Fifty years ago, a tangle of intellectual and diplomatic puzzles blocked the world from agreeing on a universal code of human rights. In the years 1945-1948 the world was emerging only slowly from the devastation of the war that had burned through Asia and Europe. The largest nation of all, China, was in the midst of a bitter civil war, and Communists both there and in the Soviet Union harbored worldwide ambitions. Although consciences on all sides had been shocked by the bloodshed, the newly discovered death camps, and the tens of millions of displaced persons and refugees, no one way of thinking about moral issues commanded consensus. People seemed more divided about right and wrong after the war than they had seemed before it. How, then, could they come to agreement on a short list of the rights of all men? That was the first puzzle. It might be called the conundrum of pluralism.
The second conundrum had a different origin. One side in the great war claimed to be defending the individual, whereas two of the other great protagonists—the defeated National Socialists and the triumphant International Socialists (or Communists)—marched under the banner of community, the collective, and especially the state. These two visions of the future were antagonistic—or so it seemed. How could the opposing sides possibly agree about common principles, when the principles dearest to each were to the other anathema? Still, some thought, there must be some way to protect the rights of individual persons while recognizing at the same time the many communities in which all persons are concretely embodied. This might be called the conundrum of the individual or the state.
The drafters of the Universal Declaration of Human Rights (1948) did manage to cut both these Gordian knots. While protecting the ability of diverse consciences to disagree radically about the premises and principles of ethical theory, they found a way to emphasize a number of basic findings of practical reason, to which a sufficient majority of peoples around the world had been driven, whether by the terrors of the first half of the twentieth century or the wisdom of the previous three millennia. Many had been led, under the pressure of extreme suffering, down a sort of via negativa. Having seen the awful consequences of a world without universal standards, they were now ready to agree about certain practices that must not be done, not ever again. Where agreement about the whys and wherefores was still not possible, agreement about a few practical “don’ts” was almost universally sustained. Some of these standards might be stated as goals to be striven for in societies not yet fully developed, and thus be worded in positive terms. But virtually every one of the thirty principles of the final draft rested on bitter memories of recent abuses.
Similarly, East and West were not at all in agreement about the individual and the state. Nonetheless, there are some down-to-earth social institutions, such as the family, in which all humans function. Could not a way be found to bridge the gap between the Anglo-American zeal for the term individual and the Soviet insistence on the state? And between the Western predilection for liberty and the Asian (especially Chinese) emphasis on duty?
Once it was decided that the Universal Declaration could not possibly formulate a common theory about human nature and destiny, nor a common creed, but only declare, instead, a limited but quite clear practical code, the two recently fashioned keys suggested above began to turn in the locks.
One key was to notice the sharp difference between the universality reached through the workings of practical reason and the universality possible through the work of the theoretical reason. The second key was to notice that the term person has connotations lacking in the term individual, and that such terms as social and community attach to many other referents besides state.
The next task was to find a “symphonic theme” that would make each measure of the Declaration more powerful and more meaningful by belonging to a whole, of which each was a partial but essential element. The actual drafters of the Declaration preferred to speak of finding an “architecture,” a metaphor easier to visualize: its preamble as portico, its four “pillars” or axial principles, its four “rooms.” But I believe the metaphor taken from music better expresses the way in which each principle of the code is intended to express harmonies, echoes, and motifs amplified by later principles. The force of the whole adds considerable meaning to each part.
The final task was to formulate each proposition of this code in a form most likely both to attract universal consent and to hold up under the pressure of events. Its drafters did not want the Universal Declaration to be discredited by subsequent events; on the contrary, they wanted its value to be enhanced by at least a modicum of prescience. Practicality in both senses was the key.
Even though the Declaration might come to be phrased positively, in terms of “rights” rather than in terms of “don’ts,” one could think of these rights as reverse descriptions of practical actions that ought not to be taken. Concrete prescriptions have a more practical ring than theoretical affirmations. Besides, they are far more readily agreed to (and more difficult to oppose). This focus on practicality commended itself to diplomats, political leaders, and the public itself, and it was greatly strengthened by recent horrific memories and still-abiding fears.
Let us look more closely at the solutions to these philosophical logjams at the United Nations. In those years, there were not quite sixty countries in the United Nations, compared to today’s 185. They still had radically opposed moral visions, though, and these quickly became apparent to the committee in charge of drafting the charter of UNESCO. On this commission the philosopher Jacques Maritain did especially useful work on the particular problem of pluralism. That work was in turn appropriated by those working on the Universal Declaration.
Like others, Maritain recognized quickly that agreement on common principles—a common philosophy of human nature and destiny—was out of the question. Among representatives of different faiths, worldviews, philosophies, and ideologies, there was no one theory that all of them shared. On the other hand, Maritain knew from his long studies of St. Thomas Aquinas, who had written at a time when various European cultures were meeting more mature and vital Muslim and Jewish cultures, that practice and theory are activities of two different habits of mind, and operate under different laws and constraints. This point requires a brief excursus.
Sometimes, people do quite well in practice what they cannot explain in theory, even as people who are excellent in theory often fail in practice. Theory is curiously impersonal; anyone, from any point of view, should be able to examine a theory, and to falsify or verify it in an objective way. But practice is incurably personal; the batting grip that works for one baseball player does not work for another. In practice, coaches, not theoreticians, are the most help. (Theory may be useful to coaches, but it is not enough.) Moreover, three or four persons can engage in the same practice although each has a different reason for doing so, and a different theory underlying his practice. This observation provided the clue Maritain was looking for:
How is an agreement conceivable among men assembled for the purpose of jointly accomplishing a task dealing with the future of the mind, who come from the four corners of the earth and who belong not only to different cultures and civilizations, but to different spiritual families and antagonistic schools of thought? 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. This is doubtless very little, it is the last refuge of intellectual agreement among men. It is, however, enough to undertake a great work; and it would mean a great deal to become aware of this body of common practical convictions.
Maritain restated the question before the committee. Instead of, How can such disparate intellectual positions be reconciled?, he asked, How much agreement can we reach regarding practices even while remaining incurably divided regarding the underlying theory for such practices? Maritain then raised two further questions that suggested an answer: Are there not some things so terrible in practice that no one will publicly approve of them? Are there not some things so good in practice that no one will want to seem opposed to them? Since the answer to both questions likely was “yes,” the relatively simple yet overlooked distinction between agreement in theory and agreement in practice broke the logjam.
This distinction—taken over from the UNESCO experience by those working on the Universal Declaration—allows people to stand firm on all points of principle, avoiding the trap of moral indifferentism or relativism. A Muslim need not surrender one iota of Muslim faith, or a Christian of Christian faith. Nor need a Communist abandon Communist theory. Maritain’s approach was to ask one question only: Do you agree that the support of this practice and the prohibition of that other practice is a worthy criterion for the world community? Do you agree to declare that your nation will live under this code of practices? In the event, the Soviet Union did not sign the Declaration, but neither did it veto the action of putting it forward.
There were obvious weaknesses in the Declaration. Like the U.S. Constitution, the UN Declaration cannot of itself prevent behavior radically at odds with its principles. On the other hand, after 1975, with the publication of an extension of the Declaration in the Helsinki Accords, the Universal Declaration proved of inestimable importance to human rights activists behind the Iron Curtain. Indeed, these “mere words” were credited with being one of the most useful of all tools in the final discrediting and dismantling of the Soviet Union. The failure of the USSR to live up to this simple and elementary code of practice played a decisive role in delegitimating the regime, even in the eyes of serious Communists, during the turbulent period 1989-91. It worked much as Maritain had hoped it would.
For Maritain, whether it would work was in a sense a testable hypothesis. Even people who deny the existence of the natural law cannot help exemplifying it, he knew, because they are human beings who use practical reason every time they act. Maritain had learned from Aquinas that “natural law” is only the name for the actual working principles of practical reason. (Natural law presents no concrete ordinances, but does make principled demands regarding methods of practical inquiry.)
Charles Malik, head of the Commission writing the Declaration of Human Rights, played a role similar to Maritain’s on pluralism with regard to the concepts of person and society. The Soviet delegation was allergic to the Western use of the term individual, and the U.S. representative, Eleanor Roosevelt, was firm in insisting that the individual is prior to the state. Other delegations had difficulties with both those terms. It seemed for a time that the impasse between rival political philosophies could not be broken. However, from various quarters Malik had become familiar with interesting possibilities in the word person, employed as a substitute for individual. The Anglo-Americans could live with the substitution, and Malik was careful to point out to others all the social reverberations of the term. He made person a far more attractive term to those who feared the radical separatism and potential lawlessness suggested by individual.
A cat or a dog, even a tree, can be an individual, but only a human being (or God and the angels) can be a person. Person is far more specific to the human race; it is a far more humanistic term. What makes a person a person, rather more than merely an individual, is a spiritual capacity: the capacity to reflect and choose, to be imaginative and creative, to be an originating source of action. We have two cats at home, and they merely behave. They can do no other than follow their own instincts. Our children, by contrast, do not merely follow the law of their own natures; they improvise, they think of new and crazy things, they create new personae for themselves.
Moreover, persons are reared over long years in families, and it is in families that their identities, habits, and character are established. Families further participate in whole networks of kin, neighborhood, religious tradition, and other intermediate associations, natural and civil, and in and through those relations live out a thick social identity. In this sense, societies take shape long before states do. Persons are social beings before they are aware of having their own distinctive personalities. Persons come to fulfillment only in community, and communities have as their end and purpose the raising of persons worthy of their inherent dignity. Dignity inheres in them because they are destined to be free to reflect and to choose, and thus to be provident over the course of their own lives, responsible for their own actions. A person is capable of insight, love, and long-term commitment. Such creatures are deserving of respect from other rational creatures. Their inherent nature makes civilization possible, since civilization is constituted by conversation, the art of persuasion through reason, mutual respect. Civilized persons argue respectfully. Barbarians use clubs.
These characteristics of person give rise, in turn, to the four main principles whose force is felt in every one of the thirty principles of the Declaration: Every human being without exception is worthy of dignity, liberty, equality, and brotherhood. In other words, the very term person implies a vision of a universal society, which for reasons of practicality and local autonomy, and by the natural workings of culture and history, is organized through countless local associations of varying sizes and horizons. Among these latter, of course, are states—but not the most important and not the primary social forms. Even the Soviet Union found it difficult to object to this language entirely, although its representatives did in fact object. For the USSR presented itself to the world through four different social forms: It was (it said) a union, of republics, formed by soviets (local communities), in a socialist project—the USSR. Whatever its declared differences, even in the Soviet Union smaller layers of societies, in theory at least, formed the Communist state.
From the very first words of the Preamble, then, the Universal Declaration avoids the term individual and takes care to surround the term person with references to the expanding circles of communities and associations in which, in the real world, actual persons become aware of their own capacities, responsibilities, rights, and obligations; and in which they find information about their human possibilities and their rights, in addition to moral and institutional support in vindicating them. In the Declaration are articles about the person and courts, the person and the family, the person and intermediate institutions, the person and religious or cultural traditions, the person and ethnic groups, the person and the state, the person and the international order.
Very neatly, in other words, the Universal Declaration represented concerns expressed by Latin American delegates, Asians, Africans, Middle Easterners, and others, and avoided boxing itself into the rather more partisan language of individual and state that figure so largely in both Anglo-American and Marxist discourse.
Moreover, the Universal Declaration deftly avoided another East-West pitfall by the way in which it treated the economic and social “rights” that the Soviets were most eager to get into the document, to offset the individual rights that they saw as false consciousness. The drafting committee took care to include the economic and social rights (articles 23-27). But they also took care to point out in a kind of preamble to them (article 22), and in a highly discernible change of tone and of sense, that the term “rights” was now being used in the document in a different sense. In the earlier set of rights, the state does not really have to do anything, except follow the law and otherwise stay out of the way, avoiding abuses.
In the case of the social and economic rights, by contrast, the role of the state is vastly expanded, some might say to an almost infinite degree. These rights are not spoken of as immunities from oppression by the state but as entitlements to goods and benefits from the state. Further, these goods and benefits are stated in the vague language of moving targets, as in the locution (article 22) “in accordance with the organization and resources of each state.” The assumption seems to be that these are not, precisely, rights (in the way the American Bill of Rights speaks of rights) but, rather, goods—or even goals to be striven toward.
It is only a fairly rich and developed state that can provide its people the high standard of living, securities, and benefits held out as goods (“rights” in this new sense) in articles 23-26. Most nations in history have failed that test.
A small band of intrepid thinkers and doers succeeded, fifty years ago, in doing what many thought impossible, formulating a document to which all nations on earth might repair, and a document that was as responsible as anything for the “Helsinki process,” which many credit with undermining the legitimacy of Communist governments in Eastern Europe. For here were official documents, signed by their own government officials and proudly published (at first) in official Communist newspapers, that informed dissidents of rights they didn’t know they had. Waving these newspaper clippings, they embarrassed their leaders and put them on the defensive.
The small band led by Charles Malik succeeded only through stubborn persistence and an infinite capacity for explanation and patient instruction, as well as brilliant tactical diplomacy in the arts of running meetings, conducting public arguments, and corralling crucial votes. The sheer human patience and generosity of spirit required to conduct this wearisome political work is awe-inspiring. (Having served as U.S. Ambassador to the Human Rights Commission twice, and once to the Bern round of the Helsinki Commission for a period of about eight weeks each, I can testify how supremely demanding such work can be.) Yet at the distance of fifty years, what is most impressive is the penetrating intelligence and rich practical wisdom of the architects of the Universal Declaration. Not least impressive was their discovery of the two hidden keys—the key to the problem of irreducible pluralism, and the key to the conundrum of the individual and the state—that unlocked age-old chains.
Copyright (c) 1999 First Things 97 (November 1999): 39-42.
Published in First Things Online May 26, 2004