Eamonn Keane
Democracy, law, and human rights
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By Eamonn Keane
March 8, 2011

Legislators are called to make laws regulating the rights and duties of citizens for the sake of the common good. To this end they must seek to foster conditions in society that will allow people, either as individuals or in groups, to reach human fulfilment more easily and more fully. This fulfilment goes beyond the material concerns of life. Since the human being is a spiritual being, then the fulfilment we are referring to here has a moral and religious dimension. George Washington was particularly aware of this. In his Farewell Address to the nation on September 17, 1796 he said: "Of all the dispositions and habits, which lead to political prosperity, Religion and Morality are indispensable supports." While cogniscent of the fact that moral principles are discernible to reason, Washington also pointed to the connection between moral maturity and religion by adding: "[R]eason and experience both forbid to expect, that national morality can prevail in exclusion of religious principle."

The acceptance of objective moral principles, which are derived from the natural law which has God as its source, are an inescapable requirement for living in accord with one's own dignity and are the basis upon which the inalienable rights of every person can be guaranteed. Without such a consensus of commonly held objective moral principles, society cannot hold together. Moral relativism turns the subjective ego into a little god and gives rise to the absurd notion that society can prosper while holding all beliefs and lifestyles to be of equal value. In such a milieu, permissiveness and indulgence swamp true concepts of justice. In light of this, it is wholly inadequate to think of democracy only in terms of electoral, political, legislative and judicial processes that give expression to the will of the majority.

If democracies do not acknowledge the existence of absolute and universally binding moral norms, which are foundational to any right notion of inalienable human rights, then they are doomed to collapse into new forms of totalitarianism. We can see such a process at work if we imagine a situation arising in the U.S where the majority of voters petition the Federal government to seek to enhance the nation's genetic pool by introducing legislation allowing for the forcible subjection to 'mercy-killing' procedures of carriers of defective genes deemed likely to result in expensive-to-treat diseases. Would the fact that the 'vox populi' (voice of the people) had so expressed itself justify the adoption by Congress of legislation providing for the licensing of killers and the establishment of killing centres? Next, would the fact that the will of the majority had expressed itself in favour of such savagery exonerate those members of Congress who, while stating their personal opposition to such barbarous acts, nevertheless voted in favour of the legislation on grounds that as public servants they were obliged to meet the expectations of their constituents? In answer to both questions, I would say that such a stance by legislators would be expressive of grave cowardice and a dereliction of duty by failing to use the instruments of government to protect the weak and innocent from those wishing to murder them. Indeed, such an approach to the legalization and facilitation of murder would be akin to Pontius Pilate type administration of justice, whereby the legislator seeks to consolidate his own position in the structure of governance, by condemning the innocent to death so as to placate the mob in its demand for the spilling of innocent blood.

We can learn much about the relationship between democracy, law and human rights from Abraham Lincoln. Writing to a friend in Kentucky named Joshua Speed on August 24, 1855 Lincoln said:

    "Our progress in degeneracy appears to me to be pretty rapid. As a nation, we began by declaring that 'all men are created equal.' We now practically read it 'all men are created equal, except negroes.' When the Know-Nothings get control, it will read 'all men are created equal, except negroes, and foreigners, and Catholics.' When it comes to this I should prefer emigrating to some country where they make no pretence of loving liberty."

When Lincoln stated in his Gettysburg Address in 1863 that democracy is the "government of the people, by the people, and for the people," he did so from a perspective of concern that North America's fledgling democracy might fail. One of the factors that brought this experiment with democracy to a parlous state was the institutionalization of slavery. In 1857, a US Supreme Court decision stated, "A Negro of the African race was regarded...as an article of property." In 1858, a Virginia Supreme Court decision stated, "In the eyes of the law...the slave is not a person." [1] To the extent that the American Civil War was fought over the issue of slavery, then it was in part a conflict over the question of whether or not positive law (man-made law) can ever override natural law so as to violate the inalienable rights of some particular individual or group of human beings.

The paramount human right is the right to life itself of all innocent human beings from conception to natural death. On the basis of the biological data alone, we know that from the moment the human embryo comes into existence, we are dealing with a new human being who has the capacity to grow and develop like all other human beings. Since the embryo is a new human being, justice demands that it be recognized as the subject of inalienable human rights.

In an earlier article in this column titled Abortion and the Eclipse of Reason (July 19, 2010), I pointed out how St. Thomas Aquinas stated that an unjust law such as one permitting the killing of innocent human beings is not law in the true meaning of the term, but rather is a "perversion of law" (Summa Theologica, Q. 95, A. 2). St. Thomas argued that such laws cannot bind the consciences of citizens, since they are intrinsically evil and cannot be ordered to the promotion of the common good. By introducing such laws, legislators exceed their authority and hence citizens are justified in opposing them.

In commenting on the U.S. Supreme Court decision in Planned Parenthood v. Casey, which confirmed Roe v. Wade, the late William Bentley Ball, regarded by some as one of the greatest constitutional lawyers in U.S history, said: "[W]hen five justices of the Supreme Court — Blackmun, Kennedy, O'Connor, Stevens, and Souter — tell you that there is a fundamental right to kill a human being, you know that we can no longer say that we Americans live under the rule of law." [2]

Politicians who support measures directed at the destruction of innocent human life are objectively guilty of crimes against humanity. It is bizarre that many of them present themselves as champions of human rights even though they do not see the defence of embryonic and unborn human life as a supreme human rights question. In this regard it seems that for some it is easier to condemn human rights abuses in far-away countries (which, of course, must be done) than to confront the transgression of the most basic human rights in their own backyard. It is however at this local level of engagement that courage and commitment to justice must first be demonstrated.

NOTES:

[1]  These court decisions are cited by Professor William Brennan in Dehumanizing the Vulnerable: When Word Games Take Lives (Loyola University Press, Chicago, 1995), pp. 6-7.

[2]  Mere Creatures of the State: A View from the Courtroom (New York: Crisis Books, 1994), as quoted by Karen Iacovelli in a review article, "A Lawyer's Legacy" in Crisis (June, 1996) at 49.

© Eamonn Keane

 

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Eamonn Keane

Eamonn Keane is married with five children. He studied Commerce and Education at the National University of Ireland and Religious Education at the Catholic Teachers Training College in Sydney, Australia. He currently serves as Head of Social Science at Sydney's Redfield College... (more)

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