Christian Human Rights

Samuel Moyn

• Publisher: University of Pennsylvania Press
• Year: 2015
• ISBN:
  9780812292770
• Topic: Politics & International Relations
• Subtopic: Human Rights
• Index: Politics & International Relations

In Christian Human Rights, Samuel Moyn asserts that the rise of human rights after World War II was prefigured and inspired by a defense of the dignity of the human person that first arose in Christian churches and religious thought in the years just prior to the outbreak of the war. The Roman Catholic Church and transatlantic Protestant circles dominated the public discussion of the new principles in what became the last European golden age for the Christian faith. At the same time, West European governments after World War II, particularly in the ascendant Christian Democratic parties, became more tolerant of public expressions of religious piety. Human rights rose to public prominence in the space opened up by these dual developments of the early Cold War.Moyn argues that human dignity became central to Christian political discourse as early as 1937. Pius XII's wartime Christmas addresses announced the basic idea of universal human rights as a principle of world, and not merely state, order. By focusing on the 1930s and 1940s, Moyn demonstrates how the language of human rights was separated from the secular heritage of the French Revolution and put to use by postwar democracies governed by Christian parties, which reinvented them to impose moral constraints on individuals, support conservative family structures, and preserve existing social hierarchies. The book ends with a provocative chapter that traces contemporary European struggles to assimilate Muslim immigrants to the continent's legacy of Christian human rights.

Chapter 1

The Secret History of Human Dignity

In the Name of the Most Holy Trinity, from Whom all authority and to Whom,

as our final end, all actions both of men and States must be referred,

We, the people of Éire,

Humbly acknowledging all our obligations to our Divine Lord, Jesus Christ,

Who sustained our fathers through centuries of trial,

Gratefully remembering their heroic and unremitting struggle

to regain the rightful independence of our Nation,

And seeking to promote the common good,

with due observance of Prudence, Justice and Charity,

so that the dignity and freedom of the individual may be assured,

true social order attained, the unity of our country restored,

and concord established with other nations,

Do hereby adopt, enact, and give to ourselves this Constitution.

—Preamble, Irish Constitution (1937)

“Dignity” is suddenly everywhere in law and philosophy, even though it has long been in decline in general usage. In a popular view, this prominence is essentially due to World War II’s aftermath, when in the shadow of genocide the light of human dignity shone forth. More specifically, it is a new emphasis on dignity—channeling Immanuel Kant’s pioneering Enlightenment insistence on inherent human worth into the United Nations Charter (1945); the Universal Declaration of Human Rights (1948); and the West German Grundgesetz (1949), or Basic Law, all three of which begin with the dignity of the human person as basic principle—that refounded public law for our time. In this conventional wisdom, Germans after the Holocaust went furthest to rethink constitutionalism and provide an example of how to defend human dignity later taken up in South Africa and beyond.1 Though it took some time, dignity has since proceeded in the last few decades, in tandem with the larger fortunes of international human rights law, to become a crucial watchword, going global in various constitutions and international treaties and offering judicial guidance for the protection of basic values.2 Certainly it is true that interest in dignity swarms in legal cases and philosophical discussions today in ways that demand explanation; and the current dispute among judges and commentators about how to interpret dignity provisions is not uninteresting. But is the conventional wisdom about where dignity came from correct in the first place?

The notion of dignity had not been required at any point for the constitutionalization of rights, either in 1776 in Virginia or in 1789 in France—or again in 1946 in France, when the country not only relit its constitutional torch but drew on the flame of constitutional rights guarded by Central and Eastern Europeans in the 1920s.3 Conversely, West Germans writing the Basic Law were not yet concerned by the Jewish tragedy. And while it is certainly true that Kant occasionally referenced dignity, none of his political disciples have made anything of this fact—and his current philosophical disciples only in the last few years. For that matter, there were no Kantians in Germany of note after World War II (including in the rooms where the Basic Law was prepared and debated), nor really anywhere else. And actually, contrary to familiar beliefs, it was not West Germany that first constitutionalized dignity as leading principle anyway.

Individual human dignity entered global constitutional history in an unexpected place and at a surprising time: Ireland in 1937. It risked—and often still risks—transforming the tradition of rights. After all, 1789 and the liberal secular values for which that date stood in European and world history were not popular in the 1930s or even 1940s and may not have survived the coming of dignity unscathed. More specifically, it was what I shall call “religious constitutionalism” that first canonized dignity: a new form of constitutionalism navigating between the vehement rejection of the secular liberal state long associated with the French Revolution and the widespread demand for an integrally religious social order. To the extent Europeans did not vote with their feet for fascist regimes in an era when most concluded that secular liberalism had failed, it was religious politics that beckoned, indeed almost everywhere at a time of profound intersection of Christian faith and nationalist sentiment. And while outside the Iberian peninsula the new Christian states of the time did not survive the political ecology either of the 1930s when fascism triumphed or of the 1940s when fascism died, Christian Democracy, when it arose after World War II to decades-long dominance in Western Europe, conserved a surprising amount of what came before—notably the central place of religious teachings in public life, including constitutional law.

History matters to the current enthusiasm over human dignity, because while all political and legal concepts are elastic, none ever proves to be exactly as malleable as any other. All bear the marks of their special historical trajectories, so long as partisans of some continuity in their meaning remain to fight on its behalf. This is certainly true of dignity, which emerged as part of an attempt to find a new form of democracy—one that in Europe today, and now many other places too, attracts considerable support. Most important, however, it reveals some of the true ambiance for the crystallization of human rights as a public ideology between the 1930s and the 1940s: a Christian and conservative ambiance. Ireland’s early move to Christian Democracy portended the framework that several other Western European countries would take up, which were uncoincidentally the only ones in which dignity had a constitutional presence for a long time.

Traditions of Constitutionalism: Old, New, and Religious

Boris Mirkine-Guetzévitch was the obvious person—the right man in the right place at the right time—to have the most developed insight available into the trajectory of constitutionally declared rights and their fledgling post–World War II internationalization. But he did not mention human dignity, let alone celebrate it.

A Russian-Jewish émigré in Paris and later New York, Mirkine-Guetzévitch (1892–1955) was a founder of the now prestigious discipline of comparative constitutional law. Born in Kiev, from a highly Russified family, he was a liberal who sympathized with Alexander Kerensky until the Bolsheviks took power. After holding on for two years trying to foment opposition, he fled to Paris, ascending to some prominence as a law professor. Compelled to leave France in 1940, he survived World War II in the United States, where he helped found the famous École libre des hautes études. Thereafter he split his time between the two cities that sheltered him.4 In the 1920s, Mirkine-Guetzévitch had been the premier analyst and proponent of “the new constitutionalism”—as he influentially dubbed it. In his view, the vogue of the rights of man in constitutions had primarily come about as a result of World War I, notably in the constitutions of the eastern European states that arose on the ruins of fallen empires. When he published his analytical study of postwar European constitutions in the early 1950s, he registered the restoration of European democracy after World War II but also the return of the progressive tendency to enthrone the rights of man as the first principles of political order. For Mirkine-Guetzévitch, the victory of Allied arms in World War II allowed not for the invention but for the revival of the new constitutionalism he had first identified and justified.5

The old constitutionalism, even when it involved a written constitution, did not typically proceed from the rights of man. Let us recall that the French tradition from 1789, which had taken the Virginian example of 1776 to the national level where the Americans that same year had decided not to proceed (the framers had merely appended a bill of privileges to their federal constitution under pressure), was spurned when it came time to found the French Third Republic in 1870–77. Through modern times, and indeed long after World War II, the British were proud of disdaining written constitutionalism, to say nothing of the constitutionalization of rights. Notwithstanding some Latin American ventures, the end of World War I, therefore, was the true inflection point for the global ascendancy of constitutionally announced rights; and for Mirkine-Guetzévitch, it always seemed as if constitutionalism based on les droits de l’homme succeeded by easternizing. The best, albeit short-lived, example remained the Weimar Constitution (1919), but in fact all the postimperial states from the Rhine to the Urals had enshrined rights in a similar manner.6 After the retrieval of this tradition by the Resistance, the post–World War II consensus about human rights, signaled by the United Nations Charter and made concrete in the Universal Declaration of Human Rights of 1948, finally swept the European continent. It took to a new stage the truly pioneering interwar breakthrough. Given the precedent of the Weimar Constitution, Mirkine-Guetzévitch hoped West Germany’s Basic Law was part of this trajectory.7

Though it has much to recommend it, no one follows Mirkine-Guetzévitch’s presentation of the progress of rights-based constitutionalism today.8 Present at the creation of constitutionalism founded on human dignity, Mirkine-Guetzévitch may simply have been blind to the era’s true breakthrough. Perhaps he did not—or, more generously, could not—understand in real time what has proven to be a considerable step forward in retrospect. It may be, however, that Mirkine-Guetzévitch is a better guide to what mattered just after war and genocide.

After all, for a long time, including in the 1940s, dignity was most strongly correlated with religious constitutions in general—of which the West German Basic Law was merely one among others—and Christian Democratic constitutions in particular. Those constitutions as much broke with 1789 and safeguarded it, let alone rehabilitated it after disaster. The Irish were the true pioneers both in the development of religious constitutionalism and in symbolizing its project through appeals to human dignity. In their 1937 constitution, they gave it foundational placement, as a religiously inspired root concept connected (as in the later West German case) to the subordination of the otherwise sovereign democratic polity to God—and, for many, to the moral constraints of His natural law. This chapter takes up this neglected but revealing fact. It is critical, I contend in what follows, that dignity came to the world as part of the establishment of an alternative constitutionalism—call it “the newer constitutionalism” of Christian Democracy. So far as I know, there is no general historical study of its emergence; and though Ran Hirschl has contributed a valuable overview of what he provocatively calls “constitutional theocracy” today, there is so far no recognition that religious constitutionalism is the framework in which human dignity first became canonized.9 This newer constitutionalism crystallized precisely in the 1930s when it seemed to so many as if secular liberalism had no future. It was initially part of a replacement package for that secular liberalism; and it remained largely so in West Germany in 1949. The conventional wisdom about the inception of constitutional dignity, in other words, is by and large false.

It then makes more sense that Mirkine-Guetzévitch found nothing of value in dignity; indeed it was as the 1930s passed, when dignity made its constitutional entry, that his liberal trend based on the rights of man was so heartbreakingly cut off by different modes of dictatorial rule, pagan and religious. Every tragedy needs a chorus: “The Spanish Constitution of 1931 was the last act of the new constitutional law of Europe,” he recalled grimly twenty years later. “And well before 1939, one after another, the countries of central and Eastern Europe abandoned their democratic constitutions to become totalitarian.”10 It is therefore both crucial and mysterious that, thanks to the Irish, constitutionalism founded on human dignity also came about in this very period. If it is a bequest from history that we have learned to use for our own ends, it is interesting all the same—and perhaps disturbing—that it came from a different place and time than we thought.

To understand the original meaning of constitutional dignity, this chapter proposes, it is necessary to plunge into the confusing years just before war and genocide, for dignity was a response to different circumstances. The most decisive and illuminating context for the move to constitutional dignity, it turns out, is not in the shocked conscience “after Auschwitz” but in political Catholicism before it, which remained its dominant framework for decades thereafter, when the Holocaust still did not seriously figure in global moral consciousness.11 More specifically, it was in in March 1937 that human dignity made its spectacular entry into world politics—including, thanks to the Irish, into constitutional politics.

Around March 1937: Catholic Dignity between Corporatism and Civil Society

That dignity long ago originated as one status word among others in a universe of aristocratic and hierarchical values is now undoubted. It originated as the literal notion of “rank”—above all, high rank above other humans. James Q. Whitman has argued, following Alexis de Tocqueville, that high status was “democratized” over time, but for all its plausibility, this thesis about long-term social relations does nothing to explain the specifics of dignity’s ideological trajectory in the 1930s and 1940s—let alone since.12 As late as the 1930s, in tune with its millennial prior trajectory, dignity was attached to a huge range of objects—humanity rare and individual humanity extremely rare among them. There was thus little prior basis for the novelty of Ireland’s constitutional preamble, whatever the circulation of the word in world affairs, including one or two constitutional articles, before then.13 Then events in international Catholicism intervened, with the Irish constitutionalization of individual dignity as a leading concept as one of their consequences.

In fact, in March 1937, dignity already had an important place in Catholic politics, but it was radically different than the one it has had since then, thanks to the epoch-making reassignment from groups to individuals the concept underwent. At the beginning of the month, thanks to Pope Pius XI’s encyclicals Casti connubi (1930) and Quadragesimo anno (1931), dignity was still attached primarily to collective entities such as workers and religious sacraments such as marriage. Though not utterly without precedent, it was in March 1937 that dignity attaching to individuals (more precisely, persons) crystallized as a visible ideological option. In the 1930s, no one could have guessed what would become of this option, in large part because the Irish constitution’s version of dignity reflected such a minority political choice in the landscape of political Catholicism. The years during which it was framed were the period in which Catholic states were rising, typically based on corporatist rather than supplementary individualist notions.

In these states, it was family or labor that was dignified, not persons (and thus not persons with rights).14 António Salazar’s corporatist Portuguese constitution of 1933 was followed a year later in Austria by the purest move to a constitution integrating Catholic social teaching, and “Austro-fascist” leader Engelbert Dollfuss consciously announced it as enacting Quadragesimo anno’s economic and social principles. Mirkine-Guetzévitch, a fan of the French Revolution, denounced these as perverse revivals of the Old Regime in constitutionalist disguise; but it surely mattered that these were not only pseudoconstitutional regimes but also ones sometimes echoing the pervasive corporatist assignment of “dignity” to groups.15 Not long after, Spain—with its secular and indeed anticlerical constitution of 1931—fell prey to war and dictatorship, and Francisco Franco introduced dignity to the quasi-constitu...

Table of contents

• Cover
• Title Page
• Copyright Page
• Dedication
• Contents
• Introduction
• 1. The Secret History of Human Dignity
• 2. The Human Person and the Reformulation of Conservatism
• 3. The First Historian of Human Rights
• 4. From Communist to Muslim: Religious Freedom and Christian Legacies
• Epilogue
• Notes
• Index
• Acknowledgments