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Tuesday, October 25, 2016
Text: Alan Bray lecture by Conor Gearty. Part 1
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¬†The 2003 Alan Bray lecture was given by Professor Gearty Director of Centre for the Study of Human Rights, LSE, at St Anne's Church, Soho, on 18 October. Reclaiming our tradition: rights, diversity and Catholic social teaching I did not know Alan Bray and so cannot provide any personal reminiscences of the sort that Elizabeth Stuart did so well last year. But reading about him over the summer as I have prepared to give this lecture in his memory has shown me the depth of the talent of the man in whose name we are gathered here this afternoon. The particular strengths that come through for me are Alan Bray's religious faith, his scholarly celebration of friendship, and his political activism in pursuit of a cause that he knew to be just. Many of us might aspire to one of these strengths in the course of our lives; a few of us might dream of achieving two; but to have all three ≠ the faith, the reason, the political energy ≠ rolled into the one person is rare indeed. I am delighted and proud that this gay rights campaigner was a practising member of the Roman Catholic Church, and also that ≠ far from being an outcast ≠ was an adviser to our senior Church leadership. Such simple facts say more about tolerance than any number of declaratory missives. My closest male friend Declan Madden died in Dublin in 1997, and we had two funerals for him, the first a traditional Catholic rite in the family parish church, the second a Buddhist celebration which the authorities allowed us to hold in the little church within Glasnevin cemetery. Of course it meant the coffin leaving Declan's home twice, a puzzle to the more devout among his many curious neighbours. This is the kind of Church to which I know I can enthusiastically belong: compassionate, open-minded; tolerant; at odds with its own rules on those occasions when it knows that justice and love demand a blind eye. To say that the Church on the ground often differs from the Church of the rule-book is not to say that the latter doesn't matter. Far too often for my tastes is a statement from the Vatican about authority, or the role of women, or sexuality, greeted with a shrug of the shoulders; a weak smile; a slightly down-at-heel assertion that you can rely on the English bishops to water it down; that it will make no difference to the way we all act; and that it can for these reasons (it is implied) be safely filed away. However great and many its troops, no army can long survive a high command whose orders are treated in this way by the local battalions. The Church no longer has what the leadership of the First World War enjoyed and what it once had in pre-Lutheran times, namely a means through conscription of ensuring an endless supply of the compulsorily obedient. Indeed one of the themes of my lecture today is how we go about coping with the fact that it is no longer obligatory to have any religious faith, much less one that answers only to Rome. If we are to remain within the ranks when there is no coercive requirement for us to do so, we need to engage with our leadership, to believe not only in our own actions and our Christian God but also in the organisation to which we belong. Otherwise the tensions within our person become too difficult to bear, with rival senses of belonging perpetually clashing in our hearts. The risk of a failure to unite our believing and our Church selves is that, over time, both disappear from our person. If this were to happen on a large scale, the Church of the future (in the West at any rate) would risk becoming more a refuge from the real world for the few than a source of spiritual strength within that world for the many. Despite the impression sometimes given by some of the leaders of the Catholic Church from time to time, the choice is not, I believe, between an ethical life in the Church and an inevitably empty moral life outside it. Friendships and a strong sense of community abound there just as they do in our parishes. For all its faults, the secular world also manages to offer many admirable alternatives to Christian-based political activism. In the past this was to be found in the work of the trade unions and in the development of the principles of social democracy. In more recent times, Alan Bray must have frequently seen evidence of such secular morality in the Gay liberation movement. Today we admire the brave activism of the many people young and old who are engaged in contemporary battles for global justice, for environmental protection, and for the alleviation of world poverty. Many of these people are of course motivated by a belief in the Christian message. But not all are, and at the start of the twentieth-first century it is certainly not a precondition for leading a life dedicated to doing justice and good. Not only is membership of a Church not obligatory; neither is it essential to the successful leading of a good life. In this lecture, I want to work through the implications of this, and in particular reflect on what is perhaps the key ethical dea that the secular world has to offer, and through which it seeks to provide what my colleague and friend at the LSE Francesca Klug has called 'Values for a Godless Age' - namely respect for human rights. How rooted in the Christian tradition is our modern commitment to human rights? Is the Church's approach to human rights at one or at odds with the idea of human rights as it is understood in secular society? Can the concept of human rights help us to bridge the gap which exists between the Church in central command mode issuing its rules and regulations and so forth, and the Church in action on the front line, doing its compassionate, Christ-like best? Can we find in the language of human rights a way of connecting the best features both of the Church and of secular society, thereby forging a commonality of interest which is of benefit to both, a shared set of beliefs in the public articulation of which Christian and concerned citizen alike can feel comfortable? I start my exploration with the well-known lecturer, Joyce expert, Irish senator and gay rights activist, David Norris. I shall never forget a performance he gave at a debate in University College Dublin in 1977. There was a packed hall, the motion had to do with gay rights, the students had poured in to see what a homosexual looked like. Norris at the podium was almost immediately the victim of a nasty jibe from some young lad far back in the crowd. Putting on his glasses Norris called on him to repeat the remark so that he could see whether he was attractive. There wasn't a single heckle after that, and David Norris gave a speech to us Catholic boys and girls of such energy, dignity and sheer joy that the event has stuck to my memory for over twenty-five years. Now I am sure everybody here knows that David Norris was the man who finally took on Ireland's anti-gay laws, fighting his case all the way to the European Court of Human Rights and establishing there that his human right to privacy required an amelioration in the country's harsh laws, a change that has I am glad to say since taken place. What I want to concentrate on here is what Norris's legal ction tells us about the meaning of human rights, for the term draws inspiration from two very different traditions, and they came into conflict in his case. The battle-lines were laid out in the Irish Supreme Court where Norris had first to go before he could take his case to the European judges. The year was 1983, when Irish society was already a year or two into the bitter battles over abortion, divorce and the role of the Church that were to sour the 1980s for so many. He lost there by three votes to two with the Chief Justice speaking for the majority in condemning homosexuality as 'of course' morally wrong, as 'contrary to the order of nature', and as 'a perversion of the biological functions of the sexual organs'. But religion was also invoked, with the Chief Justice condemning homosexuality as an 'affront both to society and to God', as something which St Paul and 'the doctors and leaders of the Church in every land' had opposed' with it still being the case that 'the teaching of all Christian Churches [was] that homosexual acts were wrong'. Even in the Dublin court, however, the two dissenting judges Seamus Henchy and Niall McCarthy felt able to take an altogether more liberal line without having to surrender their Catholic faith, emphasising the source of the guaranteed personal rights in the Constitution as being the 'individual personality of the citizen' and the primacy of the ,human personality'. These were the themes that the European Court of Human Rights naturally took up when the case finally reached it in 1988. Norris had a basic right to privacy and there was no 'pressing social need' to make criminal his private sexual behaviour.'Although members of the public who regard homosexuality as immoral may be shocked, offended or disturbed by the commission by others of private homosexual acts, this cannot on its own warrant the application of penal sanctions when it is consenting adults alone who are involved.' The case presents us with two radically different views of the right approach to take to the person. The second version, rooted in the European Convention on human rights, is one to which I will return in a moment. Reading the Chief Justice's judgment, however, it would be hard to avoid drawing the conclusion that the Christianity reflected in his opinions was a religious faith at best indifferent to, at worst deeply hostile, to the very idea of human rights. In fact the opposite is the case. The Catholic Church regards itself not only as sympathetic to human rights but as the originator of the whole project. And the Church is definitely right to be proud of its involvement with the subject. The idea of natural rights was a mediaeval breakthrough which the Church was instrumental both in forging and thereafter in propagating. Thomas Aquinas is too great and well-known a figure for me to do more than mention here. But he was not alone. The Dominican theologian Francisco de Vitoria (1483 ≠ 1546) made an early contribution to international law and developed a version of natural law which suggested that all ≠ including pagans and indigenous peoples ≠ were entitled both to justice and to the protection of the law. I would not want in my enthusiasm to overstate the Church's commitment to human rights in past eras, and thereby to imply that the Chief Justice's point of view was aberrational ≠ which as we all know and as we shall see presently in this lecture manifestly it was not. As Herminio Rico SJ has observed, the present leadership 'makes claims for the Church that the history of the development of human rights S cannot support'. Many aspects of the counter-reformation involved what we would condemn today as gross breaches of human rights. The arrival of modernism provoked Pius IX's now embarrassing Syllabus of Errors. There was also Gregory XVI's encyclical letter Mirari Vos. But the old commitment to human rights was never entirely lost sight of, with Pius's successor Leo XIII being responsible for the superb encyclical Rerum Novarum, issued in 1891. This dealt with the rights of workers on the basis that 'Man precedes the State, and possesses, prior to the formation of any State, the right of providing for the sustenance of his body'. In Divini Redemptoris, Pius XI provided a list of human rights, which included life bodily integrity, property and what we would call today economic rights. In the fifty years or so since the end of the Second World War, the subject has become embedded in Church teaching. In his excellent brief study, published in Law and Justice, Christopher Dwyer rightly notes that the 'now classic formulation of Catholic teaching on human rights came with John XXIII's encyclical Pacem in Terris.' In the words of that document: Any human society, if it is to be well-ordered and productive, must lay down as a foundation this principle, namely that every human being is a person, that is, his nature is endowed with intelligence and free will. By virtue of this, he has rights and duties of his own, flowing directly and simultaneously from his very nature, which are therefore universal, inviolable and inalienable. Giorgio Filibeck has gathered many of the relevant documents into an excellent volume, published by the Pontifical Council for Justice and Peace and the International Federation of Catholic Universities in 1994, and devoted to human rights in the teaching of the Church from John XXIII to John Paul II. It is a long book, and I am sure that many pages could be added covering the last ten years. Particularly impressive in my view is the commitment of the Church to the dignity of the person in the social and economic as well as the political sphere. There is a striving to see the whole person here, a striving which may not yet be wholly successful (I will come back to that) but which is immensely laudable. It is hard to square this strong human rights tradition with the kinds of things the Irish Chief Justice felt able to say under cover of the Church in Norris. Yet I would suggest that they are reconcilable, and that we should not be tempted by our dislike of what the Chief Justice had to say into a condemnation as entirely hypocritical of the whole of the Church's stance on human rights. The key I would suggest is to observe how the Chief Justice went about his religious-based condemnation of homosexual practices. This part of his judgment was not even ostensibly based on reason or argument, rather it was an invocation of authority, the authority of St Paul, of the 'doctors and leaders of the Church'. What mattered to the Chief Justice was not what his own reasoning power or the Irish constitution showed him, but rather that 'the teaching of all Christian Churches' pointed to homosexual acts being wrong. To develop this point I need now to make a general observation about human rights, and in so doing to move on to a consideration of the growth of human rights in the secular world. While it is relatively easy to agree on human rights at an abstract level ≠ the dignity of the person; the worth of every individual; the right of every person to equal respect and treatment; and so on ≠ it is frequently difficult to apply these insights about what human rights require to real situations. Often there are conflicting versions of what these basic human rights entail on the ground. Sometimes the various rights will themselves be in conflict. On other occasions, they will need to be made to yield to the greater good. So the application of human rights on the ground is messy. Unless we are to resort to the use of force, some sort of referee is required. In the mediaeval period, the referee was of course the Church itself, which not only declared the content of our human rights but also determined how these were applied in practice. It is this tradition that we find echoed in the judgment of the Irish Chief Justice in Norris. The most valid criticism made of him at the time was that he had abdicated his adjudicative responsibilities by passing over to the Church a job that was rightly his. Like the Church whose teaching he followed, he was not rejecting 'rights-talk'; rather he was asserting that it simply did not apply to the claims being made by the individual before him. This was a mistake made neither by the minority judges in that case nor, as we have seen, by the European Court of Human Rights. They found in human rights instruments before them a rational and thought-through basis for coming down in favour of David Norris's human rights. In doing so they reflected an approach to human rights which may be historically rooted in Church teaching but which has shaken off these ecclesiastical origins, and in particular the role of the Church as definitive adjudicator in cases of disagreement. The key turning point came with the birth of modernism at the end of the eighteenth century; reflecting on the changes than then occurred it is not hard to see why Pius IX was fired up into releasing his Syllabus of Errors. The hard intellectual work was done by Kant and Hegel, the rougher business being attended to by the Paris mobs. The upshot of the excitements of the period was a language that emphasised individual freedom not to obey God's will but to determine what each person should do with their lives. Truth was no longer handed down, it was forged afresh for each individual, every culture, each community. Even if God was not dead, as Nietzche was later to declare, he (or she) did not have to be alive for modernity to thrive. The idea of human rights as a non-religious reflection of the ethics of civilised society quickly became one of the cornerstones of this modernity. This breakthrough did not of course remove the need for an adjudicator, for some kind of authoritative means of translating the vague idea of human rights into practice on the ground and for determining in a dispute which version of uman rights should prevail. It was because Jeremy Bentham chose to ignore this fact, and to treat all the rights set out in the French Declaration of the Rights of Man as unqualified and absolute, that he was able to write his brilliant attack on the subject, lampooning a commitment to rights as not just mere nonsense but as a belief so stupid that it deserved to be described as 'nonsense on stilts.' Marx too excoriated the idea as irretrievably individualistic and as protective rather than subversive of an irretrievably unequal status quo. So the phrase human rights took a heavy battering in the nineteenth century and as a result largely disappeared from view. But despite this, the emerging democratic polities of the time were coming up with a mix of ways in which to retain what was effectively (if not explicitly) a commitment to human rights whilst at the same time providing sensible means of securing their protection on the ground. Principal amongst these was the emergence of legislation as a tool for social and economic change. In the United Kingdom for xample, a series of Acts set in train the reforms that would eventually transform for the better the living conditions of the people The achievements of the Victorian and Edwardian periods on disease control, on water supply, on pollution, on working conditions, on housing and the like should not be dismissed from our discussion merely because they were not then called advances in human rights. The same was true of the achievements of the Attlee administration of 1945-51. Regarding the term as useful only to foreigners, that government actually did more practical good for the human rights of its own citizens than any British administration before or since.
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