In my first week of law school, I studied an old statute in my legislation class which basically said, “For the purpose of this Act, ‘motor vehicle’ includes horse-drawn carriages.”
The purpose of this lesson was to demonstrate the power of the legislature. Everybody knows that a horse-drawn carriage is not a motor vehicle, but if that’s what the law says, then so be it.
This is an example of what is known as “positive law” or perhaps “civil law.”
In this particular instance the legislature was trying to regulate public transportation, and nobody’s rights were violated in the process. Nevertheless, it is never a good thing when a law, an “ordinance of reason,” contravenes ontological truth.
An even worse situation occurs when a law contravenes the natural moral law which is inscribed by God on the human heart. When the legislature does this it oversteps its authority by “playing God”–by irrationally imposing its will on those who are being governed. Human rights tend to get violated in the process, particularly those of the weakest and most vulnerable among us.
So, it’s critically important to understand that basic human rights, starting but not ending with the fundamental right to life, are not merely the product of such “positive law.” Rather, these “inalienable” rights belong to the human person even prior to the creation of such human laws. Similarly, these rights do not vanish simply because the State refuses to recognize them.
Pope Benedict XVI emphasized the natural moral law as forming the basis of human rights in his address last week at the United Nations. Here is a relevant passage:
“Experience shows that legality often prevails over justice when the insistence upon rights makes them appear as the exclusive result of legislative enactments or normative decisions taken by the various agencies of those in power. When presented purely in terms of legality, rights risk becoming weak propositions divorced from the ethical and rational dimension which is their foundation and their goal. The Universal Declaration, rather, has reinforced the conviction that respect for human rights is principally rooted in unchanging justice, on which the binding force of international proclamations is also based. This aspect is often overlooked when the attempt is made to deprive rights of their true function in the name of a narrowly utilitarian perspective. Since rights and the resulting duties follow naturally from human interaction, it is easy to forget that they are the fruit of a commonly held sense of justice built primarily upon solidarity among the members of society, and hence valid at all times and for all peoples. This intuition was expressed as early as the fifth century by Augustine of Hippo, one of the masters of our intellectual heritage. He taught that the saying: Do not do to others what you would not want done to you ‘cannot in any way vary according to the different understandings that have arisen in the world’ (De Doctrina Christiana, III, 14). Human rights, then, must be respected as an expression of justice, and not merely because they are enforceable through the will of the legislators.”
In a future post, I will discuss a complementary aspect of the Pope’s address to the United Nations, in which he affirms that Catholics must not have to renounce ther religious convictions in order to participate in public life.