Queen Elizabeth II signs the Canadian Charter of Rights and Freedoms in 1982 as then prime minister Pierre Trudeau looks on. Pro-euthanasia forces have used Canada’s Charter to portray opposition to euthanasia as being opposed to human rights. Register file photo

The right and wrong of human rights

  • April 2, 2016

The Supreme Court ruling that legalized assisted suicide last year didn’t just find a technical problem in the wording of the Criminal Code. It said that Canadians have a right to ask for and receive state-sanctioned aid in killing themselves under certain circumstances.

What kind of right is the right to kill yourself, or to have someone else kill you? How can a right that obligates a third party to kill you be called a human right? Does insisting that assisted death is a humane action make it a human right?

The court’s answer is that assisted suicide is a Charter right found in Sections 7 and 15 of the Canadian Charter of Rights and Freedoms. Those sections guarantee the right to “life, liberty and security of person” and a right to “equality.”  

Charter rights are important, but they aren’t necessarily equivalent to universal human rights. Charter rights underpin the Canadian constitution and are essential to how Canadian courts interpret and apply common law. The problem is that Charter rights sound like universal human rights, and that has made it easy for pro-euthanasia forces to inaccurately portray the Catholic position against assisted killing as being opposed to human rights.

Society must maintain a distinction between legal rights and human rights. Legal rights are rights enshrined to keep the mechanism of the legal system working. Human rights are rights that pre-date the law, constitutions and legal institutions. You have human rights because you are human and they are there to ensure the fullest possible flourishing of your humanity.

Some contemporary Catholic thinkers believe the Church is handicapped in modern debates about public morality because it has accepted the idea and the secular language of human rights. Even though the concept of rights has deep roots in the Church, some Catholics insist that human rights are foreign to Christian thought and tradition. This view was expressed in Alasdair MacIntyre’s very influential book After Virtue. The conservative philosopher asserted that human rights are a fiction from the 18th-century Enlightenment which we’ve been duped into believing.

“There are no such rights, and belief in them is one with belief in witches and in unicorns,” wrote MacIntyre, a Scottish convert to Catholicism.

If the framers of the American Declaration of Independence and the French philosophers who inspired them really thought human rights were “self-evident truths,” they were wrong, according to MacIntrye. “There are no self-evident truths,” he said.

Instead of trying to distinguish good actions from bad actions by appealing to rights, the Christian tradition defines the good. Only then does it judge individual acts good or evil by measuring them against Christian ideals. We call these ideals virtues. This is the idea behind “virtue ethics.”

Rights, after all, are bare minimums. A right to life is just a minimum standard that says other people may not kill you. A right to free speech means only that you cannot be arbitrarily silenced. Property rights are a minimum standard that holds your property may not be seized without compensation.

But MacIntyre’s interpretation of the Enlightenment and modernity is at odds with the Church’s history of social teaching.

The legal theory of human rights is generally traced back earlier than the American and French revolutions, to the writing and campaigning of Dominican preacher and Bishop Bartolomé de las Casas. De las Casas witnessed the treatment of native American slaves on Spanish encomiendas in the New World of the 16th century and he knew evil when he saw it. Influenced by the philosophy of St. Thomas Aquinas, de las Casas argued that the native people deserved their freedom and their land, along with the protection of both the Church and the king, for no other reason than that they were human beings.

This was a whole new notion of rights. Prior to de las Casas, the Church spoke of rights as a feature of a person’s job or office. Bishops had certain rights the king must acknowledge and priests had rights their bishop must respect. This idea of rights was mostly derived from Roman law and was expressed in the Church’s canon law. De las Casas began to express rights in theological language.

“The Church has a really good answer for the ground of our rights,” said Matthew Kostelecky, a philosophy professor at St. Joseph’s College, University of Alberta. “It’s because we are made in the image and the likeness of God. It’s a good answer insofar as it is straightforward. There it is.”

In Catholic social thinking the idea of human rights developed slowly over time. As late as the 1950s some theologians argued against freedom of religion. That nonsense ended with the Second Vatican Council. In Dignitatis Humanae Church fathers reasoned that if religion is part of what makes us human, it follows human beings have a right to practice, hold and believe their religion.

But the Catholic embrace of rights was really confirmed further back, in 1891, when Pope Leo XIII issued Rerum Novarum, which re-imagined the Industrial Revolution with human rights — property rights, the right of workers to associate and act collectively, the right of society to collectively regulate the economy for the common good. Catholic philosopher Jacques Maritain was among the principal authors of the United Nations Universal Declaration of Human Rights after the Second World War. In Love and Responsibility, St. John Paul II spoke of the rights entailed in being human in theological terms.

“A person’s rightful due is to be treated as an object of love, not as an object for use,” he wrote.

It is nearly impossible to imagine how Catholics could speak about public issues of morality without talking about rights.

“(Without rights) you would have to rewrite the catechism. You would have to rewrite all of these encyclicals that have been coming out the last 100 years,” said Kostelecky.

Instead of arguing that human rights are a fiction, or railing against courts and legislatures that interpret rights differently, Catholics need to make better arguments about why a request to kill yourself or to kill a fetus is not a right, said Joe Boyle, emeritus professor of philosophy at Toronto’s University of St. Michael’s College.

“The fact of the matter is that you still do need rights, even if the rights that people think you’ve got are not properly justified,” said Boyle.

To know whether a right really is a right, look on the flip side at duties. Every right we hold creates a duty on the part of other people.

“If somebody has a right then somebody else has a duty,” said Boyle. “And that duty is not based on the fact that the king said so or God says so, but on something about the person who has the right. If I have a right to life there’s something about my right that makes a claim on you, that imposes a duty on you, and on everybody else for that matter, not to kill me.”

A right to assisted suicide which creates a duty for a doctor or nurse to kill you cannot be construed as a human right, because human rights cannot have anti-human outcomes, Boyle reasons.

Forcing doctors and others to violate their conscience to satisfy an individual’s request exposes any legal right to assisted suicide as something different from human rights. The problem is that courts, legislatures, academics and journalists who claim the high ground of human rights do not know the Christian origins of the idea, said Kostelecky.

“We take a concept that comes to us through the distinct Christian heritage and hollow it out of its original meaning and pass it on without realizing that it was, in its genesis, a Christian concept. But we’re in a post-Christian world that doesn’t understand that stuff,” he said.

We must ask a question about the purpose of human rights. Looking back at the Universal Declaration of Human Rights, the final result sought by Maritain, Canadian legal scholar John Humphrey and Soviet diplomat Alexander Bogomolov was a world where the Holocaust could never happen again. The purpose of human rights at that point was to create a better world, better human societies. It wasn’t about individuals and individual choices. It was about how we choose, collectively, to be a fully human society.

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