-determination are grounded in the nature of human beings as are the individual rights of the UDHR. As such, a valid exercise of the principle of collective self-determination must be truly collective by also operating at the individual level. S. James Anaya, in his treatment of the norm of self-determination, argued:

“self determination requires that the governing institutional order be substantially the creation of processes guided by the will of the people, or peoples, governed.”520 Presumably “people” refers to all of the people in a particular society taken individually. However, it has also been argued,

519 The term “people of conscience” is taken from Twiss, “History, Human Rights, and Globalization,” 45. Others have also expressed similar ideas. For example, Dwight Newman makes an appeal to our moral intuitions in the beginning of his work on group rights. See Dwight Newman, Community and Collective Rights: A Theoretical Framework for Rights Held by Groups, 3. 520 Anaya, Indigenous Peoples in International Law, 104 – 105.

183 following all three thinkers that humans cannot truly function as social beings without the panoply of rights listed in the UDHR. Thus, a common natural law basis allows for a theoretical reconciliation of the individual/society tension I argued was present in our attempt to balance individual and collective rights.521

However, if we follow this argument, another of the three issues I argued would be addressed in this dissertation immediately confronts us, the tension between relativism and universalism. This confrontation stems from the undeniable empirical fact of cultural diversity.

It is not necessary for us to go in detail concerning the myriad sources of this diversity; it is enough to recognize its existence. Furthermore, not only do we know that cultural diversity is present as fact, we also know this state of affairs is generally desired, not in the sense of diversity for diversity’s sake, but in the sense that most people, for many reasons, ascribe a great deal of importance to their cultural community, or communities. It is this ascription of importance that I cited as one of the most compelling reasons for recognizing the collective human rights claims of groups, especially the most vulnerable amongst them, the world’s indigenous peoples. However, the focus on indigenous peoples is important for another reason insofar as The United Nations

Declaration on the Rights of Indigenous Peoples is the most specific enumeration of collective rights, in all their dimensions, we have to date. Of these dimensions, the cultural dimension is one of the most important and prevalent in the document. Thus, the UNDRIP puts the problem of relativism in stark relief when compared with the UDHR and other landmark documents of the contemporary era of human rights. It would seem that if we are to support the full range of human rights, we must give strong support for the norm of cultural integrity. However, respect for cultural particularity cannot be allowed to slip into relativism because this would drain all

521 Recall that I argued in chapter one this would be one of the main issues addressed by the dissertation.

184 meaning and normative force out of universal human rights. This in turn raises difficult normative and epistemological questions of judgment. The question is: How do we determine when the line between morally relevant particularity and relativism has been crossed?

Theoretically, at least, the issue seems to have been resolved if we attend to the text of both the UNDRIP and the preceding draft. For instance, Twiss, in his brief discussion of what was then a draft of the UNDRIP, pointed out that the document “does not appear to be invoking some sort of super corporate conception of the group as a rights-holder having a moral standing of its individual members in such a manner that it could assert its right against the shared interests of individual members.”522 Twiss draws the following conclusion:

That is to say, it appears that the declaration is ascribing priority to individual human rights and equal treatment in order to mitigate and settle internal tensions and claims. Put another way, the indigenous peoples themselves have decided to modify their traditional practices and cultures in a way that conforms with standard human rights protections, while at the same time asserting that it is their collective right to do so.523

Of course, we all know that appearances can be deceiving, and the potential for abuse is ever looming. But this abuse runs in two directions. Individual persons in every culture, including the world’s indigenous populations, face the violation of their individual human rights by those who deny them on cultural grounds. These violations deserve condemnation. However, the world’s indigenous peoples face the daily threat of extinction as distinct cultures from the imperialism of others. The potential exist that even well meaning human rights supporters may contribute to this imperialism. It cannot always be assumed that what may appear from an outsider’s perspective to be cultural violations of individual human rights are not in fact in the

“shared interests” of all of the members of a particular indigenous group. Matters are further complicated when we take seriously, as I think we should, Nussbaum’s distinction between

522 Twiss, “History, Human Rights, and Globalization,” 46. 523 ibid.

185 capability and functioning. This distinction impinges on a range of human rights issues at a more individual level. A Muslim woman may choose to forego the rights found in Article 23 of the UDHR, among which are “free choice of employment”, because of practical problems raised by her belief in a version of Islam that disallows women from leaving the household without the accompaniment of a male relative. In order to respect persons as social beings who ascribe great importance to particular types of societies, conventionally called cultures, we should tread lightly in making these judgments.524

As Nussbaum has repeatedly argued, we need to take seriously the task of understanding other cultures, particularly where value judgments are concerned. With Amartya Sen, she writes:

“Given the nature of this evaluative process, it might look as if such critical work can never come from people who do not belong to that culture. This is not quite correct, but it is important for an outsider to get enough understanding of the culture in question to be able to satisfy the requirement that the critique be internal and immersed in the ways discussed earlier.”525 The gist of Nussbaum and Sen’s argument is that when different sets of cultural values from two different cultures encounter one another and one culture’s values are modified as a result, it is difficult to determine if there is a tragic loss to the members of the modified culture because of the importance those values had for the members. Making this determination requires giving a great deal of attention to contextual factors. Here it is important to remember Nussbaum’s arguments concerning the need to study other cultures and her call to develop our narrative imaginations so that we can better understand the perspectives of those who are different from us. Since the risk is ever present that we will fail to give adequate respect for the values people find meaningful,

524 Here, I am influenced by Burns Weston’s general call for respect, though I do not endorse his Rawlsian proposal for dealing with it. See Weston, “The Universality of Human Rights in a Multicultured World: Toward Respectful Decision-Making,” 65 – 99. 525 Nussbaum and Amartya Sen, “Internal Criticism and Indian Rationalist Tradition,” 441.

186 modification of a culture’s values will ideally come from within. There are, of course, pragmatic reasons for supporting this view when applied to the concept of human rights. For example,

Abdullahi A. An-Na’im has argued: “The general thesis of my approach is that, since people are more likely to observe normative propositions if they believe them to be sanctioned by their own cultural traditions, observance of human rights standards can be improved through the enhancement of the cultural legitimacy of those standards.”526 Another pragmatic reason has to do with refuting the polemical charges of “Westernization” leveled at the notion of human rights, which is detrimental to the success of their implementation. I do not deny the importance of these pragmatic reasons and the strategies of cross-cultural dialogue that often attend them.

However, the moral argument seems to be the most significant if we take seriously the social nature of individual human beings.

Even after taking the time to understand other cultures, people of conscience will recognize there are vulnerable people who face the daily denial of their human rights in every culture, including the world’s indigenous peoples. However, many of these people, whether through interaction with others in their own culture or through encounters with other cultures, have resonated with the language of human rights. I have essentially argued, following Maritain, that at a deep level people can intuit when they are being denied the means (rights) necessary for living a fully human life. However, for many vulnerable individuals, the desire is to live a fully human life within the very culture that denies them their rights. Though these victims of oppression may not embrace all of the elements of their cultural traditions, they often attach great

526 Abdullahi Ahmed An-Na’im, “Toward a Cross-Cultural Approach to Defining International Standards of Human Rights: The Meaning of Cruel, Inhuman, or Degrading Treatment or Punishment,” in Human Rights in Cross-Cultural Perspectives: A Quest for Consensus, ed. Abdullahi Ahmed An-Na’im (Philadelphia: University of Pennsylvania Press, 1992), 19 – 43, 20.

187 value to many of them, which explains, I think, why so many look amongst their own cultural resources for traditions of protest against oppression.

Of course, Maritain recognizes, as we should, that these deep-seated intuitions can be obscured. Maritain’s reason is theological because it is related to the consequences of sin, but it is also helpful to remember that he argues our knowledge of the natural law has been developed over time through our inclinations and human society. Societies can give rise to arguments just as capable of obscuring the existence of inherent human rights as illuminating their existence.

The legacy of torture, genocide, and worldwide poverty in the twentieth and early twenty-first century is evidence enough of this sobering fact. Like Maritain, Gutiérrez, Nussbaum, and the drafters of the UDHR, I would submit that all humans are at least capable of recognizing the worst violations of human rights. This in turn gives everyone an initial morally epistemic access into any society or culture insofar as all cultures contain vulnerable and marginalized individuals.

In other words, some initial moral judgments can be made with a high degree of confidence that cultures are being sufficiently respected while preserving a universal, critical focus. However, I think we would do well to treat the fundamental moral intuitions underlying the UDHR as only a starting point, a codification of our most basic judgments. To truly know whether and how violations of human rights are being perpetrated in a particular context, one must follow the counsel of Gutiérrez and Nussbaum, who both enjoin us to enter into the perspective of the other, particularly the most vulnerable members of society. Often, even the most vulnerable members of a society and culture are seeking inclusion and participation in their own context. Thus, supporting their individual rights by entering into solidarity with them is an effort to help them flourish in a fully human way in their context. By respecting the efforts of the most vulnerable members of a society to flourish within their context, we are by extension respecting their

188 context and its distinctive patterns of association and exercises in collective agency, including cultural output. Certainly, both Maritain and Nussbaum respected these contexts insofar as they recognized and respected the diverse ways of justifying human rights norms, respect based on the recognition that people invest their social and cultural interactions with a high degree of meaning and express basic moral intuitions in a variety of ways, but it is Gutiérrez’s call for active solidarity with the oppressed that most fully pulls together the moral judgments of those within a context of oppression and those on the outside looking in. In time, as more and more people claim their human rights in an effort to become more fully participating members of their own communities, the hope is that this contextually sensitive natural law approach to human rights will “produce something unique, both particular and universal, and therefore fruitful.”527

527 Gutiérrez, A Theology of Liberation, 14 (Original emphasis).

189 AFTERWORD

In discussing collective rights, or those rights held by groups, I have not extensively discussed many of the conceptual issues generally raised in other works on collective rights.

One of these issues concerns the status of “collective” rights versus the status of “individual” rights. In other words, what precisely is the difference between a right held by a collectivity and a right held by an individual? The answer to this question has been discussed in the literature in terms of the aggregative view versus the non-aggregative view.528 Basically stated, the aggregate view is that “collective” rights are merely the sum of individual rights, or following along with the mathematical form of expression, “collective” rights can be reduced without remainder to individual rights. Others have pointed out that the aggregative view does not move past an individualist framework; thus, under such a view it would not be correct to speak of

“collective” rights because the aggregative view does not capture the special quality of collective rights held by groups.529

Alexandra Xanthaki turns to the right to land and territory as an illustrative example for capturing the difference between individual and collective rights, a right protected by Article 26 of the UNDRIP. Xanthaki rightly points out that if this right is understood as an individual right, even on an aggregative view, it poses a threat to the group as a whole; in this situation, an individual or many individuals may claim their share of the land and sell it to individuals from

528 See, e.g., Marlies Galenkamp, Individualism Versus Collectivism: The Concept of Collective Rights, 16 – 17; Dwight Newman, Community and Collective Rights: A Theoretical Framework for Rights Held by Groups, 60 – 66; and Alexandra Xanthaki, “The UN Declaration on the Rights of Indigenous Peoples and Collective Rights: What’s the Future for Indigenous Women?,” in Reflections on the UN Declaration on the Rights of Indigenous Peoples, eds. Stephen Allen and Alexandra Xanthaki (Oxford: Hart Publishing, 2011), 413 – 431, 413 – 419. Xanthaki does not specifically use the language of aggregation or non-aggregation, but she does discuss viewpoints that fall within these categorizations. 529 Marlies Galenkamp, Individualism Versus Collectivism: The Concept of Collective Rights, 16.

190 outside of the group.530 Under these circumstances, there is a threat to the group as a whole.

This is better illustrated by focusing on the purposes the land is put to. If the land is used as a traditional hunting ground, for instance, the diminishment of collective lands is likely to diminish the amount of game available for hunting, which would harm the group as a whole. Other rights contained within the UNDRIP also illustrate this distinction in similar ways. For instance,

Article 11 protects, among other things, the right of indigenous peoples to maintain control over their cultural and historical artifacts. If this right is understood in aggregative terms, each individual within the group could claim their share of the artifacts and sell them to individuals or organizations outside of the group, private collectors or museums for instance. Xanthaki argues that the failure to recognize the special nature of collective rights and to reduce them to individual rights would be detrimental to indigenous peoples as groups.531 It is important, however, to recognize, as Dwight Newman does, that the interests of individuals are still relevant to collectively held rights insofar as the benefits of those rights still flow to individual members of the group.532

This particular issue of clarifying the distinct nature of collective or group rights is important, and it is important to take a stand in the debate. However, this debate concerns the object side of rights, or the thing or benefit some individual or group is claiming a right to. In this dissertation, I have been more concerned with the subject side of rights, or with exploring who, in terms of individuals and groups, is actually claiming the right in question. Specifically, I

530 Alexandra Xanthaki, “The UN Declaration on the Rights of Indigenous Peoples and Collective Rights: What’s the Future for Indigenous Women?,” 417. 531 ibid. 532 Dwight Newman, Community and Collective Rights: A Theoretical Framework for Rights Held by Groups, 61. Here it is interesting that Newman draws from ’s understanding of the common good, which is informed by Finnis’s Catholicism. It is interesting because Newman’s discussion on this point is reminiscent of Maritain.

191 have focused to some degree on the ontological basis for individuals and groups as subjects of rights, or rights-holders. I argued that the ontological basis of individual rights is a minimal natural law; thus, it is tied to some basic claims about human nature. I also argued that group rights were partly grounded in human nature since humans are naturally social. Furthermore, I tried to make clear that this claim must be extended further to make sense of many group rights, since many of these rights pertain to groups of a distinctive type, in this case cultural groups.

This raises the question of what types of groups should be considered the proper subject of rights. Thus far, I have not explicitly addressed this issue. The primary reason is, I think, fairly clear. At the outset, I limited the project to discussing the collective, or group, rights, claims of the world’s indigenous peoples. As such, the subject, or rights-holder, of many of the rights discussed in this dissertation was predetermined by the focus on the UNDRIP. It may seem strange to broach this issue in what is supposed to be a conclusion to the project, but it will bring us back to many of the points I began the dissertation with and hopefully provide an overall summary of what I was trying to accomplish.

In her work on collective rights, Marlies Galenkamp identifies “the collective right to preserve one’s cultural identity” as a “paradigmatic case of collective rights”.533 Concerning the subject of rights, Galenkamp argues that if one wants to move past the individualistic framework of human rights the subject of this right is best understood as a “constitutive community”, which she identifies with communitarianism. In this discussion, Galenkamp speaks of several types of communitarian criticisms of individual human rights; specifically, she mentions non-western critiques of individual rights and western communitarian critiques, as I did in chapter one.534

533 Marlies Galenkamp, Individualism Versus Collectivism: The Concept of Collective Rights, 125 – 126. 534 See note 4 above.

192 Galenkamp rejects the non-western view and instead selects the “strong communitarian view” as giving the best example of what she means by “constitutive community”; she specifically mentions Alasdair MacIntyre and ’s views as representatives of strong communitarianism.535 Essentially, a constitutive community is one where a person’s community determines the social roles the person inhabits. Any discussion of rights, if rights are accepted at all, is quite secondary to one’s role in the community and the duties and obligations flowing from this.

At this point, Galenkamp refers to a passage from MacIntyre’s After Virtue as illustrative of this point of view. The relevant part reads:

Hence, what is good for me has to be good for one who inhabits these roles. As such I inherit from the past of my family, my city, my tribe, my nation, a variety of debts, inheritances, rightful expectations and obligations. These constitute the given of my life, my moral starting point. This is in part what gives my life its own moral particularity. (…) For the story of my life is always embedded in the story of those communities from which I derive my identity. I am born with a past; and to try to cut out [sic] myself off from that past, in the individualist mode, is to deform my present relationships.536

Before coming to the specific issues raised by this quote, a few words on Galenkamp’s overall work is necessary. Galenkamp’s overall work is marked by an unfortunate tendency to associate the rise of human rights norms with the rise of political liberalism since at least . I do not deny that the language of human rights may have some roots in this tradition, but I think it is clear that I would deny that the moral content behind the language can be wholly attributed to this tradition.537 Second, on the specific question of constitutive communities, I do not draw a sharp break between the position of MacIntyre quoted above and certain non-Western

535 ibid., 91 – 93. 536 Alasdair MacIntyre quoted in Galenkamp, Individualism Versus Collectivism: The Concept of Collective Rights, 93. 537 Indeed, as Sumner Twiss rightly points out, this history stretches even further back into the twelfth-century discussion of natural law and natural rights, though this history is also relevant for the rise of political liberalism. See Twiss, “Global Ethics and Human Rights,” 211.

193 understandings of community in the way Galenkamp does. Though thinkers like MacIntyre and important thinkers and leaders in Asia and Africa certainly come from different directions and cannot be equated on all points, their arguments are remarkably similar on this point. My third point is a substantial one in its own right, and it will bring us back around to communitarian positions, like MacIntyre’s, and the points I want to make about it.

I argue Galenkamp does not logically separate the subject side and the object side of collective rights in the way I think she should. In other words, it is possible to posit non- reducible collective rights without holding that the subject of such rights must also be a corporate moral agent that is non-reducible to the individual members.538 Galenkamp essentially uses the constitutive community she associates with communitarians as the representative example of a corporate moral agent. On the one hand, Galenkamp’s understanding on this point is quite helpful when thinking about the subject of collective rights because it brings important truths to light. When most theorists speak of collective or group rights, they do not hold that any random group of individuals, say attendees of a music concert, are the subject of rights. Generally speaking, there should be deeper attachments between the members and each other and the members and those features that pull them together as a distinctive group. In this regard, I essentially agree with Galenkamp, though she mentions it from the object side of rights, that the cultural group may perhaps be the most paradigmatic case of collective rights, though other collective entities such as religious groups may be other possible subjects of collective rights. I have already discussed the issue of these “deeper attachments” in my justification of the rights of the world’s indigenous peoples, and I argued they give us a good normative reason for accepting collective rights into the human rights framework. Thus, the notion of a constitutive community

538 I take the language of “corporate” from Twiss, “History, Human Rights, and Globalization,” 46.

194 highlights important considerations for thinking about collective or group rights, but on the other hand, I think the idea should by and large be abandoned, which brings the discussion back to

MacIntyre and the general communitarian critique with which I began the dissertation.

Both Galenkamp and some of her communitarian sources have an unfortunate tendency to treat the unity associated with what she is calling a constitutive community as an empirical fact; in the process, thinkers in this mode overlook considerations that are both empirically and morally relevant. Certainly, Galenkamp and communitarian thinkers like MacIntyre recognize that such unity is rare if existent at all in our contemporary setting, but there seems to be a general failure to recognize that such a unity has probably never existed as an empirical reality, at least not in any morally relevant way.539 The candidates generally offered for such homogeneity, Asian society, the ancient Greek city-states, “traditional” societies, etc., must all be rejected. Even if these candidates for constitutive community appear to evince some type of unity relevant for their status as corporate moral agents, we know such appearances are false.

The systematic exclusion of women, the poor, non-property owning males, slaves, etc. from the contribution to the cultures and cultural traditions that give such societies their distinctive shape cannot be ignored. In the case of literate cultures as opposed to oral cultures, we would also have to take into account the low literacy rates among the general population as an empirical factor that is morally relevant to the discussion. To some degree these reflections take us beyond the more limited aims of this dissertation. However, a fuller, more expanded discussion would address in greater detail the larger questions of what we count as a culture or a cultural tradition, how its boundaries are policed, what role those who have been systematically oppressed within it

539 For Galenkamp’s recognition of the “current” fragmentation see Galenkamp, Individualism Versus Collectivism: The Concept of Collective Rights, 93. Though the recognition on MacIntyre’s part can be seen in many of his writings, see specifically MacIntyre, After Virtue, 1 – 5.

195 or internally excluded from it play, how these systems of oppression and exclusion are transmitted, what role the systematically oppressed and excluded have in modifying the tradition or culture in question, and what our role as outside observers should be. I have made some preliminary judgments concerning some of these questions.

In concluding this work, I will simply say these preliminary judgments were based on the following argument. It is doubtful any culture or cultural tradition could ever exhibit the homogeneity or unity relevant for attributing to it an ontological status that is distinct from its individual members; however, while certain individual members are disallowed from contributing to these cultures and cultural traditions, this will certainly remain the case. Thus, the priority of individual rights over collective or group rights in cases of conflict should not be confused with the largely academic debate between political liberalism and communitarianism, though the recognition of the individual rights of all humans and the collective rights of the world’s indigenous peoples, which are some of the most vulnerable communities in the international system, should be an indication that these two sides of the debate capture important moral concerns. Rather the prioritization of individual rights over collective rights is based on the ontological priority of individual human beings. I do not disagree with MacIntyre’s observation that we are all born with a past, but we are also born with much else besides, and the recognition of our past may shape our present and our future but it should not be completely determinative of our present and our future, especially where it is narrowly construed by those who are in a position to determine its boundaries and their own roles within it. Even where the full range of individual human rights is guaranteed, not everyone will choose to become an active shaper of their own life and the context, whether cultural, political, religious, etc., from whence they come; however, when these rights are denied, those to whom they are denied are

196 unfortunately relegated to the status of passive recipients, a situation on which I think we may pass judgment.

197 BIBLIOGRAPHY

Allen, Stephen and Alexandra Xanthaki, eds. Reflections on the UN Declaration on the Rights of Indigenous Peoples. Oxford: Hart Publishing, 2011.

Anaya, S. James. Indigenous Peoples in International Law. 2nd ed. Oxford: Oxford University Press, 2004.

An-Na’im, Abdullahi. “Toward a Cross-Cultural Approach to Defining International Standards of Human Rights: The Meaning of Cruel, Inhuman, or Degrading Treatment or Punishment.” In Human Rights in Cross-Cultural Perspectives: A Quest for Consensus, edited by Abdullahi An- Na’im, 19 – 43. Philadelphia: University of Pennsylvania Press, 1992.

_____. “Promises We Should All Keep in Common Cause.” In Is Multiculturalism Bad For Women?, edited by Joshua Cohen, Matthew Howard, and Martha C. Nussbaum, 59 – 64. Princeton, NJ: Princeton University Press, 1999.

Aquinas, Thomas. Summa Theologica. http://www.newadvent.org/summa/.

Bokenkotter, Thomas. A Concise History of the Catholic Church. New York: Doubleday, 2004.

Brown, Robert McAffee. Gustavo Gutiérrez: An Introduction to Liberation Theology. Maryknoll, NY: Orbis Books, 1990.

Brownlie, Ian, ed. Basic Documents on Human Rights. 3rd ed. Oxford: Clarendon Press, 1992.

Congregation for the Doctrine of the Faith. Instruction on Certain Aspects of the “Theology of Liberation”. Boston. St. Paul Editions, 1984.

Curran, Charles. Catholic Social Teaching 1891 – Present: A Historical, Theological, and Ethical Analysis. Washington, D.C.: Georgetown University Press, 2002.

Daes, Erica-Irene. “The UN Declaration on the Rights of Indigenous Peoples: Background and Appraisal,” In Reflections on the UN Declaration on the Rights of Indigenous Peoples, 11 – 40. Oxford: Hart Publishing, 2011.

Donnelly, Jack. Universal Human Rights in Theory & Practice. 2nd ed. Ithaca, NY: Cornell University Press, 2003.

Engler, Mark. “Towards the “Rights of the Poor”: Human Rights in Liberation Theology.” Journal of Religious Ethics 28, no. 3 (2000): 339 – 365.

Fasulo, Linda. An Insider’s Guide to the UN. New Haven, CT: Yale University Press, 2004.

Frei, Eduardo. Latin America: The Hopeful Option. Translated by John Drury. Maryknoll, NY: Orbis Books, 1978.

198 Galenkamp, Marlies. Individualism Versus Collectivism: The Concept of Collective Rights. Rotterdam: Rotterdamse Filosofische Studies, 1993.

Gallagher, Donald and Idella. The Achievement of Jacques and Raïssa Maritain: A Bibliography, 1906 – 1961. Garden City, NY: Doubleday & Company, Inc., 1962.

Ghai, Yash Pal. “Constitutional Asymmetries: Communal Representation, Federalism, and Cultural Autonomy.” In The Architecture of Democracy: Constitutional Design, Conflict Management, and Democracy, edited by Andrew Reynolds, 141 – 170. Oxford: Oxford University Press, 2002.

Glendon, Mary Ann. A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights. New York: Random House, 2001.

Green, Catherine. “It Takes One to Know One: Connaturality-Knowledge or Prejudice.” In Jacques Maritain and the Many Ways of Knowing, edited by Douglas A. Ollivant, 43 – 55. Washington, D.C.: The Catholic University of America Press, 2002.

Gutiérrez, Gustavo. A Theology of Liberation: History, Politics and Salvation. Edited and Translated by Sister Caridad Inda and John Eagleson. Maryknoll, NY: Orbis Books, 1973.

_____. We Drink From Our Own Wells: The Spiritual Journey of a People. Translated by Matthew J. O’ Connell. Maryknoll, NY: Orbis Books, 1984.

_____. The Power of the Poor in History. Translated by Robert R. Barr. Maryknoll, NY: Orbis Books, 1983.

_____. The God of Life. Translated by Matthew J. O’Connell. Maryknoll, NY: Orbis Books, 1991.

_____. Las Casas: In Search of the Poor of Jesus Christ. Translated by Robert R. Barr. Maryknoll, NY: Orbis Books, 1993.

Hawkins, Kirk A. “Sowing Ideas: Explaining the Origins of Christian Democratic Parties in Latin America.” In Christian Democracy in Latin America: Electoral Competition and Regime Conflicts, 78 – 117. Stanford, CA: Stanford University Press, 2003.

Horn, Gerd-Rainer. “Left Catholicism in Western Europe in the 1940’s.” In Left Catholicism 1943 – 1955: Catholics and Society in Western Europe at the Point of Liberation, edited by Gerd-Rainer Horn and Emmanuel Gerard, 13 – 44. Leuven, Belgium: Leuven University Press, 2001.

Huneeus. “A Highly Institutionalized Political Party: Christian Democracy in Chile.” In Christian Democracy in Latin America: Electoral Competition and Regime Conflicts, 121 – 161. Stanford, CA: Stanford University Press, 2003.

199 Ignatieff, Michael. “Human Rights as Politics and Idolatry.” In Human Rights as Politics and Idolatry, edited by Amy Gutmann, 3 – 98. Princeton, NJ: Princeton University Press, 2001.

John Paul II. Sollicitudo rei socialis. In Catholic Social Thought: The Documentary Heritage, edited by David J. O’Brien and Thomas A. Shannon, 395 – 436. Maryknoll, NY: Orbis Books, 2005.

Kymlicka, Will. Multicultural Citizenship: A Liberal Theory of Minority Rights. Oxford: Clarendon Press, 1995.

_____. “Beyond the Indigenous/Minority Dichotomy?.” In Reflections on the UN Declaration on the Rights of Indigenous Peoples, 183 – 208. Oxford: Hart Publishing, 2011.

Lynch, Edward A. Religion and Politics in Latin America: Liberation Theology and Christian Democracy. New York: Praeger Publishers, 1991.

MacIntyre, Alasdair. “The Return to .” In The Twenty-Fifth Anniversary of Vatican II: A Look Back and a Look Ahead, edited by Russell E. Smith. Braintree, MA: The Pope John XXIII Medical-Moral Research and Education Center, 1990.

_____. After Virtue: A Study in Moral Theory. 3rd ed. Notre Dame, IN: University of Notre Dame Press, 2007.

Mainwaring, Scott and Timothy R. Scully, eds. Christian Democracy in Latin America: Electoral Competition and Regime Conflicts. Stanford, CA: Stanford University Press, 2003.

_____. “The Diversity of Christian Democracy in Latin America.” In Christian Democracy in Latin America: Electoral Competition and Regime Conflicts, 30 – 63. Stanford, CA: Stanford University Press, 2003.

Maritain, Jacques. The Things That Are Not Caesar’s. Translated by J.F. Scanlan. New York: Charles Scribner’s Sons, 1931.

_____. “The Human Person and Society.” Ch. 3 in Scholasticism and Politics. Edited and Translated by Mortimer J. Adler. New York: The Macmillan Company, 1940.

_____. “Democracy and Authority.” Ch. 4 in Scholasticism and Politics. Edited and Translated by Mortimer J. Adler. New York: The Macmillan Company, 1940.

_____. The Person and the Common Good. Translated by John J. Fitzgerald. New York: Charles Scribner’s Sons, 1947.

_____. Man and the State. Chicago: The University of Chicago Press, 1951.

_____. “On Knowledge Through Connaturality.” Ch. 3 in The Range of Reason. New York: Charles Scribner’s Sons, 1952.

200 _____. An Essay on Christian Philosophy. Translated by Father Edward H. Flannery. New York: Philosophical Library, 1955.

_____. Reflections on America. New York: Charles Scribner’s Sons, 1958.

_____. The Peasant of the Garonne: An Old Laymen Questions Himself about the Present Time. Translated by Michael Cuddihy and Elizabeth Hughes. New York: Holt, Rinehart and Winston, 1968.

_____. Freedom in the Modern World. Vol. 11, The Collected Works of Jacques Maritain. Notre Dame, IN: University of Notre Dame Press, 1996.

_____. Integral Humanism. Vol. 11, The Collected Works of Jacques Maritain. Notre Dame, IN: University of Notre Dame Press, 1996.

_____. Notebooks. Translated by Joseph W. Evans. Notre Dame, IN: University of Notre Dame Press, 1984.

_____. Natural Law: Reflections on Theory and Practice, edited by William Sweet. South Bend, IN: St. Augustine’s Press, 2001.

Marx, Karl. “On the Jewish Question.” In Karl Marx: Selected Writings, edited by David McLellan, 39 – 62. Oxford: Oxford University Press, 1977.

McInerny, Ralph. The Very Rich Hours of Jacques Maritain: A Spiritual Life. Notre Dame, IN: University of Notre Dame Press, 2003.

Minow, Martha. Between Vengeance and Forgiveness. Boston: Beacon Press, 1998.

Mohamad, Mahathir bin. “No Freedom Without Responsibility.” New Straits Times, May 20, 1995. http://www.lexisnexis.com.proxy.lib.fsu.edu/hottopics/lnacademic/?verb=sr&csi=151977.

Morsink, Johannes. The Universal Declaration of Human Rights: Origins, Drafting & Intent. Philadelphia: University of Pennsylvania Press, 1999.

_____. Inherent Human Rights: Philosophical Roots of the Universal Declaration. Philadelphia: University of Pennsylvania Press, 2009.

Newman, Dwight. Community and Collective Rights: A Theoretical Framework for Rights Held by Groups. Oxford: Hart Publishing, 2011.

Niezen, Ronald. The Origins of Indigenism: Human Rights and the Politics of Identity. Berkeley: University of California Press, 2003.

Nussbaum, Martha. “Human Functioning and Social Justice: In Defense of Aristotelian Essentialism.” Political Theory 20, no. 2 (1992): 202 – 246.

201 _____. “Human Rights Theory: Capabilities and Human Rights.” Fordham Law Review 66 (1997): 273 – 300.

_____. Cultivating Humanity: A Classical Defense of Reform in Liberal Education. Cambridge, MA: Harvard University Press, 1997.

_____. “Public Philosophy and International Feminism.” Ethics 108, no. 4 (1998): 762 – 796.

_____. Women and Human Development: The Capabilities Approach. Cambridge, UK: Cambridge University Press, 2000.

_____. “Capabilities and Social Justice.” International Studies Review 4, no. 2 (2002): 123 – 135.

_____. Frontiers of Justice: Disability, Nationality, Species Membership. Cambridge, MA: The Belknap Press of Harvard University Press, 2006.

_____. Liberty of Conscience: In Defense of America’s Tradition of Religious Equality. New York: Basic Books, 2008.

_____. Not for Profit: Why Democracy Needs the Humanities. Princeton, NJ: Princeton University Press, 2010.

_____. “Capabilities, Entitlements, Rights: Supplementation and Critique.” Journal of Human Development and Capabilities 12, no. 1 (2011): 23 – 37.

_____. Creating Capabilities: The Human Development Approach. Cambridge, MA: The Belknap Press of Harvard University Press, 2011.

Nussbaum, Martha and Amartya Sen. “Internal Criticism and Indian Rationalist Traditions.” In Relativism: A Contemporary Anthology, edited by Michael Krausz, 431 – 456. New York: Columbia University Press, 2010.

Okin, Susan Moller. “Is Multiculturalism Bad For Women?.” In Is Multiculturalism Bad For Women, edited by Joshua Cohen, Matthew Howard, and Martha C. Nussbaum, 7 – 24. Princeton, NJ: Princeton University Press, 1999.

Pentassuglia, Gaetano. Minorities in International Law: An Introductory Study. Strasbourg: Council of Europe Publishing, 2002.

Perry, Michael. The Idea of Human Rights: Four Inquiries. New York: Oxford University Press, 1998.

Pius XI. Quadragesimo Anno. In Catholic Social Thought: The Documentary Heritage, edited by David J. O’Brien and Thomas A. Shannon, 42 – 79. Maryknoll, NY: Orbis Books, 2005.

202 Porter, Jean. Nature as Reason: A Thomistic Theory of the Natural Law. Grand Rapids, MI: William B. Eerdmans Publishing Company, 2005.

Quane, Helen. “The UN Declaration on the Rights of Indigenous Peoples: New Directions for Self Determination and Participatory Rights?.” In Reflections on the UN Declaration on the Rights of Indigenous Peoples, 259 – 287. Oxford: Hart Publishing, 2011.

Rorty, Richard. “Human Rights, Rationality, and Sentimentality.” In On Human Rights: The Oxford Amnesty Lectures 1993, edited by Stephen Shute and Susan Hurley, 111 – 134. New York: BasicBooks, 1993.

_____. “Religious Faith, Intellectual Responsibility and Romance.” Chap. 10 in Philosophy and Social Hope. London: Penguin Books, 1999.

Ryan, Thomas. “Revisiting Affective Knowledge and Connaturality in Aquinas.” Theological Studies 66 (2005): 49 – 68.

Sachs, Jeffrey. The End of Poverty: Economic Possibilities for Our Time. New York: Penguin Books, 2005.

Sen, Amartya. “Human Rights and Asian Values.” The New Republic, July 1997.

Sigmund, Paul. Liberation Theology at the Crossroads: Democracy or Revolution?. New York: Oxford University Press, 1990.

_____. “The Transformation of Christian Democratic Ideology: Transcending Left and Right, or Whatever Happened to the Third Way?.” In Christian Democracy in Latin America: Electoral Competition and Regime Conflicts, 64 – 77. Stanford, CA: Stanford University Press, 2003.

Thornberry, Patrick. “Integrating the UN Declaration on the Rights of Indigenous Peoples into CERD Practice.” In Reflections on the UN Declaration on the Rights of Indigenous Peoples, 61 – 91. Oxford: Hart Publishing, 2011.

Traina, Cristina L.H. “Gustavo Gutiérrez and Social Solidarity.” Ch. 7 in Feminist Ethics and Natural Law: The End of Anathemas. Washington, D.C.: Georgetown University Press, 1999.

Tranvouez, Yvon. “Left Catholicism and Christian Progressivism in France (1945 – 1955).” In Left Catholicism 1943 – 1955: Catholics and Society in Western Europe at the Point of Liberation, edited by Gerd-Rainer Horn and Emmanuel Gerard, 91 – 101. Leuven, Belgium: Leuven University Press, 2001.

Twiss, Sumner B. “Moral Grounds and Plural Cultures.” Journal of Religious Ethics 26, no. 2 (1998): 271 – 282. _____. “A Constructive Framework for Discussing Confucianism and Human Rights.” In Confucianism and Human Rights, edited by Wm. Theodore de Bary and Tu Weiming, 27 – 53. New York: Columbia University Press, 1998.

203 _____. “Religion and Human Rights: A Comparative Perspective.” In Explorations in Global Ethics: Comparative & Interreligious Dialogue, edited by Sumner B. Twiss and Bruce Grelle, 155 – 175. Boulder, CO: Westview Press, 2000.

_____. “History, Human Rights, and Globalization.” Journal of Religious Ethics 32, no. 1 (2004): 39 – 70.

_____. “Global Ethics and Human Rights: A Reflection.” Journal of Religious Ethics 39, no. 2 (2011): 204 – 222.

UN General Assembly. Third Session. Universal Declaration of Human Rights. Paris: UNGA, 1948.

_____. Fifteenth Session. “UN General Assembly Resolution 1514 (XV).” 1960. http://www .un.org/documents/ga/res/15/ares15.htm.

_____. Twenty-first session. International Covenant on Economic, Social and Cultural Rights and International Covenant on Civil and Political Rights. 1966.

_____. Sixty-first session. The United Nations Declaration on the Rights of Indigenous Peoples. 2007.

United Nations. Charter of the United Nations. San Francisco: UN, 1945. http://www.un.org/en/ documents/charter/.

Weston, Burns H. “The Universality of Human Rights in a Multicultured World: Toward Respectful Decision-Making.” In The Future of International Human Rights, edited by Burns H. Weston and Stephen Marks, 65 – 99. Ardsley, NY: Transnational Publishers, Inc., 1999.

Williams, Edward J. Latin American Christian Democratic Parties. Knoxville, TN: The University of Tennessee Press, 1967.

Williams, Philip and Guillermina Seri. “The Limits of Reformism: The Rise and Fall of Christian Democracy in El Salvador and Guatemala.” In Christian Democracy in Latin America: Electoral Competition and Regime Conflicts, 301 – 329. Stanford, CA: Stanford University Press, 2003.

World Conference on Human Rights. Vienna Declaration and Programme of Action. Vienna: 1993. http://www2.ohchr.org/english/law/Vienna.htm.

Yokota, Yozo. “Reflections on the Future of Economic, Social, and Cultural Rights.” In The Future of International Human Rights, edited by Burns H. Weston and Stephen Marks, 201 – 223. Ardsley, NY: Transnational Publishers, Inc., 1999.

204 Xanthaki, Alexandra. “The UN Declaration on the Rights of Indigenous Peoples and Collective Rights: What’s the Future for Indigenous Women?.” in Reflections on the UN Declaration on the Rights of Indigenous Peoples, edited by Stephen Allen and Alexandra Xanthaki, 413 – 431. Oxford: Hart Publishing, 2011.

Zakaria, Fareed and Lee Kuan Yew. “Culture is Destiny: A Conversation with Lee Kuan Yew.” Foreign Affairs 73, no. 2 (1994): 109 – 126.

205 BIOGRAPHICAL SKETCH

KEITH MAY

I was born in Greenville, SC on July 13, 1979. At the age of five, I moved to Augusta, GA, from where my parents originated. I spent my formative years in Augusta, GA. I attended Augusta

State University, now Georgia Regents University, where I earned my Bachelor of Arts degree in

Political Science in December 2003. In the summer of 2004, I moved to Tallahassee, FL to pursue my Master of Arts degree in International Affairs at The Florida State University. I was awarded the Master of Arts degree in May 2006. In fall 2006, I entered into the Doctor of

Philosophy degree program in the Religion, Ethics, and Philosophy track of the Religion

Department at The Florida State University. I will be completing the Doctor of Philosophy

Degree in the spring of 2013.

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