By Dr. Nirmala Chandrahasan
LL.B, LL.M ,Ph.D, Attorney-at-Law.
I was surprised to see the statements by Malcolm Cardinal Ranjit, which appear to downplay Human Rights. The Cardinal sees it as a secular western European concept, but does not seem to be aware of its Christian roots.
Similarly, Minister Mangala Samaraweera in his rebuttal of the Cardinals statement has referred to the Inquisition and the Crusades which have nothing to do with Christianity per se. The Inquisition was part of the state policy in Spain as well as other newly emerging Nation states. It was an institution which was used to impose conformity in religious practice as part of the attempt to do away with individual rights and impose despotic rule.
Similarly the Crusades ostensibly for liberating the Holy land was used by the European nations to plunder the riches of the East, although it must be admitted that both these projects had the blessings of the Church of Rome at the time.
Human Rights are the inalienable fundamental rights which a person is entitled to simply because he/she is a human being. They are universal in the sense of being applicable to everyone, everywhere. They are egalitarian as they apply equally to everyone and they are inalienable as they cannot be given away. Human Rights can also be described as moral principles or norms that determine certain standards of human behaviour, and are protected as legal rights in national and international law.
In Human Rights the central figure is the human being . Now let us look at Christianity. In Christianity, too, the human being is central. According to the Christian doctrine, God himself comes down to earth and takes the form of a human being in Jesus Christ. Jesus Christ is not born in a palace as a King, but in a stable. His earthly father is a Carpenter, the first persons to whom the birth is announced to by the angels are shepherds, ordinary people not of high status. The emphasis is on the human being as an ordinary person. Jesus comes to redeem mankind and he sacrifices himself for this purpose. So in Christianity it is not Gods who are the focus but man as a vulnerable human being.
The teachings of Jesus Christ
Let us look at the teachings of Jesus Christ. The teachings are community centred, man is looked at as a social being. In the mosaic law there was the Ten Commandments, which set out the law to be followed. This law sets out what is prohibited mainly phased as “Thou shalt not”, but when Jesus was asked he stated the law in positive terms. He said this new law I give unto you” Love God and love your neighbour as yourself.” And who is your neighbour? Humanity itself as illustrated in the parable of the Good Samaritan. This aspect is also amplified in the sermon on the mount where Jesus sets out the good works which we must do. “I was hungry and you gave me to eat, I was naked and you clothed me, I was grieving and you comforted me. Here there is no reference to religious rituals and homage to Gods but service to mankind. We see here the germs of the concept of economic and social rights which are now set out in the United Nations covenants on Human Rights, i. e. the rights to food to shelter and the duty to provide for the welfare of the underprivileged. It could be said that these teachings are the well springs of human rights philosophy.
The Natural Law
Human Rights developed from the natural law theories. These theories were developed in a western European context not because European society per se was more humane than other societies but because the Europeans had been converted to Christianity by missionaries from the Middle East, ie Turkey then known as Asia Minor, Syria, Iraq, Palestine and Egypt and North Africa, as these were then Christian countries till the Arab invasions. The foremost Christian scholars like St Augustine was from the present Algeria, St Paul was from Asia Minor and many more examples could be given. Their teachings were to lay the seeds from which natural law and human rights concepts were to flower in later centuries in Europe.
The earliest conceptualisation of human rights is credited to ideas emanating from Natural law or Divine law. St. Thomas Aquinas 12th Century recognized as the leading theologian of the Catholic church formulated theories of the natural law, also deriving some of his thinking from the Aristoleian philosophy which was then becoming available in Europe. In Aquinas view law is chiefly ordained to the common good. He says happiness is the final end of human action and the first principle of human reason. In so far as law is an ordinance of reason it too must aim at happiness of the whole as the perfect community. He disagrees with the Roman law jurists Ulpian that whatever pleases the Sovereign has the force of law. Aquinas position was that in making laws the sovereign must aim not merely at his own good but the good of all, because law must serve the common good.
This definition would encapsulate what we now term as human rights. In the 18th Century, we see these ideas being incorporated in the American Declaration of independence 1776, “We hold these truths to be self evident that all men are created equal, that they are endowed by their creator with certain inalienable rights, that among these are Life, Liberty and the pursuit of happiness.” St Paul in Romans states “although the gentiles have no written law yet they have natural law whereby each one knows what is good and what is evil.” Aquinas says when we order our actions in accordance with what is good and shun evil we follow the natural law and participate in the eternal law. Since all things subject to divine providence are ruled and measured by the eternal law, it is evident that all things partake of the eternal law which is God’s Law. But he points out that the natural law is a subset of the eternal law, and it binds us as rational creatures, as we have natural reason we are able to distinguish right from wrong ,and in so far as we do it we participate more fully in the divine law.
Aquinas also refers to unjust laws which are contrary to the common good. At the Nuremberg trials in 1944 the Nazi Government officials and armed forces generals, when they were charged with war crimes and crimes against humanity, i. e. inhuman acts committed against civilian populations, brought forward the defence that they were merely executing the laws of the German state and the orders of their superior officers. The Court did not accept this defence and said that individuals had higher duties which transcend the national obligations of obedience imposed by the national state. This doctrine is a recognition of jus cogens and natural law principles. Today the principle of individual responsibility for war crimes, crimes against humanity and genocide is recognized and set out in the Statute of the International Criminal Tribunal. We see here the contribution of Christian theology to the development of International humanitarian law as well and this is also reflected in the humane principles such as the prohibitions against attacking civilians and especially women and children, and the prohibition against executing prisoners of war and those surrendering and many other rules.
Finally, I would like to refer to the Papal Encyclicals, in particular “Pacem in Terris ” by Pope John the XXIII in 1963 which speaks explicitly of Human Rights. It may be noted that though the UN Covenant of 1966 on Economic social and cultural rights had not yet been promulgated, this encyclical enumerates the human rights to include the right to life, the right to bodily integrity and to the means necessary for the proper development of life particularly food, clothing and shelter, medical care, rest and finally the necessary social services. The text goes on to state “the natural rights which we have so far spoken are inextricably bound up with as many duties all applying to one and the same person. These rights and duties derive their origin, their sustenance and their indestructibility from the natural law, which in conferring the one imposes the other”. The Encyclical also states governmental authority therefore is a postulate of the moral order and derives from God. Consequently laws and decrees passed in contravention of the moral order , and hence of the Divine will can have no binding force in conscience, since it is right to obey God rather than man. It goes on to say Attainment of the public good is the purpose of the Public Authority.
Thus, any government which refuses to recognize human rights or acted in violation of them would not only fail in its duties, its decrees would be wholly lacking in binding force. This encyclical sets out clearly the Catholic Church’s concern for human rights, in the present age, while the Christian doctrine itself has shaped the human rights law and concepts from previous centuries up to modern times.