The Problem of Secular Sacredness: Ronald Dworkin, Michael Perry, and Human Rights Foundationalism

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ACKNOWLEDGMENTS

For ongoing extremely helpful discussions and comments, I am indebted to Bill Curtis, Peter Euben, Elizabeth Kiss, Michael Perry, and Dennis Rasmussen. I am also grateful for comments I received on earlier drafts of this article from Joel Kassiola and Ann Davies, as well as members of the Duke University Undergraduate Political Theory Colloquium. Thanks also to Chris Eberle and Michael Perry for allowing me to read and quote from unpublished manuscripts.

Notes

According to Weston (2002: 656), “Most students of human rights trace the historical origins of the concept back to ancient Greece and Rome, where it was closely tied to the pre-modern natural law doctrines of Greek Stoicism (the school of philosophy founded by Zeno of Citium, which held that a universal working force pervades all creation and that human conduct therefore should be judged according to, and brought into harmony with, the law of nature).”

There are a wide variety of quotations from Eastern thinkers to support this point. Among my favorites are those pointed out by Schulz (2002: 183), that “Confucius himself asserted that ‘an oppressive government is worse than a tiger,”’ and Glendon (2001: 74), that “The Bengali Muslim poet and philosopher Humayin Kabir sounded a universalist note in writing about human rights and the Islamic tradition. Kabir proudly recalled that early Islam had ‘succeeded in overcoming distinction of race and colour to an extent experienced neither before nor since.”’ Of course, Schulz (2002: 183) goes on to point out the so-called Asian values critique of human rights, namely that “to advance human rights around the globe is to try to impose American values on other people and hence should be avoided has a certain logical ring to it. Mao was raised in the Chinese tradition. The Chinese tradition has no concept of human rights. To expect Mao to abide by them, therefore, is not only unfair but reflects an attempt to foist Western values on a different culture. The Chinese Communist Party may decree, as indeed it has, that Mao's merits outweigh his mistakes by a proportion of 7 to 3, but making judgments like that is not up to outsiders.” Although Schulz clearly disagrees with this sort of logic, Glendon (2001: 73–74) offers a more powerful disagreement with those, like Singapore's Lee Kuan Yew, who argue that the idea of human rights is a Western construct that does not apply to Asian cultures: “The absence of formal declarations of rights in China, said Confucian philosopher Chung-Shu Lo, did not signify ‘that the Chinese never claimed human rights or enjoyed the basic rights of man.’ He explained: ‘[T]he problem of human rights was seldom discussed by Chinese thinkers of the past, at least in the same way as it was in the West. There was no open declaration of human rights in China, either by individual thinkers or by political constitutions, until this conception was introduced from the West….[However], the idea of human rights developed very early in China, and the right of the people to revolt against oppressive rulers was very early established…A great Confucianist, Mencius (372–289 B.C.), strongly maintained that a government should work for the will of the people. He said: ‘People are of primary importance. The State is of less importance. The sovereign is of least importance.”’ In addition, and perhaps even more pragmatic, are the words of Xiao Quiang, a Chinese dissident, at a 1998 Harvard symposium on the fiftieth anniversary of the Universal Declaration of Human Rights: “If you were to voice dissent from the prevailing view in China, you would end up in jail, and there you would soon be asking for your rights, without worrying about whether they were ‘American’ or ‘Chinese”’ (Glendon 2001: 232).

In the Confucian Analects, “Tse-kung asked, ‘Is there one word that can serve as a principle of conduct for life?’ Confucius replied, ‘It is the word ‘shu’—reciprocity. Do not impose on others what you yourself do not desire”’ (15:23). The Islamic Forty Hadiths of an-Nawawi contends that “Not one of you is a believer until he desires for his brother what he desires for himself” (No. 13). In the Mahabharata of Hinduism, it is said, “Do naught to others which, if done to thee, would cause thee pain: this is the sum of duty” (5.1517). The Buddhist Majjhima Nikaya declares: “Is there a deed, Rahula, thou dost wish to do? Then bethink thee thus: Is this deed conducive to my own harm, or to others harm, or to that of both? Then is this a bad deed entailing suffering. Such a deed must thou surely not do” (1.415). This is by no means an exhaustive list, as it leaves out similar statements from Taoism, Sikhism, Shintoism, Zoroastrianism, and many others. These quotations and many others can found at the Ontario Consultants on Religious Tolerance website: http://www.religioustolerance.org/reciproc.htm

By way of an example, consider this passage about the freeing of slaves from Deuteronomy 15:12–15: “If a fellow Hebrew, a man or a woman, sells himself to you and serves you six years, in the seventh year you must let him go free. And when you release him, do not send him away empty-handed. Supply him liberally from your flock, your threshing floor and your winepress. Give to him as the Lord your God has blessed you. Remember that you were slaves in Egypt and the Lord your God redeemed you. That is why I give you this command today.” It is interesting to note, of course, that this commandment applies to Jewish slaves only, but more important for our present purpose is that there is no manner by which the slave can protest if his owner chooses to disobey God's commandment and keep him in bondage for more than seven years. Any violation of the commandment is between God and the slave-owner; the owner clearly has a duty (to God) to release the slave, but the slave seems not to have an explicit right to his freedom.

I alternate between “human being” and “human life” throughout this article, as Perry writes of the former and Dworkin the latter. Although I recognize that these terms are charged, particularly within the literature on reproductive rights, I do not take a position on whether the concept of sacredness best applies to one or the other. It seems sufficient to note, for the purposes of this article, that it does not seem odd to refer to either the sacredness of all human life or every human being. It might, however, be a bit of a stretch to refer to the inherent dignity of all human life, as opposed to every human being, for reasons discussed in greater length later in this article. My thanks to Allison Daniel Anders for a series of discussions that brought this important point to my attention.

There are, however, some things that tend to blur the distinction for Dworkin. Whereas art is intrinsically valuable, great art is sacred and might also—on occasion—be incrementally valuable. The same, he suggests, might be true of great lives: “even those who are most in favor of controlling population growth would not want fewer Leonardo da Vincis or Martin Luther Kings” (Dworkin 1994: 74). It seems, though, that the question of incremental value is ultimately a personal one; as Dworkin (1994: 74) tells us, “I do not myself wish that there were more paintings by Tintoretto than there are. But I would nevertheless be appalled by the deliberate destruction of even one of those he did paint.” It is not terribly difficult to imagine someone who yearned for more Tintorettos and fewer da Vincis, and it is not immediately obvious from Dworkin's argument how this dispute might be adjudicated.

As Tomasi (1997: 493) correctly notes, “The crucial move, according to Dworkin, is to think of the creative inputs in people's lives, whether from nature (natural selection or, on some views, God's work) or from humans (culture and training), not simply as contributions but as investments.” We can clearly understand what the investment is toward when considering a purely human investment, but it is considerably murkier with natural investments. The puzzle is that despite this difficulty, most people seem quite confident about whether or not their actions are respectful of natural investment: “When human projects, directly or indirectly, threaten an entire species of animal (consider the ivory hunting of the African elephant or the eradication of the snail darter by the Tellico Dam) most people are quite sure that this is a terrible thing, an act of desecration” (Tomasi 1997: 495). The puzzle is solved by what Tomasi terms the investment connection (IC) and, specifically, by the notion that IC is severed by what he calls a crossbasal violation when one closes an investment account opened by someone else. To flesh this idea out somewhat, consider the following example: “When a species of tree or animal naturally goes extinct, there seems to be a great subtraction of nature's creative investment. Yet people do not feel here…that such an event is a violation of the sacred…Since nature (theistic/secular) opened the account embodied in the tree species, when nature closes the account, IC has been preserved…Imagine a different case whereby a community of young lumberjacks had developed a (to them) richly rewarding and meaningful life project centrally committed to the project of efficiently cutting down trees. Unfortunately, the remaining stand of some…tree species gets in their way and is destroyed…In both cases, the eradication of an entire tree species involves a great subtraction from what is wonderful in the world…But, faced with uncertainty about what nature intends…people feel the loss in the lumberjack case is worse because of the way the loss comes about: that loss involves what we might call a sacred violation” (Tomasi 1997: 497–498). Despite all this talk about avoiding sacred violations, Tomasi might not be entirely correct, as two important examples help to highlight. Although it is true that most people worry about the extinction of beautiful, exotic, or helpful animals, the same cannot be said about the possibility of killing off nature's peskier creations. For example, mosquitoes are deliberately destroyed every minute of every day, and people do not so much as pause to consider that these creatures are a product of a great deal of natural investment. Mosquitoes are not on the verge of extinction, of course, but I am not confident that our decision to slap at them would change a great deal if they were. Similarly, few homeowners would be terribly upset if humankind found a way to exterminate crabgrass from the face of the planet. The distinctly human project of cultivating attractive lawns, especially when it involves strong chemicals to destroy weeds, is clearly disrespectful of nature's creative investment in crabgrass. These two examples call attention to the fact that not all of Tomasi's sacred violations are extremely troubling to most people; in fact, most people seem not to be concerned in the least about these sorts of crossbasal violations. Few people, if any, would suggest that human beings and mosquitoes represent equivalent creative investments, of course, which might account for the confidence that Dworkin has in our ability to figure out how much respect we owe to each.

There are, of course, other ways of in which people are awestruck that have no connection at all to sacredness. It is entirely possible for one to be filled with awe and find no value at all in the awesome object or event. Consider this famous description from Machiavelli (1985: 29–30): “And because this point is deserving of notice and of being imitated by others, I do not want to leave it out. Once the duke had taken over Romagna, he found it had been commanded by impotent lords who had been readier to despoil their subjects than to correct them…. So he put there Messer Remirro de Orco, a cruel and ready man, to whom he gave the fullest power. In a short time Remirro reduced it to peace and unity, with the very greatest reputation for himself. Then the duke judged that such excessive authority was not necessary…. And because he knew that past rigors had generated some hatred for Remirro, to purge the spirits of that people and to gain them entirely to himself, he wished to show that if any cruelty had been committed, this had not come from him but from the harsh nature of his minister. And having seized this opportunity, he had him placed one morning in the piazza at Cesena in two pieces, with a piece of wood and a bloody knife beside him. The ferocity of this spectacle left the people at once satisfied and stupefied.”

At times, Dworkin (1994: 248) seems uncertain as to his own position on whether something can possess value independently of anyone valuing it: “I do not mean to take any position on a further, very abstract philosophical issue not pertinent to this discussion: whether great paintings would still be valuable if intelligent life were altogether destroyed forever so that no one could ever have the experience of regarding paintings again. There is no inconsistency in denying that they would have value then, because the value of a painting lies in the kind of experience it makes available, while still insisting that this value is intrinsic because it does not depend on any creatures' actually wanting that kind of experience.”

In 1689, the English Bill of Rights recognized that “the late King James the Second, by the assistance of divers evil counselors, judges, and ministers employed by him, did endeavour to subvert and extirpate the protestant religion, and the laws and liberties of this kingdom” (Ishay 1997: 91). Although the Bill recognized that considerable violations of the citizens' rights had occurred under James, it concluded “that his said highness the prince of Orange will…still preserve them from the violation of their rights, which they have here asserted, and from all other attempts upon their religion, rights, and liberties” (Ishay 1997: 93). Although the English had successfully challenged the notion that kings ruled by divine right, the Bill perpetuates the idea that a small subset of the population ought to rule over the commoners, provided they do so benevolently.

Whereas the English Bill of Rights recognized the necessity for Protestants to “have arms for their defense suitable to their conditions” (Ishay 1997: 92), the first two amendments to the Constitution of the United States of America hoped that weapons would only be “necessary to the security of a free state,” since Congress could “make no law respecting an establishment of religion, or prohibiting the free exercise thereof” (Hamilton, et al. 1961: 542).

As Glover (2001: 3) points out, “To talk of the twentieth-century atrocities is in one way misleading. It is a myth that barbarism is unique to the twentieth century: the whole of human history includes wars, massacres, and every kind of torture and cruelty: there are grounds for thinking that over much of the world the changes of the last hundred years or so have been towards a psychological climate more humane than at any previous time. But it is still right that much of twentieth-century history has been a very unpleasant surprise. Technology has made a difference. The decisions of a few people can mean horror and death for hundreds of thousands, even millions, of other people. These events shock us not only by their scale. They also contrast with the expectations, at least in Europe, with which the twentieth century began.”