June 2000

Failed United States’ Leadership On Human Rights

The half-century of United States’ dominance of international politics has often been characterized as “benevolent” hegemony, or hegemonial “leadership” (Nye, Bound to Lead; Lundestad, East, West, North, South). The underlying assumption is that, contrary to the typical hegemonial power, the United States has used its predominance in the system to promote “public goods,” such as democracy, human rights and free trade (Brilmayer, American Hegemony). The selective pattern of participation and advocacy demonstrated by the United States on human rights, however, reveals why it is widely perceived as the primary obstacle to the progress and success of human rights on the cusp of the new millennium.

Human rights emerged as a theoretical concept and political tool in the aftermath of WW II as numerous international treaties cultivated the legal responsibilities of the sovereign states to honor its citizens’ inherent human rights. The (1948) Universal Declaration of Human Rights and the Convention on the Prevention and Punishment of Genocide demarcated the beginning of this new era. Fifty years of “promoting” human rights has produced a plethora of human rights treaties across the political landscape.

The Cold War with its heavy ideological underpinnings obscured an interesting pattern-while the United States was invariably the first to advocate human rights treaties, it was one of the last to ratify them. Although Presidents have signed many of the “core” treaties, the U.S. Senate has, more often than not, refused to ratify them. The Genocide Convention, for example, was only ratified during the Reagan Administration after a forty-year delay. The United States has joined only one of the treaties based on the Universal Declaration (the Covenant on Civil and Political Rights), and then only during the Bush Administration. The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), hailed as the “international bill of rights” for women, has been stuck in the Senate Foreign Relations Committee for years. The only two countries choosing not to ratify the Rights of the Child are Somalia and the United States. The United States conspicuously refused to join in the recent and highly publicized Landmines Treaty.

The turn of the century has witnessed the international community’s dramatic transition from the “promotion” of human rights to the “protection” of human rights by creating the institutions and authority necessary to oversee that citizens’ rights are respected by the sovereign states. Not only have significant and successful courts emerged on the regional level (in Western Europe and Latin America), but the Security Council also created international tribunals for addressing atrocities in Former Yugoslavia and Rwanda. These courts stand as major achievements in international enforcement. In fact, the United States strongly supported the realization of all these court and firmly advocated the need for an international criminal court throughout the Cold War-until it became a plausible reality.

International Criminal Court

With the end of the Cold War, the United Nations General Assembly requested a draft of an International Criminal Court (ICC). A designated Preparatory Committee reworked its original form (1995-98) and the resulting Rome Conference (15 June to 17 July of 1998) met to consider the draft document which contained 116 articles in 13 section including nearly 1400 brackets (indicating unresolved content or language). The “Committee of the Whole” divided itself into 13 subgroups to address the relevant problems in each section.

The most dynamic political and legal presence at the Rome Conference was the “Like-Minded Group.” This drew upon middling and small states (primarily from Europe and Latin America) as well as the “Coalition for the Establishment of an International Criminal Court” (CICC), an energetic and effective alliance of Non-Governmental Organizations. (Note: Plugging in INTERNATIONAL CRIMINAL COURT for a web search will bring up both the “Campaign for the Establishment of the ICC” and the “Coalition for the ICC” sites which provide general background and the latest ICC information as well as relevant commentary from Human Rights Watch and Amnesty International). Using the Coalition to Ban Landmines as its model, the CICC proved to be a prime example of the impact that can be made upon international politics by “civil society” (defined in contemporary scholarship as globally-organized citizen groups actively supporting United Nations’ goals). The “Like-Minded Group” envisioned an independent court with an independent prosecutor and an ICC with universal jurisdiction over the four most serious international crimes.

Four “Core” Crimes

The first of these international crimes was readily agreed upon. The crime of genocide is defined in its treaty as the deliberate attempt to destroy “in whole or in part” members of a religious, ethnic or racial group. Neither “reasons of state” nor the orders of superiors provide a defense. The ICC’s automatic and universal jurisdiction over genocide gained swift approval without significant dissent.

At Nuremberg, “crimes against humanity” were prosecuted only in connection with other crimes. The International Tribunal for Former Yugoslavia broke new ground in advancing its legal status. Under the ICC’s mandate, “widespread or systematic” attacks against civilians, including murder, torture, “disappearances,” rape, and forcible transfers were denoted as “crimes against humanity.” Careful attention was given at the Rome Conference to establish that deliberate policies of rape and sexual slavery were included in its definition. Moreover, this crime was not confined (as it had been at Nuremberg) to the context of international war, but also covered such acts when committed within a civil conflict or even during peacetime. This last factor alone signifies a significant inroad on state sovereignty on behalf of human rights.

Undoubtedly the oddest outcome of the Rome Conference lies in the status of the crime of aggression (also identified and punished at Nuremberg). The United Nations had repeatedly failed in its historical quest to find a consensus definition for aggression. The “Like-Minded Group” strongly advocated for its inclusion in the ICC’s mandate. The permanent members of the Security Council, however, fought vigorously for the preeminence of Article 39 of the UN Charter which clarifies that the Security Council has sole authority to identify aggression and authorize a response on behalf of the international community. (Hence, aggression is whatever the Security Council says it is under the UN Charter.) The Rome Conference crafted a curious compromise-aggression became one of the four “core” crimes under the ICC’s authority-although the ICC could never exercise this authority until 7/8th of its adherents approved of a working definition.

War crimes remains virtually the oldest area of customary international law, protecting the treatment of prisoners-of-war and civilians, and prohibiting certain weapons, among other features. (The proposal from several Non-Aligned states to add nuclear weapons to the list of illegal weapons alarmed the United States, which successfully defeated the effort.) The Clinton Administration, which had signaled its support for the ICC as recently as four months before the Rome Conference, dug in its heels on war crimes. Could U.S. soldiers be dragged before a politically motivated prosecutor for actions undertaken even in fulfillment of United Nations-sponsored humanitarian efforts? What the Clinton Administration sought but failed to get was essentially an iron-clad guarantee that no U.S. soldier would end up on trial by the ICC for alleged war crimes. Although deliberate intent is required of war crimes acts (so that an accidental bombing of civilians, e.g. as happened in Kosovo, would not create legal vulnerability), this issue sparked such fierce opposition by the Pentagon that it swayed the Clinton Administration into absolute opposition. The United States then floated the idea that it might join the ICC if it could join with an exemption on war crimes. This notion drew vehement denunciation by the “Like-Minded Group” and others. In one of the several attempt to satisfy the United States, a 7 year “opt-out” provision for war crimes was inserted permitting a state to join the ICC while being immune from its war crimes authority for 7 years.

Jurisdiction

The Security Council may request that the ICC prosecutor take up a case, provided that 9 of its 15 members, including all of the permanent members, agree. The United States argued that this should be the only process by which the prosecutor could consider legal action. Of course, this would in effect permit the permanent members of the Security Council to veto any potential actions against themselves and their allies.

The Rome Conference, despite U.S. opposition, added 2 more routes to activate the prosecutor. State members, either the territorial state where the alleged crime was committed, or the nationality state of the accused violator, could request the prosecutor’s investigation, but only under restrictive and complicated conditions. At U.S. insistence, territorial or nationality states could invoke the prosecutor attention only following the format of “complementality.”

“Complementality” means the prosecutor would request the relevant state to do its own investigation and evaluation of the merits of the charge, and, if appropriate, try the individual in their own domestic court system. The ICC would in fact come into play only by taking up jurisdiction if the state proved either “unable” or “unwilling” to carry out a legitimate investigation and prosecution according to a three-person panel of the ICC (serving as a pre-trial chamber). When and if the ICC takes a case following the “complementality” procedure, the prosecutor is limited to “requesting” (not compelling) witnesses, and “seeking” (not demanding) state cooperation. Moreover, the Security Council may require the ICC to suspend any of the ICC’s investigations or trials for 12 months-an option that can be renewed indefinitely.

United States Rejection of ICC

France and the United Kingdom had been noncommittal about the ICC until the series of compromises on “complementality” had been worked out. At that point, they joined virtually the rest of the European Union in aligning to support of the ICC. David Schiffer, the U.S. Ambassador to the Rome Conference, squeezed out “complementality” and other compromises by implying that the United States would join if these points were satisfied. On July 17th, 120 nation-states voted to accept what now became the Rome Treaty creating the ICC, while the United States joined Algeria, Iran, Iraq, Israel, Libya, North Korea, the PRC and Sudan in opposition to the ICC. (There were also 21 abstentions.)

Ambassador Schiffer explained that the Rome Conference had been hectic, pointing out the 1400 unresolved provisions and that the final draft was received at 2 am on July 17th. This foreclosed a careful, line-by-line reading of its provisions and left the United States with an unacceptable take it or leave it proposition. Furthermore, the notion of “complementality” left the possibility that two members of the ICC pre-trial chamber could overrule (by 2-1) the United States judicial system on such a vital matter. Noting that the United States has the largest deployment of military personnel in the history of the world, often to the most troubled parts of the world at the very request of the United Nations, it would be not be in U.S. national interest to endorse the Rome Treaty.

The Preparatory Committee continued to meet in the following months to work out the treaty’s details with active U.S. participation. In August of 1999, the United States made it known to the Preparatory Committee that there was still time to reconsider on both sides-would it entertain a provision that would secure U.S. support for the treaty? It would. The United States then proposed an exemption from the war crimes mandate for those military actions committed as “official acts.” In other words, military actions undertaken at the express command of the appropriate military hierarchy could not constitute war crimes. Voicing the opinion of virtually all the participants, one disgruntled observer noted that this would have reversed the protection of human rights to its pre-Nuremberg status.

The United States presently has little credibility with the CICC or states supportive of the ICC. Senator Jesse Helms, the powerful chair of the Senate Foreign Relations Committee, has forcefully and repeatedly declared the Rome Treaty “dead in the water.” It may be DOA in the United States, but the ICC presently has over 90 signatures, and many anticipate its achievement by December of 2001 of the 60 ratifications necessary to bring it into force.

Ironically, many liberal supporters have not only lost their enthusiasm for the ICC, but have moved, in some cases, to actively oppose the Rome Treaty based on two arguments. First, they allege that the ICC was unconscionably weakened to entice the United States to join. Not only did the United States spurn the ICC, but it managed to mangle the intended judicial capacity of the ICC through “complementality” and other compromises that in effect crippled it. Secondly, many leftist critics fear that the ICC may be seen as a visible and viable punishment for the worst international criminals, and thus provide a convenient excuse for the international community to avoid humanitarian intervention during a crisis. In other words, the ICC may end up functioning as an excuse or substitute for actually taking action to stop horrific bloodshed in difficult cases like those in Former Yugoslavia and Rwanda.

The United States’ Failed Leadership on Human Rights

To many of its critics, the United States’ posture opposing the ICC signifies that the “emperor has no clothes” (Amnesty International, Annual Report; Human Rights Watch, World Report). Once the unquestioned international champion of human rights, the United States regressed into the most prominent Western recalcitrant on human rights by its refusal to join human rights treaties, and then further retreated from its original role to become the chief obstacle to the supreme achievement of human rights-an International Criminal Court signifying the genuine “protection” of human rights.

–Nancy Haanstad, PhD
Weber State University


God Bless You, Dr. Kevorkian

~Book Review~

Kurt Vonnegut, honorary president of the AHA and my own favorite author, has done it again. He has published a short book where he visits with 21 dead people. He is able to accomplish this feat with the help of Dr. Jack Kevorkian and the staff at the state-of-the-art lethal injection execution facility at Huntsville, Texas. They transport Kurt down the “blue tunnel to the Pearly Gates” where he meets with the past luminaries for a short chat. Of course he doesn’t actually pass through the Gates, because once through, there can be no return.

Of interest to humanists is the forward section of the book: Vonnegut notes that he is a humanist who believes in neither heaven nor hell. He also offers several short definitions of humanism: “I have tried to behave decently without any expectation of rewards or punishment after I’m dead.” Again, “‘humanist’ is nothing more supernatural than a handy synonym for ‘good citizenship and common decency.'” And “humanists, having received no credible information about any sort of God, are content to serve as well as they can, the only abstraction with which they have some familiarity: their communities.”

The vignettes take the form of a reporter for a New York public radio station who visits with historical people including: Clarence Darrow, John Brown, Adolf Hitler, Isaac Newton, James Earl Ray, William Shakespeare, Isaac Asimov, Kilgore Trout (who isn’t actually dead yet, but then he has lived only in Vonnegut’s pages), and others. The reports were designed to fit 90-second interludes on WNYC.

The 79-page book is a joyous treat, humor and thought provoking prose from one of the 20th Century’s greatest fiction writers. I encourage you to get a copy and enjoy it!

–Wayne Wilson


Where Do We Go From Here?

I have been feeling a little frustrated recently and I’m appealing to you for some inspiration and guidance. Our membership numbers seem to have reached a plateau and I would like to see the growth renewed. Two areas are important to the health of our chapter:

  • Offering programs and activities that make the chapter meaningful to members.
  • Creating public relations activities that attract the interest and attention of new people.

To give you an example, during the past two years I’ve had the opportunity to speak to several hundred students in classes at the University of Utah. The student evaluation papers regarding my presentation indicate that about 95% of them had never heard of humanism before I spoke to them. The most frequent comment regarding humanism was surprise that people who do not fear godly judgment can have such a positive attitude about life and high moral values. A few of the students have requested more information or attended our meetings but most of them are now aware of humanism and many respect our view points as legitimate even though they disagree.

I would appreciate your comments on how we may expand public knowledge of humanism and your thoughts on programs and activities that would enhance your personal involvement in our chapter. No comment or suggestion is too ridiculous to consider.

–Flo Wineriter


The Social Contract and Human Rights

The true civilization is where every man gives to every other every right he claims for himself.
–Robert G. Ingersoll

Over the years there has been an off-and-on discussion in the pages of the Humanist about the meaning of natural rights and human rights. For example, in an article entitled “Demythologizing Natural Human Rights” in the May/June 1989 issue, Delos B. McKown advanced the view that human rights possess no independent existence; they are mere creatures of law that “are neither immutable nor permanent.”

In a direct response to McKown, Tibor R. Machan wrote the article “Are Human Rights Real?” published in the November/December 1989 issue. Denying McKown’s proposition, Machan insisted that human rights are unalienable and inherent in human nature, concluding that, “without the ‘borders’ that basic human rights define between individuals, people would be able to harm otheto harm others or rob them of their achievements all too easily.”

Responding to Machan, Anselm Atkins weighed in with his March/April 1990 article “Human Rights Are Cultural Artifacts,” in which he rejected the notion of inherent human rights from the standpoint of evolutionary biology. Atkins argued that “a right is … something furnished, granted to, or bestowed upon someone. It comes from outside–something ‘extra’ to the being.” He then concluded: “Philosophically, the only way to found or establish such a thing as a ‘natural right’ is to presuppose a god who bestows and secures such rights. Absent a god, there can be no natural rights.”

More recently, Fred Edwords, chronicling “The Advance of Human Rights” in the November/December 1998 Humanist, presented evidence that the whole concept of human rights as we know it is an extremely late development in human history–scarcely older than the seventeenth century–and that, even within this context, the idea was “applied in but a few small parts of the globe to a chosen few” until around the middle of the twentieth century.

My own position is that human rights are not legal fictions conferred by governments but are inherent features of our nature as human beings. And while it is clear that our knowledge and understanding of human rights are relatively modern, human rights themselves are as old as humanity.

All societies have rules or laws and require their members to obey themthem for the peace and good order of that society. In this regard, philosopher John Rawls assumes in his book A Theory of Justice that a society is defined by its rules. He writes that a society is “a more or less self-sufficient association of persons who in their relations to one another recognize certain rules of conduct as binding and who for the most part act in accordance with them.” But why should any free and independent person consciously and willingly choose to obey any king or chieftain or the laws of a society? To answer this question, we need to understand that there are essentially two sources for the duty to obey such laws. The first is authority; the second is mutual consent.

In Europe, the authoritarian doctrine of the divine right of kings, evolving out of the Middle Ages and continuing into the eighteenth century, asserted that kingly authority was derived from the higher authority of God and therefore could not be called into question by either parliament or people. In many other cultures rulers were seen as gods themselves or as direct descendants of gods. Thus obedience to such figures of authority, usually through obedience to their duly ordained subordinates, was seen as a basic duty.

Mere obedience, however, is not necessarily an ethical act. When obedience is either enforced through conquest or slavery, or is simply the result of blind and unthinking compliance with the law, there is no o free, intelligent, and conscious choice involved; there is no consent. To yield to the strong is an act of prudence, not an act of respect for the law. Only when submission to the authority of a society is learned and accepted as a thoughtful, deliberate choice does acceptance of this duty become an ethical act.

That is where the second source of the duty to obey the laws comes from: negotiated consent to be so obligated–a consent mutually given and accepted by all members in the society. As Samuel Johnson observed in his 1766 Letter to Boswell: “Life cannot subsist in society but by reciprocal concessions.”

This concept of the mutual consent of the governed became the basis for the denunciation of the divine right of kings at the dawn of the European Enlightenment, It was first enunciated philosophically by John Locke in 1690 in his Two Treatises on Civil Government, in which he also developed his theory of self-government and the social contract. He wrote:

Men being, as has been said, by nature all free, equal and independent, no one can be put out of his estate and subjected to the political power of another without his own consent, which is done by agreeing with other men, to join and unite into a community for their comfortable, safe, and peaceable living, one amongst another, in a secure enjoyment of their properties, and a greater seer security against any that are not of it…. When any number of men have so consented to make one community or government, they are thereby presently incorporated, and make one body politic.

After that, majority rule prevails.

Locke’s theory of self-government and the social contract became the philosophical basis that moved Western civilization from authority to agreement as the basis of the civic duty to obey society’s rules. It constituted one of the greatest paradigm shifts in history.

In our time, John Rawls has transformed the classic conception of the social contract from the great myth of Western political thought into a parable-a story or thought experiment used to analyze an abstract concept or explain a moral or ethical process. In Rawls’ scenario, we imagine a gathering of human beings who have been stripped of their accidental characteristics: sex, age, race, nationality or tribe, social status, wealth or poverty, good health or disability. They are left with only the essential characteristics of their human nature.

Thus each is an animal that is a predator with needs and appetites for food, clothing, and shelter. Each needs and wants a mate and territory. And each has basic instincts to protect oneself and one’s offspring. Furthermore, each is rational, able to think at a very abstract and symbolic level, and each has the s the power to remember that action or inaction has consequences and that planning is possible. These humans can make free choices about what is in their own self-interest–and they understand their enlightened self-interest sometimes values long-term goals over short-term satisfactions. Above all, they are social animals that know how to cooperate with each other.

What has been described here is what the law refers to as “the reasonable person.” Each of these human beings becomes that hypothetical or abstract person who will act reasonably under any circumstance.

We then add to this condition the situation that these reasonable people will now come together and make rules for the commonweal, and they will do so behind “the veil at ignorance”–that is, they are without knowledge of who or what they will become when they return to society. They are ignorant of what sex, age, or race they will be; what nationality or tribe they will belong to; what social status or wealth they will possess; what state of health or disability they will find themselves in. They are thus unaware of how the rules they make will affect each of them.

Under these circumstances, Rawls argues, these reasonable people, completely equal in bargaining power and absolutely impartial, will make rules that are both reasonable and just–that is, they will make rules that burden and benefit each person equally. This becomes the ideal social contract.

But how does this ris relate to real life, where no such gathering of equal and impartial reasonable people has ever taken place and where no such social contract has actually been drafted? It is here that we must turn to the concept of an implied or tacit consent to such a social contract.

Of course, such an implied or tacit consent to a social contract by most citizens or subjects would be difficult to establish. How then can people generally be obligated to obey laws based on social contract theory? Our consent is an assumed consent since it is taken as granted or true that every reasonable person in a state of perfect equality and absolute impartiality, if asked, would give such consent. (In real life, where consent is actually withheld from time to time, it is assumed that the conditions of rationality, equality, or impartiality are imperfect.) Therefore every member of a given society is automatically bound by the social contract, since every member’s consent is assumed and required. It is this universally assumed consent to the social contract that constitutes the general basis for political duty.

However, assumed consent is not actual consent; it is consent that is imputed to each person as a member of society. It is, therefore, not an ethical act. Only when people explicitly acknowledge and accept the duties imposed by the social contract, with knowledge and forethought, do they perform an ethical act. And itit is such explicit consent to the duties of the social contract that internalizes a person’s obligation to obey the law.

Basic duties are natural duties since they arise from our nature as human beings. However, these natural duties are not perfected until we form ourselves into social groups, since duties are relationships. For example, the duty not to kill each other becomes a duty only with the formation of the social contract. Before that, it is an inchoate duty. Basic or natural duties are the substantive and necessary provisions of the social contract, but not all the duties in our society are basic. How, then, do we discover which among our many duties are basic? We use the reasonable person test: a duty is a basic duty and a substantive provision of the social contract if reasonable people with equal bargaining power and no knowledge of how the duty will affect them will unanimously agree to it everywhere and at all times.

Let’s take an example. Our process of rational analysis concludes that, when reasonable people gather in a state of perfect equality and absolute impartiality to negotiate the basic rules for a peaceful and just society, the first subject must be war or peace. By definition, there must be a mutual agreement (or law) not to kill (or injure) each other. The agreement not to kill each other is the condition precedent to a peaceful society. Since we begin with the presumption that a reasasonable person is motivated by rational self-interest and the basic instinct to survive and therefore desires a peaceful society, every reasonable person will mutually agree not to kill any other member of that society. Moreover, this agreement must be unanimous, since it is essentially the outcome of a disarmament negotiation. Consider the possibility that there is one holdout to the accord. No other party to the proposed compact would surrender weapons unless and until all others in the group have laid their weapons on the table. So the consent must be unanimous and the duty imposed by the agreement universal. Using the reasonable person test, the same analysis can be made of every basic duty that we are obligated to respect. These will be very few.

So at last we can define what we mean by the social contract. It is the compilation of all our basic or natural duties. The social contract is that fundamental compact that consists of the rules imposing basic duties, assigning rights, and distributing the benefits of political, social, and economic cooperation, unanimously agreed to by reasonable people in a state of perfect equality and absolute impartiality. This contract is not the result of a historical event; it is the result of rational and legal analysis and hypothesis. The reasonable person test asks: would reasonable people agree to this or that duty? Would their agreement be unanimous-cross-cultural, cross-generational? The answers are usually given by lawyers, judges, politicians, philosophers, professors, and sometimes by popular vote. While the assembly of reasonable people is hypothetical and their deliberations behind “the veil of ignorance” a parable, the social contract that results from this rational analysis is real. It is the fundamental compact that is assumed to exist in every society.

When governments are formed and laws are made, the social contract becomes positive law–the laws of a particular society. It is similar to an oral contract becoming a written agreement. However, positive law must conform to the agreements of the social contract if they are to be just. Basic natural duties necessarily imposed by the social contract must continue under the laws of every society and government, Organic documents or constitutions must respect basic duties of the social contract because, as we shall see, it is these basic natural duties that give rise to natural or human rights.

What is a right? A right is one side of a relationship; your right is the duty of another. What is a human right? A human right is a relationship arising from our nature as human beings that entitles an individual to certain conduct from all others. It is a contractual right flowing from the social contract that imposes upon all others the necessary and universal duty to act or refrain from acting in a certain way. A human right, however, should not be confused with a possession, like an apple or a house. Nor should it be equated with a human power, like the power to think or see or live. Rather, a human right is a relationship between an individual and all others that entitles a person to certain conduct from every other person and from society. You have the power of life, but the right to your life is created when all others promise not to kill you.

Human rights, or natural rights, are the flip side of the natural duties of the social contract. They are the quid pro quo of the social contract. Human rights are the benefits negotiated by our theoretical reasonable persons and received by each of them as a result of their agreement to accept the natural duties imposed by the social contract. Human rights are the consideration for the obligations assumed under that fundamental agreement.

Recall that when parties enter into a contract each becomes obligated to the other and each reciprocally acquires a right to what is promised by the other. So when we say that you have a right to life, we mean that there is a corresponding duty imposed upon all other persons in our society, and upon the society itself, not to kill you. Therefore each person within that society is entitled to the enforcement of these rights by the government against offending members of that society and against an abusive government itself, not only on behalf of the society as a whole but on behalf of each victimized individual member.

When the authority of a lawgiver, such as God or a king, is made the basis of an obligation to obey good laws, the benefits to society as a whole can be seen but individual rights are not clearly defined. However, when mutual consent emerges as the basis for such an obligation, and when self-government of an adult society becomes a reality, then the existence of individual human rights is revealed quite clearly.

Human or natural rights are only those that arise from the acceptance of natural duties–no more and no less. So to discover a new human right we must first discover a new natural duty, necessary to a peaceful and just society, general in its application, and accepted by consensus. There can be no human right without the acceptance of a corresponding natural duty.

It is equally true that where human rights are abridged or the benefits of social cooperation are denied, the willingness to observe the basic duties of the society is diminished. In fact; the denial or abridgement of human rights constitutes a breach of the social contract. It is no accident that those in a society who perceive themselves as underprivileged rebel and commit crimes against those perceived as privileged.

Human rights are universal since the reciprocal basic natural duties established by the social contract are general in their application to all people and at all times. However, the manifestation of these rights and duties will vary from civilization to civilization, since the degree of knowledge and understanding of these duties and rights will vary and the expression of these duties and rights will be exhibited according to each society’s history and culture and the sense of justice of different people. Nonetheless, the underlying principles are the same everywhere and at all times. Human rights are foreign to no culture and native to all nations, and it is the universality of human rights that gives them their strength.

We assert that these rights are unalienable–that is, they cannot be taken away or even abridged. Therefore no ethical government can deny these basic rights to its citizens since the people don’t receive them from government. Basic rights precede the formation of government, and it is the duty of government to preserve, protect, and defend these rights equally for all its citizens. Moreover, government has the obligation to protect the rights of visitors, travelers, and resident aliens within its jurisdiction and to respect the human rights of the entire human family. Offensive war is immoral and unethical; defensive war is tolerated only when reasonably necessary for the selfdefense of one’s own country or another innocent country victimized by aggressive war.

Human rights are indivisible and interdependent. Everything obviously depends upon the right to one’s life; however, the right to one’s life is inadequate if a person is enslaved or falsely imprisoned. And to be free is a cruel sham if one lives on the edge of starvation. Human rights need to be enjoyed in their entirety, as an indivisible and interdependent whole, in order that people may truly live the good life as human beings in a peaceful and just world.

In the United States, constitutional rights are those rights found in the federal Constitution. But not all constitutional rights are human rights and not all human rights are spelled out in the Constitution. Specifically, First Amendment rights and the prohibition against slavery are both human rights and constitutional rights. However, most of the other constitutional rights are procedural devices designed to enhance equality and the franchise and to protect life, liberty, and property. For example, habeas corpus and the right t the right to a trial by a jury of one’s peers are not human rights; they are procedural safeguards for human rights.

Clearly, then, there are very few human rights–life, liberty, and the pursuit of happiness–but they are basic to our ability to live as human beings. Basic to all is the right to one’s life. The right to liberty includes liberty of the body–that is, freedom from slavery and false imprisonment-and liberty of the mind–that is, freedom of conscience, in spoken and written communications, and in association with others. The concept of ordered liberty adds the right to marry and to raise a family and educate one’s children according to one’s best lights. The pursuit of happiness includes the right to acquire and own property and the right to a minimum standard of living. In recent years, the right to privacy has been added to the short list of human rights.

How do we resolve the apparent conflict between unalienable rights and government by the consent of the governed? Self-government ultimately boils down to government by the majority of those voting. The issue is whether human rights can be abolished or abridged by a majority in Congress, a majority vote in a public referendum, or a supermajority through the process of amending the Constitution.

The philosophy, history, and Supreme Court decisions of the United States have consistently held that human ri9hts–including First Amendment rights–are not subject to a majority vote. Unalienable means unalienable. As Ralph Ketcham states in The Anti-Federalist Papers and the Constitutional Convention Debates: American political thought and experience after 1776 in fact highlighted a tension built into the Declaration of Independence which proclaimed in one clause that certain rights were “unalienable,” and in another that “Governments … derive their just powers from the consent of the governed.” Rights to life, liberty, and the pursuit of happiness were not to be submitted to a vote or to depend on the outcome of elections; that is, not even the consent of the governed could legitimately abridge them. But it was nonetheless possible that the people, through their elected representatives, might sanction laws violating “unalienable” rights. Suppose legislatures, state or national, passed laws abridging freedom of the press, or violating liberty of conscience, or permitting default on contracts, as happened in the 1780s. Which principle had priority, that of “consent” or that of “unalienable rights”? Unless it could be assured that all, or at least a majority of the people would always protect “unalienable rights,” which few thought likely, the American Revolutionists seemed committed to propositions not always compatible. The Federal Constitution of 1787 was one effort to contain the tension, and the debate over its ratification often revolved around whether the framers had properly adjusted the balance of the two principles. Virtually all the members of the Federal Convention, and both sides in the ratification struggle, sought to fulfill the purposes of the Declaration of independence to both protect rights and insure government by consent. The key differences arose over which purpose to emphasize and what mechanisms of government best assured some fulfillment of each.

There is no power in our government-be it Congress acting through a majority of both houses and with the consent of the president, the Supreme Court acting through a majority of its justices, a plebiscite of the whole people, or even a supermajority acting to amend the Constitution-that can abolish or abridge human rights; they remain even if denied. The natural duties of the social contract are ethically binding upon our federal and state governments, and the human rights flowing therefrom cannot be taken away in whole or in part.

However, Congress and the courts do have the power to define those rights–as in the right to life and capital punishment–and to describe the outer boundaries of those rights–as with the exercise of free speech and the prohibition against defamation–and to balance one right against another–as in the case of freedom of public assembly and the needs of public safety. And as our knowledge and understanding of human rights develop, we can improve or expand the scope of existing rights–with the application of free speech rights to the Internet and identify or define new human rights–as with the right to privacy.

So we see that universal human rights are real, They are derived from our biological nature as social animals and the logical principle of reciprocity as applied by reasonable people through a theoretical social contract. Rights, of course, imply duties, and those duties fall as much upon governments as individuals. So rights cannot be abolished by governments or even by democratic majorities; they can only be recognized.

Governments therefore become just when they enforce the basic natural duties and protect the human rights flowing therefrom that constitute the social contract. And individuals become ethical when they freely acknowledge and affirm obedience to these basic duties as a personal obligation and give their informed consent to respect and honor the human rights of all other human beings.

–Robert Grant
is a practicing attorney and former judge living in New Rochelle, NY.


Are Mormons Creationists?

Richard Layton’s Discussion Group Report

There are many versions of creationists, points out Duane E. Jeffery, BYU professor of zoology, in an April 1985 Sunstone magazine article, “Are Mormons Creationists?” In common American non-LDS usage, the term “creationists” refers to “persons of very ?fundamental? Christian persuasion who have banded together to promulgate certain views pertaining to the origin of the universe, earth, man, and so on. These include the tenets that God is omniscient, sovereign, absolute, and omnipotent; that he created all time, space, and matter instantaneously and out of nothing (ex nihilo) roughly 6,000-10,000 years ago. From such matter (dust), he then molded a body for man and created Eve from a rib thereof…over a period of six literal 24-hour days and …spoke, and things came instantaneously into existence, fully developed and functioning.” He is responsible to no power or laws other than his own and works by supernatural processes. Natural laws are seen as ungodly, the results of sin and wickedness. “Such concepts,” says Jeffery, “are demonstrably foreign to the philosophical underpinnings of Mormon theology.” He does not believe that Mormons should jump on the bandwagon with creationists, since there are important theological differences between Mormonism and creationism.

Mormon prophet Brigham Young responded directly to creationist concepts; “When you tell me that father Adam was made as we make adobies [sic] from the earth, you tell me what I deem an idle tale…There is no such thing in all the eternities where the Gods dwell.” Other statements from top Mormon authorities are: John A Widtsoe, General Authority: “The statement that man was made from the dust of the earth is merely figurative…Likewise the statement that God breathed into man the breath of life is figurative.” Church President Spencer W. Kimball: “The story of the rib, of course, is figurative.” President Joseph F. Smith: “The Church itself has no philosophy about the modus operandi employed by the Lord in His creation of the world, and much of the talk therefore about the philosophy of Mormonism is altogether misleading.” The First Presidency in 1860 and the first presidency and the Quorum of the Twelve in 1865 denounced Apostle Orson Pratt’s views on this but declined to establish any Church view for exactly what method the “Creator” had employed. In 1909 the First Presidency published a treatise entitled “The Origin of Man,” arguing that man’s spirit derives from divine parentage but paying little attention to the origin of man’s body. Curious LDS readers were answered in the church magazine, The Era, that the Lord had not revealed his methods. Readers were given three possibilities to consider: divinely directed evolution, transplantation from another sphere, or “born here in mortality, as other mortals have been.” None of these agrees with the creationists. Although various views have been expressed on this subject by apostles and presidents of the Church and some of these views have conflicted with each other, through it all the First Presidency, which includes the president of the church, who is considered by Mormons to be the only one who can receive divine revelation for the whole church, has made it clear that the church as yet possesses no precise revealed information on how man’s body was produced by God. In 1931 they ruled against continued discussion of the topic, silencing a running debate on the matter: “Our mission is to bear the message of the restored gospel to the people of the world. Leave Geology, Biology, Archaeology and Anthropology, no one of which has to do with the salvation of the souls of mankind, to scientific research, while we magnify our calling in the realm of the Church.” More recently President Kimball echoed such sentiments, “We don’t know exactly how their [man’s and woman’s] coming into this world happened, and when we’re able to understand it the Lord will tell us.”

Finally, although Jeffery could not have known this when he wrote his article, just a few months ago the Salt Lake Tribune reported that the LDS Church public relations department had told it that the church supports the teaching of evolution in the public schools.

However, LDS spokesmen have overwhelmingly agreed that Adam and Eve were historical people, yet that their bodies were produced by some sort of biological procreation. Jeffery states, “This latter idea is thoroughly repugnant to modern creationists and serves to underscore my final point: that beyond generalities, Mormonism and modern creation are completely incompatible on issues relating to the origin of man. For Mormons it seems clear: believing in creation does not make one a creationist. Indeed Mormons would have to reject their entire philosophical framework to become such. This conclusion becomes even more vivid when one examines concepts of the nature of God, of physical law, and of ex nihilo creation.”