New rights and old wrongs

We live in an age of increasing sensitivity to rights and wrongs. This is, in many, many ways, a good thing. The recognition that things are not the way they are supposed to be is the first step to addressing what is wrong with the world, including ourselves—what’s wrong out there in the world as well as in here in each one of us. We must accurately perceive a problem before we can hope to find ways to effectively address it or when we cannot fix it, to find someone who can.

Seventy-five years ago this month the Universal Declaration of Human Rights (UDHR) was promulgated, and with it came a new era of global respect for human dignity. After the horrors of two world wars and especially the specter of the Holocaust, the world was ready to acknowledge that there are some objective standards for how human beings ought to be treated. Christians, most notably the Roman Catholic philosopher Jacques Maritain and the Orthodox scholar Charles Malik, helped develop and champion this new charter of human rights.

As salutary as the UDHR is both in terms of its goals and its substance, however, it also represents an unfortunate development in our public discourse. Our zeal for justice often goes awry when it is dominated by recourse to the language of human rights, which are almost always understood to require legal recognition and protection of some kind. If there is something that is wrong with the world, this injustice is almost always cast as a violation of basic human rights and the intrinsic dignity of every individual. Such wrongs, we are inclined to think, must be addressed in the most direct and effective way available to us—the law.

Our governments pass laws and ordinances and implement regulations and resolutions to address wrongs, and levy fines and other penalties for legal infractions, and we sue those we think have done us some kind of actionable harm. Much of this is both necessary and unavoidable in a pluralistic, democratic, and free society. The limits of what can be done and said must be drawn somewhere, and there will inevitably be disputes at the places where those lines are drawn.

But it is also true that we can address things we perceive to be wrong with the world in the wrong way. We can draw more legal lines than are wise or even strictly necessary to uphold and protect the foundations of justice in our society. And that is actually what we have done for some time now.

In this way, ours is an age increasingly characterized by what many have identified as “rights inflation.” As the legal scholar Mary Ann Glendon has put it, “Discourse about rights has become the principal language that we use in public settings to discuss weighty questions of right and wrong, but time and again it proves inadequate, or leads to a standoff of one right against another.” Glendon’s point is not that the idea of inalienable human rights is itself wrong (she recently wrote an entire volume exploring the context of the UDHR). Human rights are, instead, a deeply true and important idea that has been abused.

“A rapidly expanding catalog of rights—extending to trees, animals, smokers, nonsmokers, consumers, and so on—not only multiplies the occasions for collisions, but it risks trivializing core democratic values,” says Glendon.

Rights talk tends to be oppositional and win/lose rather than win/win. Thus, Glendon warns, “A tendency to frame nearly every social controversy in terms of a clash of rights … impedes compromise, mutual understanding, and the discovery of common ground.” And this is precisely where we are at today, and what we are faced with public policy that has contributed to the rapidly expanding catalog of rights, not only related to sex discrimination but extending to “sexual orientation, gender expression, gender identity.”

This road of continually extending the catalog of rights is paved with litigation and leads to discord and conflict. At the very least, any time some right has been newly discovered or is first provided with legal protection, the fundamental religious liberty and conscience rights of those who disagree must likewise be protected and respected.

And it is not enough to acknowledge that religious liberty involves the freedom to worship in churches, mosques, temples, synagogues, and sacred spaces. Religion necessarily involves comprehensive claims about all of reality, including the transcendent and the divine as well as the human and the social. We bring our convictions with us everywhere we go—into our homes, our workplaces, our businesses, our schools, and our city council meetings, as well as our houses of worship.

Protecting rights through the power of positive law is sometimes necessary. But it is always fraught. As powerful as the reality of human rights is, it can never be justly used to violate the consciences of others. The individual conscience may never be crossed without creating new wrongs even while attempting to protect and promote new rights.

As we recognize the achievement embodied in the Universal Declaration of Human Rights and the hope it represents, we should also beware the abuse “rights talk” and the social morass resulting from rights that are separated from the moral order and God’s law.