4.1 The Importance of Jacques Maritain for the Philosophy of Human Rights

Jacques Maritain (1882–1973) is widely recognized as one of the most important authors writing on human rights in the twentieth century. Samuel Moyn calls him “the premier philosophical defender of human rights in the postwar decade” (Moyn 2010, pos. 608).

Maritain, who taught in France and the United States, had a solid philosophical career when he began writing on human rights. Like MacIntyre, his thought, both religious, political and philosophical, evolved over time, but very early he inscribed himself in the Thomistic tradition, around 1908 (see Sweet 2019, 1) or 1910 (see McCauliff 2009, 438). Among the various brands of the contemporary Thomistic tradition, Maritain is normally classified as one of the “Neo-Scholastics”. His initial philosophical work versed especially on the defense of Thomistic metaphysics and epistemology (see Sweet 2019, 1); from this time are books like “Trois réformateurs: Luther, Descartes, Rousseau” (1925), or “Distinguer pour unir; ou, les degrés du savoir” (1932), which remains, probably, his most popular book.

Although he was very critical of modernity in general (his criticism softened over the years), he thought that the notion of human rights was philosophically sound, and its defense by modern authors an achievement, even if he considered that their philosophies were not able to provide a sound grounding for those rights, a grounding he thought the Thomistic notion of natural law could give. As was stated in the Introduction to this work, it is not correct, however, to say, as some authors do assert, that Maritain was the first Thomist to defend human rights. It is quite clear that the Spanish scholastics had the notion, even if not the term of natural rights and, as regards contemporary Thomists prior to Maritain, one can mention the work of Viktor Cathrein or Rafael Fernández Concha. It is true, however, that no previous author writing within the Thomistic tradition gave human rights such an important place in his theory, nor developed a full systematic treatment of the subject.

His first books on political subjects (like Humanisme intégral, of 1936) barely mention human rights, and in the 1940’s, in the middle of WWII and when he was living in the United States, he began to write on the subjectFootnote 1. His first two papers on the subject were published in 1942, and the same year he published his Les droits de l’homme et la loi naturelle, which remains his best exposition of the subject.

He called his own version of Thomistic Philosophy of Man “Personalism”: it is not easy to explain exactly what this means but one could say that it is a philosophy that tends to remark the unique character of each rational being, in opposition to philosophies that personalists thought “dehumanized” the human being by treating him only as a unit replaceable by other units. Maritain thought that these philosophies included not only Marxism, but also liberalism, who supposedly treated each human being as a mere “individual”, that is, a replaceable instance of a natural kind, an individual also supposedly conceived as asocial and closed in himself. In opposition to this, personalists (not only Maritain) sought to highlight man’s sociable nature (on personalism in general, see Williams and Bengtsson 2022). In his theory of human rights, this opposition to liberalism and liberalism’s individualism will be exemplified by his recognition of welfare rights as true human rights, in addition to classical liberal liberties.

It has been strongly discussed if and how much Maritain’s work influenced the redaction of the Universal Declaration of Human Rights. He was not a member of the redaction committee, nor did he attend any of its sessionsFootnote 2. Most of the authors asserting certain influence, point to the fact that Maritain was the person in charge of a work by UNESCO in 1947, which compiled the answers given by many philosophers on the subject of human rights and their philosophical foundation, a work for which Maritain wrote the introduction, and which was given to the members of the Commission of the United Nations redacting the UDHRFootnote 3. It is debated whether this work influenced the redaction of the UDHR or not. Johannes Morsink says that it was not influential (Morsink 1999, 301).

Other authors have said that Maritain could possibly have influenced the redaction of the UDHR via the knowledge of his work by some of the members of the redaction commission, especially the Lebanese Charles Malik (see Pallares Yabur 2018). Similarly, Chabot 2002 suggests an indirect and partial influence via Charles Malik and Rene Cassin. In this vein, Samuel Moyn says that Maritain influenced the Declaration via Charles Malik. “It was thanks to him, indeed, that Maritain’s ‘human person’ became the central protagonist of the Universal Declaration’s text” (Moyn 2010, 752). Andrew Woodcock asserts Maritain influenced the content of the UDHR but, as justification of this thesis, he only points out to the similarity of the list of rights and language in Maritain’s doctrine and the UDHR, without researching the actual drafting process (Woodcock 2006).

However, if one consults the work of the foremost historian of the redaction of the UNDHR, the name Maritain does not appear at all (see Morsink 1999). The fact is that Maritain was not a member of any committee that worked in the redaction of the UNDHR, nor did he appear before any committee. He was mentioned by name only on one occasion, by the French delegate Salomon Grumbach and, curiously, to reject Brazil’s delegation`s proposal to include a mention to God in the preamble, since, according to Maritain, a pragmatic rather than a theoretical agreement ought to be sought for (see Pallares Yabur 2018). Maritain’s influence on the redaction of the UNDHR, then, contrary to what many claim, seems to have been rather minimal, though he may indirectly have influenced it via the action of the Lebanese member of the drafting committee Charles Malik, whom some define a Thomist.

Whatever his influence on the UDHR may have been, it is clear that, as Moyn explains, Maritain was one of the most important philosophical defenders of human rights in the aftermath of WWII. Moyn asserts that his influence was extraordinary in the emergence of the human rights discourse after WWII, especially by the assumption by Christian activists and politicians of the notion of human rights (see Moyn 2015, poss. 891–1376).

4.2 Maritain on the Importance and Limits of a Practical Agreement on Human Rights. His “Political” Conception of Human Rights

Regarding human rights, Maritain asserted, two kinds of agreements can be considered: a practical agreement regarding a list of human rights, and a theoretical agreement regarding their foundation. The first kind of agreement Maritain deemed possible to reach in his time, the second not, even though it is also important. But, for practical matters, the most important objective is to reach a practical agreement regarding a list of human rights, a list whose foundation would provide each participant in the agreement according to his own ideology. This is the idea that would make famous John Rawls with his theory of an “overlapping consensus” of comprehensive doctrines regarding a list of principles of justice, a theory called “political liberalism”, and the fact that Maritain defended such an idea regarding human rights has made Martha Nussbaum call Maritain “the first political liberal” (Nussbaum 2011, 19), and many commentators to note the similitude of Maritain’s position with that of Rawls (for instance, Clark 2012, Neal 2000, Valadier 2014, 265; O’Sullivan 2015, stresses the similarity of Maritain’s doctrine regarding the possibility of a practical agreement on rights with Nussbaum’s doctrine).

So Maritain writes that “During one of the meetings of the French National Commission of UNESCO at which the Rights of Man were being discussed, someone was astonished that certain proponents of violently opposed ideologies had agreed on the draft of a list of rights. Yes, they replied, we agree on these rights, providing we are not asked why. With the ‘why,’ the dispute begins” (Maritain 1998, 77). It is clear, according to Maritain, that a practical agreement regarding a list of human rights can be reached by people holding different and opposed political ideologies. Referring to the work of Unesco, he said that “Since the aim of UNESCO is a practical aim, agreement among its members can be spontaneously achieved, not on common speculative notions, but on common practical notions, not on the affirmation of the same conception of the world, man, and knowledge, but on the affirmation of the same set of convictions concerning action” (Maritain 1998, 77).

However, Maritain also understood that the practical agreement regarding a list of human rights may not suffice to guide political action, and is indeed compatible with quite different political outcomes. Human rights are principles, that have to be applied and interpreted, and this interpretation varies according to the corresponding theory regarding their foundation (see Maritain 1998, 79). Since human rights collide with each other, they have to be necessarily restricted, and the degree of this restriction will vary according to which human right is given pivotal or privileged status, what, on its turn, will vary according to the political ideology of the interpreter. Accordingly, human rights as applied by a liberal (he understands by “liberal” a follower of classical liberal thinkers like Locke with their individualistic view of man), a socialist or a personalist (his own label for his theory) will yield different political outcomes. “Those three groups inevitably will accuse each other of ignoring certain essential rights of the human being. It remains to be seen who makes a faithful image and who a distorted image of man” (Maritain 1998, 107).

Therefore, even though he advocates reaching a practical agreement on a list of human rights, Maritain is quite conscious that that practical agreement is, even on a practical level, insufficient to guide political action. The same list of human rights has to be supplemented by a sound image of man. And here Maritain offers his own theory regarding the foundation of human rights on human nature.

Recognizing the inadequacy of a practical agreement on a catalogue of rights to guide political action, he advocated reaching another agreement, this time more determinate, which would lie at the basis of any democratic society. He thinks that “A genuine democracy implies a fundamental agreement between minds and wills on the bases of life in common; it is aware of itself and of its principles, and it must be capable of defending and promoting its own conception of social and political life; it must bear within itself a common human creed, the creed of freedom” (Maritain 1998, 109, emphasis on the original). A society so animated by a creed of freedom would differ from a communist society, in that its creed would be freedom, and from an individualistic liberal, in that it would have a common creed, which would function as a civil religion. However, “A genuine democracy cannot impose on its citizens or demand from them, as a condition for their belonging to the city, any philosophic or any religious creed” (Maritain 1998, 110). The secular creed to be inculcated in the democratic society would be a merely practical creed, “not a theoretical or dogmatic one” (Maritain 1998, 111), which “deals with practical tenets which the human mind can try to justify -more or less successfully, that’s another affair- from quite different philosophical outlooks, probably because they depend basically on simple, ‘natural’ apperceptions, of which the human heart becomes capable with the progress of moral conscience, and which, as a matter of fact, have been awakened by the Gospel leaven fermenting in the obscure depths of human history” (Maritain 1998, 111). This practical secular creed would contain tenets such as respect for the rights, liberties and duties of the human person, of the family, government of the people, by the people, and for the people, the moral obligation to obey just laws, human equality, civil friendship, civic self-devotion and love of the motherland, and many others (see Maritain 1998, 112–113, for the whole list). Here Maritain in fact closely resembles Rawls, because he asserts that this civic creed should be inculcated via education to the citizens, and the list of practical tenets can be justified by different philosophical or religious systems, and “Certainly, it is supremely important to the common good that the practical assertions which make up the charter in question be true in themselves. But the democratic State does not judge of that truth; it is born out of that truth, as recognized and asserted by the people -by each one of us, to the extent of his abilities” (Maritain 1998, 112, emphasis added).

In sum: even if a practical agreement on a list of rights is possible and valuable, Maritain does not think it to be sufficient for a just society, a second, much more determinate agreement being necessary in order to warrant its justice. But the first practical agreement remains possible. Both agreements rely on a preconceptual knowledge of natural law, as will be seen.

4.3 Maritain’s Theory Regarding the Foundation of Human Rights

For Maritain, the root of human rights is human dignity, which is based itself on the fact that human persons are free to chooseFootnote 4. Freedom of the will shows that human persons are no mere physical items, but also spiritual ones. “That means, in philosophical terms, that in the flesh and the bones of man there is a soul that is a spirit and that has more value than the whole material universe” (Maritain 2005b, 133). Man is a person, and because of partaking in the spiritual realm, has a final end that surpasses any terrestrial end, God. Therefore, he also transcends temporal society. Therefore, the society is for the sake of man, and not the contrary. Therefore, human dignity has two sources: freedom of the will and the fact of being ordained to God, of being capax Dei. In having freedom of the will consists man’s being an imago Dei. According to Maritain, human dignity cannot be understood unless man is understood as an imago Dei and capax DeiFootnote 5.

Maritain affirms the existence of natural law, which is “an order or a disposition that human reason can discover and according to which human will should act in order to accord with the necessary ends of human being” (Maritain 2005b, 168, italics in the original). Natural law is, therefore, primarily an order in nature itself, the order of the necessary ends of man, and secondarily, the knowledge of that same order, which exists in reason. The natural order is not only a mere regularity, but a teleological order. In this sense, every natural being has a natural law, which prescribes the way of its flourishing: “The natural law of all the beings existing in nature is the proper way by which, by reason of their specific nature and end, they ought (doivent) or should (devraient) attain their plenitude of being typical in their behavior” (Maritain 1986, 22). This natural law becomes a moral law only in the case of man, because man can freely follow that law or reject it. The ontological basis of natural law are the natural inclinations. Here Maritain refers to a well-known text of Aquinas, that of Summa Theologiae I–II q. 94 a 2, where Aquinas says that the order of the precepts of natural law follows the order of natural inclinations of manFootnote 6. However, to have normative power, this natural order has also to be understood as the result of an act of legislation of God, because, absent that understanding, the natural order can’t be understood to be rational and, therefore, to oblige in conscience (Maritain 1986, 46). Natural law is, then, an expression of eternal law.

But there is a second element in natural law: the knowledge of it. Natural law is known, according to Maritain, by knowledge by connaturality, knowledge by acquaintance. Thus, every person knows connaturally the precepts of natural law (indeed, this knowledge by acquaintance is what makes possible the practical agreement on the list of human rights between supporters of different political ideologies). Maritain ascribes this doctrine of knowledge of connaturality of natural law to Aquinas, whom he claims to be followingFootnote 7. In fact, Maritain asserts that natural law consists only in those precepts which, known through connaturality, are immediately known and indemonstrable (see Maritain 1951, 479).

Different from this universal knowledge by connaturality is the presentation and justification of the precepts of natural law found in the works of philosophers: this is a rational and conceptual reconstruction and justification of natural law, reflective knowledge. Lastly, our effective moral beliefs will be the result of the interaction between this knowledge by connaturality and the rationalization of it by philosophical systems. Our moral conceptual scheme will be, then, a complex result of knowledge by connaturality of natural law and concepts brought by different ideologies or philosophical systems (see Maritain 1998, 80). So, even if he asserts the existence of such knowledge by connaturality, Maritain does not ascribe to men the same moral beliefs, even if he highlights the common elements of different conceptual schemes more than their differences, judging that “these various systems, while disputing about the ‘why’, prescribe in their practical conclusions rules of behavior which appear on the whole as almost the same for any given period and culture” (Maritain 1998, 80).

It has to be stressed that it is this knowledge by connaturality, and not the tenets of the alternative philosophical systems, that makes possible the practical agreement on a list of rights. Maritain does not claim that alternative philosophical systems may provide alternative sound foundations to the idea of human rights. In fact, the tenets of some systems are logically incompatible with the very idea of rights: “a positivistic philosophy recognizing Fact alone -as well as either an idealistic or a materialistic philosophy of absolute Immanence- is powerless to establish the existence of rights which are naturally possessed by the human being… Logically, the concept of such rights can seem only a superstition to these philosophies” (Maritain 1998, 96); “The true philosophy of the rights of the human person rests then on the idea of natural law” (Maritain 2005b, 171). However, people holding those philosophies still have some knowledge by connaturality of the natural law which is the sole sound foundation for those rights. A natural law theory provides the rational justification of the basic moral beliefs held in virtue of knowledge by connaturality of natural law, showing its metaphysical foundations (freedom of the will, spiritual character of the person).

Natural law, thus, has two elements: an ontological element, the natural order in nature, and the gnoseological element. The second element is variable, and indeed, Maritain affirms that knowledge of the requirements of natural law has been increasing over time. Indeed, the very idea of natural law was probably not differentiated in primitive life and was immerged in mythological ideas (see Maritain 2005b 170), being only lately differentiated, and its requirements received further clarification from the Christian messageFootnote 8 and, later, the EnlightenmentFootnote 9, specially by emphasizing the notion of rights. In this sense, as Schall says, “The emphasis on human rights growing out of the natural-law background is something Maritain sees as a great advance in understanding, but not a growth in what the law is in itself” (Schall 1998, 93). Neanderthals had right to life, even if they had no differentiated notion of natural law, much less of natural rights. Moreover, since the knowledge of natural law is always advancing and is still not complete (see Maritain 1998, 94), it is also the case that no declaration of human rights may ever be definitive and finalFootnote 10.

Human rights derive from natural law and may receive some determination by ius gentium: “natural law (droit naturel) refers to the rights and duties that derive from the first principle: doing good and avoiding evil, in a necessary way and from the bare fact that man is man” (Maritain 2005b, 173), for instance, right to life. Ius gentium is intermediary between natural and positive law, and refers to “the rights and duties that derive from the first principle in a necessary way, but this time supposing certain factual conditions, like, for example, the state of civil society and the relationships between peoples” (Maritain 2005b, 174)Footnote 11. A natural right deriving from ius gentium is the right to private property. Positive law refers to rights and duties that derive from the first principle of natural law in a contingent way. Positive law determines natural law, and therefore, also determines natural rights.

Natural law creates obligations, and rights derive from these obligations. The key passage of Maritain’s reasoning is the following: “The notion of right and the notion of moral obligation are correlatives, both are based on the freedom proper to spiritual agents if man is morally obliged to the necessary things for the accomplishment of his destiny, he has the right of accomplishing his destiny, he has the rights to the necessary means for that” (Maritain 2005b, 171). The argument is as follows: man is obliged to attain a certain end, therefore, he has a right to attain that end (ought implies can), and therefore he has a right to the means to attain that end.

Human rights then, according to Maritain, are rights to the means necessary to attain the final human end, which is God himself. Since man strives naturally to attain that final end, human rights are based on human nature. As Frederick Crosson says, for Maritain human rights are “teleological entitlements” (Crosson 1983, 911) or, as Wallace says, they are “substantive claims for human expansion and development which enable the individual to contribute to the good of the whole” (Wallace 1999, 132).

Moreover, is is worth noting that, according to Maritain, not only persons have rights: also the communities in which the person is inserted and that are prior to the state, for instance, the family. The state has to recognize their rights, and not attempt to suppress them. Accordingly, a just society will be one where not only human rights are respected, but also the principle of subsidiarity (see Maritain 2005b, 136, regarding the rights of the family, and 2011, 109, on the just relation of the political community to inferior communities).

4.4 Number and Nature of Human Rights

Maritain proceeds then to deduce the catalogue of human rights, and he makes a threefold classification of human rights. First, human rights due to man as such: “right to existence and life,—right to personal liberty or right to conduct his own life as a master of himself and of his acts, responsible of these in relation to God and in relation to the laws of the city,—right to the pursuit of perfection of human, moral and rational life,—right to the pursuit of eternal good (without which there is no true pursuit of happiness), -right to bodily integrity, right to private property of material goods, which is a safeguard of liberties of the person, right to marry according to his choice, and of founding a family, itself with its proper liberties, right to association, right to the respect of human dignity in each one” (Maritain 2005b, 179–180).

Then, there are what Maritain calls “rights of the civic person”, and first, there is a right to political participation in the political community. The best instantiation of this right is the universal right to vote. Other rights are the right to create political parties, freedom of speech and the right of the people to choose their own political form, namely, to decide on their Constitution (Maritain 2005b, 182–187).

Finally, there are what he calls the “rights of the worker person”, which are rights of the human person in his or her social and cultural functions, and they are right to work, to choose his or her own work, right to form unions, right to a just wage, right to the assistance of the community in case of need and unemployment and when sick and old, and right to take part for free in the elementary goods of civilization (see Maritain 2005b, 187–200).

Regarding their nature, Maritain says that, even though they are inalienable, they are not absolute, and some admit a degree of restriction for the sake of the common good (like freedom of speech), which he calls “only substantially inalienable rights”, and some not (right to life), which he calls “absolutely inalienable” (see Maritain 1998, 101). However, precisely because we all know that the state allows in some cases to kill a person, for example, in self-defense or in a just war, Maritain makes a distinction between possession and exercise of a right. Absolutely inalienable rights may not be restricted in relation to their possession, but they may be restricted in relation to their exercise. Maritain gives the example of a criminal justly condemned to capital punishment: even though he possesses the right to life (it is inalienable), he may not exercise it. Without this distinction, Maritain asserts, punishment cannot be understood (see Maritain 1998, 102), since it always involves depriving a person of some good that otherwise would seem protected by an inalienable right.

4.5 The Person and the Community

Maritain recognized that different political ideologies will interpret differently the scope and hierarchy of the rights expressed in the practical agreement he deemed possible. He mentions specially three different political ideologies, two of which he rejects, liberalism and communism, and his own one: personalism.

To understand his opposition to both, it is necessary to understand his notion of person. Maritain makes a distinction between individual and person. The human person is not an individual, and therefore, his political philosophy is not “centered in the primacy of the individual and the private good” (Maritain 1946, 420), as he thinks liberalism is.

Human persons are individuals but not only individuals. In material things, as man is, individuality is caused by matter determined by space (see Maritain 2011, 60). Mere individuals are normally parts of a whole, but the person, due to its openness to the whole of reality through intellect, a spiritual faculty, transcends mere matter and has to be defined “in terms of independence, as a reality which, subsisting spiritually, constitutes a universe unto itself” (Maritain 1946, 432). However, this very transcendence, and not only its material indigence, impulses the human person to communicate with others in the order of knowledge and love (Maritain 1946, 433). In sum, “Our whole being is an individual by reason of that in us which derives from matter, and a person by reason of that in us which derives from spirit” (Maritain 1946, 434). And, since “personality tends by nature to communion” (Maritain 1946, 435) -unlike individuals-, individualism, which he tends to associate with liberalism, is a false ethical position depending on a false anthropology that considers man a mere individual. Personalism, therefore, implies a rejection of liberalism.

The human person transcends the material order because has free will, and therefore is independent in a way that mere material beings are not. In being in this sense free consists man’s being an image of God, a imago DeiFootnote 12 (see Maritain 2011, 64). Maritain distinguishes between two senses of freedom, both of which can be ascribed to man: freedom as absence of necessity or of necessitation and freedom as absence of constraint. The first, which has been called also libertas indifferentiae, is the freedom of the will, and consists in not being the will determined to desire any particular good, and being, therefore, indeterminate in regard to that good. Even if the will necessarily loves the Good in itself, which subjectively appears to conscience as perfect happiness, it does not necessarily desire any particular good, since no particular good in this life exhausts the limitless good, which the will necessarily desires. Therefore, freedom of choice (of particular goods) is founded on the necessity of desiring an absolute good. Freedom is founded in necessity (see Maritain 2011, 122)Footnote 13.

The second sense of freedom is freedom as absence of constraint, freedom of spontaneity. In this sense, we say that a stone falls freely when it falls unhindered. Unlike a stone, when a man acts spontaneously, he chooses the ends of his acts. Freedom of spontaneity consists in attaining fulfillment unhindered, and it is a freedom that man has to conquer. Maritain calls it also freedom of exultation and freedom of autonomy.

There is a relation between both types of freedom: “freedom of choice, the free will, is not its own end. It is ordained to the conquest of freedom in the sense of freedom of exultation or autonomy. And it is in this conquest, demanded by the essential postulates of human personality, that the dynamism of freedom consists” (Maritain 2011, 136).

Political community exists to help man to attain this freedom of exultation: “Civilized life tends to grant the human person, -that is, the concrete person of each member of the multitude,- an increasingly larger measure of independence from the external and internal constraints of Nature; an independence growing according to the very tendencies and the intimate law of human nature itself, as human and endowed with reason; and assured by the economic guarantees of labour and property, by political rights, by civil virtues, and the culture of mind” (Maritain 2011, 137). That means that civil liberties are recognized to the human person in order that the human person may exercise unhindered his or her freedom of choice, which, at its turn, is ordered to the final freedom of autonomy. Civil liberties are finalized then transitively to help man attain his final end. Civil liberties are for the sake of freedom of choice, and freedom of choice for the sake of freedom of autonomy. If Maritain resembled Rawls in his political conception of a practical agreement between people of different philosophical views on a catalogue of human rights, here he departs completely with him: rights are founded in a very determinate conception of the good, and, far from being a merely “political” conception of justice, Maritain shows clearly his metaphysical suppositions (freedom of the will).

The human person transcends the political order, since is ordained directly to God. This is the ontological basis of some of human rights, like religious freedom or the freedom of conscience: God and Truth are goods that transcend the temporal realm, and therefore are not subject to that realm. Accordingly, he cites Aquinas’s assertions that only the spiritual substances are loved by God propter se and not as means to other substances or to the order of the universeFootnote 14, and that the human person is not ordained completely to the political communityFootnote 15. The spiritual good of man, which is attained in contemplation of Truth, is superior to any political good. In fact, says Maritain, if man were only a material being, a mere individual and not also a person, then his relation to the political community would be merely that of a part to a whole, and he could not have rights against that community (see Maritain 2011, 78). If he has rights against the community, it is because he surpasses it because of his spirituality.

However, in the practical realm, and when only temporal goods are compared, the common good is superior to the private good. Therefore, “The common good is the foundation of authority” (Maritain 2005b, 136), since temporal authority only deals with temporal goods, and in any order of goods of the same category, the common good is superior to the private good. The problem with totalitarianism is that it treats man as if he were wholly ordered to the community, when, in fact, man is not totally ordered to the community. The end of society for personalism is the common good, but this good is not common if it does not revert to the members. “It is therefore common to both the whole and the parts into which it flows back and which, in turn, must benefit from it. Unless it would vitiate itself, it implies and requires the recognition of the fundamental rights of persons and those of the domestic society in which the persons are more primitively engaged than in the political society” (Maritain 1946, 437). The common good, then, includes material items -man is a material item-, like public commodities and services, and immaterial items, like political virtues, spiritual riches, and so on.

Accordingly, human rights and common good are not opposed to each other. A personalist account of man will yield the adequate results in relation to the interpretation of the rights object of the practical agreement. Liberalism’s view of man as a mere individual -therefore, not directed to the communion with others-, will result in the neglect of the rights relating to the material well-being of others, like economic rights, and tend to consider liberties as absolute. Communism, not understanding man’s transcendence to society, will neglect rights like liberties.

4.6 Responses to Maritain’s Work, and Evaluation of his Theory

Most of the works written on Maritain and human rights tends simply to expose and endorse Maritains’s theory (for instance, Beuchot 1993, Calvez 2007, Dagum 1981, Fay 1991, Lacombe 1998; Klassen 2005 exposes the metaphysical conception of the self that underlies Maritain’s theory in order to respond criticism by MacIntyre and McInerny that Maritain had in a incoherent way incorporated a theory of rights with an Aristotelian political philosophy).

However, other authors evaluate also Maritain’s doctrine. The most discussed subject has been that of the possibility of a practical agreement regarding rights without an agreement regarding their foundations.

4.6.1 Regarding the Possibility of the Practical Agreement

Some commentators praise Maritain’s theory regarding the possibility of a practical agreement between people of different intellectual backgrounds. So, for instance, Bradley Munro praises this aspect of Maritain’s doctrine, while discarding his theory of natural law known through connaturality (see Munro 2003). Meghan Clark praises Maritain both for his theory regarding the practical agreement, and his theory of natural law as foundation of natural rights (see Clark 2012).

On the other side, Ralph McInerny says that “An agreement which must accommodate the kind of ideological cleavage that obtains between the West and East seems necessarily empty. The history of the United Nations since Maritain wrote cannot be ignored. Decades of experience on the part of truce teams, arms talk teams, human rights commissions, cannot be ignored. Helsinki accords which are largely ignored indicate that there are quite different notions of what even the word ‘agreement’ means. An agreement that is not one of substance, assuring the same meaning of the same words and the same scheme of justification, is no agreement at all” (McInerny 1988, 135); “To the degree that Maritain’s teaching here is linked to the fact of the UN, it will seem to have been pretty well weakened if not completely refuted by history. There has been, in other words, a pragmatic disproof of his pragmatic agreement” (McInerny 1988, 130). In the same vein, Gardner 2012 criticizes Maritain’s theory, asserting that the agreement that grounds the UDHR is a superficial agreement on principles, unable to guide action because of the underdetermined nature of those principles.

First, it is necessary to stress that simply pointing to the fact that agreement has been made in order to redact a certain declaration of human rights, does not in itself prove that a true agreement regarding which are the true human rights or the natural rights be possible between people of different philosophical schools. Maritain (and Munro, following Maritain), seems to think that the UDHR is the empirical proof of his doctrine of the possible practical concordance between people of different philosophical schoolsFootnote 16. The fact of the UDHR, seems Maritain to think, proves the possibility of the agreement (ab esse ad posset valet consequentia)Footnote 17. And the condition of possibility of that agreement was natural law known through connaturality.

However, it may simply be the case that the UDHR, or any other declaration of human rights, does not represent a true agreement between people of different philosophical schools regarding which are human rights. Suppose, for the sake of argument, that a representative of a liberal country represented in a committee that is redacting a declaration of human rights, thinks that the only true or natural rights are liberties and the right to life. In the same redaction committee he may face the representative of a Marxist communist country, which thinks that the only true or natural rights -laying aside for the moment the question whether rights talk is compatible with Marxism, since Marx thought that such rights talk was an expression of the very individualism of bourgeois society- are social rights. Both representatives may be, for different reasons, interested in the approval of a declaration of human rightsFootnote 18, and both may be able to concede the inclusion of some right, in whose naturalness or nature of true human right they do not believe, in order to obtain recognition of another right. The result will be a true agreement, both sides will have compromised themselves to respect the same list of rights, but the content of the agreement does not reflect an exact overlapping of the list of rights considered natural by the ideologies they represent. It remains true that liberalism and Marxism as such do not produce similar lists of rights. There has been an agreement regarding which rights both states will protect (and will be called “human rights”) -agreement 1-, but not on which rights are true or natural human rights -agreement 2-.

So, if one wants to assert that such an agreement on a list of rights between people of different philosophical schools is possible, one has to do more than to point to the fact of a pretended agreement historically made. Of course, it may be the case that an historically agreement of the first type reflected an agreement of the second type, but it may also not have been the caseFootnote 19.

Maritain thought that the practical agreement on the list of human rights was possible because of the knowledge through connaturality of natural law that all people have. However, there are further problems with this doctrine. We can appreciate that if we compare Maritain’s doctrine with Aquinas’s (Maritain thinks he is following Aquinas). Maritain thinks that natural law consists of those moral precepts that are immediately known through connaturalityFootnote 20, and that are indemonstrable. All people have that knowledge. Aquinas does in fact say that natural law includes some first precepts that are known to all, and which are impossible to delete from the human mind. These primary precepts are self-evident or, as he says, per se nota, but these precepts are highly abstract and general principles (like bonum est prosequendum and agendum est secundum rationem), not determinate moral norms (for these reasons, Finnis denies that they have moral character). From these precepts, and after apprehending some items as being naturally good to man, practical reason deduces other precepts, secondary precepts, which are more determinate, and which are full-fledged moral norms, like the ones contained in the Decalogue (so, the rules of the Decalogue are not primary precepts and, therefore, not necessarily known to all). However, these secondary precepts, Aquinas says, can be deleted, either transitorily or permanently, from the human mind, due to social customs or vices. They, however, still are de iure possible to be known by all people. And there are further conclusions of natural law, tertiary precepts, which are known sapientibus tantum, since the apprehension of their truth presupposes the subject to be in that ideal epistemic condition which consists in the possession of the virtues (see Summa Theologiae I–II q. 94 a. 2, 4 and 6). On Aquinas’s account, if he were ever to speak of knowledge through connaturality in moral matters (he does not), it is only to this man, the virtuous, to which knowledge through connaturality of the whole of moral law can be ascribedFootnote 21.

Aquinas’s doctrine of a natural law with different degrees of knowability can explain at the same time the partial moral agreement that underlies every culture and time regarding many moral norms -this agreement is due to the knowledge of first and secondary moral precepts-, and the moral disagreement between cultures (which, contrary to what many have asserted, was fully known to ancient and medieval writers), since secondary moral precepts can be deleted from human mind by customs and passions, and tertiary ones require virtue for their apprehension. Thus, he never ascribes to the whole of humanity full knowledge of natural law, which, for him, unlike Maritain, consists not only of indemonstrable precepts. But only such full moral knowledge could warrant a universal agreement regarding human rights, not a partial one, since disputes regarding human rights barely address extremely general moral rules, like that killing or lying may be wrong -scarcely anyone asserts that lying is good-, but on particular applications of them.

Consider, for instance, what McCauliff asserts: he thinks that Maritain’s notion of knowledge by connaturality of natural law has been vindicated by contemporary moral psychology, which shows that moral judgments are made after intuitions and not after a reasoning process (see McCauliff 2009, with much bibliography). However, even if that were the case, that would simply answer the quaestio facti of a judgment, how it was formed, not the quaestio iuris, how can it be justified. On the other side, even if men were, by evolutionary or other reasons, programmed to elicit certain moral responses under certain circumstances, that programming is quite compatible with serious differences in hard or not so clear cases. As MacIntyre says, contemporary societies share superficially some rules, like the one stating that lying is wrong, but the scope of that rule is debated, each person adding different exceptions to that rule. Nobody asserts that lying is good. But there is serious discussion whether this or that instance of lying, if any, may be justified. Similarly, in the field of human rights: nobody asserts that killing men in general is good or indifferent. But the discussion begins when one talks about the possible exceptions (killing in war, death penalty, self-defense, the trolley problem, euthanasia, abortion), its beneficiaries (are embryos, very young children or comatose persons?) and even on what counts as an act of killing (is it possible for the military to shoot down an airplane full of civilians that has been hijacked by terrorists and will be used as a missile against a skyscraper, presumably killing then thousands of people?)Footnote 22. The basic consensus, arising out of the supposed knowledge by connaturality and/or evolutionary design is quite compatible with the serious differences that contemporary discussion shows. Again, if Aquinas, or Aristotle, were to ascribe knowledge through connaturality of the moral law in the degree required to solve human rights issues to anyone, it would be only to the virtuous.

Lastly, it is important to remember that, even if Maritain thought that such a practical agreement was possible, he was also conscious of some of the difficulties that we have stressed. In this sense, he asserts that “We can imagine… that the advocates of a liberal-individualistic, a communistic or a personalist type of society will lay down on paper similar, perhaps identical lists of the rights of man” (Maritain 1998, 106), but that they will interpret them in a diverse manner and order them in different hierarchies, so that “Those three groups inevitably will accuse each other of ignoring certain essential rights of the human being” (Maritain 1998, 107). Even if he was, perhaps, too optimistic regarding the possibility of a practical agreement regarding a list of rights without an underlying agreement regarding their foundations, he was not naive enough not to know that the theoretical discussion regarding their foundation will reemerge in the practical realm in the interpretation and application of rights. As Schall says, “He realizes that practical agreement is precarious without theoretical agreement—little solid ethics without metaphysics” (Schall 1998, 88). Maritain is, then, simply moderately optimist, and that is why he thought that the UDHR needed to be complemented by a more philosophically determinate Democratic CharterFootnote 23.

4.6.2 Regarding Maritain’s Justification of Human Rights

There is a problem with Maritain’s deduction of human rights from natural law that no author, to my knowledge, has shown. As was shown, Maritain used the following reasoning to justify in general some items as natural rights: I have a duty to attain moral perfection, then I have the right to the means to attain that perfection. These means are the goods protected by human rightsFootnote 24.

The first problem is, even if that reasoning is sound, it could only warrant the possession of something akin to a Hohfeldian privilege to the subject, namely, only the moral possibility of doing some action, but what is needed to justify is the possession of a right. If I have the duty to do ϕ, then I necessarily have the authorization to do ϕ, but this authorization imposes no duties on others. Human rights impose duties on other people, and that has to be justified. Maritain points to the fact that I need some items, like work, to attain moral perfection, but that fact, on itself alone, does not justify the imposition of a duty on others. Let us remember MacIntyre’s criticism of Gewirth: “the claim that I have a right to do or have something is a quite different type of claim that I need or want or will be benefited by something. From the first -if it is the only relevant consideration- it follows that others ought not to interfere with my attempts to do or have whatever it is, whether it is for my own good or not. From the second it does not. And it makes no difference what kind of good or benefit is at issue” (MacIntyre 1984, 67).

It could be argued, however, by Maritain, that if natural law imposes duties on all in order to attain moral perfection, and therefore gives to all people the moral authorization to do the things necessary to attain moral perfection, and duties and authorizations given by natural law have to be compossible (since the natural law has as its addressees all people), then out of the moral authorization given to Peter to do ϕ, it can be deduced a moral obligation to all other people to allow Peter to do ϕ. That reasoning would be completely sound, but what are justified then are only abstentions, namely, the abstention of preventing Peter to do ϕ, but not any positive duties. Maritain’s reasoning then, in fact, could only justify negative rights. For instance, right to work understood merely as the right not to be prevented to exercise a work, not the positive right to give someone a job, which is what Maritain seems to try to justify, and modern declarations of rights proclaim. Similarly with any other social or economic right. The fact that the items object of these rights may be necessary for someone to attain perfection does not in itself, as MacIntyre says, justify the ascription of a right to that item.

Secondarily, even if Maritain’s justification in general could be accepted, there are problems with his justification of the inclusion of some special rights in the list. Recall that rights are considered human rights if they are necessary means to attain the human end. However that end may be considered, as the contemplation of God, as Aquinas, or as philosophical contemplation, as Aristotle, it is clear that one can attain that end without having personal liberty, private property, social security, to name a fewFootnote 25.

Moreover, even if some negative rights could be justified, they would be only prima facie rights: a right to life understood as a right not to be killed can be deduced from the duty to attain moral perfection and the additional premise that all moral duties are compossible, but, since we accept normally that killing in self-defense or in a just war are permissible, it is quite clear that such a “right to life” would be a mere prima facie right. Similarly with all the other negative rights.

4.6.3 Regarding other Aspects of Maritain’s Doctrine

What at first strikes of Maritain’s list of human rights is its similitude with the list of rights enumerated in the Universal Declaration of Human Rights. Maritain and the drafters of the UDHR seem to have included in their lists of rights whatever they thought necessary to live a good life in the modern world, going far beyond previous lists of rights which were much more minimalist.

Regarding the extensive list of rights given by Maritain, Philip, after treating Maritain’s theory of human rights, criticizes him for his supposed spiritualism (which means, valuing the spiritual flourishing of the person more than material flourishing), which supposedly results in a devaluation of welfare rights, or not recognizing some of them, or failing to criticize enough capitalism (see Philip 2017, 164–181). Philip simply takes for granted that there are so called “welfare rights”, like the right to development, without even trying to justify their existence.

On the other side, James Schall criticizes Maritain precisely for his extensive list of rights, specially social and economic rights: “he has to show that his own quite extensive list of rights -so extensive that it often confuses rights with legislation- is related to the natural law so that the listed rights indicate the duties of others to those claiming the rights. Much social legislation for Maritain seems to fall in this category. Rights ought not to be merely possible things that it would be nice to have or demand. The increasing number of rights seems finally to minimize prudence on the part of the people and legislators” (Schall 1998, 86–87).

Regarding Maritain’s theory and natural law thinking, Frederick Crosson thinks that Maritain’s theory is inconsistent since he tries to ground his political philosophy both on Aquinas’s theory of natural law directed to common good and a theory of natural rights. The former presupposes a vision of man as a political animal, and the latter presupposes a vision of man as prior to society, just as in Locke. For Maritain, as for Locke, man is prior to the political community, even if “for Maritain the priority is ontological, not historical” (Crosson 1983, 903). Natural law, on the contrary, aims at the common good, and “if natural rights are to be derived from natural law, it is hard to see how they can endow him considered as prior to society” (Crosson 1983, 905).

Crosson seems to think that to presuppose that man be prior to society implies presupposing a pre-political state of nature, which is alien to Thomistic thought. However, two remarks should be made. The first is that, within the Thomistic tradition, there are authors who, prior to Hobbes and Locke, developed the concept of state of nature precisely in order to ground the legitimacy of political authority (Vitoria, Soto, see Skinner 2013, pos. 3237). Of course it may be the case that such authors were inconsistent, just as Maritain according to Crosson is, but, if they, independently of Hobbes and Locke, arrived at such a concept, it may be also the case that the concept be not incompatible with a Thomistic conceptual scheme at all, but maybe compatible with it and indeed required by it. Whatever may be the case, the other remark is that, according to Thomistic ontology, man is indeed prior to society, as a substance is in relation to its accidents, and therefore Maritain, recognizing man’s ontological priority in relation to society, is simply following Aquinas’s thought rather than departing from it. What happens is that the accident that is political society is a proper accident, namely, an accident the necessarily adheres to a substance, like the faculty to laugh is a proper accident for man, and therefore society can properly be considered natural and not artificial (see Manser 1949, 705–707).

However, Crosson points to another problem in Maritain’s theory, and here he seems to be right: the distinction between exercise and possession of a right, which Maritain makes in order to explain certain practices that seem to imply that the state deprives a person of some natural right, as in the case of death penalty. Crosson thinks that this distinction is not sound, because “What can it mean to speak of absolutely inalienable rights whose exercise can be, not just restricted, but effectively rendered impossible?” (Crosson 1983, 905). The same criticism is made by WallaceFootnote 26.Crosson and Wallace seem to be right in criticizing Maritain’s use of the distinction. We may legitimately distinguish between possession and exercise of a right, and claim that one possesses a right that one may not exercise, when there is some temporal limitation on the exercise of the right. For instance, any state has the faculty to declare state of emergency in some extraordinary cases (civil war, external war, pandemic), and limit some of the rights of its subjects, for instance, the right of reunion. It makes sense to say that in such a situation we hold a right that we cannot, temporarily, exercise, but which we will be able in the future to exercise again.

However, there are practices which seem to permanently affect some rights, and where the distinction seem to be inoperative. As Crosson says, “What can it mean to speak of absolutely inalienable rights whose exercise can be, not just restricted, but effectively rendered impossible?” (Crosson 1983, 905). Maritain uses the distinction to explain the legitimacy of the death penalty. And that points to a problem every theory of natural or human rights has to confront: there are state’s practices that simply seem to affect permanently a putative right and, nonetheless, seem legitimate. Every state permits some form of killing. Consider, for instance, the following: killing in self-defense, killing in a just war, and the hypothetical case that we will pose later of a terrorist taking hostages. Some of these putative instances of killing may be understood, after all, as not really instances of killing. For instance, killing in self-defense may be understood as doing an act whose object is not that of killing another, but whose side effect is the death of another, this side effect being tolerated but not intended by the subject. In fact, it is to explain the legitimacy of self-defense that Aquinas develops the principle of double effect. If, on the other side, a right to life is understood simply as the right not to be the object of an intentional act directed to kill another (as Finnis understands this right), then, under that understanding of right to life, killing in self-defense would not imply violating any right.

However, there are other instances of killing that every state, and even the international order, deem legitimate, and where the death of another hardly seems to be the tolerated side effect of an action with another object. Consider, for instance, killing in a just war. More strikingly, international law gives an immunity to kill even in the case of unjustified wars: any soldier fighting a war, no matter the justice of his cause, may not be punished for the fact of having killed another soldier in combat, even if the other person was simply defending his country of invasionFootnote 27. It seems that it has no much sense to say that soldiers have right to life in war (until they surrender). But if rights were inalienable, they should, and those having killed other soldiers in war should be accordingly punished.

It is not quite clear, neither, that the principle of double effect can explain all instances of killing in self-defense. We will expand on this later, in the chapter on Finnis, and argue that the principle of double effect, which he uses to justify instances of legitimate killing, does not cover all the instances of such killing.

Another difficult case is imprisonment as punishment in criminal law. What sense has it to say that a person has a right to personal liberty, that he cannot exercise, if he will be imprisoned for twenty of thirty years? Consider the case of a person who has been sentenced to fifteen or twenty years of prison, and whose age or perhaps a sickness makes likely he will die in prison. Does it make any sense to say that he still has right to liberty, but cannot exercise it? This is not a temporal suspension, it is a definitive abolition of the right.

If one wants to assert at the same time that there are natural universal rights and that they are inalienable, one has to give some solution to the problem of the apparent incompatibility of punishment and legitimate killing with human rights. As has been seen, Maritain’s solution does not work. Are there other solutions? In the chapter on Finnis’s theory, we will explain his attempt to solve the problem and that of other non-Thomistic authors, and, after stating that they do not succeed, we will conclude that human rights, even if natural, are not inalienable.

As has been noted, it is quite easy to criticize Maritain for making the distinction between possession and exercise to explain the compatibility of inalienable rights and legitimate killing and punishment. But any solution will be equally open to criticism, unless one adopts the anarchist solution that, since everyone has a natural and inalienable right to life and liberty, no practice of killing or imprisoning is ever legitimate. What would have been gained in coherence, would then be lost in practicability: no human community could ever survive if animated by such a philosophy.

Other problem with Maritain’s theory is that it lists items that clearly cannot be universal across time as human rights. Maritain himself deals with a similar subject when writing about the right of workers to participate in the direction of the enterprise. He recognizes that the problem “has no sense for the man of the caves” (Maritain 1986, 24), but thinks that Cardinal Frings’s position, namely, that it is a natural right of workers, can be defended. In that case, it would be a “natural right that arises under certain given circumstances of historical development of human societies” (Maritain 1986, 24). The idea is that, even though some subject may be not directly regulated by natural law, if certain circumstances arise, then natural law would give a certain rule that would obtain only under these circumstances.

If that is so, we could make a further classification of the human rights enumerated by Maritain. Human rights that hold under any circumstances, valid even for Neanderthals -right to life, to property, to freedom of association, freedom of speech-, and human rights that hold under specific circumstances -right to social security-.

One further point that needs clarification: since Maritain justifies human rights as means to achieve moral perfection, it seems to follow that we have only rights to do morally right actions. That can trouble those who claim that human rights include a right to do wrong. The answer is that, on a Thomistic view, even though there may be no moral right to do wrong (indeed, it is difficult to justify a moral right to do something morally wrong, since that would seem to imply that the same action is morally permitted and forbidden at the same time), there can be a legal right, based on a moral right, whose scope may be larger than that of the corresponding right. A legal right may allow the possibility of doing wrong actions (say, non-defamatory lies), but the foundation of that legal permission would not be a putative moral right to do that action, but other considerations relating to the need to limit the power of the state, for example. The point will be treated in the chapter on Robert P. George’s defense of civil liberties. For now, suffice it to say that the denial of a moral right to do wrong does not imply the denial of a legal right to do wrong in certain circumstances.

4.7 Conclusion

Maritain’s doctrine regarding the possibility of a practical agreement on a list of rights without agreement on foundations seems not well justified and, even if it were, Maritain recognizes that such an agreement would not be enough to warrant a truly just society. On the other side, there are problems with Maritain’s justification of rights, since his reasoning can only justify the existence of negative rights, and not the positive rights he also claims we have. A solution would be to drop the claim that we have positive rights.

Maritain’s distinction between possession and exercise of rights may also be criticized, but any theory asserting the existence of rights that are both natural and inalienable will have similar problems to explain practices deemed legitimate in every state and without which, arguably, no human community could ever survive.