GENERAL INTRODUCTION

A human right is a right that pertainsto an individual

simply by
'irtue of the fact that he is a humanbeing.The righf
ìo iii" uno freedomare
two eKamples of humanrights.rThe expéssion,,fruo,ur.i!hh,,hascome
particularprominencesince world war II and to
the foundlng of the united
\ations (u.N.). It is.the contemporaryword for naturai
rights. There is an
acceptance of the principle of humanrights everywhere,but its
natureand
extentis controversial.The_language of Èumanrigrrtso".upi", u ..nt.ut purt
in social,political, legal, ethicut,ano culturaldisóourses,
b'othon a national
and internationallevel. As a result of the increased
discussionson human
rights,thereis a quantity of literaturewhich either
,"ú;, or opposesthe
notion. The languageof ri-ghtspoints to an idea whic'h-is
peoprediffer abòutthe open to different
interpretations. foundati"" ;i;i;hrr, ,t"i, relevance,
CTC.
In 1948the u.N. issuedits universal Decraration
of Human Rights.
This Declarationis not a binding treatyin the form of
an internationallegar
order.It was intendedto serveai a stàndardof achiev"*"n,
for the nations
of the world. This Declarationgave a formal and authoritative
expressionto
the human right movement.Tne u.N. servesas
a major
-riLlrr.forum for the
development, expression, and rearization or human
This was a
decisivecontributionbecauseit haspavedthe way f;;;íli""s
of peopleto
leada Iife with humandignity.
The u.N. Decraration_hasprovided inspiration
and guidelinesto
governments,parliaments,and social activistsfor
combatingatrocitiesand
injustices.It and subsequent documentshav-eemph"rir-J-Jquul dignity and
respectfor all human.beings.During the fifty
v*., ,in"" tÉe proctamation
of the universal Declaratiónthe u]N. adopíeàa number
of hu,nun rights
conventions.They include.h-urul rights covenants
àn civil, curtural,
cconomic' political, and sociarrights; óonventions
againstdiscrimination;
urd conventionsfor the protecti,onof children,
#;i;s, and refugee
*orkers. The memberstatei of the u.N.. h.1v9_a
;r;;;rililíty to anioe-uy
ù'.se norms. Theserights include both indiviouur .ighir-
uno g.oup rights
rclating to variousspheressuch as civil, economic,
aulturar,politicar, and
social marters.The u.N. Decrarationhas exercirJ
influence in
forming internationalrespecttowards human rights ;;,
and their promotion.
However,.these rights areitill objectsof seriousviolations.
It is commonly thougntihat there are three generations
of human
rights. Firsr generation rights consisr primarily
;;h;, to securiry,
property,and political participation.Theseare "? associated
typically with the

'
Seewilliam cooney, "Rights Theory" in Encycropedia
of Appried Ethics, vor. 3 (London:
AcademicPress,1998),p. 975.

i
 GENERAL INTRODUCTION

AmericanDeclarationof Independence (1776) and the FrenchDeclaration

of the Rightsof Man and of the Citizen (1789).Secondgenerationrights are
construed &S, for example, socio-economicrights, rights to welfare,
education,and leisure. These rights largely found expressionwithin the
i U.N. Declaration.The final and third generationof rights is associatedwith
such rights as a right to national self-determination, a clean environment,
and the rights of indigenousminorities. This generationof rights really
came to prominence only during the last two decadesof the twentieth
century,but they representa significantdevelopmentwithin the doctrineof
humanrightsgenerally.
There is often a double standard in the discussion of rights,
especiallyby the developed,liberal democracies. Although they speakabout
the moral idealsof humanrights they often have economicpoliciesthat are
not conducive to a life of human dignity. These countries very often
emphasizethe failure of othersin the field of civil and political rights and
ignoretheir own failuresin the socialand economicfields. Article 25 of the
u.N. Declarationspeaksof the right to a decentstandardof living. socio-
economic needsof the people are given importance.The rights expressed
such as the right to food, the right to housing, the right to medical care, the
right to social security, etc remain unfulfilled. The claims of these rights
give rise to considerablescepticismabouttheir statusas humanrights.
We live in an increasinglyinterdependent world, which is pluralistin
various respects.we do not often find a common understandingabout the
foundation and the meanings of rights. Political, cultural, religious, and
economic interestsoften lead to interpretationswhich are contrary to each
other and sometimesto the claim that rights are mere rhetoric. various
culturesand traditionshave diverseconceptionsof the human person and
his destiny. However, human rights are universal standardsand cross-
cultural,and they are relatedto eachhumanperson.
There are many strengthsin the language of rights. In matters of
public policy it has deep influence. It can protect the weak sectionsof
society.For millions of peoplethe appealto human rights is an instrument
to overcometheir deprivationsin political, social, economic,and cultural
realms.Hunger, economicexploitation,torture, and the denial of political
and civil rights are presenteverywhere.The rhetoric of humanrights has a
wide appeal.It can arousehuman consciousness to positive actionsin the
face of unnecessary sufferingand neglectof human dignity, even though it
also includes, sometimes,claims which cannot be acceptedas authentic
humanrights.Eachpersonis valuableand worthy of respectas an end. The
human person should not be oppressedby aggregativeconcerns and
procedures.Human rights help to effectively addressmany contemporary
issuesof socialjustice. In order to expresssocial,political, economii, and
culturalclaimsthe powerful languageof rights is evoked.
 . EE
GENERAL INTRODUCTION

The imaeeof the humanbeing

underlyinghumanrightsin
democracies
oi the wlJ;' the riberar
iii'-uniu".r"i'ri"r"'are
gffi:::nro human
rights .otten negarive
onth"luri,or.ur*."iiJ,#,oons. veryoften
vrorati
on sof;;: ""#,tX
*?:f i:#,1'U;l"l*:lt":r" r,"'"#el,,
whenrhesecommercial
interesis
; ft,Jirú",-o"j;;fillp;il;fîll
"
humanrishrs.2 The negariveattitudeì1,lu^,nf;gii,
activitiesof greatpowerssuch i" due
as the usA i" i"i"-"iiliralo*,,afrairs.to rhe
Ann Grendonobservesrharsince Marv
,tr"-"no wàrro w* ii oil.
hasenteredimporranrry into ttre.rì*g "r abour rights
but rights are thoughtór oirr".L"tit'o.. Tl"r,., of peopreseverywhere,
everyclaim put forwardin the ;;'" one placeto another.,Each
or nu-u,' and
justified'peoplemar m.a\e ;-* :-Jil, be acceptedas
i*p*rìoÈ,
rhe name of human rights. sor""riii",illegal,;J;;'t*-orar claimsin
-and the tark of rights
expecrarions ignoro ìh" -and is basedon
:ilTltlr,t. corrunongood the rights of

,l"iÎ"iii{,:1"ry'":ll?3::,1""iel:,T.i",;if,::ì*":;'"
pi"",f
humanrightstittr"tt ."uronàbryestablirt,,ri"ir--""riàiry
tradirions, "un rrr.."['".àa.ro,"
thouehnorrutv. in differenr
rights.withouisu.nu pÉirolopt.ur"iu.r.ing ; ;;;; priiJropr,y of human
counrered throushvariols ,rìÀi, ó" tà n"gt".ted and
rationat foundaton to the".gu:r"nir.ónry i- roinJ pnii"íàpnycangivea
;.r;;;; àf hurun rigits. withou, such a
foundationthe laneuageof rights
becoÀ", -"." rhetoric.Today,s
filled with tark about rights. worrd is
é;;;;;r*i'with.this ralk are quesrionsborh of
life and death and or rriíorous
*lrì"rr. rrre righi ;lìf;;fHe
and the cl^aimedright to .t unborn ch'd
ìir"'
aspecrs
or thisi'iu".rhere ;tr*x"fr::Iffir":?-ljî"iti:tf,:T:
"i." "f
"* i;;'" areclaims*r,i"ù
ethicalimportance'
fiAXffi:l;fi|Í sometimes
go
contemporary human rights discours.e
incrudeslegal norms, political
contexts, morar ideals, intJrnationar
discussions, lnstitutions_ both
governmentaland non-governmental, .
and issues development.
The boundariesof the Jubject *" "i""à"o*i"
li"^r,"À""'ilnr, movemenr
that grew out of worrd wàr u has beóome
""punài"g.
an lmpoftant part of our personar
and sociallife. Elementsof law, poritics,
ano morality are interconnected in

" see Dong-Hoon Kim, "Human

Rights, Responsibilityand the State,,in
in East Asia'Edmund nya"n, Human Rights and
Fujen carhoric úniversity, r99g), p.
iit:" "0.'1iai*an;
3
See Mary Ann Glendon,^!i€htsTalk: The
Impoverishment
-r of poriticar Discourse(New
York: The Freepress,l99li, p. 11.
 GENERAL INTRODUCTION

The image of the humanbeing underlying humanrights in the liberal

democracies of the West is not universal. There are often negative
approachesto humanrights on the basisof culture and traditions.Very often
commercial interestsinduce developednations to ignore the human rights
violations of other nations and to support dictatorial governments.Only
t
when thesecommercialinterestsare not satisfied,do they use argumentsfor
,
human righb.2 The negative attitude to human rights is partty Oue to the
I activities of great powers such as the USA in international affairs. Mary
h
Ann Glendon observesthat since the end of World War II talk about rights
,f
has entered importantly into the cultural schemesof peoples everywhere,
but rights are thought of differently from one place to another.rEach and
i,
every claim put forward in the nameof human rights cannotbe acceptedas
lt
justified. Peoplemay make impossible,illegal, and even immoral claims in
e the name of human rights. Sometimes the talk of rights is based on
n unrealistic expectationsand ignores the common good and the rights of
d
others.
F
A Philosophical understanding of human rights offers benefits
becauseit can give powerful expressionfor the justification of universal
d
human rights which can reasonably establish their validity in different
le
traditions, though not fully. There is needfor a soundphilosophy of human
ts rights. without such a philosophical backing rights can be neglectedand
counteredthrough various arguments.Only a sound philosophy can give a
in rational foundation to the demands of human rights. Without such a
re foundation the languageof rights becomesmere rhetoric. Today's world is
d
filled with talk about rights. connecredwith this talk are questionsboth of
út
life and death and of frivolous matters.The right to life of the unborn child
us and the claimed right to choice of the woman are examples of different
Dd
aspects of this issue. There are other questions of social, political,
economical,and ethical importance.There are claims which sometimesgo
againstmorality.
of contemporary humanrights discourseincludes legal norms,political
of contexts, moral ideals, international discussions, institutions- both
nt governmentaland non-governmental,and issuesof economicdevelopment.
ral The boundariesof the subject are expanding.The human rights movement
el that grew out of world war II hasbecomean important part of our personal
ia and social life. Elementsof law, politics, and morality are interconnectedin
h€
rit
nic 2
be SeeDong-Hoon Kim, "Human Rights, Responsibilityand the state" in Human Rightsand
pd values in East Asia, Edmund Ryden, ed. (Taiwan: Fujen catholic university, l99g), p.
215.
ry 3
See Mary Ann Glendon, Rights Talk: The Impoverishmentof Political Discourse(New
nd
York The FreePress,1991),p. 11.
 GENERAL INTRODUCTION

the areaof humanrights."Here is an attemptto appraisethe philosophical

approaches of two influential thinkersin this area.one of them represents
the initial stagesof this movement,and the other various phaseì of its
contemporary evolution.

I The Scopeand Originality of this Work

The purposeof this work is to make a comprehensive, comparative
_study of the philosophyof human rights of two important thinkers,Jacques
Maritain and Amartya Kumar Sen. They are of remarkableimportancè in
the field of social and political philosophy. Both presenta well-argued
philosophicaltheory of human rights. As the title of the dissertationstates,
this work proposesto make an appraisalin regard to their writings on
human rights. Through this work we intend to exposetheir approachio the
philosophy of human rights and try to bring out the similarities and
differencesof approachin their philosophicalpresentationof humanrights.
The relevanceof both thinkers in the promotion and protection of human
rights in a pluralist and increasinglyglobalizing world will be examined.
Accordingto the availableknowledge,no work has beendone in this field
comparingboth thesethinkers.This is the novelty of this work. The scope
of this sfudy is philosophical,and an attempt is made to find a corn-òn
ground betweenthesetwo. Both have exertedconsiderableinfluence in the
field of human rights. Both authors are often studied, appreciated,and
criticized, although in regard to Maritain there is a geneiàl lowering of
interest.

2 Sourcesand Methodotogy
- This study is primarily basedon books and articlesby Maritain and
sen. Their works constitutethe primary sourceof this research.we will
alsoconsultdifferent authorswho have contributedto this field of sfudy.In
generalthis studyemploysanalyticand syntheticmethods.We presentiheir
vrslons rn a systematic way, and we try to analyze their thought, with
Maritain in the conrextof his social and political philosophy,and with sen
in the context of his thought on developmentand freedom.we attemptto
situatetheir philosophiesof humanrights in their proper historicalconìext,
and we try to understandthe relevanceof their contributionsto the present
situation.The syntheticcharacterof the work lies in the fact that at the end
of the work we synthesizethis study in a comparison,and offer a general
conclusion.

a
See Philip Alston, ed. , Promoting Human RightsThrough Bills of Rights: Comparative
Perspectives, (Oxford: Oxford Universitypress,1999), pp. 2-3
 CENERAI INTRODUCTION

3 Limits
The work concentratesonly on the philosophy of human rights
accordingto Maritain and Sen. With regard to Maritain there exist various
studies which emphasizedifferent aspects of his social and political
philosophy.The various aspectsof his political philosophy are treatedin
this dissertationonly insofar they are connectedto his treatmentof human
rights. As far as Sen is concernedhe is basically an economist.He has
written on many aspectsof economics,and he is still activein writing in this
field. We concentrateonly on those aspectsof his presentationwhich are
connectedwith humanrights.

4 The Structure of the Work

The developmentof the project is as follows: The work is divided
into three parts. The first part deals with a philosophicalexposition of
human rights according to Maritain, and the secondpart with that of Sen.
This will help locate the treatment of the subject matter in their various
writings. It is expectedthat this framework of discussionwill provide the
notions necessaryto make an appraisal,which is the principal aim of this
project. The third part offers such an appraisalof both these thinkers, and
points out the relevanceof their thought in the contemporaryworld. Here
we shall try to find out how both thesethinkers might contribute to a sound
Stilosophy of human rights. Finally we present a general conclusion. A
bibliography of selectedworks will be presentedin the end.

5 Biographical Notes
JacquesMaritain was born in 1882in Paris.He studiedat the Lycée
Henri [V and at the Sorbonne.He was initially attractedto the philosophy of
Baruch Spinoza.In 1901 Maritain met RaissaOumansoff, a fellow student
at the Sorbonne. Both were struck by the spiritual aridity of French
intellectuallife and madea vow to commit suicidewithin ayear shouldthey
not find some answer to the apparent meaninglessnessof life. The
challengesof their teacher Henri Bergson helped them to give up their
úroughtsof suicide,and Jacquesand Raissawere married in 1904.Under
the influenceof Leon Bloy the two were convertedto Catholicismin 1906
and experiencedwhat one might also describeas a conversionto Thomism.
Maritainbeganan intensivestudyof the writings of ThomasAquinas.
Already recognizedas an important writer on metaphysicsMaritain
beganto write on political philosophy in the I920s, following the Vatican
condemnation of L'Action Frangaise, the extreme right nationalist
movement with which he had initially sympathized.In the 1930s he
developed a political philosophy that he called integral humanism in
opposition to both individualistic liberalism and collectivist socialism,
describingit as personalist,communitarian,andpluralist.
l-i

'=1
=:
I Ó
GENERAL IM.RODUCTION
1

By the early r930s Maritain was an established

figure in cathoric
thought. He was already a frequent visitor to
North America and, since
1932,had come annuallyto the instituteof Mediaeval
Studiesin Toronto to
give coursesof lectures.with the outbreak
of war at the end of 1939
Maritain decidednot to refurn to France.Following
his lecturesin Toronto
at.the beginning of 1940 he moved ro the
uríteo slates, teaching at
PrinceronUniversity(1941-42)andColumbia(1941_4,4).
Maritain remainedin the united statesàuring tt"
**. He continued
to
.lectureand publish on a wide range of subjecis,not only in poritical
philosophybur in aesrhetics, the philosophyof and metaphysics.
Following the liberationof Francèin the summer "àu.uiion,
of r944he was namedthe
French ambassadorto the vatican, serving
untir 194g, but he was also
activelyinvolved in drafting the universal Declaration
of Hu-an Rights.A
clear statementof his_politicalphilosophycan
be seenin his Man and the
State,publishedin 1951.
In the spring of 194g Maritain returnedto princeton professo
. as
Emeritus, though he arso lectured at
a number of other Americar
universities(particularlyat the Universityof
Notre ou-" uno the Universit
of Chicago), and freqúently returned tb Fran""
to give srrort courses i
philosophy. During this period in
addition to hís work in politici
philosophy Maritain pubrishedon aesthetics,
religion, Àoral philosoph.
and the philosophyof history.
In 1960Maritain and his wife returnedto France.
Foilowing Rarssa
death later that year Maritain moved to Toulouse,
where he decided to li,
with_areligious order, the Littre Brothersof
Jesus.He died in Toulouser
April 28, 1973. He is buried alongside
Raîssa ir. roinsneim (Alsacr
France.
Maritain had influencedthe universal Declaration
(1948) issuedby the united Nations. of Human Rigl i
Maritain,s writings on human rig
and democracyformed a doctrinal foundation
ortrre po;;; Europeani
Latin American christian Democraticparties,
and his argumentfbr religir
pÌuralismand democracydirectly influenced
the declarationsof the Sect
vatican council on democracyand ."tigiou,
reflectedsome disillusion.witÉthe openiirg
freedom. His later writi
of catholic thought associe
l
.rl
with the council and what he took to be the 'l
abandonment of Thomism.
Amartya Sen was born in calcutta in 1933. {
He was educater

I
calcutta and cambridge and has taught
in many pr".rigiou, institut
such as Delhi School of Economiís,
Oxford úoiu"irity, Cambr
university, The London schoor or pconomics,
and Harvarà university ;
was awardedthe Noberprize for Economics ,l
in r99g i;, hi; conrributic
welfare economics.The Royal swedish
Academy of sciencesstatedi
citation that sen's work hai contributed
to the th"ory or ro.iut choice
definition of welfare and poverty, unJ studies
of famine. He was the
 GENERAL INTRODUCl'ION

non-Englishmasterof rrinity college, cambridge,

Engrand(199g_2004).
He is at presentLamontprofessorof Jconomicsand philosophy
at Harvard.
sen's rise in the world of economicscamein tqsi-with
his seminal
work Povertyand Famine:An Essayon Entitremrn,
oii nrprivationwhich
showed that famin: yas not jusi a natural disaster
but an avoidable
economicand political catastrophe.partly due to
his work governments
around the world changed their focus on the prevention and
,have_
managementof famine. Sen's work on inequalities
in welfare distribution
gaveshapeto the united Nation'sDevelopment
e-gru..r. rni, philosopher,
who has authoredmany scholarrybooks and article"s,
has rong arguedthat
individualrights deservegreaterpriority than materiaíistic
wel being.He is
a recipient of many nationar und intà.nutional
awards-He is a staunch
believer_in the pluralist,secular,and tolerantIndian tradition.
He dealswith.theeconomicimportanceof human
rights and the role
of moral motivationin economics.This ir
in his studies
on famines.He doesnot considerhumanbeings "rp*iuiry'"il;,
to ué mereiv serfinterested.
while giving emphasisto sociarand econom_iJ.igrrr,
r" oi"l not neglectthe
civil and political aspectsof thesematters.sen'í
D;r;;bp*"nt as Freedom
(1999) introduceda new discoursein
develop*"";. $;"chooses to use
"freedom" as a measurementof development.
sen defines deveropmentas
rhe enhancementof freedomsthat alrow people
to lead rives that they have
reasonto value.
sen emphasizeda horistic human rights-based
. approachto tackle the
complex and inter-related.factors trapping people
in póu".ty, and countries
in economicand poriticar marginarizàdonor
crisis. once deveropmentis
understoodto consistof more ihan economicgrowth
or export figures the
rmportanceof human rights becomesself-evide"nt.
sen in.iuà", poverty and
hungerin his discourseon human rights and
fundamentaifieedoms. He
challengesrhe view rhar ec.onomicgiowth ,h""ld
l;-È
andpoliticat rights. lnsread.hehighfilhts rhe imporra;.; irror,ry over civil
;i ùu*an rights in
promoting economicsecurity.Ai an economisi
and a phil,osoptrer he has
contributed to the conceptual framework of
viewini-ìevetopment as
freedom.His conceptof_capaUilityand its difLrenJ?;";
importantin this regard.r'oihim humandeveropment tunctioningis
;";;; the expansion
of valuablecapabilitiesand the realizationof freàdom,
unJiiu*un rishts.
 PART ONE

Chapter 1

NATURAL LAW AND HT]MAN RIGHTS

Introduction
The purpose of the first chapter is to present Maritain's
philosophicalposition in regard to the foundation of human rights. He
considersnaturallaw the foundationof humanrights. In this chapterwe try
to understandhis treatment of natural law and how it works as the
foundation of human rights. Then we try to presenthis enumerationof
various human rights. For Maritain there are two aspectsof natural law, the
ontological and the gnoseological.Natural law is the normality of
functioning of any being, but as regardsman nafural law becomesthe moral
law. Man should freely obey it in order to achievehis end. For Maritain
naturallaw is known throughinclination.
We try to explain how Maritain establishesthat the true philosophy
of human rights is basedon the true idea of natural law. The natural law
prescribesto us our fundamentalduties, and by virtue of this natural law
every law is binding. It is this law which assignsto us our fundamental
rights. The natural law is universal and invariable, and dealswith the rights
and duties which follow necessarilyfrom the first principle or precept of
law, that good is to be doneand evil avoided.
In explaining human rights Maritain criticizes the theories of the
rights of man of some eighteenthcentury philosophers,particularly Jean
JacquesRousseau.Rousseau'sthoughtassumedthe absoluteindependence
of the human subject and his absolute right to express anything and
everythingthat is in him. This conceptionof rights, accordingto Maritain,
may harm the commongood and may bring stateabsolutism.
Maritain enumerates the rightsof the humanperson,the rights of the
civic person,and the rights of the working person.He providesan elaborate
list of variousrights underthesethreecaptions.He held that naturalrights
are fundamental and inalienable, that they are antecedentin nature and
superiorto society.Nafural human rights are inalienablebecausethey are
groundedon the very nature of man. There are absolutely inalienable
naturalhuman rights. If such rights were to be restrictedby the body politic,
the common good would be imperilled. No man can lose these rights.
Maritain makesclear,however,that therecan be somelimitation relativeto
rights. He makes a distinction betweenthe possessionand exerciseof a
right.
10 I: N-ATURALLA\[ A\D l{UllAl{frcilTS
CH.APTER

L Maritain's lJnderstandingof Natural Law

the common
Maritain's basic conceptionof human rights and of
principal theoristsof
good are funOamentaiiyat uariancewith thoseof the
rights which-is
íhe Uberal tradition. Ée championeda theory of natural
Man and the State'He
statedin The Rightsof Man onà Noturot Law and in I

in their practical
,tut", thut the óonflifting theoreticalsystemsconverge- I
development and growth of moral
.oncturlons.There is a órt of organic i
is independent of
tnàwtedge and moral feeling. rryr development
way enter
philosopÉicalsystems,but philosophicalsystemsin^a secondary r
it- positively. and
into reciprocal acrion with this procers. They affect
;;;rì;;i;.i-Maritain sets forth a rational foundation of human rights'
rights is natural
a"?o.Oing to him the philosophicalfoundationof human
the rationalistera jurists and philosophers
law. He points out that during -natural
have misused the notion of law for their purposes'They have
Maritain says
presentedit in so over-simplified.and so arbitrary a rnanner.
of natural law and the rights of mant
it ui ,fr"v should have a true notion
;th"y s'houldrealize,however, that the history of the rights of man is linked
into which
up *itt, the history of Natural !?*, and that the discredit
entailed a
,érn"tirn", positivism brought the idea.of Natural Law inevitably
similar discreditingof tn" iiea of the Rightsof Man'"2

l.lCriticismagainstEighteenthandNineteenthCentury
Conceptionsof Human AutonomY (
There are different theoriesof natural law. Maritain quotesLaserson I
view that one
to assertthe importance of natural law' The latter is of the c
law itself. There
shouldnot confúsethe doctrinesof natural law with natural lr
one might
might be different theories of natural law. In the course of time S
the law itself is
be substitutedby another,but this does not signify that F
rt' T1reeigfrteenthand.the nineteenth centuries witnessedmany 9t
F;; to much
iheori"sìoming anú going.The ideasof naturallaw were subjected R
artificial systematizationand rationalistrecasting' i^
Se

Some theories treated man as god and ascribedto him the absolute nr
in Maritain's
and unlimited rights of a god. [n creating this situation, frr
are important." Natural law was to SA
opinion, ImmanuélKant and Rousseau re(
no
Th
1 of Chicago Press,
See JacquesMaritain, Man and the State (Chicago: The University Ph
1956),pp. 79-80. edr
' Maritain,Man and fhe State,pp. 80-81' do<
ger
3 See Maritain, Man and the State, pp.8l-82. Here Mafitain is dependenton Max M.
..positive and Natural Law and Their Correlation" in lnterpretations of the
Laserson, law
Modern Legal Philosophies:Essaysin Honour of RoscoePound' Ind,
a Immanuel Kant and
See Maritai n, Man and the State, pp.83-84. Here Maritain criticizes Egc
In the devèlopment of discourseon human nghts in the tradition
JeanJacquesRousseau.
 CHAPTERI: NATURAL LAW AND HUMAN RICIrTS
ll

be deduced from the autonomy of the will. Maritain

complains that the
eighteenthcentury has forgotten the true autonomyof
the wili. According to
him the genuine notion oi autonomy is that of St. paul.
This situation of
eighteenth.century analysesof natural law had effects
on the notion of
natural rights. As a result the claim was made that man
is subjectto no law
other than that of his own will, and freedom and
the ,igÀÀ of the human
person were to be based on this claim. Human
rightí were viewed as
infinite, eluding every objective measureand limitation.
This is a kind of
absolutization,and the result is a kind of scepticism.
These
---- philosophies
r did
not form a solid rationalfoundationfor humanrighh.t

of the eighteenthcentury Enlightenment,the positions

of Kant and Rousseaufigured in a
prominent way. The effect of the EuropeanÉnhghtenment
on natuJ law theory was to
underscorethe individr_ll autonomy oi."uron
und moraliry. runi;s-pnitosophy was in
the tradition of Rationalism. It supportedthe free
will of ti" inoiuioirul and completed
the secularizationof natural rigtrts begun a century
earlier. Kant saw the only absolute
moral good to be the virtuous wili of the
rational individual formalized by the
calegorical imperative. see Alan S. Rosenbaum,
ed., ,.The klitor,s perspectives,,inThe
Philosophy of Human Rights: International Perspectives
(westport: Greenwood press,
1980)' p' 13. According to Kant the incomparable
dignity of human persons derives
fact that they are_free with regard to all laws
Tr.ú: of'nature, ou"ying onry those laws
which they make themserves. see Imiranuel
Kant, Groundwi* ii ìi" Metaphysics of
Morals, trans. H. J. paton (London: Hutchinson
ad Co., 195g), pp. 102_103.Self_
deúermination in the Kantian sensegives priority
in moral íà igrrr" or individual
freedom. For Rousseauthe meanir[ of human
rights was"ff"i*
ultimanely grounded in the
generalwill of the society. This generalwill
is externalizedin the sovelign. Rights were
consideredprivate, orisrlaliSq in society and not
in nature.It i, throu;; obedienceto the
laws of the society that individuar freeàom and
equalify ;il;i He relegaúedthe
zubjective rights of the individual to a collective """r" *ìrr. s.,
general Jean Jacques
Rousseau'The social contract and other Later political
writingsrvictor Gourevitch,
ed' (cambridge: camtridge university press,
rggT), pp. qíaa. se also A. S.
Rosenbaum,ed., "The Editoì's perspectives',ín The
rniiosàpny o1uu,*o, Rights, p. 14.
See Maritain, Man and the state, pp. g2-g4. with
regard to St. paul, Maritain does not
present any particular textual referencehere.
Howeier in treatingle conquestof true
frreedomMaritain gives textual referencesto
St. Paul. In the letter to the Romans paul
says that they have nor received rhe spirir
of ;gui,, ;; iJu,, uut rhey have
received the spirit of adoprionof sons (Ii.om g.r5). _bondage
.,ff-you
L" r"ouf it" spirir you are
not under law (Gat 5'18)." For these references
to St. paul Maritain is indebted to St.
Thomas' see Jacquesyy?ir "The conquest of Freedom,,in The sociar and potiticar
Philosophy of Jacques Maitain: serected keadingr,
Josephw. Evans and Leo R. ward,
ods' (New York: charles,Scribner's sons, tess;,
p.26. paur encounteredtwo chief
doctrinal obstacles,namely the wisdom of the gentiles
and the law of the Jews. The
gentiles proposedreasonas a saving power.
According to paul salvationdoes not rest on
Ite wisdom of men bur on rhe poiei of God in
christ (1 cor 2.5). The Jews posed the
hw as a causeof salvation. paul says that if has
no power in itself to save (Rom 4.r5).
lndependencefrom rhe r.aw is demandeduy
ttrà gratorty of redemption (Rom 3.21-2g).
Egocentric autonomy inclines man to torn uíl
ni, tu* keeping into self_redemptiveeffort
 t2 CHAPTERI: NATURALLAW AND HUMAN zuGHTS

t.2 The True ldea of Natural Law

To re-establishour belief in human rights there should be a true
philosophyas their basis.Maritain presentssuch a true philosophicalbasis
for the rights of man. "This true philosophyof the rights of the human
personis basedupon the true idea of natural law, regardedin an ontological
perspectiveand as conveyingthrough the essentialstructuresand exigencies
of creatednaturethe wisdom of the Author of Being."6Maritain affirms that
the genuine idea of natural law is a heritage of Greek and christian
tradition. It is found in Hugo Grotius, suarez, Francescode vittoria, st.
Thomas, st. Augustine and other church Fathers and st. paul. Maritain
points out that actually Grotius begandeforming the idea of natural law.7
st. Thomas understoodthe matter in a wholly consistentmanner.
Human beingsare social and political by nature.They form part of a whole.
Outside of this whole they are deprived of their essentialorientation and to
this larger whole they owe their primary allegiance. Human beings are
orderedto a determinateend or ends. To realize them the collaboration of
others are needed.Civil society is the most comprehensiveand truly self-
sufficient human association.It is the only natural associationcapable of
satisfyingtheir longing for completionof wholeness.Civil societyii natural
in the sensethat it correspondsto the naturalends,needs,and aspirationsof
its members and that human nature itself inclines to it.8 Thomistic theory
has been most influential in the tradition of natural law. St. Thomas knew
the tradition of the Church Fathersas well as of other Christian theolosians

(Rom 10.3). Only through that faith that is total commitment to Christ that man can
acceptsalvation. SeeF. M. Gillman, "Apostle Paul" in New Catholic Encyclopedia, vol.
l1 (Washington(DC): The CatholicUniversiryof Americapress,2003),pp. 1-17.
o
Maritain, Man and the State,p. 84.
7
SeeMaritai n, Man and the State,p.84. Grotius tried to establishthe theory of natural law
as the moral governanceof mankind without depending on theological considerations.
The presuppositionof the existenceof God is not necessaryfor the influence of natural
law. The result is the notion of a purely secular moral order for the basis of law and
politics. See Andrew J. Reck, "Natural Law," The Review of Metaphysicsaz
{9s9), p.
491. Maritain criticizes Grotius for concentrating solely upon the order of nature as
decipheredby human reason and not perceiving the relationship between the order of
nature and the eternal reason.For Maritain the ultimate reasonfor the rationality of the
natural law is the divine reason.SeeJacquesMaritain, "Natural Law and Moral Law" in
challenges and Renewals,Josephw. Evans and Leo R. ward, eds. (Notre Dame (IN):
University of Notre Dame Press,1968),p. 219. This work is a collection of readings.
The above mentioned section is taken ftom Moral Principles of Action: Man's Ethical
Imperative, Ruth Nanda Anshen, ed. (New york and London: Harper and Brothers,
1952),pp. 62-76.
8
See Ernest. L. Fortin, "The New Rights and the Natural Law,', The Review of potitics 44
( | 982),pp. 594-595.
 CHAF|ER I: NATURAL LAW AND HUMAN
RIGHTS IJ

and
_philosophers,especially of Gratian and John of
Salisbury.
In the Treatise on r''w of the summa
Theologiae st. Thomas
distinguishesthe variouskinds of law: eternar
law, naturailu*, humanlaw,
and divine law in its two forms, both the
ord and ú," n"*. For him law is a
measureor a rule of human conduct which
originatesin reason,which
commandsor forbids, and which is ordained
,o í," ."r"Àon good. From
divine reasonspringseternallaw. It is the
rule that oirecis ail actionsand
movementstoward the furfirmentof the divine
end. It i, Coo,, conception
and direction of all things. Natural law is
derived lorn tt" eternal law.
Natural law participatesil-rdivine law. Ttre
origin of human law is natural
Iaw. Human law aàjustsand accoÀmodates
tr,""nuturui-iu* ,o particurar,
individual cases.Divine rawstreato'uìt".,
which go beyondhumanreason.
Thesemattersare crucial to man's eternal
happinJss,;í;À;y pertai^n to the
interior movementsof his mind or soui-rath".
thanhis overt actions.v
we find natural law in cicero, the
Stoics, uno in other great
moralists of antiouity a.nd ip grear poets.
Maritain cites Antigone, the
heroine.in sophocies_rs pray oitn?;;# name.She breaksa posiriveraw in
giving burial to her brother and justifies
her act by ;"kril an appeal to a
law higher than anv merery human taw.
rrris higher raw is unwritten and
unchangeable.Mariiain rt"r ttt" heroineof natural law.r0
"o*id".,
1.3 The Ontological Element in Natural
Law
There is a human nature, and this human
nature is samein all men.
Ma,n is a.being gifted wirh inlerh!"n"".
He has ,h" ;;;", to acr wirh
understa_nding and the power to diermine for hims"fit"
pursue.Man possesses ends he will
ends which necessarily to his essential
constitutionand which are the samefor "oo"rponJ
alr. Éecaus" ài it i, possessionof
although hehastheabilityro freerychoose tì, o.,un
ril"l!g,"1*,
Ior man to attunehimserfto the endsîecessariiy ends,ir is
demanJ"ouy his nature.
This meansthat there is an order o.
Jirposition which human reasoncan
discoverand accordingto which human-will
should act- ihis order is the
unwritten, naturarraw. To ilustrate this
point rururituiì'speat<s of human
workmanshipin the.making of a piano.
All pianos have as their end the
production of certain attrined tóunài,
in"ip"ctiu" ói in"i. ,yp" and

'
See Thomas Aquinas'Jumma Theorogiae,
r-rr, q. 90-10g. summa Theorogica,
Fathersof rheEnglishDominicanprouln"", trans.
vol. 2 iNew vo*, ón irtran crassics,rggr),
pp. 993-t I 19. SeealsoA. J. Reck, .Waturaí
r0 Law,,,pp. 48g_489.
See.Thomas. A. Fay, "Maritain on Rights and Natural
Law,,, The Thomist55 (1991),p.
 l4 CHAP|ER I: NATURAL LAIV AND HUMAN RIGHTS

particularplace. If the pianos do not producethese soundsthey must be

eithertunedor discardedworthless.rì
Any object producedby human workmanshiphas its own natural
law, that is, the normalityof its functioning.It is the properway in which it
goesinto action.All things existing in nafurehave theii own normality of
functioning, whether they are animate or inanimate. Through this próper
way they should achieve their fullness. when speakingof ùeings wlttròut
freedom"should" has only a metaphysicalmeaning,but-in the world of free
beingsit has a moral meaning,implying moral obligation.For man natural
law is moral law. Man obeys natural law as a free agéntand not necessarily.
Thus, he can obey it or disobeyit becausehe belongsto a privilegedorder.
He cannotbe reducedto the generalorderof beingsóf the c^osmos. His final
endis superiorto the immanentcommonend of thi cosmos.l2
In its ontological aspect natural law is an ideal order relating to
human actions. It belongs to the human nature and the unchanling
necessitiesthat are rooted in this nature.However, this does not mean that
the proper rule for every human situationis containedin our humanessence.
Human situationsbelong to the existentialorder, but they pose questionsto
the essenceof man. Maritain discussesthe murder of Rb"t Èy cain to
explain this point. The murder of Abel by cain is essentiallyinctmpatible
with the generalends and normality of functioning of the rational essence.
Murder is to be rejected by the rational essence.Éence the prohibition of
murder is required by the rational essenceof man. The precept that you
shallnot kill is a preceptof naturallaw.1
when something is against the human essence, when it is
incompatible with its general ends and normality of functioning, it is
prohibited by natural law. Genocideis an example.îhis does not mean that
the prohibition was eternally inscribed as a kinà of metaphysicalfeature in
the essenceof man or it was a notion recognizeduy itré conscienceof
mankind from the very beginning. Natural rawls sometiringontological and
ideal. It is ideal becauseit is groundedon the human its stircture is
unchangeable, "rr"nò",
and it involvesintelligible necessities.The humanessenceis
an ontologicalreality.It existsin everyhumanbeing,and naturallaw dwells
as an intentional order in the very being of all exiiting men. Thus natural
law is basedon the ontological. Becausenaturallaw is somethingbasedon
the ontological it is coextensivewith the whole field of natural moral
regulatìons.'""Not only the primary and fundamentalpreceptsbut the
remotestregulationsof natural ethics mean conformity to ìaturàt law_ say,

11
SeeMaritain, Man and the State,p. g6.
12
SeeMaritain, Man and the State, pp. g6-g7.
13
SeeMaritain, Man and the State,p.88.
ra
SeeMaritain, Man and the State,p. g9.
 CHAPTER I: NATURAL LAw AND HUMAN RIGIITS
l5
natural obligationsor rights of which perhapsnow
w-ehave no idea, and of
which men may becomeawarein a distant'future.',15-onry
an angelwould
know naturallaw in its full extension.No nuÀan
u"ing^Junknow the full
existential situations of man though the eighteenrt,
.8nLry theoreticians
claimedsuchknowledge.16

1.4 The GnoseologicalElement

The second basic element in natural law is
the gnoseological
element. It means natural law as known, as measuring
in actual fact our
practical reason.Natural law is the measure
of human ótr. tt knowledge
that men have of it varies_indegrees,and not all " sameway.
know it in the
The knowledgeof natural lay miy be subjectto
error. The ànry serf_evident
principle of which all men have in cornmon practical
knowledge naturally
and infallibly is that one must do good and avoid
evil. Maritain statesthat
this is the preambl".un_dprinciple àf naturallaw, but it is not the law
Natural law is the whole of thiúgs to do and not itself.
to do which follow from the
above principle in a
.necessarymanner. The possibìliiy of error and
deviation in the determination oi things merely shows the weaknessof our
sight. Innumerabre accidents can óo*rpt it"
,rorui- judgement. The
drawbackin people's vision is not an imperfection
in nulural law. Many
people might have mistaken views about many
things. That
- does not mean
the things are.nor right or wrong in themselvZs.
ltyt tut*iruin refers to
Montaigne's remark thaJ-among peopresin""rt^uno theft were
consideredvirtuous acts.Maritain-'s""riuin
answeris that this is not a proof against
natural law. A mistake in addition proves nothing
against arithmetic. The
mistakenviews do not meanthat theie is no univeriar
iorm. It only signifies
that man's understanding is flawed.17
1.4.1 Natural Law as Unwritten Law
Natural law is an unwritten law. Maritain emphasizes
this expression"unwritten.', and clarifies
It is unwrittenlaw in thedeepestsenseof thatexpression,
because our
knowledgeof it is no work of freeconceptualization,
but resultsfrom
a conceptuarization boundto the essentialincrinationsof being,of
living nature,of reason,which are at work in
man, and becauseit
developsin proportion, to the degreeof moral
reflection,and of socialexperienJe self-
"*p"ri.n."'and
also,of which man is capablein
thevariousstages ofhis history.l8

'5
Maritain, Man and the State,o. g9.
Ió
SeeMariui n. Man and the State.p. eS.
17
SeeMaritain,Man and the State,p.90.
't
Maritain,Man and the State,p.94.
 t6 CHAPTER I: NATURAL LAW AND HUMAN RIGHTS

There is developmentof man's moral conscience.According to the

development of the moral conscience man has increasedknowledge of
natural law. Anthropological studiesreveal the historical evolution of moral
conscience. The moral cónsciencein the tribal agewas much lessdeveloped
than it is today. This implies that the knowledge of natural law has passed
through historical evolution. It is known in greater degree,however, than
some philosophers or theologians have believed. This process of
developmentis not yet finished.It will continuein time. our knowledgeof
this unwritten law is not complete. It will continue to develop, to beòome
more refined as long as mankind exists. Here Maritain as a believer asserts
the _powerof the gospel. The full flowering of natural law with complete
perfection is deeply related to the gospel. A full knowledge of the natural
law will happenwhen the gospelpenetratesto the very depthsof the human
conscience.He concludesthat natural law and the knowledgeof the law are
two different things. Natural law has the force of law only- insofar as it is
known and expressed in affirmationsof practicalreason.te

1.4.2 Knowledgethrough Inclination

Maritain explains how human reason discovers the regulations of
natural law. It is not discovered in an abstractmanner as are geometrical
theorems.Neither is the knowledge of natural law through the conceptual
exercise of the intellect or by way of rational knowledge. "The genuine
concept of Natural Law is the concept of a law which is natural not only
insofar as it expressesthe normality of functioning of human nature, but
also insofar as it is naturally known, that is, known through inclination or
through co"nnaturality,not through conceptual knowledge and through
reasoning."'" The judgementsin which natural law is madé manifest to the
human reason proceed from this connaturality and through this
connaturalitywhat is consonantwith the essentialinclinationsof human
natureis graspedby the intellect as good and what is dissonantis considered
as bad. These inclinations are essentially human and there is historical
development in these essential inclinations.2l Maritain insists on the
necessity of a deeper and precise understandingof st. Thomas in this
matter. tn the view of Maritain when St. Thomas teachesthat human reason
discovers the regulations of natural law through the guidance of the

re
SeeMaritain, Man and the State, pp.90-91.
t"
JacquesMaritain, "on Knowledge through connaturality ," The Review of Metaphysics4
(1951)' p. 478. In this article Maritain treats the subject in reference to mystical
experience,poetic knowledge and with regard to the moral realm, namely naturàl law.
He treatsmystical experience,both Christian and natural, and poetic knowledge to assert
knowledgethrough connaturality,but his main concentrationis on natural law.
21
SeeMaritain, Man an^dthe State, pp.93-94.
 CHAPTER I: NATURAL LAW AND HUMAN RIGHTS

inclinations of human nature, what he means is that the very mode or

mannerin which humanreasonknows naturallaw is not rational-knowledge
Put knowledge through inclination. Maritain is of the opinion thit
knowledge through inclination is generally understoodin the Thomistic
doctrine of natural law. Maritain admitsthat St. Thomasdid not usethe very
expressionin treating natural law. The Thomistic understandinsalonè
makesthe doctrineperfectly consistent.2'This kind of knowledgejhat is,
knowledgethroughinclination,is not clearknowledgethroughcoiceptsand
conceptualjudgements:"It is obscure,unsystematìc,vitai knowleàgeby
connaturality or affinity, in which the intellect, in order to rorm iis
judgement,consultsand listensto the inner melody that the vibrating
strings
of abidingtendenciesawakenin us."23
To get a comprehensivepicture of naturallaw one must understand
the basicfact that knowledgeof naturarlaw is knowledgeby connaturality.
This requiresa historical approachand a philosophi.uf ur" of the idea of
development.St. Thomas's view on the matter dèmandsas much, but the
middle ages were ill equippedto meet such demands.Becausethere is
historical progress of the human conscience,there is progress in the
knowledge of natural law. The inclinations of humaì nature have
progressively,shaped and moulded the knowledge of natural law. In the
immensity of the human past they have guided-reasonstep by step to a
growing knowledgeof the regulationsof natural law.

22
SeeMaritain,Man and the State.o.9l .
t3
Maritain, Man and the state, pp.9r-92. There are many who cnticizeMaritain
on
account of his natural law conception. Many argue that Maritain does not offer
a clear
and deeper understandingof natural law as presentedin St. Thomas. Gregory
Doolan
chargesthat Maritain departsfrom st. Thomas on several points. see Gregory
Doolan,
"Maritain' St. Thomas Aquinas, and the First Principles of ilatural taw,,
ii niassessing
the Liberal state: Reading Maritain's Man and thà state, Timothy Fuller
and John p.
Hittinger, eds. (washingron (DC): American Maritain Association, 2001), pp.
l2i-r3g.
Here Doolan points out that contrary to St. Thomas Maritain maintains tÀàt
only one
precept of natural law is self-evident, namely, that man should do good
and avoid evil.
According to Doolan St. Thomas presentsseveral self-evident próepts. For
Maritain
these first precepts are not conceptualjudgements. According tó ooólun,
st. Thomas,
while describing them as self-evidentprinciples, considersthet conceptualjudgements.
He arguesthat Maritain maintains that the more specific preceptsthat iollow
from these
general ones are in no way rationally deduced,while for St. Tho*a,
they are rationally
deduced.Doolan concludesthat it is principally Maritain's understanding
of the term
"inclination" that has led him to this departure. Doolan argues
that when St. Thomas
speaksof man's inclinations in referenceto natural law he does not mean
by this term
some sort of non-rational, non-conceptual mode of knowledge
as maintained by
Marikin. on the contrary St. Thomas refers to man's naturat capa-city
to form ,on""ptr,
makejudgements,and deduceconclusions.Doolan chargesthat it is tut*ituin',
own way
of interpretationthat makesfor ambieuities.
18 CHAPTERI: NATURALLAW AND HUMANRIGHTS

most definitely and

These regulationsare such that they have been
recognition startsfrom
most generally recognizedby the human race. This
has had a very clear
the most ancient ,oJiul communities.Human society
of naturallaw was
role in this process.Knowledgeof the primordial aspects
and human society
first expressedin rà"i"f putí"*t. Human inclination t\e
the,development
have functionedas ttre oouur" protectingtissueof 9f
law is
of natural
knowledgeof nuturui-tu*. 1.trutit is clei that knowledge general and
in the most
through inclination.-rtrl, too*ledge is embodied
law covers the field of ethical
most ancient heritag^e^"f-*""ti"í. T.nit
by virtue of knowledge
regulationsof which-L"r tr""" become aware only
throughinclination.'*
Maritainpointsouttheconsequencesoftheknowledgeofnatural
law through First of all natural law deals only with
"onnur*ufiry. inc^lination, that is to 9ay, only with the
regulations known-ttn"rÉn
without any conceptual
immediately known prln"[t", of human morality,
law are known in a non-
or rational medium. Second,the preceptsof natural
are unable to give
demonstrablemanner. This is ih" rèuson why men
moral beliefs' This
accounr of and ruiionuÚ :ustify their fundamental
rationality; they are
signifies that they are Uàsèaon more than human
knows natural law' it has
essentiallynatural. Third, althoughhuman reason
Natural law depends
no role in causingifto exist or causingit to be known.
;;d it is. thó only reason at play in establishing
only on Divine R;;,
naturallaw and makingit known''-

1.4.3 Universality and Relativism

Theproblemwithregardtotheuniversalityofnaturallawandthe
relativism when it i, particular ethical isiues is to be understood'
The fundamentald;;;;i" t.tt"it-t"t of natural law are matters of universal
"ppfl"aio
understood in their
awareness.The cóndition is that they should be
and in every age'
authentic meaning. Natural law has validity everywhere
and regulations'
As humans we are bound togetherto live úy certain-ry19s
not like killing an animal; the
Maritain gives examples.Kiiling a -Tan is
are limitations in the
family gfoup t ur to-u'UiJ"by 1oóe fixed norms; there law
of natural
act of sexualintercourse.W! RnOrelativity in the application
rules' customs' and
to particulur in"iO"nit. With regard to particular
in the most basic
standardswe can find relativity anO variàtion. Even
Maritain gives reasonfor this
urp"ft, of natural law we find this variation.26
variation.

2a
SeeMaritain, Man and the State, pp.92-93'
2sSeeMaritain, "On Knowledge Through Connaturality pp' 479-48o'
26SeeMaritain, Man and the State,p' 93' "'
 CHAPTERI: NATURAL LAW AND HUMAN RIGHTS

The reason is, as I have already indicated, that this spontaneous

knowledge does not bear on moral regulations conceptually
discoveredand rationally deduced,but on moral regulationsknown
through inclination, and, in the beginning,on generaltendential forms
or frameworks ... such as can be obtained by the ..primitive"
attainments of knowledge by way of inclination. And in such
tendential frameworks or dynamic schemes many various, stilr
defective contents may occur -not to speak of warped, deflected, or
pervertedinclinationswhich can mingle with the basicones.27

1.4.4 Dynamic Development of Natural Law

Natural law essentiallyinvolves a dynamic development,and moral
conscience
!p progressedfrom the primitive age through different periods
of history. The knowledge of natural law has developed in a two-fold
manner-first, as regardsthe way in which human reasonhas becomeaware
in a more refined way of the primordial regulationsof natural law; second,
with regard to the way in which human reason has become aware of the
more advancedand higher regulations of natural law. This is always by
mèans*of knowledge through inclination. such knowledge is still i;
plog.rels.It is not yet finished and has not reached its highest point. For
M^aritainthe progressof-moral conscienceis the most indisputablèinstance
of progressin mankind.2s
Maritain examinesthe attitude of ancient and mediaeval times and
that of the eighteenth century. [n ancient and mediaeval times more
attention was paid to obligations than to rights. This was consistentwith the
progressof the moral conscienceof those periods. Maritain appreciatesthe
great achievementof the eighteenthcentury. This period has 6rought out in
full light the rights of man as required by natural law. This disóovery of
riglts as required by natural law was essentially due to progrcss in rnoral
and social experience.Through this progressths root inclinations of human
lature in regard to the rights of the human personwere set free. As a result
knowledgethrough inclination with regard to them developed,but the sad
aspect of this fact is that this great achievement was characterizedbv
ideological errors in the theoreticalfield. Attention was paid to rights only.tn
what is required is a comprehensiveview which pays àttentionloth to the
obligations and to the rights that are involved in the iequirementsof natural
law. With this elaboratetreatment on natural law Maritain enters into the
field of humanrishts.

tt
Maritain,Man and the State,p.93.
28
SeeMaritain,Man and the State,p.94.
2e
SeeMaritatn, Man and the State,p.94
 CHAPTERI: NATURAL LAW AND HUMAN RIGHTS

2 Human Rights Basedon Natural Law

Natural law and the moral consciencein us prescribenot only the
things to be done or not to be done but they recognize also rights, -in
particular the rights connectedwith the human essence.Man has rights by
is
ih" u"ry fact thai he is a person.He is masterof himself and his acts' Man
The
not a means but an end, and this end should be consideredas such'
dignity of the personsignifies that he has the rightto be.respected, he is the
rój"ót of righìs and hJpossessesrights. The notion of rights and the notion
of
of moral oblìgationsare correlativebecauseboth dependon the freedom
the agents.Iiman has the moral obligation to the things necessaryfor the
fulfilment of his destiny, he_has_alsothe right to pursue his destiny and to
the thingsnecessary to fulfiIhis destiny.'

2.1 The Binding Power of Natural Law

A true philosophy of human rights is basedon a true idea of natural
law. The naturàl law iréscribes to ur ó.,. fundamentalduties, and by virtue
of this natural law evéry law is binding. tt is this samelaw which assignsto
us our fundamentalrights.st Maritain takes up the American Constitution'
According to him the"conceptof natural law played.a basic part in-the
thought oith" Founding Fathers.It may be arguedthat the Founding Fathers
migft have been ted È'y practical motives in making"use of natural law'
Wf,at is significant is ífre power of natural law in the complex-of moral
tenetsupon-whichthe United Stateswas founded.He emphasizesthe role of
iaw by stating that in apptyingjustice to caseswhere the provisions
of positive law are nót cle* reòourseto natural law is unavoidable,and this
"atutat
,".à*r" gives rise to a precedentand new judicial rules. He takes as an

30 (New
See JacquesMaritain, The Rightsof Man and Natural Law,ttzns. Doris C' Anson
York: CharlesScribner's Sons, tea:;, p' 65. See also E' L' Fortin, "The New Rights
Theory and the Natural Law," pp. 590-612.According to Frederick-J-crosson Man and
'founding
the Stateis close to Locke in iti of natural rights on natural law. He arguesthat
the doctrine of natural rights is not in St. Thomas and does not fit comfortably with the
Aristotelian-Thomistic tr-aaition.According to him Maritain both adopts and adapts the
notion of natural rights. Like Locke he tinks the notion of rights to a pre-political status
of man and like St. Thomas he links it to the teleology of human nature. See Frederick J'
Crosson,"Maritain and Natural Rights," The Reviewof Metaplrysics36 (1983), pp' 903-
904.
3t See Maritain, Man and the state,p.95. Here Maritain is making referenceto Edward S'
Dore, ,.Human Rights and Natural Law," New York Low Journal, 1946; MCKinnon,
..The Higher Law,i' American Bar Associstion Journal, 1947; Laserson,"Positive and
Natural Law and Their Correlation" in Interpretations of Legal Philosophies: Essays in
'Natural Law and International Law" in Essays
Honour of RoscoePound; Lord Wright,
in Honoir of RoscoePound;Godfrey P. Schmidt, An Approach to Natural Law.
 l
:
:

CHAPTER I: NATURAL LAW AND HUMAI,J RIGHTS

21

examplethe Nazi war crimes trial in Nuremberg.r,w" have

fundamental
rights. "It is becausewe are_caughtup in the -"ih", of universalorder,in
the laws.andregulationsof the cosmoi ... becausewe haveat the
sametime
the privilege of sharingin spiritual nature,that we possessrights
vis_à_vis
othermen and all the universeof creafures."33
Maritain explains the relation of nafural law to the eternal
law.
Natural law is law only becauseof its participationin the
eternallaw. This
participation meansthat human ."atoi has n^opart in
the establishmentof
the natural law. The divine reasonalone is the author ti
or nutu*iì;;.
Everl createdbeing agtsby virtue of its principt", anJ it is principte
is pure
act. Every just rule of lawful authority hàs the power to bind
in conscience
becauseof the principle of all beings.God is tfts principì",
uno He is pure
justice; He has the right to seethJorder of
His *irooÀ in createdthings
respected,obeyed,and roved by every intelligence.Every
right possessJd
by man is by virtue of this right posséssed by-God. Natuial ràw is binding

" see Maritain, Man and the state, p.95. The "Nuremberg
-trTrials,,is the generalname for
the two sets of trials of Nazis involved in world war
and the Holocaust. The trials
were held in the German city of Nuremberg from 1g45 to
lg4g. rn" n.rt and the most
famous of these trials was the trial of the major war
criminals before the International
Military Tribunal which tried rwenty-four of the most i,nporru", captured (or
uncapfured but stillry?,
believed to be alive) leaders of Nazì cermany. The Intemational
Military Tribunal was set up by the victorious Alries (the
u.s., Fiance, Great Britain,
and the soviet union) at the end of world war tr. Prosecutors
from thosefour countries
indicted a total of twenty two Nazi German officials
on three basic cnarges-conspiring
and ultimately launching an aggressivewar, committing
war crimes, and committing
crimes against humanity. Maritain considersthis as an
ùcasion which lacked to some
extent support from pro_visionsof the positive law.
The recourse was to natural law.
According to Maritain, this happenedifa conspicuous
manner in the Nuremberg Trials.
See Peter John Rowe, "Law ol war" in The-New Encycropaedia
Britannica, vor.29
(Chicago:EncyclopaediaBritannica,Inc, 2002),p. g.
ó3
tt
Maritain,Man and the State.pp.95-96.
3a
SeeMaritain, "Natural Law and Moral Law" in chailenges
and Renewars,p. 2r7. Here
Maritain explains the participation of nafural law in
the éternal law. St. Thomas defines
eternal law as the exemplar of divine wisdom insofar
as this wisdom directs all the
actionsand movementsof things. See St. Thomas,summa
TheorogiaeI-II, q. 93, a. r.
According to St' Thomas law is a measureand a rule
and so it is forind in him who rules
and in that which is ruled and measured.A thing is
ruled and measuredinsofar as it
participates in the measureand rule existing in ttre
one who rules. All things are ruled
and measuredby the eternal-law.All things participate
in this eternal law. The rational
creatule by its very rationality participatès ìn the
etemal reason and becauseof this
participation it has a natural inclination to the actions
uno pÀftl to it. Natural law
is this participation in the.eternallaw enjoyed by the "nor
rational creature.Maritain refers to
St. Thomas,SummaTheologiaefn, q. rù,'a. Z.
22 CHAPTER I: NATURAL LAW AND HUMAN RIG}TTS

becauseit is an order of divine reason.Natureand the inclinationsof nature

manifestthis order of divine reason.3s
The natural rights of the human person are anterior and superior to
written legislation.Civil societyneednot grant theserights becausethey are
not in its îeld. The role of civil societyis to recognizethem and sanction
them as universally valid. No authority can disregardor abolish them' The
deficiency of positivist as well as idealist or materialistphilosophy of
absolute immanence is that they are powerless to establish the rights
naturallypossessed by the humanbeing.To thesephilosophiesthe concept
of naturafrights can only seemas superstition.They do not acceptthat each
individual has a nature or essencewhich is the locus of intelligible
necessitiesand truths. "In other words there is no right unless a certain
order- which can be violated in fact- is inviolably required by what things
are in their intelligible type or essence,or by what the naturgof man is, and
cut out for: an órder by virtue of which certain things like life, work,
freedom are due to the human person, an existent endowedwith a spiritual
soul and free wi11."36 This ordei is not a factual datum in things. It demands
to be realized in things. It imposes itself upon our minds to the point of
binding us in our conscience.It exists in things as a requirement of the
of things. Thus things participatein an ideal order which transcends
"rr"n"é
their existencJand imperaiively claims to govern it. This would not be
possible if the foundatiòn of this ideal order did not exist in an Absolute'
îh" p"r"nnial
- philosophy calls this Absolute the eternallaw'37
Positivistic anà marcrialistic philosophies cannot conceive of this
absolute.Their failure is that they recognize fact alone.The notion of value
which is objectively true in itself is not conceivablefor them. If one does
not believe-in valúes, he cannot claim rights. If anybody considers the
affirmation of the intrinsic worth of man as nonsense,the affirmation of the
natural rights of man is also nonsensefor him.38False philosophieswhich
have madehuman liberty the supremerule of all the moral social order have
altered the vital principle of democracy into democratism. The idea of
democracy as a march towards justice and dignity, towards liberation of
rnan. from biblical roots, and the true basisof humanrights is natural
law. "o-bs
There are personswho chargethat natural rights are an invention of the
American Independenceand the French Revolution. They have tried to
propagatethis idea and to discredit the notion of natural rights' They have
àttièOttremselveswith the pessimismof religious thinkers in the Lutheran or

35SeeMaritain, Man anà the State.p.96. Seealso Maritain, "Natural Law and Moral Law"
in Challengesand Renewals, pp. 2I7 -220.
3uMaritain, Man and the State, pp.96-97.
37SeeMaritain, Man and the State,p.97.
3ESeeMaritain, Man and the State,p.97.

. .'-*--.rf
 CHAPTER I: NATURAL LAW AND HUMAN RIGT{TS L-')

Jansenistictradition and with some contemporaryjurists, above all those

belongingto the positivisticschool.3e

2.2 Natural Law as the Foundation of Human Rights

In order to overcome the confusion produced by such false
philosophieswith regard to natural rights sometype of intellectual or
moral
revolution is required. what is neededis to resta6iHzein a true philosophy
our conviction of the dignity of the human person and of his rights unà tó
find again the authentic roots of this conviction. The consciousnes,of the
dignity of the human personand of his rights is implicitly implied in pagan
antiquity.The biblical messagereawakenèdthis consciourn"*,underdivine
and transcendentalforms, revealing to men that they are called to be sons
and heirs of God in the kingdom of God. under ttrii uiuhcal influence the
same-reawakening should spreaditself little by little in the life of man in the
earthly city in mattersregardingthe demandsóf natural law.a'

2.3 Human Rights in General

we find this title in the treatment of human rights in Man and the
state. Here Maritain deals with the relation betweennatural law, the law
of
nations, and positive law, the nature of human rights, and the distinction
betweenthe possessionand the exerciseof humanri-"ghti

2.3.1 rhe Distinction between Natural Law and positive Law

Maritain points out that one of the main errors of the rationalist
philosophy of human rights has been the considerationof positive
law as a
mere transcript of natural law. This considerationhas a uasic deficiency.
It
overlooksthe immensefield of human things which dependson the variable
conditionsof social life and on the free initiative of the human reason.
With
regardto thesemattersnatural law leavesthem undetermined.Therefore
the
above considerationis not valid. what we have to bear in mind here
is a
correct conceptionof natural law in its relation to human rights. Natural
law
deals with .,necessary,,
_the rights and duties which are connectedin a
manner with the first principles which command us to do good and
uuoio
evil' That is why the preceptsof natural law, in themselvestr in the
nature
of things,are universaland invariable.This universalityand invariability
do
not dependupon our,knollgdee,aboutnaturarlaw. ThL term ,.necerru.{"
i,
importantin Maritain'sopinion.al

3t
see Maritaiy, Rightsof Man and Natural ro., p.59. Seealso Mantain Man
!!" , and the
State, p' 56. The term "democratism" refers to democracy
as conceived by Rousseau.
Maritain looks on American democracyvery favourably.
a0
SeeMaritain, The Rightsof Man and Natural Law, p. 6g.
ar
SeeMarita jn, Man and the State, pp.97-9g.
.A
CHAPTER I: NATURAL LAW AND HUMAN RIGHTS

Positive law in a given social group deals with the rights and duties
which are connected with the first principle mentioned above. The
differenceis that the manner of treating them is diverse. Positive law deals
with matters not in a necessarymanner but in a contingent manner. Here
humanreasonplays an important role. The actsof positive laws are valid by
virfue of the dèterminateways of conduct prescribedby the reasonand the
will of man when they institute the laws or customs of a given society.
Positive law determinesin that society that certain things are permissible
and certain things are bad and not permissible.o'Thus while the field of
positive laws is ttre lutidical one, natural law is concernedwith the moral
òrder. One should bear in mind that positive law obliges in conscienceby
virhre of natural law. Thus, an unjust law does not oblige one in
conscience.a3

2.3.2 The Law of Nations

According to Maritain it is not easyto define the law of nations,that
is the jus gentium. It is intermediary betweennatural law and positive law.
Here Maritain makes referenceto St. Thomas. In his opinion St. Thomas
saw the law of nationsin its most genuineand deepestmeaningas different
from natural law. The differencebetwe,enthe law of nationsand natural law
is due to the mannerin which they are known. The knowledgeof the law of
nations is not through inclination but through the conceptualexercise of
reason.He refersto the SummaTheologiae.I-II, q. 95, a.4. [n Maritain's
opinion St. Thomas makes here sharp distinction between natural law and
the law of nations. St. Thomas connectsthe law of nations with positive
law. For St. Thomas thejus gentium is concernedwith all things that derive
from natural law as conclusionsfrom principles. Analyzing the Thomistic
view Maritain observesthat theius gentium pertains to positive law more
than to natural law becauseof the mannerin which it is known and because
of the intervention of human reason in the establishmentof the precepts.
Here one has to bear in mind that the only reason on which natural law
dependsis divine reason.The prohibition of murder so far as this preceptis
knòwn by inclination belongs to natural law. If this same prohibition is
known ai a conclusion rationally inferred from a principle of natural law it
pertainsto theTzsgentium.*
Since knowledge of the law of nations is through a conceptual
exerciseof reason,it can be said that it pertains to positive law and that it

n'
SeeMaritain, Man and the State,p.99.
a3
SeeMaritain, "Natural Law and Moral Law" in Challengesand Renewals'pp.22l-228.
4
See Maritain, Man and the State, pp.98-99. In footnote Maritain refers to St. Thomas,
his
SummaTheologiae,I-Il,q. 95, a. 4; I-[, q. 94, a. 4-6; l-fi, q. 95, a. 2, to substantiate
position.
 CHAPTER I: NATURAL LAW AND HUMAI.I RICHTS 25

formally constitutesa juridical order. It is not necessarythat this juridical

order be written in a code. With regard to its content the jus gentium
comprisesboth things which belong to natural law and which are outside
the content of natural law. With regardto the contentof the jus gentium
there are regulationsknown throughinclinationand rationalinference.o'In
both casesit dealswith rights and dutieswhich are connectedwith the first
principles in a necessarymanner. Becausethe law of nations is known
throughrationalknowledgeand is itself a work of spontaneous reasonit is
more especiallyconcernedwith the rights and dutiesbelongingto the civil
life."o

2,3.3 Transition between the Three Types of Laws

It is by virtue of naturallaw that both the law of nationsand positive
Iaw take on the force of law and imposethemselvesupon the conscience.
Maritain considersthe law of nationsand positive law as prolongationor
extensionof natural law. They deal with objective zones which are not
determinedby the essentialinclination of humannature.

For it is naturallaw itself which requiresthat whateverit leaves

undetermined shallsubsequently be determined, eitheras a right or a
duty existingfor all men,and of which they are madeaware,not by
knowledgethroughinclinationbut by concepfualreason-that is the
jus gentium-or-andthis is positivelaw- as a right or duty existingfor
certainmenby reasonof thehumanandcontingentregulations proper
to the social group of which they are a part. Thus there are
imperceptible transitions(at leastfrom the point of view of historical
experience) betweenNaturalLaw, the Law of Nationsand Positive
Law.a7

The natural law showsforth in all human positive laws. It renders

the positivehumanlaw more perfectandjust in the realmsof its contingent
determinations. Thereis a dynamismof naturallaw, and in accordance with
this dynamismthe rights of human personstake political and social form in
the community. Maritain enumerateshere somerights which belong strictly
to natural law. The right to existence,the right to personalfreedom,and the
right to the pursuit of perfectionin one's moral life belong to natural law.
The right to the ownership of material goods belongs to the three laws in
differentways.Becausemankindis naturallyentitledto possessfor its own
commonuse the materialgoodsof naturethis right belongsto naturallaw.

a5
SeeMaritain, "Natural Law and Moral Law" in Challengesand Renewals,p.225.
ou
SeeMaritain,Man and the State,p.99.
a7
Maritain,Man and the State,pp. 99-100.
26 CHAPTER I: NATURAL I-AW AND HUMAN RIGTITS

lnsofar as reasondeterminesthat for the sake of the common good those

material goods must be privately owned, this right to ownershipbelongsto
the law of nations. Reason makes this determination in the light of the
conditions naturally required for the managementof these material goods
and for human work. By human work Maritain meansthe work performed
in a genuinely human manner. The performanceof this work ensuresthe
freedóm of the human person in tie face of the community.4sNations
should have the freedomto live unburdenedby the yoke of distressor want,
and the freedom to live unburdenedby terror. This freedom correspondsto
the requirementsof the law of nations.This is to be fulfilled by positive law
and by possible economic and political organisationof the civilized world.
People have a natural right to self-government.This is to be applied in a
democratic society through the freedom to elect officials of the state.The
freedom to vote for thii purpose arises from positive law.ae Maritain's
conceptof freedomis closely relatedto his conceptionof equality. Maritain
denies nominalist, empiricist and idealist approaches to equality and
advocatesa reallst approach,which allows for unity and diversity in the
so
humanspecies.

3 Maritain's Enumeration of Human Rights

We try here to elaboratefurther the classificationof the rights of the
human person according to the order given in the book The Rights of Man
and Natural I-aw." Having elaborated the foundation of human rights
Maritain enumeratesthe fields in which the humanpersonenjoys rights.

ot
SeeMaritain, Man and the State,p. 100.
ae
SeeMaritain, Man and the State,p. 100-101.
50See John P. Hittinger, "Approaches to Democratic Equalify" in Freedom in the Modern
World: Jacqaes Maritain, Yves R. Simon, Mortimer J. Adler, JosephM. de Torre, ed.
(Mishawaka: American Maritain Association, 1989),p. 238.
5r
See Maritain, The Rights of Man and Natural law, pp.73-lIl. Here the list of rights
provided by Maritain resembles the enumeration of human righs in the Universal
Declaration of Human Rights adopted and proclaimed by the General Assembly of the
United Nations on December 10, 1948. Maritain made his observations about the
specifrcity, nature and the importance of these rights. Maritain was influential in the
formulation of the above-mentioneddeclaration.With regard to Maritain's list of rights
Frederick J. Crosson refers to Charles Fischer's opinion that Maritain's list is taken
almost entirely from the 1937 Papal encyclical Divini Redemptois. Here Crosson refers
'Maritain and
to CharlesFecher,The Philosophy of JacquesMarttain. SeeF. J. Crosson,
Natural Rights," p. 902. It is to be noted that we do not find an elaboraùeenumeration of I
human rishts in Mqn and the State.
ts
 CHAPTER I: NATURAL LAW AND HUMAN RIGH'TS
27

3.1 The Rights of the Human person

The person participatesin the political community as a citizen. He
hastranscendence over the political communitybecauseór ni, dignity. The
universe of truth belongs to a plane higher than the political co-mmunity.
The expression"universe of truih" refers to the truths of science,wisdom,
and of poetry. with regard to this realm the power of the stateand of
social
interestscannot impose itself. when there is propagation of errors
which
threatenthe fundamentalethics of common life anà tie principles on
which
this common life is founded, the statehas the power to opposesuch
errors
and indeed it must do so. Here Maritain refers to yves R.'simon.3t
u;d;;
certain definite circumstancesthe statecan ask a person to perform certain
functions of the social body. The statecan under certain circumstances
ask a
mathematicianto teachmathematicsand a philosopher to teachphitosoftry.
on the_contrarywith regardto things which oependsolely andbxclusiveíy
on truth the state cannot compel a person to accept a particular
view. It
cannot fgrce a philosopher to àccept a particulai doctrine
or a
mathematicianto accepta particular mathèmaticaltheorv.53
There are certain things which the state tamper with. The
universeof moral laws.and ttre right of conscience "unnot
to worship God cannot
be controlled or limited by the staie.The stateor the majority cannot
be the
standardof conscience.The statedoes,however, have a moial function.
Its
function is not merely material. The law of the state has an
educational
function, and it tends.todevelop moral virtues. If somebodywho is
blind in
consciencefollows his conscienceand commits an act wtricn is criminal
or
unlawful in itself, the state has the right to punish him. However
in like
circumstancesthe state does not havà the authority to Àake the person
judgement of his conscience.It has no uuítority
lefop the to imposà upon
the intellect its own judgement of good and evil, or to legislate
on divine
putt"f or to imposea certain rerigiousfaith. Becausethe,ìut" kno*, that it
is without power in theserealms, wheneverit tries to go beyond
its natural
limits, it knows that it strives to violate the indi;dual
conscience by
monstrous means. Totalitarian regimes are characterised
by this traii.
Through psychologicalpoisoning, organisedries, and terror
ihey impose
upon the intellectstheir own judgémentsof good and evil.54
Every human personhas the right to make his own decisions
with
regard to his personaldestiny. In chòosing one's work,
in marrying, in

52
The reference here is to yves Simon ,,Liberty.and Authority,,
in proceedings of the
American Catholic p hilo sophical Association,vol. 16, 1940.
s3
see M_aritain,The Rightsof Man and Naturar rnw, pp.76-77.
seealso JacquesMaritain,
The Person and the common Good, frans. ronn-
r. Fitzgerald (Notre Dame (IN):
University of Notre Dame press, l9g5), pp.74-75.
5a
SeeMaritain, The Rightsof Man and Natural t^aw, pp.77_7g.
28 CHAPTERI: NATURAL LAW AND HUMAN RIGHTS

pursuinga religiousvocationone hasthe right to makeone's own decision.

When there is extreme necessitythe state can forcibly require the services
of each of its citizens. It can demandthat one should risk his life in a just
war for the safetyof the community. The statecan deprive criminals of their
rights, but if the state tries to base the functioning of civil life on forced
labour, or if it tries to violate the rights of family in order to becomemaster
of men's souls, it becomestyrannical. The princip_leMaritain holds here is
that man is prior to the political community." "For just as man is
constituteda person,made for God and a life superiorto time, before being
constituteda part of a political community, so too man is constitut"9-u purt
of family societybefore being constituteda part of political society."'o
Maritain upholds the rights of the family to protect itself from the
tyranny of the state. The family has an end. It exists to give birth and
educatehuman persons,and preparethem to fulfil their natural destiny.The
educativefunction of the stateis to help the family to fulfil its mission. The
statehas no power to efface in the child his vocation as a human personand
replace it by that of being a living tool and material for the state.'' With
regardto the right of the personto raise a family and the rights of the family
community itself the personis no longer consideredmerely as an individual
person.He is part of a group. Thus specialrights are accordedto the person
and to the group of which he is a part. The rights of the family, the rights of
the human person as father or mother of the family, belong to natural law in
the strictest sense.With regard to the right_sand libenies of spiritual and
religious families they belong to naturallaw.'o
Because the human person is a spiritual and free agent, his
fundamentalrights are rooted in the vocation of the person to the order of
absolutevalues and to his destiny superior to time. Maritain enumeratesin
detail the fundamentalrights which flow from this statusof man: the right to
existenceand life, the right to personalfreedomor to conductone's own life
as masterof oneself and of one's own acts, responsiblebefore God and the
law of the community, the right to the pursuit of the perfection of moral and
rational human life. In this right consiststhe pursuit of happiness,which is
the pursuit of moral righteousness,of strength and perfection of the soul.
The pursuit of moral righteousnessis not the pursuit of material advantages
though material and social conditions are implied in this pursuit. The pursuit
of happinessalso includes the right to the pursuit of eternal good, the right
to keep one's body whole, the right to have private ownership of material

55SeeMaritain, The Rightsof Man

and Natural Law,pp.78-79.
tu
Maritain, Thz Rightsof Man and Natural Law, pp. 78-79.
57See Maritain, The Rights Man
of and Natural Inw, p.79. Maritain considersthe family
as a nafural sociefy. It has a history ofdevelopment and growth.
58
SeeMaritain, The Rightsof Man and Natural l^aw, pp.82-83.
 CHAPTER I: NATURAL LAW AND HUMAN RIGFITS

things and possessions,the right to marry accordingto one's own decision

and choice and to raise a family, and the right of association. It also
involves respect for human dignity in each individual irrespective of his
economic value. All these are basic rights. The vocation òf the human
persondemandsall theserights.se
with regard to the framing of these rights Maritain refers to the
French Declaration of the Rights of Man and of the Citizen and the
American Declarationof Independence.6o According to Maritain the former
has framed theserights accordingto the altogetheriationalist point of view

5e
see M-aritain,The Rightsof Man and Natural lo., pp.79-g0. Seealso A. s. Rosenbaum,
ed., "The Fditor's Perspectives"in The philosophy of Human Rights,pp. 29-30.Here the
author refers to the classification of human rights. In doing sò he makes referenceto
Maritain's treatmentof human rights in The Rightsof Man and Natural Law.
60
The Declaration of the Rights of Man and of the Citizen (Ia Déclaration des Droits de
l'Homme et du citoyen), was one of the fundamental documents of the French
Revolution, defining a set of individual rights (and collective rights of the people vls à
vls the state). It was adopted on August 26, 1789 by the National Constitutional
Assembly (Assemblée Nationale constituante). as irst step toward writing a
constitution. The principles set forth in the declarationcome frornthe philosophical and
political principles of the Enlightenment, such as individualism, the social contract
as
theorized by Rousseau,and the separationof powers as espousedby Montesquieu. It
may have also been basedon the Virginia Declaration of Rights aevltopeA by George
Mason and on the American Declaration of Independenóe.This last declaration
emphasizedfreedom. According to it freedom is an inalienablenatural right limiúed only
by the freedom of others. First of all freedom is seenas freedom of the personswho aré
mastersthemselves.Men were to be able to have freedom of expression.With freedom
the declaration closely associatedequality. It held that law wìs to be the same for
everyoneand that citizens were equal before the law. The liberalsim of the Constituent
Assembly found expressionin the constitution of 1791. See Isser Woloch, ',The French
Revolution and Napoleon, 1789-1815" in The New Encyclopaedia Britannica, vol. 19,
pp.497-498.
The Declaration of Independenceis a document in which the Thirteen Colonies declared
themselvesindependent of the Kingdom of Great Britain and gave justifications for
doing so. It was ratified by the Continental Congresson July 4, Ii16. This anniversaryis
celebratedas IndependenceDay in the United States.The independenceof the American
colonies was recognized by Great Britain on Septemberz,îlsz. The Declaration
of
Independenceappealsstrongly to the conceptof natural law and self-determination.
The
Declaration is heavily influenced by the Oath of Abjuration of the Dutch Republic
and
by the Discourses of Algemon Sydney, to whose regacy Jefferson and Adams
were
equally devoted. Ideas and even some of the phrasing *e.e taken directly
from the
writings of Locke, particularly his secondtreatisèon gou"--" nt, An Essayboncerning
tlre True, original, Extent, and End of civil Government. The Declaration
of
Independencecontains.manyof the Founding Fathers'sfundamentalprinciples,
some of
which were later codified in the united States Constitution. See-
J. R. pole, .,The
American Revolution the Early Fderal Republic" in The New Encyclopaedia
11d
Britannica, vol. 29, pp. 209-210; 216-219.
 30 CHAPTER I: NATURAL LAW AND HUMAN RIGTITS

9f the Enlightenmentand the Encyclopedists. As a resultthereis ambiguity

i1 thil The Declararion of Independence adheredmore closely tó
lraming.
the ori_ginallychristian characterof humàn rights, though it was markeé by
the influence of John Locke and natural religion. Thé rationalism of thè
Encyclopedists transformed nafural law intò a code of absolute and
universal justice inscribed in nature and deciphered by reason as an
ensemble of geometric theorems or speculative data. Íhis rationalism
absorbedinto the French tradition made every kind of law necessaryand
universal.Due to this false rationalist perspectiveand to the comrpti,onof
Christianprinciples within the social and political life of the ancientigime,
the affirmation of rights appearedrevolutionary with regard to Christian
tradition. Maritain views human rights as baséd on chústian principles.
According to him the consciousnessof the rights of the personhai its origin
in the conception of_man and natural law establishèd by centuries of
Christianphilosophy.61
, _Maritain gives much importanceto the right of the human personto
make his way in accord with his eternal destiny along the path which, his
-God.
consciencehas recognisedas the path indicated by This right has,
however, some limitation. one cannot chooseany path according Io on"',
whims and fancies.one has to choosethe true pàttr as far as it ii in one's
power to know it. with respect to the state man is free to choose his
religious path at his own risk. If this involves acts againstnatural law and
the security of the state, the state has the right to intervene and apply
sanctions against these acts, but freedom of conscienceis a natural-ànd
inviolable right. The authority of the state to apply sanctionshere does not
meanthat it hasauthority in the realm of conscièncl.62

3.2 The Rights of the Civic person

Political rights spring directly from positive law and from the
fundamentalconstitution of the political commùnity. Theserights indirectly
depend upon natural law. According to Maritain this dependenceis not
merely becausein a generalmanner the regulationsof human law fulfil an
aim of natural law by completing thàt which natural law leaves
undeterminedbut also due to the fact that the manner of this completion
correspondsto an aspirationinscribed in man's nature. tn this function we
can find a dynamism by virtue of which positive law tendsto expressin its
own sphererequirementswhich are of natural law itself. This àxpression
occursin^sucha way that theserequirementsexpandmore and more into the
sphereof human law. In the passageof humin law to higher degreesof

ut
see Maritain, The Rightsof Man and Natural Law, pp. g0-gl. According to Maritain
the
essentialtenetsofdemocracy are derived from the goipel.
62
SeeMaritain, The Rightsof Man and Natural Law, pp. gl-g2.
 CHAPTER I: NATURAL LAW AND HUMAN RIGFIS 3l

perfection and justice there is agreementwith the fundamentaldemandsof

naturallaw.o'
Maritain analyzes the Aristotelian view that man is a political
animal. This expressionhas a twofold meaning.Man is naturally made to
live in society; man naturally wants to lead a political life and to participate
actively in the life of the political community. Here lies the importanceof
suffrage. This right corresponds to human dignity. Sometimes men
renounceactive participationin political life. Peoplemay feel they will be
happierwhile dwelling in the commonwealthas slaves,or peoplemay hand
to their leadersall the care of the community. This behaviouris contrary to
humandignity. Peopleshouldparticipatein political life actively.6oUa.ilain
is in favour of individual personsexercisingpolitical choice.Here he might
have been influenced by his experienceas a French citizen. He does not
analyze concrete problems but the moral significance of general trends.
Inactivity of the peoplein politics damagespolitical governance.o'
A stateof civilization in which men, as individual persons,by a free
choice designatethose who shall hold authority, is in itself a more perfect
state than that in which such things are lacking. If it is true that political
authority has as its essentialfunction the direction of free men towards the
conìmon good, it is normal for these men to choose by themselvesthose
who have the function of leadins them. This is the most elementarvform of
active participationin political dîe.66
By means of universal suffrage every adult human person has the
possibility to exercisehis right in selectingcivil authority. Through casting
his vote he makes his opinion felt regarding the affairs of the community.
He elects the representativesand officers of the state. Thus, universal
suffragehas a wholly fundamentaland human value and is one of the rights
which a communityof free men can nevergive up.ó7
Another right that is related to participation in political life is the
right of the membersof a political societyto group themselves,accordingto
the affinity of their ideasand aspirations,into political parties.It is true that

63
SeeMaritain, The Rightsof Man and Natural km, pp. 83-84.
6a
SeeMaritain, The Rightsof Man and Natural ln*, p.84. See alsoMan and the state, pp.
8-9:128-129.
6s
See Waldemar Gurian, "On Maritain's Political Philosophy," The Maritain Volume of
The Thomist (1943), pp. 19-20. In this article the author is trying to presentin a nutshell
the basic thrust of Maritain's political philosophy and tries answerthe criticisms levelled
againstMaritain.
66
See Maritain, The Rightsof Man and Natural Low, pp.84-85. See also Maritain, Man
and the State,p. 133.
67
See JacquesMaritain, christianity and Dernocracy,trans. Doris c. Anson (New york:
CharlesScribner'sSons,1950),pp.69-70.
JL CHAPTER I: NATURAL LAW AND HUMAN RIGHTS

there are many abusesin the functioning of political parties. These vices
have comrpted them and causedthe degenerationof democracies.while
admitting this Maritain is of the opinion that thesevices are not essentialto
the very essenceof thesegroups.The diversity of thesegroupscorresponds
to the natural diversity of practical conceptionsand perspectivesexisting
among the membersof political community. He criticizes the vices of the
single party system establishedin the totalitarian states. Such a system
brings to a peak the vices and tyranny which the critics attributeto the party
svstem
- asa whole.oo
The root of a true political democracylies in the rights of the civic
person.when the person is consideredas part of a group, the rights which
are acknowledgedin him are also the rights of the group. The rights of the
civic personare the samething as the rights of the people.For Maritain the
first and most fundamental of political rights is the right of the people to
take unto itself the constitution and form of government of its chòice.6e
only the requirementsof justice and natural law can limit such a right. It is
necessaryto safeguardthesefundamentalrights. The constitutionalform of
governmentis very important to securefirmly the rights of the people. All
civilized peoples have a fundamentalconstitution. In the past ii wàs often
more a matter of consent and tradition than of juridical institution. A
constitution as a juridical institution coffespondsto an achievedprogressin
the grasp of political consciousnessand in political organisatiopbeóauseit
is juridically formulated and establishedby virhre of the will of the people
who decide freely to live under the political forms ser up by this àctiòn.
Every true democracyhas such a constitution."
As part of human political nature there are other rights which the
person enjoys. They can be summed up in the three equalities, namely
political equality, equality of all before the law, and equality of opportunity.
Political equality assuresto each citizen his status, security ana nOertiés
within the state. Equality of all before the law implies an independent
judiciary. This assuresto each one the right to call upon the law and to be
restrainedby it alone if one's rights have been violated. Justice demands
equality of all before the law and deniespreferential treatmentfor anyone
on the basisof accidentssuch as colour, ethnicity,nationality,religion, sex,
etc. The third equality, namely equality of opportunity, ensuies equal
admissionof all citizensto public employment,accordingto the capacityof
each one, and free accessfor all to the variousprofessions,withoutìaciàl or

68
See Maritain, The Rights of Man and Natural Law, pp. g5-g6. See also Man and the
State,pp. 65; 126-121.
óe
SeeMaritain, The Rightsof Man and Natural lnw, p. g7.
70
SeeMaritaín, The Rightsof Man and Naturat Law, p. g7-gg.
 CHAPTER I: NATURAL LAW AND HUMAN RIGHTS
J--)

ethnic discrimination.TrHere it must be carefully

noted that equality of
opporfunityis not to be confusedwith equality
of condition or result.The
notion of equalityof opporfunityfollows irom-the
democraticprinciples.If
s.om.ebgdy is deprived with regardto employmentor various professions
the basisof colour, sex or such accidenÀ,ii is a on
violation of this principle.
Discrimination on the basis of somethingpurely-u""ii""tur
or extrinsic
would go ag"qinst man's natureand so againstnatuiallaw and thereby
be immoral." would
The right of associationis a natural right. It
. . takes political form
when it is sancriongdby rhe stateand is ,uo;Ji
io-ih" ìàgurutionsof rhe
state.Theseregulationsare with
rygard to the"comm* gàà0. According to
the decisions^of appropriatejuridic"al institutions the stie can suppressan
association for the sake oi public good. Here
Maritain refers to an
"associationof evildoers"or an-,.associàtion
of oip"nfi"ì"16"i,2:*"
Maritain understandsfreedom of speech "n"*i",
of investigationand discussion.This freeàom ""t;ilr.:sion as freedom
is neces-r'*/ro augmentand
diffuse the true and good in the community. Thus
trri, r,. has a strictly
political value. To seek rhe truth is derived
f.; rh";;; "io*narure of man,
and, therefore,he shourdhave the right to search
the truth. this freedom of
investigationis a fundamentalright.'Man should
be free to spreadthe ideas
he holds to be true. There is a liriitation for this
freedom.Not every thought
has a right ro be spreadin rhe community.
$;;h"dts'migtrt be lies or
calumnies,or some may aim.at co_mrptingmorals
or dóstroyingthe stateor
the foundations of common tife. posìtivÉ r",
rr"r"rrr"-l*il to prevent the
propagationof such ideas. In Maritain's view
tn" r"tt", ,iuys to do this are
through the spontaneouspressureof the common
conscienceand public
opinion. censorship and police methods are
not irrt-r"v, to ensure this
repression.At least in peacetimethey should
be avoideJ] The democratic
society must defend itsèf againstthose who
ffy to destroy the foundations
of common life. This restriction of the destructive
liberties should take place
accordingto the rules of justice and raw. only
a .""urting"àf societyon an
organicand pluralisticbasiscan properly solvè
this defenie of liberty. This
is possiblewhen the regime is bàseàon the
human value and aim of work
and on the sociarriehts-ofthe working person
and the politicarrights of the
civic person.Ta

" SeeMaritaín, The Rightsof Man

and Natural Law, p. gg.
72
see T. A. Fay, "Maritain on Rights and Naturar
Law,,, p. 44i. HereFay is of the opinion
that equality of opportunity is democratic
white equality of condition is Marxist. The
latter view would entail thai if you are a
medical studentI should be one too.
73
SeeMantain, The Righ* of Man and Natural
l^ctw,p. g9.
7a
SeeMaritain, The Rightsof Man and Natural
law, pp. 90_91.
 34 CHAPTER I: NATURAL LAW AND HIJMAN RIGHTS

3.3 The Rights of the Working Person

In Maritain's view, very important problems afe concernedwith the
human being as he is engagedin the function of labour. He observesthat
progressin consciousnessand progressin organisationin this field are
iimultaneous.There has been a great progressof the consciousness of self
by the working personand the working community. This advanceof the
consciousnessof self is primarily of a spiritual and moral order. This
progresshas affected economic life and the temporal order. Consciousness
of an offended and humiliated human dignity and of the mission of the
working world signifies a developmenttowards liberty and personality.The
community of workers is at once nearestto the material basesof human life
and is the most sacrificed.Historic gain hereis due to the consciousness of
the dignity of work and of the dignity of the worker, of the dignity of the
human person in the worker." There are certain consequencesof this new
awareness."If the proletariat demandsto be treated as an adult person, by
this very fact it is not to be succoured,ameliorated or saved by another
social class. On the contrary, the principal role in the next phgse of
evolutionsbelongsto it and to its own historicalupwardmovement."'' Here
Maritain refers to the idea expressedin True Humanism." He does not
admit the Marxist idea of the proletariat's withdrawing from the rest of the
community in order to exercisea class dictatorship so that the workers and
peasantswill be in a position to play their role of historical upward
movement.It is ratherby organizing and educatingthemselves,being awale
of their responsibilitiesin the community, and by uniting in their task all the
elementsthat work for human liberty that the wórkers piogress.T8
While examining the rights of the worker we find first of all that
there is the right to a just wage.Human labour is not a piece of merchandise
subjectto the law of mere supply and demand.A just wage meansthat the
wage which the labour yields must enablethe worker and his family to live
according to a sufficiently human standard of living. This sufficiently

tt
See Maritain, The Rightsof Man and Natural Law, pp.92-93. His fieatment of the rights
of the working personbears witnessto his ability to understandthe presentday situation
and to put forward concreteprinciples for social issues.Political philosophy deals,on the
one hand, with principles which are abstract,and, on the other hand, it takes into account
practical aspects.To underslandthe function of labour one must know the deliberately
recognizedconsciousnessthat comesfrom living the hard life of work and suffering. See
JamesV. Schall, JacquesMaitain: The Philosopher in Society (Albany: Rowman and
Litlefield, 1998),p. 61.
76Maritain, The Rightsof M an and Natural lnw, p. 93.
77
See Jacques Maritain, True Humanism, trans. M. R. Adamson (New York Charles
Scribner,1938),pp. 228-229.
78 See Maritain, The Rights of Man and Natural Law, pp. 93-94. A sociefy based on
freedom, self-relianceand creativity ofthe personcan contribute to this task.

I
 CHAPTERI: NATURAL LAw AND HT'MAN RIGFTTS 35

human standardof living is determinedin relation to the normal conditions

of a given society. The rights of labour are relatedto the economic system.
The transformationin the economic systemdemandsother rights for labour.
Only a profound recastingof presenfsystems can realizein actual fact the
rights of the worker. These rights involve a powerfirl force of social
transformation.Becausethe worker is part of a community, the rights of the
worker as an individual are linked to the rights of the *ó.ting gioup. Two
such groups are mentionedby Maritain, namely trade unions and vocational
groups. workers have a right to organize themselvesinto groups, namely
trade unions. Maritain emphasizesthe autonomyof the tradJ uniòns, that ii
to say, the right to act and use their most naturai weapon,namely the strike,
to preserveand protect their rights. The freedom to strike originates from
the_natural right of associationsanctionedby positive law. Íhe right to
strike is the normal condition of the processof transformationfrom wÉich
a
new economicorganisationemerges."The basisof theseconsiderations is
the senseof the dignity of work.
Maritain observes that there are certain temptations in the
contemporaryworld arising from past thinking habits. He advisesthat one
must be on his guard againstthesetemptations.In the first place he refers
to
the temptation arising from old socialiit concepts.The temptationis that of
granting primacy to economictechniquesand tending to entrustevery
thing
to the power of the state and its bureaucraticmachiiery. This leads in
the
direction of totalitarianismwith a technocraticbasis.Wirat ought to inspire
the work of reconstructionis practical and experiential wisdom attentive
to
human endsand means.Maritain is in favour òf an adjustedeconomyrather
than a plannedeconomy.The idea of collectivization should be replaced
by
that of associative ownership of the means of production oi of joint
ownership of the enterprise. This should take the place of the capiialist
regime. Thus, the working personnelcan participateìn the management
of
the undertaking.80
Becausethe political spherepossessesauthority over the economic
sphere,the state must control and give direction to economic policy.
This
control and direction is relatedto the national policy as a whole and its
link
to international economic life. The political life and structure of
the state
influence the common life of the humanpersonsand their direction
towards
a cofnmon task. The political structure of the state implies at its
base the
recognition of the rights of the human person to politiàd fife. The
citizen

7e
see Maritain,.The Rightsof Man and Natural Inw, pp.94-96. we
have discussedin the
previous section the rights of the human personand-hìscivic
rights. Theserights are the
basis for economic and social rights with regard to labour. If
the workers do not make
use of their rights and the legitimate meani of protest whenever
something happens
againstjustice and dignity they are still slaves.
80
SeeMaritain, The Righrcof Man and Natural Lctw, pp.97_101.
36 CHAPTER I: NATURAL LAW AND HUMAN RIGI{TS

has political rights and liberties. The political life of the statemust express
the thought and will of the citizen with regard to the common good and the
common task. The groups of workers have rights to make their opinion
heard.This role is a consultativeone, and it is not a role to direct political
life or to constitutethe political structureof the nation.8l
Maritain hopes that these ideas will emphasize the fundamental
value of the pluralist principle. This pluralist principle extendsto the entire
field of political, social, and economiclife. In the economicorder it lays the
foundation for both the autonomy of groups and associationsand for the
diversity of regime of organizationwhich is suitable to the various typical
structuresof economic life. Maritain has in mind mainly the structuresof
the industrial economy and the agricultural economy.In his observationthe
rights of the worker and the groupsand communitiesof which the worker is
a part correspond to the idea of a democratic evolution of working
conditionsinspiredby the directiveideasof a new, organic,and pluralistic
democracv.o'
Towards the end of the treatmentof the rights of the working person
Maritain once more speaksof the right of every human being to personal
liberty. This right implies the right to direct one's own life as one's own
master,responsiblebefore God and the law of the community. This right
has profound significance. It is deeply concerned with the radical
aspirationsof the person. It develops as human history progresses.This
right implies the condemnationof slavery and forced labour. In the ancient
world or medieval times the view of thinkers with regard to slavery was
different. Medieval theologiansconsideredslavery to be opposedto natural
law only in its absolute form. Modern thought is opposednot merely to
slaveryin its strict sense.It is also opposedto the authority of one man over
another in which the one who is directed is not directed towards
participationin the common good but is only at the serviceof the particular
good of the one who is directing. If such participation is not presentthe
benefits of his work are alienated from the worker and he becomes the
organ of another person. There are many forms for this type of slavery.
Elimination of thesediverseforms of slavery is possibleonly gradually. As
the techniquesof production and of social life become perfected and as
spiritual energiesbecomeliberatedwithin communal life this servitudewill
be eliminated. The technical revolution effected bv machinesinto modern
economyhasa decisiverole in this process.83

81See
Maritain, The Rightsof Man an^dNatural lor, pp. 102-103.
82
see Maritain, The Rights of Man and Natural ln*, pp.103-104. while Maritain is
making this observationhe has in mind the communist regimes, totalitarian states,and
the capitalistic economy.
83
SeeMaritain, The Rightsof Man and Natural l-aw, p. 104.
 CHAPTERI: NATURAL LAW AND HUMAN RIGTITS JI

Slavery in all its forms is opposed to natural law. Both absolute

bondage and relative bondage are òpposed to human dignity. Absolute
bondageis_opposedto natural law coniidered in its primary requirements,
and other forms of servitude are opposedto natural law consideredin its
more or less secondaryrequirementsand in the dynamism which it enfolds.
Natural law require! the disappearance of every fórm of servitude.progress
in the diminution of slavery must be considereàconsistentwith natural-law.
The same law requires that men whose condition of labour leavesthem in
some sort of servitude must have compensatingmeansof protecting their
lghts _ashuman persons.Regardlessof the form-of the regime this function
should continueto be exertedespeciallywhere the wage Jystemwill still
be
in force. Those who remain outside-the trade uniòns *a trr" working
communities or who do not have accessto the guaranteesand advantage!
offered by these unions. should get"help and
lrotection and they mirst
organizeto defendtheir right to work.8a
Besidesthe right to work there are other rights of the human person
which the multiple forms of social serviceand old-agesecurityare deiigned
to guarantee.If these institutions are of a pluralist type thii work will
be
done better. All men are coheirs of the common good. Thus, they should
ftTlv- h_avea part + rhe elemenrary goods of civilization. Theie goods
include both material and.spiritual aspects.To the extent it is possibie the
community and its organic groups shìuld give the use of common goods
lry o-f charge to human personJwho constitute the civilization. This-is to
help them to free themselvesfrom the necessitiesof matter and to enable
them to go forward in the life of reasonand virhre.8s

4 Limitations as regards Human Rights

Maritain makes a distinction between human rights which are
absolutelyinalienable,and which are inalienableonly substintially. Natural
are inalienable.as they are grounded on the very nature of
lyit,rights
man.-" there are absolutely inalienable natural human rights. The right to
existence and the right to the pursuit of happiner, *? enumerated
as
absolutelyinalienableqg.hî. If such rights are reitricted by rhe body politic
cofnmon good is imperilled. No man can lose theserights. Maritain
makes
clear that still there can be limitations on such rights.ihese rights
are not
the infinite rights of God. There is an intrinsic-relation between
natural
human rights and the common good. In_his view every tu*, uut
especially
natural law, aims at thecommon good. with regard to ;eftain rights,
for thó
sake of common good the body politi" -uit effect some restrictions.

*
SeeMaritain, The Rightsof Man and Natural Law, pp. 105_10g.
E5
SeeMaritain, The Rightsof Man and Natural lnw, p.l}9.
86
SeeMaritain, The person and the CommonGood, p. 6g.
38 CHAPTERI: NATURALLAW AND HUMAN RIG}ITS

Maritain gives as examples the right of association and of free speech.

These rights are inalienable only in substance.This distinction between
absolutelyinalienablerights and rights inalienableonly substantiallyis an
advanceon the terminoJ_ogy of Scholasticísmand Politics and,The Ríghtsof
Man and Natural Law.o' Here one thing to be notedis that even absolutely
inalienab^1,.e
rights are liable to limitation at least with regard to their
exercise.ooTo understand this we have to see the distinction between
possessionand exerciseof a right

4.1 Possessionand Exercise of Rights

Maritain considerstwo opposinggroups with regardto humanrights
in the field of philosophy. one group acceptsnatural law as the basis of
those rights. The other group negatesthat claim. For the first group it is
becauseof the necessityof human essencethat man possessessome
fundamental and inalienable rights, precedent and superior to the society
and social life in origin and development.For the second group it is by
virhre of the historical developmentof society that man possessesrights.
They are variable and under the possibility of change.They are productsof
society in its historical development.o' This ideological contrast is
irreducible and does not permit any reconciliation on the theoreticalrealm,
but from a practical point of view with regard to the affirmation and
enumerationof humanrights therecan be agreementbetweenmen who hold
various philosophies.From this standpointone can seethat the recognition
of a particular categoryof rights is not the privilege of a particular school at
the expense of others. It is not necessaryto be a Marxist to recognize
economic and social rights, nor need one be a follower of Rousseauto
recognize the rights of the individual. The result obtained by human
consciousnessunder the action of diverse orientations goes beyond the

87SeeF.
J. Crosson,"Maritain and Nafural Rights," p. 905.
88
See Maritain, Man andthe state,p. 101. See also F. J. crosson, "Maritain and Natural
Rights" pp. 905-912. Here actually Crosson criticizes Maritain's use of the phrase
"inalienable rights." It will help us to understandMaritain's position well. With regard to
the existenceof absolutehuman rights John Finnis also testifies. Though there are many
who deny this position he holds that there are absolute human rights. These rights are
related to basic human values. See also John Finnis, Natural lnw and Natural Rights
(Oxford: ClarendonPress,1980),p.225.
8e
See JacquesMaritain, "Il significato dei diritti umani" in I diritti dell'uomo e la legge
naturale,trans.G. usellini e A. Yotto (Milano: vita e Pensiero,1993),pp. 138-139.It is
a talk which Maritain gave at the Brandeis Lawyers Society of Philadelphia on 2l't
February 1949. T}l,e text was published in English: The Meaning of Human Rights
(Philadelphia:BrandeisLawyers Society, 1949).
 CHAPTERI; NATURAL LAW AND HUMAN RICTTTS

controversiesamonqthe schoorsof thought, and human

rights are subjectto
limitations.eo
The exercise of a right is subject to conditions
and limitations
Sgcording to the ngrm of justice whiòh is relevant in each case. Here
Maritain examinesthe legitimacy
-to of capital punishment.If a criminal can be
legitimately condemned deaih it is necàusethroulh
his crime he has
deprived himself of.th9 possibility of assertingjusrly
irre right ro life. This
does not mean that he has deprivLd himself oT in"
.igrri t" live. The moral
consequenceof his act is that he has excluded hiriself
from the human
community with regardto the use of this fundam"ntuiuno
inalienablerighi.
The punishmentinflictld_ ugol him preventsthe exercise
of his right to live.
The second example Maritain givàs is that of
*";rn, to receive the
heritageof humanculture.throug-heducation.Maritain
uI"*, this right as a
fundamental, absolutely inalieriable right. The
exercise of this right is,
however, subjectto concretepossibilitie-sin a given
,;;iy. There might be
occasionswhen the claim to the exerciseof t[is
nght iií et nunc for each
*9 uJl is contrary to justice. sometimes such a reaúzadon
can be achieved
only by-ruining the social_body.This was the case
of the slave ,o"i"ìy in
ancientRome or rhe fzudal society of the Middle
Àg";. In such caseswhat
is to be done is to endeavourto ieform the sociar
order. For Maritain the
basisfor the secretstimulus, which continuousryrosters
trre ffansformation
of societies,lies in the fact that manpossessesinalienable
rights but that he
is deprived of the possibility of rightly claiming
trr" of some of
theserights. The reàsonfor ihis hcf of possibififi, "*r..ire
is the inhuman elements
that survive in the social structureof eacÀp"rioO.m

+2
-Importance of the Distinction between possessionand
Exercise of Rights
In the view of Maritain this distinction is of
high importance. He
refers to his previous indication that limitation,
*nl"l,i*ìy imposedupon
the assertionof certain_rights under certain circumstair""rl
rt" refers, for
example,to-the guilt of a delinquentor a criminal
individual or the social
structureswhose vices or primitive charactermake
the claim impossible to
fulfil if immediate fulfihént may readto violent
.onr"qu"*es by violating
somemajor rights. Here Maritain adds another
irnpo.tuii point óitn ,"t;;
to the distinction between the possessionand
the ìxercisà or a right. This

'o see
Maritain,"Il significatodei diritti umani,,in I diritti
deil,uomoe ra reggenaturale,p.
1f^1:^l* alsoRaymondDennehy,"ontologicalBasisof Hum* mÀr,À,"TheThomist42
(1978),p.458-459.
ersee
Maritain,Man oq
.t!" state, pp.102.SeealsoMaritain, An Introductionto theBasic
Problemsof Morarph,osophy, trans.c. Borgerhoff(Albany(Ny)iM"g, Books,
p.187. 1990),
40 CHAPTERI: NATURALLAW AND HUMAN RIGHTS

distinction enablesus to understandthat it is fitting at times to forgo the

exerciseof some rights which we possess.Though we forego the exercise,
the possessioncontinues.Maritain points out two instancesin which this
distinction is applied. In the caseof problems concerningthe modalities of
private property in a society which is in a processof transformationthese
considerationsare applicable.This is true also in the caseof limitations to
be put on the sovereignpower of statesin an internationalcommunity that is
in the processof being organised."'With regard to the relation betweenthe
Church and the civil societythis principle is applied in somecases.As man
passesthrough specifically different historical periods some rights which
the Church used to exercisein a sacredsociety as that of the Middle Ages
cannot be exercised in a modern society without putting in danger the
common good of the society. In the Middle Ages the Church exercisedthe
right to mobilise the stateagainstheretics.The non-exerciseof a right does
not mean,however,that the subjecthas lost the right.e3
The distinction between the possessionand the exercise of a right
permits us to avoid many false judgements and to enlarge the work of
doctrinal synthesis.Maritain refers to a book by M. Ascoli, The Power of
Freedom. He appreciatesthe dynamism of the book and quotes from it.
According to Maritain Ascoli reconsidersthe problem of the rights of man
from a dynamic and concrete point of view, affirming that these rights
constitutea social capital createdby the power of freedom and derived from
its surplusenergy.This energyis procuredthrough the effort ofgenerations.
The consequenceis that every right is based on a great reserve of active
human experienceand requires a continuous renewal and developmentof
this reserve. Every right that we experience is the result of a long and
specific effort and requiresconstantrenewal and continuousmultiplication
of this reserve. while appreciating the good points in this explanation
Maritain observesthat it can be applied only to the exerciseof the rights and
not to the possession.In the perspectiveof exercisethis doctrine has much
truth insofar as it assertsthat the exerciseof human rights and their effective
recognition should be acquiredconstantly as an interior discipline, a social
experiencerooted in history and in continuousgrowth.'o
By treating the rights of the human person Maritain emphasizesthe
progress of humanity in the direction of emancipation in the political,

e2
See Maritain, Man an"dthe state, pp. 102-103.The last chapter of Man and the state
deals with the need for an international community and the problem of world
govemment.
e3
See Maritain, "Il significato dei dftittii" in I diritti dell'uomo e la legge naturale, pp.
t43-t44.
ea
see Maritain, "It significato dei dirittf iî I diritti dell'uomo e la legge nnturale, pp. 144-
145.
 CHAPTERI: NATURAL LAW
AND HUMAN RIGHTS AI
l l

economic,and sociarorder.This progress

diverseformsof servirud.;"y;t;drisheJ occursin sucha way that the
its term' For rhisuottrttretra;rir" ;s irr,nun't irrory approaches
berterawareness-of ,g be*er,r";;ie anizationand
th9 opù;t;tne to a
brorherryrovearerequiredrTÉr numanlóó"uno the primacyof
freedom- spirituar,'priili."r, "sJcial,
r; tn9 *uyio là"u-"""-a the conquesr
of
enumeration of rightsihowsthat qq working freedom.es The
whar is newis rheawareness in hu.runhistorytn"rE* no newriehts.
of a particurar ;;h;:d;;ifferent rightsÉave
a dvnamicuniry'
ó.i"íipr",
11ilrvi"Àgoód.
rightsaim at thL common ."d"lv il;; dignitv. All these
TÉus^the ptioróiii of humanrightsin
Maritainis cenrredon tr'" .Jffi,i""^"r
and sociaraspects.In the t""r";; iÀ";;;;"dirJn ,n his individuar
functionsasthècommonground theoreticareipranationnaturar
of humanrights. raw
Conclusion
In this chapterwe ,.ied to anaryze
rightsbasedon narurar Maritain,sexpositionof human
ra*. wruie Jn",iring ,h;;;;
at theorericat exnlllions with-àg*à.a human u" orhera*emprs
""#Maritain
righrs,
naturallaw as the-onry t*"
touììàtion or r,u*ir, .ights. He considèrs
explanarionof the theorÉticai-unàJrrì"naingoinuì,iur gives an
historyandcomesro rhe.on.rur-ioi ìoiroin rhecourseof
the bestexpranationro. tttis. it'u, i, il in sr. rtorl, ,hu,on" can
wJrruu" find
gnoseorogicalaspectsof naturar uotrrine ontorogicaland
l;ry "*u-in"o
ontologicar upe.ì narurarIaw is arrlceat r presentedby Maritain. In its
Thehuman JJJ;ilnlrro nu,nunacrions.
rt unontotogiài,""urv il;;k.
and.naturar "sien"e
raw dwets as an ia?iflrà", trr"u".y tur* beins
í" ii,; ;ó'i"-ing of a, existin!
As regardsthe_knowredge of thisraw thereis historicardeveropment.
Maritainargùesthatthis rr* ii-t""*n
rationalconceprualization. trrrougr., in.rinurìin'andnot throueh
Mffi;;;or,n. ipr"ì", ,ii'*h"n St. Thoml
teachesthat human
Jearondiscoversthe regulation,oinuturar law through
the guidanceof the inctinati,ons;ú;;""
modeor mannerin which ttumun nature,wharhe meansis thatthe
r;;;""i mo*r'nutului'i"*
**,il'iil.p."tution
i, nor rarionar
5fi[5tiJ"'"#:goÀ" tm"ug"f n"rinution. has
vraritainiìr'""#:ir!iìr,ril,1,,??ili,,àlx",H,ffi
Maritainadmitsthe dynami-c-Jlu"topr"il ;r"3"-opinionthat
is neededin orderro dear*iilitud;;s #;;; raw.This view
in an olderunderstanding which *" il;i;*try
or nulrJ'ru*. rn. importance mentioned
rights can be conside;d ;;-""Lpr" givento human
undersranding.Here ir can l"-;r;;;' "i;;t';'dr"u"lopn'enr of
that the conceprof the historic

e5
SeeMarita in, The Righn of
Man and Natural law, pp.
I 09_1I l.
 42 CHAPTER I: NATURAL LAW AND HIJMAN RIG}fTS

development of natural law might be an attempt to present the rather

modernconceptof human rights in the context of rhomistic philosophy. In
presenting natural law as the foundation of human rights Maritain is
influenced by the American constitution. This shows the power of natural
law i.nshapingmoral precepts.He is also influencedby the Nazi war crimes
trial in Nuremberg.
Maritain explains the relation of natural law to the eternal law. The
natural rights of the human person are anterior and superior to positive
legislations.No civil authority can abolish them. They Àave to recognize
them and protect them. To understandthe true significanceof human rights
one shouldhavea clear philosophic understanding.
. Maritain points out the difference betweennatural law and positive
law and natural law and the law of nations. This helps to understandthe
proper role of each and to avoid confusion. The order of positive law is
juridical, and the order of natural law is moral, but positive law obliges in
conscienceonly becauseof natural law, and thus an unjust law doès not
oblige in conscience.The law of nationsalso obliges in óonscienceby the
power of natural law. There is a transition betweennatural law and poiitiue
law and the law of nations. This transition helps to justify considerationof
natural law as the foundation of human rights. This argumentfrom natural
law helps to manifest human rights as universal, irreipective of apparent
differencesof culture and traditions.
Maritain presentsan elaboratelist of human rights. rn The Rightsof
Man and Natural Law and in Man and the State he indicatesthesevarioul
rights. [n the former the list is more elaborate.In the latter he does not go
into a detailed list. They are divided as the rights of the human person,tÉe
rights of the civic person,and the rights of the working person.Ée attempts
here to reconcile individual liberalism and the welfare-of the communiìy,
two powerful currentsof his time. In this effort he succeeds.
we see how he gives importance as well to rights which are
emphasizedin socialist thinking too. His is a balancing effort between
arbitrary individualism and authoritarianism. Human beings have rights.
These rights are to be respected.All persons should havJequal dignity.
Respectfor human dignity involves more than mere a passiveaffirmàtlon.
The languageof human rights and the appealto them holds great hope for
millions of people aroundthe world. Maritain views theserights as bajed on
christian principles. while Maritain was writing this tolic was in the
beginning stagesof a world wide debate. His wàtine wai fon r"d in the
context of world war tr and the universal Declaratiòn of Human Rights.
The universal Declaration has exercisedconsiderableinfluence in sha[ing
internationalrespectfor humanrights.
when the question of human rights is discussed, there is often
controversy with regard to the inalienable character of human rights.
Maritain tries to answer sufficiently this question.His responseinvolvis a
 CHAPTERI: NATURAL LAW AND HUMAN
RIGFNS 43
sort of conditionedinalienabirity.There
are absoluterights but subjectto
certain conditions.In Maritain óo,nrnon
good is the criteria of rimitation.
Maritain makes a distinction u"t*"Jn
ìh" porr"rsion and the exerciseof
rights'Howeverthe questionof absolute
righis i, noi to sotue.
"u*v
 Chapter II

HUMAN RIGHTS IN A PLURALIST SOCIETY

Introduction
In this second chapter we analyze Maritain's concepts of human
person, the common good, the state and human rights, the need for a
democraticform of governmentfor the promotion of human rights, and the
role of pluralism. To deal with human rights it is absolutely necessaryto
have a clear idea of the humanperson,who is the bearerof fundamentaland
inalienable rights. The common good is the connecting link between
individual freedom and the welfare of the community. The state has a
specialrole to play in the field of human rights. Democracy is the form of
governmentbest suited for the promotion of human rights. Maritain argues
for a social democracy based on pluralism, solidarity, subsidiarity, and
development.
We attempt to see how far his humanism is Christian and how it
helps to have a clear understandingof human dignity. Maritain considers
man as a person who has two facets to his personality,the material as well
as the spiritual. Corresponding to these two Íìspectsthere is a two-fold
destiny for man, the temporal and the eternal. The end of any complete
societyis the good of the community. For him the common good is the good
human life of the multitude. The common good is not merely a system of
advantagesand social utilities for the flourishing of persons.
What is the role of the state in the promotion and protection of
human rights? According to Maritain the final aim of the state is the
common good of the political society.He arguesthat the stateis for man. It
is not a kind of collective supennan.Maritain is againstany absolutistview
of the state.The true dignity of the statecomesfrom the exerciseof justice.
Maritain gives importance to the enforcementof social justice. The state
should respect and preserve human rights. Here we discuss Maritain's
conception of people, body potitic, and community. We shall make a
detailedanalysisof the conceptof sovereigntyas understoodby Maritain.
Maritain's criticism of the materialisticconceptionsof societyhas
much importancein his conceptionof the human person and consequently
with regard to human rights. Maritain mentionsthree principal materialistic
philosophies which are against the human person, namely bourgeois
individualism, communistic anti-individualism, and totalitarian or
dictatorial anti-communismand anti-individualism
Maritain analyzes the role of a democratic form of government.
According to him democracy is the only way of bringing about a moral
rationalization of political life. The end of democracy is both justice and
freedom. In a democraticstate freedom, law, and the dignity of the human
 46 CHAPIER II: HIIMAN RIGHTS IN A PLT]RALIST SoCIETY

person are basic tenets. Maritain, together with Bergson, considers

democracyto be rooted in gospel inspiràtion. Men of difierent faiths and
philosophicalcreedsshould cooperatein common tasksand for the common
welfare. Maritain speaksof the needfor a civic or secularfaith. This secular
faith is a moral charter. The content of this moral charter consists of
liberties,rights,and obligations.

I The Human Person: The Bearer of Fundamental Rights and Dignity

A clear understandingof the human person is neededin order to
presenta balancedview of human rights. while discussinghuman rights
there is always the danger of distórtions coming from individualìim,
collectivism, and cultural relativism. tndividualism may place private,
individual good over the common good and thus remove húmàn rigtrts from
any obligations, and this may lead to scepticism with regard to the real
viability of human rights. As a consequènceit can bri-ng about state-
absolutism.cultural relativists argue that moral norms are not universal,
thus culture is the important factor of moral nonns. In the following section
we shall try to examine how Maritain's philosophy can confront these
distortions.

1.1 The Concept of Person

, Every political philosophy has a specific image of man and a
specific vision about the ultimate end of human ure. Irrlaritain's vision of
man and history is led by christian-inspired humanism. His attempt to
understandthe human situation is always determined by Thomism. The
foundation his political and social púilosophy is basically Thomism.l
9f
This extends to his conception of person and sóciety. Mariiain makes a
distinction between individual and person. This distinction between
individual and personwas inspired by thè remarksof the famousDominican
theologian, Réginald Garrigou-Lagrange.It has much importance for the
political conceptionof Maritain.^Itgivés importanceto noiion of christian
revelationin his politicaltheory.2

'
SeeW. Gurian,"On Maritain's political philosophy,"pp. 9-10.
2
See w. Gurian, "on Maritain's political philosophy," p. 11. The importance Maritain
gives to the notion of revelation may not be acceptableto non-Christiais. Many
of them
do not believe that God has spoken to the world in time and space.Garrigou-Lugrung"
(1877-1964) was a well known Dominican philosopher and thàologian. Hi
was *ong
the pioneersof Thomistic revival in France.According to Copelstoi he is consideredby
many as a nÍurow representativeof Thomism. By his writings he tried to raise the
ltandard of thought in Thomistic writings. He was un oppon"nt of modernism. see
Frederick copelston, A History of philosophy, vol. 9 (New^iork: Image Books lgg4),
,
p.253.

t
 CHAPTER II: HUMAN RIGFITS IN A PLURALIST
SOCIETY 47

f .1.1 Individuality
rnThe person and the common GoodMaritain distinguishes
the two
metaphysical aspects of the human being. They
are-inlividuality and
personality.As a human person,man has t*-o dimeisions
to t i. p"rroíurity,
material and spiritual dimensions.He has a twofold
a".tiny, the temporal
and the eternal, correspondingto these two dimensions
of iris p"r*"àriiv.
The spiritual destiny transcendsthe temporarorder.
In the spirituarend man
finds perfect furfilment. Here Maritafu makes
,"r"rerrc" to pascal, st.
st. Augustine, Heger and Hindu philorophy. -'' -'
iie makes here a
Thq*T'
distinctionbetweenthe individual andthe peÀon.3 '
According to Maritain individuatiiy "designates
^ . that concrete state
of unity and indivision, required by exisien"",
in virt'e of which every
actually-orpossibly.existingnaturelan posit itself
in existenceas distinct
from other beings."a beings are individuals
-Corpóreal because of their
relation to matter. Mattei is indeteriainate in itseri. rÀm the form it
receivesits determinations.The form is ordained
to infoÀ the matter. This
doctrineholds thar the human sour togetherwith
rh";;";-*hich it informs
constitute one substance,which is ihe human
ueing.-Tirese are the two
substantialco-principles of the reality called
-un. É"r" Maritain refutes
cartesian dualism between the soul ànd the b"Jt.
e"""Ji"g to Maritain
"each soul has or is a substantialrelation to
a particurar body, it has within
its very substancethe individual characteristics
which differentiate it from
every other human soul."S

1.1.2 Personality
Personalityis a much deepernotion. In Maritain,s
. .- opinion the most
suitable approach to understand the philosophical
personalitywould b9 the study of the relation significance of
u"t*à, p"rsJnality and love.
Against PascalMaritain affirms that love is not
"we love the deepest,most substantialand with qualities.
hidden,"on"éÀ"d
tn" Àori existing rearity
of the beloved being. is a metaphysicatcenire a""0", than all the
fhfs.
qualities and essenceswhich we can find and beloved.,,6
The conceptof personarityis relatedto the deeper
";;;;;iln"
uno nilno dimensionsof

'
See Maritain, The person an^dthe common
Good, pp.31-34. we find this distinction
between individuality and personarity in
schorantrcxm ona potln, arso. Maritain
considersthis distinction eytreryely important.
see Jacquesu*iol", schorasticismand
Politics, trans. Morrimer. J. Adlei (Garden
City G.fDin;rbl" tó, D60), pp. 6t_64.
Maritain's distinction between individuality
and personality has lead to serious
discussionsand reactions.
o
Maritain, The person and the CommonGood, p.34.
t
Ma.itain, The person and the CommonGood, p.36.
u
Maritain, Thepersonand the CommonGood,-p.39.
48 CHAPTERII: HUMAN RIGHTSIN A PLURALISTsoCIETY

being. The roots of personality are in the spirit. [n a metaphysical

perspectivepersonality is subsistence,as the Thomistic School asserts./
"Personality is the subsistenceof the spiritual soul communicatedto the
humancomposite...Personality testifiesto the generosityor expansiveness
in being which an incarnatespirit derivesfrom its spiritual natureand which
constitutes,within the secretdepthsof our ontological strucfure,a sourceof
dynamic unity, of unification from within."ó This dimension of personality
requires communication with others in the order of knowledge and love.
Here Maritain presentsthe realm of the relation with the absolute as the
only way the personis able to enjoy his full sufficiency.e
Maritain affirms the real foundation of the dignity of the human
person.It is in the property of man's resemblingGod, becausethe human
personis the image of God. The human personhas a spiritual soul capable
of knowing, loving and,of being uplifted by the graceof God to participate
in the very life of God.'" The common good of civil life is an ultimate end
only in a relativesenseand not in an absolutesense.This commongood is
intendedto foster the higher ends of the human person which transcendthe
political common good. To ignore this aspect is to sin against both the
human person and the political corrìmon good. A Christian knows that the
absoluteultimate end of the human personis God. This direct ordination of
the humanpersonto God transcendsevery createdcommon good. Here lies
the ground of the dignity of the person.To sum it up all in one phrase,the
law we have before us is the law of the primacy of the spiritual. The value
of the person,his freedom and his rights are relatedto this sacraldimension
of his personality. The human person finds his fulfilment only in a direct
relation with the absolute.This relation is the basisof his dignity."
Individuality and personality are not two separatethings but two
metaphysical aspects of the human being. The relation between

7
See Maritain, The Person and the Common Good, p.40. In the same work in p. 32
Maritain makes reference to the definition of person in St. Thomas. It is quoted in
contrastto the affirmation of Pascalthat the self is detestable.According to St. Thomas
the person is that which is most noble and perfect in nature. The reference here is to
summa Theologiae r, q. 29. a. 3. Here st. Thomas defines the person as subsistent
individual of a rational nature.
8 Maritain,
The Person and the CommonGood,p. 41.
e
See Maritain,The Person and the Common Good, p. 42. Mantain has already criticised
materialist conceptionsof the human person. They deprive men of their real digniry as
they considerman only as a materialist unity. Maritain takes into considerationboth the
material and spiritual aspectsof the human being. See also Maritain, Scholasticismand
Politics,p.68.
r0
SeeMaritain, The Person and the Common Good, p. 42. se.ealso Maritain, Man and the
State,pp. 134-136.
tt
SeeMaritain, Scholasticismand Politic.r, pp. 63-68.
 CHAPTERII: HUMAN RIGHTSIN A PLURALISTSOCIETY 49

individuality and personalityis dynamic."one and the samereality is, in a

certainsensean individual,and in anothersensea person.Our whole being
is an individual by reasonof that in us which derives from matter. and à
personby reasonof that in us which derivesfrom spirit."l2 Maritain asserts
that it is preciselyas relatedto personalitythat individuality is good. Man
will be truly a persononly in so far as in his actionsthe tife of the spirit and
of liberty reignsover the inclinationsof sensesand passions.t3 He dìscusses
the misunderstandingswith regard to the distinction between both these
aspectsand its results. He criticizes both those who confound the person
with the individual and those who mistake this distinction for separation.
Both theseare far from an authenticconceptionof the humanbeingJa

1.2 Freedom of Independence

Maritain considershuman personality a great metaphysicarmystery.
Spirit is the root of humanpersonality.A personis a whole and subiistsin
an independentmanner.In the depthsof his being man is more a whole than
a part and more independentthan servile. The personhas value, dignity, and
rights. Thesebelong to the order of things, naturally sacred,which bear the
imprint of God. It is in the background of man's spiritual nature that
Maritain speaks of the freedom of independence.Man is called to the
conquestof freedom. The human personality has aspirationswhich can be
classified as connaturalaspirationsand trans-naturalaspirations.Connatural
aspirationsstruggleto win freedom in the order of social life. Trans-natural
aspirationstend to a super human freedom.'' Religious thought is oriented
to the attainmentof this freedom.
The conquestof freedom can be understoodin a false manneror in a
true manner. It depends on the philosophy according to which one
understandsit. The false way of understandingthe conquestof freedomsays
that there is freedom or autonomy only if no rule or autonomy is receivéd
from a being other than oneself. on the contrary the true manner of
understandingthe conquestof freedom acceptsdivine transcendence.Here
the autonomy of the person consistsin conforming to rules and measures

t'
Maritain, The Person anl the CommonGood, p. 43.
13
see Maritain, The Person and the common Good, pp.44-45. see also Maritain,
Scholasticismand Politics, pp. 68-70.
Ia
See Maritain, The Person and the CommonGood, pp. 45-46.
15
See Maritain, "The Conquest of Freedom" in The Social and political phitosophy of
JacquesMaritain, pp. l0-17.
50 cHAPTERII: HUMAN RIGHTSIN A PLURALISTsoCIETY

which are just and true. Based on this understandingof the conquest of
freedomthere is true and false political emancipation.'0
The true city of human rights should succeedin disengagingitself
from false politicai emancipationl Matitain criticizes the anthròpoóentric
conceptionwhich has led to a false city of human rights. Here he intends to
criticize Kant and Rousseau.This false conception statesthat one is free
only if he obeys himself alone,and man, by right of nature,is constitutedin
such a state of freedom. What we have here is the divinization of the
individual. This assumption has its consequences,namely, a practical
atheismin society,the theoreticaland practical disappearance of the idea of
the common good, of the responsibleleader,.and of the idea of authority.
Finally this leadsto a divinizationof the state.17
Maritain points out that the true city of human rights is theocentric
and its conceptionof the autonomy of the person is in conformity with the
nature of things. In the social and political order the attaining of freedom
consists in gradually becoming independentof the constraintsof material
nature.The true city of human rights recognizesGod as the last end of our
existence.This city is foundedon the authenticnotion of the common good.
Here there is respect for human rights, a proper role for authority and
political participation,and a constantdevelopmentof socialjustice. To have
a human characterthe life of the social body, togetherwith its law and legal
institutions, needsalso civic friendship.The heroic ideal towards which true
political emancipation tends is the establishmentof a fraternal city. To
achieve this i! needs virtue and sacrifice, and a perpetual victory of man
over himself.18
I

2 Human Rights in Relation to Society and the Common Good I

To get to a deep insight into Maritain's philosophy of human rights a

we should have a clear understandingof the concept of society and the role t
of lhe cornmon good which functions as a standardof regulation between
individual rights and society.

2.1 The Concept of Society

Maritain usesthe term "society" in a special way. He distinguishes 19
community from society. community is based on a fact, and this fact is 20

21

16
See Maritain, "The Conquest of Freedom" in The Social and Potitical Philosophy of 22
Jacques Maitain, pp. 18-19. The true political emancipation is called the true òity of
human rights, and false political emancipationis called the false city of human righs.
17
See Maritain, "The Conquest of Freedom" in The Social qnd Political philosophy of I
JacquesMaritain, pp. 19-20. I

18
See Maritain, "The Conquest of Freedom" in The Social and Political Philosophy of t
JacquesMaritain, pp. 20-22. I
 CHAPTERN: HUMAN RIGHTSIN A PLURALIST
SOCIETY 5I

recognized by reason. A society is strictly

based on a purpose to be
accomplished. This purpose and the means
to attain this purpose are
products of human reasón. For Maritain
family *lpoilti"al society are
natural societies. Around societies there
come to tive communities of
Ioyalty and feeling.society givesrise to communities,
-Bàsing but
developsinto societies.re ""*il;;t';;";;
himserf on this cisiinltion
that the nation is a community úd *t .1".i"iyjr;;rh Maritain says
politic fall into the category óf society. ;; and the body
Both híve u pu.por", and both are
necessaryto completewhat man is.

2.1.1 The Social Character of Man

Man is a social animar by his very nature.
By virtue of his dignity
and needs the human--personrequires
_membershipin a society. Maritain
usesthe term "society''io.signifrànlr the
society;?À;"; persons.By his
natureman needsto.live in society. Man requires
life in society becauseof
the very perfectionsinherent in hii. He is
a being open to deepcommunion
with others. There are deficienciesdue to
his mà'teriatinoividuatty, which
necessitatelife in society. The persondemands
to ue integratedto a body of
social communications,and without such
integration ii-is not possibre to
attain his full life and achievement.The
hurían;il;""* achieve his
fullness only through receiving
ggrtainlooos essentialto him from society.
ulpJTr to provide rhe human,p;;r;;"dr;
3::^_r^""t:ly,
erustence conditions of
and development which he needs.2r^consideri"g
developmentof the hùman person ,o"i"ty trr" i"àgrui
i, inairp"nruùr, ..In this sense
Aristotle's statement,lru, *un.is by nature
a poritical animar holds with
great exactitude:man is a poriticar animal
becauserr" i.
reasonrequires deveropmenliùougt character "ìuti;il;;i;
{ayse training, education
and the cooperationof orher meì, and o::r?ú"
ro"i"iv ir ,t, inoirpensable
to the accomplishmentof humandignity-

re
SeeMaritai n, Man and the State, pp.2_4.
20
SeeMaritain, Man and the State, pp.4_g.
2r
see Maritain, The person and the common
Good, pp. 47-49. see also Maritain,
Scholasticism anà politics,pp.7 l _79.
22
Maritain, The person and the common
Good, pp.4g-49. while dealing with politics
Aristotle saysthat man is by nature a politic;
animal. SeeAristotle, politics, 1253a l_4.
whoever has no need of society is such
u""uur" of his self sumciency or because
unabtero live in thesociety.Aicordingto a.i.totù he is
god,Politics'1253azz.rt, connectiinu"*""n ,i;; ffi;;]r?*", a beasror a
political community can be understood
humannàtu.",humangood,andthe
from Aristotre,s account of friendship.
Nicomachean Ethics, Book vIII-D(
deat wigr rrienarrrrpoi
"*iJJ"r*r.
JZ CHAPTER TI: HUMAN RIGHTS IN A PLTJRALIST SOCIETY

2.r.2 Maritain's Criticism of Materialistic Conceptions of Society

2.1.2
According to Maritain the materialistic conceptionsof society are
blind to the realities of the spirit. They take into considerationonly that
which belongs to the world of matter. They see in man only material
individuality. Maritain mentions three principal materialistic philosophies
which are against the human person. They are bourgeois individualism,
communistic anti-individualism, and totalitarian or dictatorial anti-
communismand anti-individualism. All thesephilosophical conceptions,in
one way or the other, disregardthe human person and considerthe material
individualalone."
Bourgeois individualism tries to ground every thing in the
uncheckedinitiative of the individual and the absoluteliberty of property,
business,and pleasure.It conceivesthe individual as a little god and results
in statism. Here the individual enjoys only illusory liberty because he
entrustsevery thing to the state.He rejectsthe conditions of social life. The
notions of common good and common work disappear.Maritain considers
the moral crisis of the Western civilization and the disastrousproblems of
liberal capitalistic economy as due to the tragedy of bourgeois
individualism.'"
Communistic anti-individualism can be considered as a reaction
againstbourgeois individualism. It claims to confer absoluteemancipation
to man. In this philosophy the person is conceived as purely immanent in
the group. What is here liberated is only the collective man and not the
individual person.Economic function becomesthe principal action of civil
society. Communistic anti-individualsim disregardsthe proper function of
civil society as a community of persons.It leadsto dialectical back-slidings,
perpetualpolitical regimentation,and internal conflicts. The bestexampleof
the tragedy generatedby communism is Russia. Communism is a kind of
economictheocracywhich needsa very powerful and strict discipline which
can be achievedonly through the external processesof thought control and
constraint.All those attempts,which do not consider the aspirationsof the
person,resultin conflicts."'

23
see Maritain, The Person anà the common Good, pp. 90-91. See also Maritain,
Scholasticismand Politics, pp. 79-80.
2a
SeeMaritain, The Person and the common Good, pp.93-95. The freedom man enjoys in
a bourgeoistic society is only illusory. This criticism is mainly against Rousseau.In
Scholasticismand Politics Maritain mentions about Rousseau'sconception of general
will.
2s
See Maritain, The Person and the common Good, pp.94-96. See arso Maritain, True
Humanism, pp. 27-46. Here Maritain deals with the subiect matter elaboratelv. He
analyzesand evaluatesthe Marxist ideology.
 54 CHAPTERII: HUMAN RIGFmSIN A PLURALIsTsocIETY

the common good.3r According to Maritain the thought exposed by

Rousseaumadehumanrights absoluteand divine, free froÀ every objectivó
standard.For him the human subject is absolute, and he enjoys a6solute
rjqhtl to expressanything and everythingthat is within him. In opposition to
this there is the absolute sovereigntyof the state even to the iéjection of
individual human rights. To counter6dancethe extremepositioni Maritain
proposesthe common good as a standardof regulation. Èy his philosophy
of human rights, basedon natural raw, he attemptsto provide a safe course
betweena mindlessarbitrary use of freedom und un absolutisticstatewhich
repressesfreedomaccordingto its own advantages.32

2.2.1 Maritain's Conception of Good Human Life

The end of civil society is the good of the community. Maritain
specifieswhat this common good is. It iJnot the mere collection of private
individual goods,nor the.propergood of the whole. For him common good
il,
l'...The good humanlife of the multitude,of a multitudeof personsiit is
their communion in good living. It is therefore common to boih the whole
parts into which it flows back and which, in turn, must benefit from
ru.ff.
rt.""" Ihe good human life implies the recognition of the fundamentalrights
of the person.Maritain mentionshere the rigtrts of the family too. The góod
humanlife involves the highestpossibleacóssion of personsto their life
as
persons.Here thereis freedomof expansion.3a
The common good is not merely a system of advantagesand sociar
utilities for the flourishing of the perions. It is a bonum ionestum. The
common good is what it is accordingto justice and moral goodness.Mere
usefulnessfor a societydoesnot meanthe common good. suih things are to
the destructionof the^commongood. The deniallf hunun righis, even
though sometimesuseful to a governmentin as much as it procures some
fleeting advantages,leadsto the destructionof the common góoojj

''
SeeMaritain, Man and the State,p. L}l.
32
SeeT. A. Fay, "Maritain on Rights and Natural Law,,,p.444.
" Maritain, The Person and the common Good, p.51. See also Maritain, True Hwnanism,
p. 27. Here Maritain speaks of the common good as
the proper earthly life of the
assembledmultitude, of a whole made up of human persons.
3a
SeeMaritai n, Scholnsticismand politics, p.73.
35
This argumentu'
rrru u6u'rv'r on the commol guoo
ure uu[urull good can
can be positively used
De poslnvely used tO
to argue
argue against
againstiSsueS
i such
as abortion,
euthanasi4 and forced labour. Úsefulness becomes ttre crilrion
m arsuins
in argumg
in favourof suchpractices.Mere usefulness cannotbe the criteri"" f*il-;#;;;
good' which is an ethicalgood. The humanpersonis to be keated
as a whole in the
society.
 CHAPTER II: HUMAN RIGFITS IN A PLURALIST SOCIETY 55

2,2.2 The Ethical Nature of the Common Good

The common good should be something which is ethically good. It
should aim at the maximum developmentof the personsaccording to the
principle of justice. It should be noted that Maritain here considersnot only
political rights but also civil virtues, culture of mind, and the economic
guaranteesof labour and property. All thesehelp the personto attain a real
independencefrom the servitude of nature. Freedom of expansion is an
integral development.The common good is not the common good of the
nation, but more b-qoadlyspeakingit is the common good of the civilized
world community.'u Matitain conJiderspolitics as a bianch of ethics, but a
branch distinct from other brancheshaving the same stem. In Man and the
State whlle dealing with the problem of meanshe affirms:
Politicsis a branchof Ethics,but a branchspecificallydistinctfrom
other branchesof the samestem. For human life has two ultimate
ends,the one subordinateto the other: an ultimateend in a given
order, which is the terrestrialcommon good, or the bonum vitae
civilis; andan absoluteultimateend,whichis thetranscendent, eternal
common good. And individual ethics takes into account the
subordinateultimate end, but directly aims at the absoluteultimate
one; whereaspolitical ethicstakesinto accountthe absoluteultimate
end,but its direct aim is the subordinateultimateend,the goodof the
rationalnaturein its temporalachievement.3T

2.3 The Reciprocal Relationship between the Person and the

Common Good
Maritain examinesthe relation betweenthe personand civil society.
To formulate the nature of this relation he brings to bear some theological
and metaphysical observations.The idea of person is an analogical idea
which is realized fully and absolutely only in God, the pure act. Here he
refers to the Thomistic idea that the person as such is a whole, that the
conceptof part is opposedto that of a person.38This meansthat the society
of personsis a whole composedof wholes. Analogously Maritain refers to
the Divine Trinity. Here also he is using St. Thomas.The Divine Trinity is a
society of pure persons, a society par excellence.3eThe place of human
society is betweenthe Divine Trinity and the society of material individuals
which are not persons.On account of materiality each one is distinguished
from the other, but each requires communion with one another. This

'u
SeeMa.itain, The Person and the CommonGood, pp. 5l-55.
37Maritain, Man
and the State, p. 62.
38
SeeMaritain, The Person and the CommonGood, p. 56.
'n
See Maritain, The Person and the Common Good, pp.57-59. Here Maritain is referring
to St. Thomas,SummaTheologiaeI, q. 30, a.4.
56 CHAPTERtr: HUMAN RIG}ITS IN A PLURALIST SOCIETY

communion is in anticipation of the perfect communion with one another

and with God in life eternal. The conclusionhe draws is that the person as
personis requiredto be treatedas a whole in society.a0
Since man is very far from being a pure person,the good of society
and the good of each person are not to be one and the samegood. Because
of the deficienciesof his naturewhen a human personentersinto society he
is presentas part of a whole which is greaterand better than its parts. His
proper good is inferior to the good of the whole. This good should benefit
the individual personsand should be distributed to them. Besidesit should
respect their dignity. On account of the eternal destiny of the soul the
human person surpassesand is superior to all temporal societies.Here the
society is subordinated to human person, and the common gopd is
subordinatedto the order of eternal goods and supra-temporalvalues.*' It is
illusory to pose the problem of the person and the cornmon good as a
relation of opposition. Actually both have reciprocal subordination and
mutual implication. The human person servesthe community being faithful
to spiritual values.He has an obligation to sacrifice his own good and suffer
for the common good of the city and even to offer his life for the common
good.*' Though the person as such is a totality, the material individual is a
part. Thus he is both inferior and superior to the society and thus to the
commongood.
To get a deeperunderstandingof the relation betweenthe person and
the common good Maritain refers to two texts of St. Thomas.The first text
says:"Each individual person is related to the entire community as the part
to the whole."*' The second one says: "Man is not ordained to the body
politic according to all that he is and has."4 According to Maritain botir
these texts complete and balance each other. This means that although man
in his entirety is engagedas a part of political society he is not a part of
political society by reasonof his entire self and all that is in him. By reason
of certain things in him man is elevatedabovepolitical society. Anarchical
individualism deniesthe idea that man in his entirety is engagedin political
life and totalitarianism denies the idea that man is elevatedabove political

oo
SeeMaritai n, The Person and the CommonGood, pp. 58-59.
at
SeeMaritain, The Person and the CommonGood, pp. 6O-62.
a2 See Maritain, The Person
and the Common Good, pp.65-67. See also Maritain, Irze
Humanism,pp. 128-130.
o'
St. Tho* , SummaTheologiaell-tr, q. 64,a.2.Maritain cites in the footnoie also II-tr,
q. 96, a. 4; tr-tr, q. 61, a. 1; [-[, q. 65, a.1. These referencesto SummaTheologiae arc
given hereas found inThe Personandthe CommonGood,p.TO.
*
St. Thomas, Summa Theologiae I-II, q. 21, a. 4. See Maritain, The Person and the
CommonGood,p.7l.
 CHAPTERTI:HUMAN RIGI{TSIN A PLURALISTSOCIETY 57

society.asBecauseof the deficiencies of his material individuality man is

part of the political community and is inferior to it, but on account of the
things in him which are due to his personality and which dependin their
essenceon somethinghigher than the political community and which are in
the order of the fulfilment of person as person, the person excels the
politicalcommunity.4ó
From these above-mentionedconsiderations Maritain draws two
conclusions.The first is about the mutual relations betweenthe person and
civil society.As the personrequiressocietyon accountof his being a person
and an individual the common good directs itself to the person as person
and directs the person as individual to itself. From this poìnt of view arise
two laws: first we have the law of redistribution of the common good to the
parts of the societybecausetheseparts are persons.The secondiJ the law of
transcendenceby which the transcendenceof the personover the society is
manifested.The secondconclusionis with regard to the stateof tensionand
conflict which is inherent in the society. In social life there is a natural
tendencyto enslaveand diminish the personin the measurethat the society
considersthe person as a part and as a mere material individual. It thui
contradictsthe natural ordination of social life to the good and the freedom
of the person.According to Maritain this tensionand conflict are something
natural and inevitable. Their solution consistsin two dynamic movements-.
The first of thesemovementsis the movementof societiesas they develop
in time. This movementtends to realize man's aspirationto be tréabd as à
whole and not as a part. The secondmovement ii a vertical movement of
the life of the personsthemselvesin the midst of social life. This movement
is due to the needof the personfor the society and his demandto transcend
it.a7According to the viiion of Maritain the person is involved with five
types of societies,namely the family, civil society, a cornmunity of minds,
the church and the society of the Divine persons.a8That is the dignity and
destiny of the humanperson.

2.4 Rightsand Duties

The rights of man are foundedon his duties, and these duties are
foundedon the transcendentaldestinvof man. The human person enjoys

a5
See Maritain, The Person an^dthe common Good, pp. jr-72. Ernest L. Fortin does not
accept Maritain's interpretationof these above-mentionedThomistic texts. He is of the
opinion that in none of the pertinent texts St. Thomas invokes the distinction between
individuality and personality or speaksof the person as superior to common good. See E.
L. Fortin, "The New Rights Theory and the Natural Law,'tpp. 600_601.
6
SeeMaritai n, The Personan^dthe CommonGood, pp. 72-74.
a7
SeeMaritain, The Personand the CommonGood, pp.76-79.
a8
SeeMaritain,The Personand the CommonGood, pp.79-g9.
 58 CHAPTERII: HUMAN RICHTSIN A PLURALISTSOCIETY

benefitswhich only life in society can give. In return man has a number of
obligationstowards society. The person should servethe common causeof
the society,and for the sakeof common life societyimposesconstraintsand
sacrifices the person.It is becauseof the material facet of his personality
9n
that man is subordinateto the state and that he has obligationsiowards ii.
Becauseof the eternaldestiny of man there are certain arèaswhere the state
cannotinterfere.ae
someone'sduty to anothercan be expressedas the right of the other
to that duty. The duty of a particular person to act justly is someoneelse's
right to that proper action. This does not,^howev"i, .éun that duties and
rights are necessarilyalways correlative.soAccording to Maritain in the
strict sensethere are obligations which do not have icorresponding right.
with regard to animals we do have duties to them, but they do nòt tràve
corresponding rights. only moral agents have rights. Animals are
individuals, not persons.
llth regard to the duties to alimals the principle
involves as respect fgr. life, for being, the sense of cosmic ,òto*ity.
Another realm of considerationin the àbove discussionis the field of the
acts of charity. In this spherethe person in whose interest acts are enacted
does not have right to any particular thing to which the agent is bound in
justice. The duties are here based on generosity.slDuty "or
obligation is
primarily not duty to the possessorof a right, but iimply duty to the-good.A
personis bound in his conscienceto do
food and toaioid Lvil. ttràt is ttre
first expression of duty. It is only secondarily that duty relates to the
possessorof a right. [n the final analysis this oLligation cllminates in the
obligation to God, who is the subsistingGood.52

3 The State and Human Rights

For Maritain rhe body politic is the basic political unit. This body
potitic promotes the common good. The state is ìtre topmost part
of th;
whole which is rhe body politic. It is relaredto the booy pòutc as part to the
whole.53The whole is éomposedof citizens who u.J p"rrons. The part

ae
SeeMaritain, Scholasticism and politics, pp.75-76.
50
SeeJamesV. Schall, JacquesMaritain, pp. 93-94.
51
SeeMaritain, An Introduction to the Basicproblems of Morat philosophy, pp.
16l-162.
52
SeeMaritai n, An Introduction to the Basicproblems of Moral philosophy, pp:
l7o-171.
t3
See Maritain, Man an^dthe State, pp.9-14. Maritain is a defender of liberal
democracy
from a theological and:netaphysical point of view. In this defence
the concept of thó
state is very important. Throughout this presentation we are trying to
explain thé various
aspectsof that vision, but here we are concentratingonly on thi particular
role of the
state in the promotion and protection of human rigtrts. fiere we cònsider
Man and the
State as the key political-work which explains the role of the state.Maritain's
experience
the beginnings of the Cold War, and totalitarian trends and his experience
9-f y.', in the
United Nations Organisation prompted him to offer a vision of
the state based on a
 CHAPTERII; HUMAN RIGHTSIN A PLURALIST
socIETY 59

makesthe necessarydecisionsabout what is good

for the whole. This good
is a real good. The state is at the service
or"tn" ;*-; good. ..poritical
society,.requiredby nature and achievedby
,"uron-i, À" most perfect of
temporal societies.It is a concreteand entiiely
human *utilr, t"riaing àl
concrete and wholly hu--* good- the
common gooJ.;.'rt"i"?iri""i
society is the final aim of the Jut" unJ comes
before the immediate aim of
the state,which is the maintenanceòiin"
common good. Maritain observes
that the state is neither a whole, nor a
subject of right, nor a person. This
rruù
meanstfat onlv whole, which is the subject
lhe orrig"niiJh"É;;j!
As the topmost parr of the body potitir-o,
in"poriiìra sociery, rhe
state is concerned with the mainten;n;e
of law, rÉ ;;;r""tion of the
common welfare and.public order, and the
administration'of public affairs.
As a whole the stateii an agencyin the service
of man. It is inferior to the
body politic as a whore unJir at ttre r"*i."
ril b;y iolitic. Maritain
criticizes the absolutist notion or the
state."fFor him"this concept has
deterioratedin democraciesboth il regard
to the national and inúernational
life' This conception is not part of aulthentic
democraticconception. Here
Maritain remembers some historical results
of state absolutism such as
Nazism, Fascism,and Communism.sd

3.1 The State as the protector of Human rights

The state is the protector of human rights
and not the source of
'u'r'l'
luman rrB,r.'s.
rights. numan
Human nghts
ùghts ao*" É"rore
come
-Being beforg the state,
lhe stafe. qra n^+
rhcrr are
and they not
dependent on the state.
g:.d".ortn"i*ioi"bi;ffifi if 'rI:
a p; of the state the human person
nersnn
:*1ìTi:"jl:jt::1 "1"',j,-theattainmenr
j:T*l :ll T: of,
iy;1,3îhuman
Natural rights "111,,o il:: #ilX:
"p,"*",roií
are universarand appry ro every h"-#;:;;:'i?t;

classically grounded politicat philosophy

in terms of contemporary experience.
light of ancient and medieval politicai In the
t uaition, Maritain *irrr; ió ."*r"r, the
state. He tried to do this by sèeking to Iiberal
find what is true, enduring and practical
modernsate. He criticized its exceises in the
and pointed il foundations.See
J. P. Hininger and r. Fulrer, '.Maritain "", """""p'*"r
and'the Reassessmen, of *,L Liberar state,,in
Reassessingthe Liberal State,p. 3.
5a
Maritain, Man and the.st1te,p._10. Maritain
gjves a new application to the Aristotelian
conception of the state. According to
Aristoile the state i*-trr" @mporal we'_
being of the citizens' It comes intJexistence "*irt,of life,
ro, ttre bare ends but it continuesin
existence for the good life.-It is only in
the state that man can live a good life.
Arisrotle, potitics, 1252 a8_23; LZSZíZl_iò-. See
s5
SeeMaritain, Man and the State, pp.2l_24.
56
SeeMaritain, Man and the State,p. Ig.
 60 cHAPTERII: HUMAN RIGHIS IN A PLURALISTsocIETY

stateis not the sourceof human rights. The stateexists to help the personto
attain the abovementionedpossessionsand to have a truly humanli-f".tt
state intervention is neededin order to compensatefor the general
disregardfor justice and human solidarity. The earlier phasesof industrial
revolution are a proof for this. Statelegislation is a requirementof common
good in many aspects.The primary reasonfor the needfor stateintervention
is the need for justice. The stateshould protect human rights. According to
Maritain the primary duty of modern statesis the enforcementof soóiul
justice.'o In order to make up for the deficienciesof civil society whose
social structuresare not up to the mark with regard to social justice some
times an over emphasisis given to the state.Whàt Maritain considersas the
normal function of stateis a supervisingrole from the political point of view
of the common good.

3.2 State Sovereignty and Human Rights

Maritain is of the opinion that in modern times the statehas undulv
magnified its claims. It is largely due to anthropocentrictheories that thó
stateclaims more than is due to it. In developing his position he takes into
considerationthe dangersassociatedwith the modernitates. Modern states.
according to Maritain, make a false pretence to be a person. They try to
enjoy a riqlrt of absolutesovereignty.mMaritain arguesthat the stateis not
sovereign."' He is of the opinion that the state must be controlled bv the

57
see Maritaín, christianity and Democracy, p.47. Maritain assertsthat man is by no
meansfor the state. The state exists for man. According to Copelston here we have to
remember that during the Spanish Civil War Maritain supportedthe republic and thus
incurred a good deal of opprobrium in certain circlei. In Copelston's evaluation
politically Maritain is on the left rather than on the right. See F. Copelston,A History of
Philosophy, vol. 9, p. 26o. positive rights and positive laws emanate from sociil
authority and are sanctionedby the constraints of society. Here there is the order of
legalify. Positive law dependsuniquely upon the human reason.
58See
Maritain, Man and the State,p.20. The importancegiven to the role of socialjustice
is particularly noteworthy as countries were divided among themselveswith regard to
the importance of rights. While the American led Western block argued for civil and
political rights, the Soviet bloc argued for economic and social rights. Maritain's
knowledge of the social teachingsof the Church might have influenced here. It is also
true that Maritain has influenced the social philosophy of the church.
5e
SeeMaritain, Man and the State, pp.20-21.
ó0
SeeMaritain, Man and the State,p. I9I.
6r
See Maritain, Man and the state, p. r95. see arsochristianity and Democracy, pp. 7r-
72. Maritain criticizes Rousseau'sconception of the general will. The notion-òf the
general will is central to Rousseau'stheory of political legitimacy, but this notion is an
obscureand controversialnotion. There are commentatorswho seeit as no more than the
dictatorship of the proletariat or the tyranny of the urban poor. See N. J. H. Dent,
 CHAPTER II: HUMAN RIGHTS IN A PL{,JRALIST SOCIETY
61

people. It is not a whole. Its functions are merely instrumental.ó2The

sovereignty of the state implies the centraljzation of the power of the
governmentat the cost of the rights and liberties of the peoplè. In this case
the state becomesa totalitarian one which enslavesttre peopte.Maritain is
arguing for a pluralist and personalistregime where there-isdecentralization
and destatizationof social life. It is liberal democracywhich gives a proper
role to private ownership and enterprise that Maritain advocates.The
various organs of the social body should have autonomousinitiative and
managementof all the activities which by naturepertain to them. The state
enjoys.top_most, supervisingauthority in the body politic, but this authority
----J
is receivedby the statefrom the body politic and not from itself.63
The state has duty to provide a democratic education. ..The
educationalsystem and the state have a duty to see to the teaching of that
charter of common life, and thus to defend and promote the comm-ongood
and of the fundamental-statuteof the body poHtìc even up to the common
secularfaith involv"d;$4 The_goalof the edùcationalsystèmis unity in the
common adherence to the democratic charter. The educational system
should admit within itself pluralistic patterns.65

3.3 Criticism against Machiavellianism

As we examine the role of the state it is necessaryto understand
Maritain's criticism of Machiavellianism. Maritain was sensitive to the
main social and political currents of his time, but he has analyzed these
currentson the basisof his Thomistic insights.Man is both a rational animal
3nd a political animal. It is due to his rationality that man is political.
Modern political systemstry to relocatethe ideasof salvationand hàppiness
from their transcendentorigins to movementsin this world dedic^aied
to
reahze these ideals by political or economic means.This is an anempt to
place an unsustainableimportance on the political and economic
sysiems
becausethey cannot guaranteeboth salvationand happiness,in spite órtn"i,
great importancein the social life of man. when *è^ruy that Maritain
was
aware of the main currents of his time we intend to iay that he tries
to

"Rousseau,Jean Jacques" in Routred.geEncyclopedia of phitosophy, vot. g (London:

Routledge,1998),p. 371.
62
SeeMaritain,Man and the State,p.202.
63
See Maritain, Man and the state, pp.24-26. Anargument revelled against
human rights
advocatesis that they are against state sovereignty. Th"t" *" i", which juJtify
violations of human rights on the basis of state sovereignty.While
"ouít
writing tfris tytaritaií
might have been influenced by the painfirl experienceof totalitarianism,
still today his
writings are thought provoking.
6a
Maritain, Man and the State,p. 120.
65
SeeMaritain, Man and the State,p. l2l.
62 cHAPTERII: HUMAN RIGFnSIN A PLURALISTSocIETY

provide a balanceby his reflection in the light of St. Thomas. It is in this

context that we have to understandMaritain's analysisof Machiavelli.
Maritain knows that Machiavelli is successful because even
democraticprofessorsand politicians employ his principles of rule as valid
at crucial moments.The evil is that it gives a blamelessconscienceto the
prince or to the ruler doing evil deeds.There is no hope in ethical principles.
Machiavellianismhas an approachthat replacesthe hierarchy of endsfóund
in the classicalwriters and basedon human happinessand nature.The basis
of Machiavelli's thought is a radical pessimism in regard to the human
nature.This pessimismis extendedto ethics and the man of ethics appears
to Machiavelli a feeble minded man. For him the end of politics is the
conquestof power and its maintenance.What Machiavellians attempt is an
artistic use of evil which contradict the idea of good and evil, calling good
evil and evil good. The result is the destruction of the political cornmon
good. According to Maritain Mussolini, Hitler and communist regimes are
examplesof Machiavellianismin the contemporaryworld.66
The essenceof Maritain's analysisof Machiavelli is his insistence
that Machiavellianism thrives by itis illusion of immediate success.
Machiavelli stresses victories gained by evil means in the political
achievementsand he is of the conviction that a prince who respecti justice
is doomed to enslavement.Machiavellianism is explain"d bv Maritain
contains universal mutual spying, forced labour, mass deportation, mass
destruction,breaking d.gwnof human freedom and conscienceand a reign
of fear and insecurity.o' The problem of Machiavellianism with regard-to
human rights is that the ruler can violate theserights when this is neededto
achieve an end. This gives immediate success,but successshould be long
lasting. Here there is a question of the coÍrmon good, which is the good of
all and not only the good of the prince. Maritain proposesas the altèrnative
to a Machiavellian statea democracyof free men. The spiritual basisof this
regime is uniquely and exclusively law and right.
Maritain argues for the dignity of the human person from a solid
metaphysicsand theology. This is especially important becausein maffers
of politics there is an infiltration of ideas from theology and metaphysics.
Maritain discussespolitical, divine, and human things littr ttre intéllèctual
o_pennessof a philosopher, addressing everyone, catholics and non
Catholics, believers and non-believers. Maritain thinks that his position
cares for what is best both for the church and for polity, as welf for the
spiritual and temporal good of all citizens, imespectiveof their religious or
philosophicalpositions.

uuSeeJacques
Maritain,TheRangeof Reason (New York CharlesScribner'sSons,1953),
pp.134-164.
67SeeMaritain,
Man andtheState,pp. 56-57.
 CHAPTER II: HUMAN RIGFITS IN A PLI.IRALIST SOCIETY 63

4 Democracy and Human Rights

Maritain supportsliberal democracy.68There are historical reasons
for this strong support to the democratic form of government.Maritain is
writing in the context of the brutal experiences of fascism and
totalitarianismwhich had underminedhumandignity and suppressedhuman
rights. Thus he supportsa liberal form of democracywhich respectshuman
dignity and rights. According to Maritain the essentialcharacteristicsof the
democraticphilosophy of man and society are the inalienablerights of the
person,equality, political rights of the people, primacy of justic_qand law,
and the ideal of fraternity. The rulers rule as vicars of the people.o'We shall
examinethe basic featuresof the democracyexposedby Maritain

4.1 The Relevanceof the Image of Man in a Democracy

Genuinedemocracyis ordainedto the human expansionof concrete
and open persons. Thus the concept of man is very important in a
democracy. Maritain understandsthat there are two theoriesof democracy
prevalentin the West, each groundedin a different theory of man. The first
comes from the classicaland revelationaltradition. It insists on the dignity
of man. This kind of humanism recognizesthat God is the centre of man.
The other theory, with origins in Hobbes, Rousseau and Nietzsche,
understandsman as a being who is self sufficient,^who is not bound by
anything except that which he wills for himself." He calls this way of
thinking anthropocentricphilosophy. This is a naturalistic conception of
man and human freedom. The problem with this thinking is that the spiritual
dimensionof life is neglected.Materialism, atheism,and dictatorshipare the

68
Here we have to bear in mind that Maritain considers the wider meaning of democracy.
In a general way democracycan be any regime that is compatible with human dignity,
but liberal democracyin the senseof Lincoln's famous definition is a developedform of
this notion. John P. Hittinger observesthat St. Thomas does not advocatedemocracyas
the best regime. For St. Thomasdemocracyis a political reglme as opposedto a despotic
regime, which aims at the common good. Thomistic idea of ordered multitude is more
inclined to monarchy or aristocracyand not to democracy which is the rule of the part
over the whole. St. Thomasconsidersvifue as a major qualification for rule. This means
democracyis not the best form of government.The best should rule. That may mean that
monarchy or aristocracy could be the best reglme. The best regime is a mixture of
various regimes. Hittinger is of the opinion that St. Thomas favours a constitutional
monarchy. See John P. Hittinger, Liberty, Wisdom and Grace: Thomism and Democratic
Political rheory (Lanham: Lexingron Books, 2oo2), pp.46-50. The main referenceshere
are to St. Thomas, On Kingship, ll-I3; Swnma Theologiae,I-Il, q. 96, a.2 and Summa
Theologiae,I-trq. 105,a. 1.
6e
SeeMaritain, Christinnity and Democracy,pp.5O-55.
70
SeeMaritai n, Christianity and Democracy,p.21.
 64 cHAPTERII: HUMAN RIGHTSIN A PLURALISTS0cIETY

results of this anthropocentricthinking. As we have already seen these

philosophiesdo not have an adequateidea of humanrights.
Democracy,basedon a different conceptionof man, will produce a
different regime. what concerns Maritain is his conviction thàt man is
someonewho in his personhoodreachesbeyond the political order. James
v. schall observesthat Maritain's theory aboutdemocracyis one that seeks
to give more independenceto political life and more force to spiritual life.
This spiritual life is based on the understandingof man's transcendence.
Democracyfor Maritain is that aspectof the worldly mission that treatsthe
proper understandingof the political and economic order.71A democratic
philosophy of man and society has taith in the resourcesand vocation of
human nature.Any democracythat denies any higher principles to man is
contradictoryto the natureof democracy.For Maritain democracydoes not
exclude the human inclination to the àiuin". He recognizesthe need for
tolerancein a democracywith regard to differing conceptsof human life.
Even though there are different understandingsof man, citizens can live by
right in the samebody politic. He always affirms the pluralist principle.

4.2 Democracy and Christian Inspiration

For Maritain democracylives on implicit Qhristian inspiration. Here
he follows the opinion of Bergson, his teaher.72 l,taritainh idea of the
gospel inspiration of democracyis related to his conceptionof humanism.
Maritain's democracyis both man-centredand Christian. It is man-centred
becauseit seeks a legitimate place for the political, and it is christian
becauseit gives importanceto man's highest end. The citizens need some
senseof things that are addressedto man's highest end. otherwise politics
tend to substituteitself for the higher ends.73
Maritain points out that in bringing about the recognition of the
rights of the human personthe preachingof the gospelplayed an important
part. Maritain points out in detail the valueslaid down by christianitywhich
are important in a democraticregime. Maritain describessuch values as the
unity of the human race, the equality of all men, the dignity of labour and
the dignity of the poor, the inviolability of conscience,-jusiice,the law of
brotherly love, etc. under the gospel inspiration the secularconsciencehas

" SeeJ. V. Schall,JacquesMaritain, p. 115.

72
SeeMaritain, christianity and Democracy, p. 65.when Maritain saysthat democracyis
linked to Christianity he meansChristianity not as a religious creedbut as a leaven in the
social and political life of nations and as a bearer of the temporal hope of the mankind.
Maritain refers to Henri Bergson, The Two Sourcesof Moratity and Religion Bergson
arguesthat just as the essentialthing in the republican slogan is fraternity, one shóuld
say that democracyis evangelicalin essence.SeeMaritain, Chrtstianíty and Democracy,
p.59.
?3
SeeJ. V. Schall, JacquesMaritain, p. ll7.

t
l

i
 CHAPTERII: HUMAN RIGHTSIN A PLURALISTSOCIETY 65

gained faith in the rights of the human person: as a human person, as a civic
person, as a person engaged in the social and economic life, and as a
working person. He emphasizes the gospel inspiration for faith in justice.Ta
under the inspiration of the Gospel at work in history, the secular
conscience has understood the dignity of the people and of the
common man... people in the senseof the community of the citizens
of a country, united under just laws; ...the notion of the people which
the secularconsciencehas gradually formed, stemsfrom the meeting
and mingling of all these elements,a_ndit is from the heritage of
Christendomthaf this notion proceeds.T5
He points out that modern democracies suffer from a philosophy of
life which annihilares vital principles within them. only oy repciing
materialistphilosophiesand by viewing in full light a p"rronàlirt conóeptioi
of life and of society can rhey find the rrue sensJof jústice. It is the inàgral
humanism of the person and not the inhuman humlnism of the indivilual
which can be at the serviceof justice and friendship.tu
While ana|yzing the failure of modern democracies Maritain states
that democraciessh^ouldreahzeaccomplishmentsin the social and political
order. tn the face of poverty many societiesare impotenf and democracies
fail to transcendthe.exploitation. The principal ."uùn is ópiritual in nature,
that is, the inspirations of the gospel were overlooked in the democratic
realm. The working classes sought their salvation in the denial of
christianity and the conservative christian circles denied the temporal
exigenciesof justice and love.77

4.3 The RoIe of Social Justice in a Democratic Society

. According to Maritain the most urgent endeavour of today's
democracies is to develop social justice ané improve world economic
managementand to defend themselvesagainsttotalitarian threats.?8Justice
is a recurring theme in Maritain. ue emptrasizesthe political aspect of
justice, fraternal love, and the respectdue io human p".ron,
and the other
exigencies of moral life. "It is not sufficient to bè just to be a good
politician, but justice is a necessarycondition of ever! pohtical goo?
u,
such: to such a point that, accordingto st. Thomas, it is n"""rrury that the
prince, in order to be able to govern,should be pureiy and simply tonus
vir,

7a
SeeMaritain, Christianity and Democracy,pp.46-4g.
tt
Maritain, Christianity and Democracy,p. 4g.
76
SeeMaritain, Scholasticismand politb.r, p. g9.
77
see Maritain, christianity and Democra.cy,pp. 2g-zg. Maîtt;rrn is here
speakingin the
backgroundof the labour movementof prance in tA+g.
7E
SeeMaritain, Man and the State,p. lg.
 66 cHAPTERII: HUMAN RIGI{TSIN A PLURALISTsocIETY

a virtuous man in every sense of the word."7e The task of the

commonwealthis the realization of a temporal system truly in conformity
with the dignity of the human personalityand its spiritual vobation.Maritai;
admits the role economy plays in human struggles and fighting. The
struggle for social.justice appeals to people's sense of solidarily and
collectiveresponsibility.

4.4 Fundamental Rights and Equality in Democracy

According to Maritain progressive social equality is an aim and
pulpose of a just society. He analyzesboth the nominaliitic and idealistic
approachesto equality, and after analyzing the drawbacks of these two
approacheshe introduces.the"notionof progressivesocial equality as an aim
and purposeof a just society.óuFor Maritain both nominalisiic and idealistic
approachesare extreme positions. The nominalist approach denies the
reality of common human nature.It permits enslavemeiiof one part by the
other. As a result one group arrogatesfor itself all the privileges of húman
nature. The lower gpyp exists only for the highei group. Maritain's
argument against social nominalism excludes slavery and ìyranny. The
idealist approach denies particularities. Maritain's ó.iticism of idealist
egalitarianism is very pointed. such egalitarianism runs counter to sane
democratic practice. For him human equality consists in the concrete
communionin the mystery of the human specieJ.
With regard to social life there are equalitiesand inequalities.While
saying that inequalities are normal he considersthem as secondary.with
regard to fundamentalrights and the common dignity of human beings and
justice, equality is primary. "Equ,alityis primary, inasmuchas it relaíes (as
equality pure and simple) to the fundamentalrights and common dienitv of
human beings, and (as equality of proportión) to justice."sr rú*iiuin
strongly criticizes a.person's belonging to some inferiòr part of the social
structure as an indication that he is an inferio. person. tnferior social
condition doesnot involve an inferiority of essence.
. .social equality itself has a value which is properly and truly social.
Maritain says that even though social equality is baseà upon unity and
equality in nature,it should not be confusedwitir it. social eqìahty is rather

7e
Maritain, True Humanism,p.2ll.
80
See JacquesMaritain, Ransoming the Time, trans. Harry L. Binsse (New york
charles I
Scribner'sSons, 1948),pp. 18-21.see also J. p. Hittinger,..Approachesto Democratic
Equality" in Freedom in the Modem worrd" pp. z3g--24r. Éère Hittinger t
makes an
interesting and important observation that Maritain does not make any
application to
particular caseslike racism and to the oppressiveeconomic conditions
which lead to
slave like exploitations. According to Hittinger when attacking the idealist
approach
Maritain is more spirited and better aimed at real types.
8t
Maritain,Ransomingthe Time, p.22.

t-
 CHAPTERTI:HI,MAN RIGHTSIN A PLURALIST
SOCIETY 67

an expressionor developmentof a fundamental

equality in the social order.
logial equality, flrst.of.àll,^is recognizedand ,*"iion"i by society in those
rights which we cail th" fundu*éntar rights
of the tuÀun person. After
speakingof social equality with regard tó the
funoamenìal;ghd he-;;t;
that social equatity is that equality oírespect which
human dignity demands
that social customs.show to att uy treating tt"*
utt a, -"n *o not as things.
Then thereis politicar óqualityif all before iu*, uno finally there
"gyulty,
is that equal condition which i"quir"r túat ail should * r* as possibleshare
"free of charse" in the elementaryad material
ano spirituat goods of human
existence.s2Social equality achieuÀ-.eality
in society. The fundamental
rights of the human person are in themselves
anterioi to society, but the
equality of these rights has social value only insofar
as society recognizes
and sanctions them in its own order. Túe
members of a sufficientry
developed civil community obrain sociar
positive law. If it is a questionof fundamentuí nu*rul law or
"qr"iiit-lhr;;gi
,igt i, or À"i it is by virtue of
being mgn. with regard ro other kinds of
ii-ir'ui
rL rù vJ virrue of being
citizens.o' "quuTiiy
Maritain points out that the multiform social
equality favours the
developmentof natural inequalities. In opening
to eachà great number of
possibilities it favours difference growth
in and development.This gives to
the social structure more intrinsic itability *a it-Jlo-iequires that the
inequalitiesbe compensatg{
of all the conditioni to which {or. He proposestwo ways to achievethis. First
sociaî inequalities should not be
closed but open. Then, in each one of ih"r"_ "oú"rp*o
individuals may
enjoy a stateof life that is truly human and
such"onJitioír,
thut
-- tt Luv really be able
to strive for the fullness of humandevelopme;;.if "v
wit! regard tocquality of opportunity what
Maritain advocatesis a
proportional equality. Th9 highest ròèiu
,rrùll""t be closed to
any one. In whateversocial structuremen"onàition.are involved they stroulahave the
same opportunitiesto achieve their human
fullness, each"accordingto his
effort and condition. In the domain ofrelations
o"i*"ro the sociar whole
and its parrs such a proportional equality justice
is t;;;lf. It pertains to
justice to lead unequàrsio equality.ti
rn-trr. i;ú"i";;;munity social
equality requiresthe exerciseoi oisírinutive justice. g"rid;
it requiresfree

*'
SeeMaritai n, Ransomingthe Time, pp.25-26.
E3
SeeMaritain, Ransomingthe Time, pp.27_29.
e
see Maritain, Ransoming the Time, pp.27-29.
See arso J. p. Hittinger, .Approaches to
Democraric
Equarirv"in Freedom
in rn" u;a"l
points out the various r:^.olt for
ti;;;,;:';ii_Tor. HereHininger
inequality in a human' community according
Maritain, He refers to yugh thingl as the to
metaprrysicatprincipte orìJi",y, the principre
of individual merit, and the sociàl principle
of differentiation.
t5
SeeMaritain, Ransomingthe Time, pp.27_29.

=
 68 CHAPTERII: HUMAN RIGHTSIN A PLURALISTsocIETY

participation by all in necessarygood things and the distribution of the

common good to persons.The necessarygood things are both material and
spiritual goods.Progressof socialjustice, ihe develópmentof institutions of
law, the progressiveparticipation of the people in the political life, change
in conditions of cultural participation anì inner liberty are needed.whón
speakingof equality of opportunity Maritain saysthat there should be social
conditions which provide equal opportunity for all to bring to fruit their
merits and thus to form an aristocracybasedon personalwórk.86Maritain
considers his conception of equality to be Christian. Thus a realist
conceptionof equality in naturecan be no less than a Christian conception
of that equality. such a conceptionhelps equality to be establisheduÀong
men with sufficient force.

4.5 The Task of Civilization and Culture

In a democratic regime the potitical task is one of civilization and
culture. Democracyhas a mission to bring about in temporal life the law of
brotherly love and the spiritual dignity of the human peison. Human dignity
is. to be respectedin each concrete, existing person. Respect for hriman
dignity and the rights of the personare essentiaÍbasesof common life. The
soul of democracy is the consciousnessof this mission. Maritain calls
democraticphilosophy a humanistpolitical philosophy. Democracy should
realize the inalienable rights of the person, equality, political righis of the
people,the absoluteprimacy of justice and lawat thè baseof society, and an
ideal of fraternity. The people give consent with regard to the regime, and
the rulers are vicars of the people.Here the politicaftask becomeJa task of
civilization and culture. There is assuranceóf labour
44d property, political
rights, civic virtues, and cultivation of the mind.87 The^ priiciples of
democraticphilosophy of man and society can be realjzedin a monarchicor
oligarchic system of government, but in a democratic svstem these
principles find their most normal expression.

4.6 Human Rights and Pluralism

Maritain is aware of the fact that citizens belonging to diverse
spiritual groupsor families live in civil society.Division is à fict in modern
s6sìet)- Altempt to have unity on the basis of a common religious faith or
on the basisof mere reasonhave beenfailures. Maritain observesthat in the
modern period philosophy tries to fulfil the samecultural function as faith
did in the mediaevalperiod. He rejectsthe notion of a philosophic minimum
that could provide a common denominator for agrèement.For him the

86
SeeMaritain, Ransomingthe Time, p.29.
87
See Maritain, Christianity and Democracy, p.68. He criticized liberal individualistic
democraciesfor their relativization of truths.
 CHAPTERII: HUMAN RIGHTSIN A PLURALISTSOCIETY 69

alternative is a kind of practical solution supplementedby civic tolerance

that respectshuman dignity. Maritain tries to lèave a realm of freedomopen
in which different philosophers with diverse ideologies can meet one

Q1_apurely theoretical level one may discern a common quest for

fulfilment. The various cultures havs this desire, at least in theory,
but when it comes to practice there are many.barriers. These barriers are
deep rooted, and often they underminethe basic insights that can promote
oooperationamong people of different cultures. Therefore, what Maritain
advocatesis a pluralist unity which takes place only thrgygh the lasting
diversity_of the particular bodiespolitic, fostèring diversity.S8lluralist unit!
that among all nations the sense of ihe good shouli
T"qr .
develop.This common good is the common good of"orn-on the one p-eople,and it
supersedesthe common good peculiar to each body politic. ti is his strong
belief that men belonging to different philosophicaíór religious creedsand
lineagescan and should cooperatein commonlasks for the óommon welfare
of the earthlycommunity.Ee

4.6.1 secular christian Temporal order Based on Integral

Humanism
To have unity in the situationof pluralism what Maritain proposesis
a secular christian conception of the temporal order as oppósed
to
anthropocentrichumanism.He envisagesthe ideal of theocentrichumanism
or. integral humanism fut_tautonomy of action. The guiding element
]n of
this humanism is the holy freedom of the creature whóm gràce unites
to
God. He has in mind a secular christian temporal order. tnstead
of a
mechanicalconceptionof unity this integral huminism impties a developed
element of pluralism. The problems concerning national minorities itself
call_.for a pluralist social and political structrire. Maritain has in
mind-
totalitarianregimeswhere the pluralistic principle is discardedfor unitneO

4.6.2 The Nature of Unity in a pluralist Society

Instead of an artificial unity the pluralist commonweal has an
organic unity. Ir can garher togerhei a divèrsity of social groufintr-
unJ
gatheringswhich embodypositive liberties. tn oràer to substaitiatè
nii point
Maritain turns to the papal enc_yclicaleuadragesimoAnno of pope pius
xi.
civil society is made up of varioui socia] groupings, and ì pluralist
commonwealcan guaranteeautonomyto theseg.oupinls and can
órganize
its own internal structuresaccordingtó the needJof tÈe
iluralistic prin"ciple.

t8
SeeMaritai n, Man and the State,p. 209.
8e
SeeMaritain, The Rangeof Reason,p. 166.
e0
SeeMaritain,True Humanism,pp.156-157.
70 CHAPTERtr: HUMAN RIGHTSIN A PLURALISTSoCIETY

The pluralist solution is different from the mediaevalconceptionof

unity and the liberalist conceptionof the nineteenthcentury.There is liberty
in the pluralist city according to a principle of proportionality. what
Maritain proposesis a Christian conceptionof the lay or secularstatewhere
temporalorder is no longer consideredan instrumentalagentbut a principal
agenton a lower plane. In this statethe secularand temporal_wiltplay their
part and have their fuIl dignity as an end and principal agent.elwith regard
to religious belief the commonweal should follow the pluralist principle.
The various spiritual groups should enjoy a just liberty. It is towards the
perfection of the natural law and of Christian rectitude that the juridical
structureof the city should be oriented.The unity^in the pluralist society is
not an imposed unity but a unity of orientation." This unity is a minimal
unity. That meansthis unity does not require a unity of faith or religion. It
can be Christian while including non-Christiansin its circle.

4.6.3 A Simple Unity of Friendship

The basisof this unity in the temporal community is a simple unity
of friendship. Maritain considerscivic friendship to be the animating form
of every political society. In a pluralist and personalistcity an orgànised
political fraternity will be realized in a novel way. Here the political
formation will be founded on freedom, and thesè formations will be
multiple. These political fraternities will constitute formations that are
independentof the state. while speakingof the body politic Maritain says
th^atjustice is a primary condition for its existence,but friendship is its veiy
life giving form." The establishmentof this friendship can be ichieved by

nt
SeeMarifain,True Humanism,pp.158-161.
e2
see Maritain, True Humnnism, pp. 162-167.According to w. Gurian, Maritain attempts
to understandpresentsocial and political problems in a profound way, but his attitudó is
always determined by his Thomism. It is with Thomistic terminology that Maritain
develops the doctrine of the plurality of civilizations. See \V. Gurian, "On Mariúain's
Political Philosophy," p. 9. Maritain tries to demonstratethe vitality of Thomism by
showing how it leadsto a deeperunderstandingof the trendsof the time.
n'
See Maritain, Man and the State, p. 10. With regard to Maritain's vision of friendship
which holds together people in a pluralsit society we can see the influence of Aristodé.
SeeAristotle, NicomacheanEthbs, Vm, 1, 1155a25. Here Aristotle saysthat friendship
would seem to hold cities together, and legislators would seem to be more concerned
about it than about justice. The legislators aim at concord which seems similar to
friendship, and this concord can avoid civil conflict. Aristotle is of the opinion that if
people are friends they need no justice. If they arejust they need friendship in addition.
In Book IX, 6, lI67a 25-ll67b 10, Aristotle explains concord. It requirès agreement
about the distribution of goods. Concord that results from a community ttrai aims at
common good is a foundation of justice and of a stable friendship. This concord is
apparentlypolitical friendship. A city is in concord when the citizenì agreeon what is
advantageousand make the samedecision, and act on their common resolution.
 CHAPTERII: HTJMANRIGHTSIN A PLURALISTSOCIETY 7I

virhre. There is a common work to be accomplishedby the social whole as

such, namely the freedom of personalexpansion.By subordinatinghimself
to the common work each one subordinateshimself to the good of other
personsand at the sametime to the interior dignity of his own person.For
this to be real both the real nature of common work and the poùtical value
and importanceof the virtue of civil friendship are to be recognized.ea
Men
want to live together and form a political society to undertakea particular
aim in common, which may include sometimescommon sufferings too.es
This common task is the conquest of freedom.e6 "The task of the
conìmonwealth will be the realization of a common life on earth, of a
tempolgl system truly in conformity with that dignity, that vocation and
love.""

4.6.4 Free Persons in a Secular Christian State

Maritain usesthe expression"autonomousfreedom of the person."es
The concept of freedom brings about a whole change of perspectiveand
style in the sphere of temporal organisation. A secular Christian state
assures each citizen his liberties and accords him the juridical status
appropriateto his ideas and habits. In its activities importance is given to
the subject rather than to the object. Man should make use of his leedom
for right ends. Here one should bear in mind Maritain's explanation of
political science.For Maritain political sciencerepresentsa special branch
of ethical science.Political scienceis concernedwith the good of the social
whole. This good is measuredby the ends of the human being. Here the
notion of freedomis relevant.Peoplehave a common task to accómpHshthe
s!!.0. wni$ is righteousness.It is truly human and worthy and higher than
utilities. Thus an act againstthe common good cannot be àdmitted however
useful it is to the state.The task of the commonwealthis the realizationof a
I temporal system truly in conformity with the dignity of the human
l personalityand its spiritualvocation.ee
I when speaking of freedom in a democratic regime Maritain
l criticizes Rousseau.Maritain says that the first axiom ind precept in
7 democracy is to trust the people. Trusting and respecting means hùman
dignity is recognized.He criticizes Rousseaubecausewhiie he arsued for

to
SeeMaritain, Person and the commonGood,pp. IOZ-I03.
'5
SeeMaritain, Man and the State,pp. 206-207.
e6
SeeMaritain, Man and the State,p.207.
e7
Maritain, True Humanism,p. 197.
tt
SeeMaritain, True Humanism,p. 172.
ee
SeeMaritai n, True Humanism,p. 2L0.
72 CHAPTERII: HUMAN RIGHTSIN A PLURALISTSOCIETY

freedom of the people he treatedthe people sick

:*,a?jLrl_and

4,6.5 The Practical Importance of a Liberal Approach to Human

Rights
Maritain believed that people who differ on metaphysicalmatters
can agree for practical purposeson a list of human rights. With regard to
humanrights what he advocatesis a sort of practical agreement.'''

For, a societyof freemenimpliesbasictenetswhichareat thecoreof

its very existence.A genuinedemocracyimplies a fundamental
agreement betweenmindsandwills on thebasesof life in common;it
is awareof itself and of its principles,and it must be capableof
defendingand promotingits own conceptionof socialand political
life; it mustbear within itself a commonhumancreed,the creedof
freedom.l02

Maritain is aware of the fact that men possessquite different and

sometimeseven opposite metaphysicaland religious outlooks. With regard
to the conceptionof the world, of culture, of knowledge there are different
views. Sometimestheseideasare opposedand it seemsthat no consensusis
possible. Maritain uses the expression "Babelism" to denote modern
thought. Doctrines, faiths, spiritual traditions and schoolsof thought come
into conflict. As a result of this conflict one is not able even to understand
the views and expressionsof the other. Maritain's own experiencewithin
UNESCO bearswitnessto this fact.103He suggestsa solution to this lack of

too
See Maritain, Man and the State,p. 143.Maritain is againstRousseauiandemocratism.
It is opposed becauseaccording to Maritain its sentimental equality makes all social
order impossible. Maritain thinks that such thinking is dangerous because it would
deprive the men of modern times of their true homesand their true spirit. SeeW. Gurian,
"On Maritain's PoliticalPhilosophy,"p. 14.
10rSee Maritain,
Man and the State,p. 76. In the drafting of the Universal Declaration of
Human Rights, there were strong ideological divisions. The members were not all in
agreementabout the individual and the state. While the Anglo-American bloc had zeal
for the individual the Soviet led bloc stood for the state.There was a western insistence
on liberfy and an easternconcern about the importance to duty. See Michael Novak,
"Human Dignity, Human Rights," First Things Q.{ovember 1999), pp. 39-40. Here
Novak adds that in drafting the charter of I-INESCO Maritain did a very important work
with regard to pluralism and this work was appropriated by those working on the
Universal Declaration.
r02Maritain,
Man and the State,p. 109.
t03
See Maritain, The Range of Reason, p. 172. In his addressto the second inaugural
conferenceof UNESCO Maritain refers to disagreementamong nations with diverse and
sometimesconflicting ideologies. It was a situation which was suffering from post-war
 CHAPTERTI: HUMAN RIGFTTSIN A PL{,JRALISTSOCIETY 73

cofnmon ground, an agreementnot on speculativethought but on common

practical notions. It is not an agîeementon the same conception of the
world, the humanpersonor knowledgebut an affirmation of the sameset of
convictions concerning action. tntellectual division among men does not
allow_commonspeculativeideology or common explanatoryprinciples with
r9sryd to human rights, but with regard to the basic practical ideology and
the-basicprinciples of practical action a practical convergenceof extremely
different speculativeideologiesand spiritual traditions is possible.
^ _Pgoplemay give rational justifications which may be inseparabre
from their spiritual or religious outlook and philosophical traditions, but
they 9?n join together by virtue of an analogical similitude in practical
principles and can share in the same practical conclusions. For Maritain
truth, intelligence,human dignity, freedom,brotherly love, and the absolute
value of the moral good are suchpractical conclusions.lM
No society can live without a basic faith in a common charter and a
basiccommon inspiration. For Maritain this common faith and inspiration is
the democraticcharter. With regard to religious creed and ideologies there
can be differences and strong disagreements,but becausethe démocratic
charter belongs to the temporal order of earthly life, culture, and
civilization, it is possibleto agreeon common principles of action.

Even more, they are mattersof practical rather than theoreticalor

dogmaticagreement:I meanthat they deal with practicalconvictions
which the humanmind can try to justify- rightly or wrongly- from
quite different, even conflicting philosophicaloutlooks;probably
becausethey dependbasicallyon simple"natural"apperceptions, of
which the humanheart becomescapablewith the progressof moral
conscience.lo5

grief and from rival economic, potitical, and ideological interests. Maritain does not
make hereany particular referenceto a particular problem, but as a philosopherhe draws
attention to this painful reality and invites others to join togetherfor ttre practical role of
UNESCO. This conferencewas held in Mexico City, November 6, 1947.
toa
see Maritain, The Rangeof Reason,pp.179-1g1.SeeMary Ann Glendon,..Reflections
on the trDHR," First Things (April 1998), p. 23. h 1946 uNEsco appoinred a
committee composed of many of the leading thinkers of the time to er.plore the
possibility of framing a conìmon charter of rights for all peoples and all nations. A
detailed questionnairewas preparedand sent to various staiesmenand scholarsof the
world, and the responsewas surprising. The committee found that the lists of basic rights
and values were essentially similar. She adds that Maritain and his colleaguesdidiot
regard the lack of consensuswith regard to foundations as a barrier. Th"i considered
that what is more impo(ant is aniving at a common consensuswith regaró to practical
concepts.
r05
Maritain, The Range of Reason,p. 167.
74 CHAPTERTI:HUMAN RIGHTSIN A PLURALISTSOCIETY

The ways and the justifications by means of which this common

adherence is- brought about pertain to the freedom of minds and
consciences.l06While offering his own justifications for his democratic
betief Maritain does not deny freedom for others to put forward their own
justifications. A Christian and a rationalist, or a Hindu and a Muslim may
give entirely different theoretical explanationsfor the rights of man. The
diverse philosophical or religious schools .of thought, which agree with
regard to the democratic tenets,may offer different justifications for their
faith in them. Sometimesthesejustifications may causecompetition among
the different groups.Maritain is of the opinion that eachgroup can assertits
arguments and, what is important, that one should not force its own
justifications and thinking on the others. He is optimistic that the mutual
tension that follows from these theoretical differences will enrich the
common task.107 What is important is agreementon common principles of
action.
In his inaugural addressto the second international conferenceof
UNESCO Maritain has enumeratedsome principles on which the minds
should come into agreement.lo8He says ihat food politics is first and
foremost a politics that is just. Every people should look out not only for its
own advantagesbut for the common good of the assemblyof nations.To be
a civilized community this mutual understanding is needed. It is an
understandingabout the psychology, the development and traditions, the
material and moral needs and the proper dignity and historical calling of
other people.If nationsput national interestaboveeverythingthen the result
will be the loss of everything.Here Maritain gives a powerful expressionof
truth and right. "...Truth is_the expressionof what is, and right the
expressionof what is just. A community of free men is conceivable
only if it recognizesthis fact. If it considersonly what is most expedientat a
given time for the interest of the human group, then it is not in the path of
truth and right.
Respect for the dignity and rights of every person, regardlessof
whetherhe is a burdento the nation or uselessor a block to the successof a
group, is necessary.Every person is endowed with dignity, fundamental
rights and fundamental obligations. The common good comes before

'* See Maritain, Man anà the State, pp. 111-112.Here Maritain gives an elaboratelist of
the contentsof this moral charter.It includes various rights of the human person,various
duties of the person, the nature of democratic government, justice, civil friendship,
freedom, relationship with the mother land, the various obligations with regard to
common good, etc.
r07
SeeMaritaín, TheRangeof Reason,pp. 168-171.
r08
SeeMaritain, The Range of Reason,p. 172.
t0'
Maritain, The Range of Reason,p. 183.
 cHAprER u: HUMAN RIcHTs IN A pLURALIST
socIETy 15

x)n individual interests. Men of various beliefs

and spiritual lineages must
nd recognizeeach other's rights as fellow citizens
in the
ric Freedomofreligion, freedom ofresearch ano
equatity,"iuiiir"o "";;;;ì6:
ìo"rp""tiue ofrace,
wn caste or class, are fundamentar.These are practicaí
principles on which
ny people should agl@. Agreements on
econòmic, potticat and financial
ìe relations and juridicar buìlding up of a.coordinating
oì!*i* are herpful
iút but not enoughto have
n93"".-n àeepadherenceof ír*i, to
eir 1,h9p,lactical principres like those ónumeratedabove is "onrciousness
'" also needed for
ng this.'
its body politic should educate its citizens with
.. Th"
practical regard to these
yn conclusions.It hp right to impose on
1o the citizens a rule of faith
lal or conformism of reason.It shoula try to kèep ttre oemociaiic sensearive by
ùe the adherenceof minds to the charte'r.M;t"t;;;ys
"o'n-ón
be vigilant againstthe heretics that we should
of of democraticfaith in a sóurar lay society.
Here the heretic is the breaker of ttre
cofirmon democratic beriefs and
of practiceson which-the society of free
men lives. Those who deny freedom
ds and the dignity of the human person and
the
-"Y -orui
'r'vrsr po*r, of raw are
IJv
nd heretics'

is
be Conclusion
an In this chapterwe havedeartwith.tfrekey
erementsin the promotion
ùc of human-rights.ÈecauseMaritain is writing
in a tradition which has been
of influenced by twenty centuriesof christiani"ty,
he ;;;d, in providing a
uh sound and clear vision of man basedon
a sóud foundation. An important
of merit that strikes the student of Maritain
r" ìÀ" aiìv of the human
he personin his human rights discourse.
The dignity ""rt th";;;an personis at
ble the centreof Maritaifs philosoply. nu-uí .ifuri, "f ;;;;r"rsed
la personby the very fact that hó is a person. by any
Éu-un ,igt t, provide the
of necessary guarantees for a normallife wortfryof dignity."Èy
thesupratemporarendof theh'nryn person.r\riarituinJr*ia"spointingoui
backingtoo for his arguments. a theological
of This tîreologicalcharaóter is
-ii-"
at
of Maritain's philosophicar oncea merit
fa *o at rhe *r"
challengeto those who study .thinkilÀ a possible
td potóai philosophyapart-rrom christian
It revelation,but nobody
9* ignàr" the Greco-Latinand Judeo_christian
heritageof humanrighisdiscus-sions.
lvlarirain'seffort to presentthe philosophyof
Y:-}:"::n human
rd :*:i::_s:Tl_l.9ld:liqua"rg,ouno.rhrí;;";":ffi:Hì{o"l,"X#ii
tochristian
u nlùu atù trll()n
I
l:"":-T,:i:li*y::0".n
hi nstt!e, "o-n""pr
s criticjsmsagai ;ùi;Gil wehave seen
n lesatiy" àrp".irund;"i;;""#',i;;iJo#
fro* fre
ruvrJstll ;ff
w(rl lu;
b
ff-"::i::^r:ir*f .rightsind. a*acksRousseauian democratisml
r#l;
He presenrs thereligiols andrt*,oi"Ài"j;;;' fi;ffib:"#l;T#

' r0
SeeMarita in, TheRange of Reas
on, pp. 1g3_I g4.

--1
76 CHAPTERTI:HUMAN RIGHTSIN A PLURALISTSOCIETY

political philosophy.In Maritain there is a spiritual interpretationof politics,

ànd this-may be an attempt to theologize with regard to the temporal
mission of the Church. For a Christian and a believer this may be appealing'
Today, howevef, the religious and theological is neglectedin the public
spherl. While many philosophiesand philosophersare devaluing religion,
Maritain presentsthe positive role of Christianity. For a secular student,
with all respect to Maritain's honesty and consistency, this religious
charactermay not be appealing.
The synthesis
-an tLat Maritain provides betweenthe individual and the
collective is important aspectof his thought. Issuessuch as pluralism,
solidarity, subsidiary,developmentand human fulfilment are viewed in this
synthesis-With regard to the anthropological dimension of his political
philosoptry, nam"ly the conception of human person, the distinction
b"t*""n inOiviOuatityand personality,therewas controversyeven in his life
time, and Maritain was awareof this.
What Maritain emphasizesis the social natureof man. He is against
individualism. For the integral development of the human person life in
society is indispensable.Maritain is very balancedin his criticism againgt
false óonceptionsof society. Maritain's philosophy of human rights is in
contrastto many other such philosophiesdue to the importancehe gives to
the common goód and the way in which he understandsthe conìmon good.
We hàve seenthat he is againstboth the absolutizationof individual
rights and state totalitarianism. The personalistsociety which he proposes
tries to balance both of these aspects.Although man in his entirety is
engagedas a part of political society, he is not a part of political society by
reasonof his èntire sèffiand all that is in him. By reasonof certain things in
him man is elevatedabovepolitical society.
As regardsthe role of the state Maritain considersthe state as the
topmost part of the body politic. For Maritain, however, the state has a
limited róle. The state should protect human rights, and it is not the source
of human rights. Whether it approvesof them or not the existenceof rights
is an importànt fact. With regardto statesovereigntyhe saysthat the stateis
not sovdreign.This may not soundright to common understanding.Maritain
supports a liberal form of democracy which respects human rights and
Oignity. He is a strong believer in the Christian inspiration of democracy,
unO,ó his conceptionòf democracytakesinto accountthe integral vision of
human growth. What Maritain presentsis a vision of integral humanism.
Insistenóe on social justice can reconcile individual liberty with social
demands.
Maritain rejects the notion of a philosophic minimum that could
provide a leastcommon denominatorfor agreement.He suggestsa practical
iolution supplementedby civic tolerancethat respectshuman dignity. One
should appióciateMaritain's readinessto leave a realm of freedom open in
which different philosopherswith diverse ideologiescan meet one another.
 CHAPTER II: HUMAN RIGHTS IN A PLURALIST SOCIETY ]1

Maritain advocatesa pluralist unity which takes place only through the
lasting diversity of the particular bodies politic and through-fosteririgthat
diversity. civic friendship is the basic and indispensabi=e dimensión of
humanlife in political society.
. Maritain's philosgphy of human rights gives us an understandingof
the_nature_and purposeof human rights. He provides a deep and convinaing
ulderstanding about the importance of each and every hùman life. Thesé
d.gl t are basic requirementsin promoting and actualizing the potentialities
of humanpersons.His_philosophyis an attemptto arguettrat ealh and every
personis endowedwith equal dignity, fundamèntalrights, and obligations.
what he advocateswith regard to human rigtrts is not an ideological
agreementbut a practical one. This approachcan contribute to a greater
respect for human rights, but this consensusis to be understoodnót as a
separateidea but againstthe whole backgroundof the cornmon good which
is something ethically good. Issuei like contraception,- abortion,
homosexuality,and pornography cannot be consideredriglts becausethey
are not ethically good.
- lvlaritain's approachis an inclusive approachto human rights, which
resemblesthe universal Declaration. It deàls with rights connectedwith
physical, social, political economic, religious, cultural, familial matters. It
gives a theoretical background, and it éoes not give particular historical
^broadly
analyses,but his insistenceon human dignity is tó be interpreted.
one has to find out_what dignity means to different sections of people.
Food, housing, health care, and curturar identity are genuine goodi for a
dignifiedhumanlife.
. Maritain's philosophy of human rights gives us an understandingof
the-nature_and purpos.eof human rights. Hè prwioes a deep and convinJing
understandingof the importanceof each and every humanlife. Theserighti
are,basic requirementsin promoting and actualising the potentialitiei of
each human person. His philosophy is an attempt to arguè that each and
every person is endowed with equal dignity, fundamental rights and
obligations.
 PART TWO

Chapter III

HT]MAN RIGHTS AS GOALS

Introduction
This chapteranalyzesthe basic conceptualdevelopmentof Amartya
Sen's idea of freedom and human rights. The main points that we are going
to deal with are the general understanding of human rights, Sen's
consideration of human rights as ethical articulations, his evaluation of
some approachesto human rights such as utilitarianism, libertarianism and
the Rawlsian conception of the primacy of liberty, Sen's view of human
rights as goals,his conceptsof freedoms,capability and functioning, and the
importanceof freedom for a just society. The central concentrationof this
chapter is the theoretical background of Sen's freedom basedapproachto
humanrights.
Human rights are widely invoked for a great range of causes,
varying from resisting torrure and arbitrary incarcerationto demandingthe
end of hunger and of medical neglect. Sen points out the strong Franco-
American basisof the modern notion of universal human rights. The idea of
natural and inalienable rights has met with criticism at the hands of
philosophers. Sen examines the criticism by Jeremy Bentham. The
Universal Declaration of Human Rights issued by the United Nations in
1948 is much in line with the eighteenth-centuryFranco-Americandefence
of naturalrights.
Sen considershuman rights as ethical articulations. This view has
wide implications for the development of his thought. In order to be
sustainablehuman rights demand theoretical justification. There can be
internal variationsin the understandingof human rights. Insofar as they are
ethical articulations,they are different from legislatedrights. In this context
we examine Sen's analysis of utilitarianism, the Rawlsian concept of the
priority of liberty, and libertarianism. Sen points out how his approach,
based on capability and functioning, can be a better approachto human
rights. The conceptsof capability and functioning are studiedin relation to
freedom, and we try to show how Sen arguesthat human rights promote
humancapabilities.
The terms "functioning" and "capability" are two important notions
in his approach.Functioning refers to actual doing, while capability relates
to the ability of a person to achievedifferent combinationsof functioning.
Here comes the importance of freedom. This importance is emphasized
through referencesto various conceptssuch as agencyand the aspectof the
well-being of a human person. He applies the notion of capability to the
 80 cHAprER III: HUMAN RTcHTSAS coAts

poverty, equality, and inequality, with concretesituationalanalysis.

!tudy of
In his conceptual framework the absence or deprivation of certain
capabilitiesor real opportunities,as well as the denial of political and civil
rights are relevant to the characterizationof freedoms and rights. Besides,
he presents both the advantages and disadvantagesof this capability
approachto humanrights and freedoms.
The importanceof freedomfor a good societyis presentedin various
forms of freedoms. He sees development as freedom; he does not see
freedom as for development.Sen gives freedomboth a constitutiverole and
an instrumental role. Political and civil rights are part and parcel of
development.Political freedoms, economic facilities, social opportunities,
transparencyguaranteesand protective securitieshave importancein Sen's
thought here.
In articulating his vision on fundamentalfreedomsand human rights
Sen concentrateson the issuesof poverty and hunger.The way poor peóple
are left to live violates their human rights. Promotion of human rights has a
relation to the elimination of poverty. This concentrationon poverty and
hunger is a remarkablefeature of Sen's approachto human rights. It flows
from his basic conception of capability as the freedom to live the kind of
life one has reason to value. sen considerspoverty in a broad sense.The
right not to be hungry is a key element in his thought, and it sfressesthe
right to food. He considerspoverty a deprivation of basic capabilities. In
this considerationindividual differencesare given importance.w" t y to see
how this approachcan bring aboutchangesin social policies.

I The General ldea of Human Rights

1.1 The Franco-American Basis of Human Rights

Sen thinks that the concept of human rights has a strong Franco-
American basis. The idea of inalienable rights of all human beings was
statedin the Declarationof Independence.This idea found strong supportin
the French Declaration of the Rights of Man and of the citizen. Thè latter
assertedthat men are born and remain free and equal in rights. The
foundationalbelief is that any human being hascertain basic rightJby virtue
of his or her humanity. British intellectuals such as Bentham and Edmund
Burke criticized this position sharply. According to sen the universal
Declaration of Human Rights is much in line with the eighteenthcentury
Franco-Americandefence of the existenceof natural rights by virtue of à
person'shumanity.l

'
See Amartya sen, "Elements of a Theory of Human Rights," phitosophy and pubtic
Affairs 32 (2004), pp. 316-317.
 CHAPTER TII: HUMAN RIGHTS AS GOALS 8l

1.2 The Criticism of Jeremy Bentham and Others

In his Anarchical Fallacies, written during l79l and 1792,Bentham
argued againstnatural rights. His argumentaimed as the total dismissal of
such claims. For him natural rights are simple nonsense."Bentham insisted
that natural rights are simple non-sense:natural and imprescriptible rights
(an Americanphrase),rhetoricalnonsense,nonsenseupon stilts."' Sen sees
this criticism as alive even today. Here Sen has in mind those who cnticize
human rights as mere paper work. Sen arguesthat the concept of universal
human rights is attractive. It invokes political discussionsas it assertsthat
all persons irrespective of citizenship have certain inalienable rights.
However, for the critics all this is loose talk and mere rhetoric. They attack
the belief that people have certain rights by virrue of their very humanity.
There are also other critics, who acceptthe generalidea of human rights but
do not consider some specific classesof rights, in particular, economic and
social rights. Most of theselast namedrights have beenaddedto the domain
of human rights recently, and they have expandedthe domain of human
rights. Many are scepticalabout the inclusion of theserights in the realm of
human rights. They are doubtful about the feasibility of theserights in the
absenceof proper institutions for the executionof action in conformity with
theserights. Sen is a staunchsupporterof theserights, even though he notes
that the eighteenthcentury declarationshad a nÍurower realm. In his view
they concentratedmainly ón personalliberty and political freedom.3

1.3 The Need for Conceptual Justification with Regard to Human

Rights
Because human rights activists are trying to respond to terrible
situations of misery and deprivations, they do not often give theoretical
justification to human rights. They are not very tolerant about scepticismas
regards the justification of universal human rights. Sen is appreciativeof
their work, and he understandstheir good intentions. However, he thinks
that conceptualdoubts must also be satisfactorilyclearedup. There is need
for the idea of human rights to command reasonedloyalty and to have a
secure intellectual standing. Thus, there is need for a justifiable and
defensible theory of human rights." "It is critically important to see the
relationshipbetweenthe force and appealof human rights, on the one hand,

'
Sen, "Elements of a Theory of Human Rights," p. 316. Sen is quoting Jeremy Bentham,
Anarchical Fallacies: Being an Examination of the Declaration of Rights Issued during
the French Revolution (1792), republishedin The Worlcsof Jeremy Bentham, vol. II, J.
Bowring, ed. (Edinburgh:William Tait, 1843),p. 501.
3
SeeSen,"Elementsof a Theoryof HumanRights,"pp. 315-316.
o
SeeSen,"Elementsof a Theoryof HumanRights," pp.316-317.
82 cHAPTERtrI: HIJMAN RIGHTSAS GoAIs

and their reasonedjustification and scrutinizeduse, on the other."5 Here we

try to analyzethe implications and the force of the exposition of Sen as
regards the nature of human rights. Sen considers his exposition as an
iniestisation.6

Z nori"r, Rights as Ethical Demands

Human rights are primarily ethical demands.The kind of statement
that human rights declarationsmake is of an ethical nature. Proclamations
of human rights are to be seen as articulations of ethical demands.The
substantive content of these proclamations is very different from
pronouncementsin utilitarian ethics. The point to be noted is that human
rights pronouncementsare ethical articulations.They are not putative legal
claims. They may or _may not inspire legislation, but that is not their
principal characteristic.'This view of human rights as ethical demandshas
great relevance in the exposition of Sen, especially as regards the
justification of human rights.

2.1 The Assertion of the Corresponding Freedoms

When there is a pronouncementof human rights there is also the
assertionof the importance of the correspondingfreedoms. Actually the
pronouncement of any particular human right is motivated by the
correspondingfreedom. Sen examines the human right of freedom from
torture. The human right of not being tortured springs from the importance
of freedom from torture for all. Here others have an important role to play.
They have the responsibility to do whatever they can reasonably do to
prevent torture of any person. They have to try to securehis freedom from
torture. Here Sen invokes the Kantian distinction between perfect and
imperfect obligations.s For a would-be torturer there is the perfect
obligation to desistfrom torture. For othersthere is the imperfect obligation
to preventtorture. They have to considerthe ways and meansthrough which
torture can be prevented,and decide what one should reasonablydo. Here

5
Sen,"Elementsof a Theory of Human Rights," p. 3I7.
6 SeeSen, "Elements
of a Theory of Human Rights," p. 318. Sen considersthe writings of
various authors in this field and points out their merits and also the poiats of
disagreement.
7
SeeSen,"Elements of a Theory of Human Rights," pp. 32O.
8
See Sen, "Elements of a Theory of Human Rights," 4, pp. 320-321.Here Sen refers to
lmmanuel Kant, Critique of Practical Reason. This distinction between perfect and
imperfect obligations is used by Sen to point out the nature of obligations as regards
human rights. We shall seein the next chapterhow Sen usestheseconcepts.
 CHAPTERIII: HUMAN RIGTITSAS C,OALS
83

the nature of obligation.is more generaland

exemptthem from their imperfectobligations.eless specific but that does not

2.2 The Role of Debates

According to.sen a theory of human rights
can reave room for
further discussions,disputes,and iguments. It is,
in particular, possibrein
the caseof imperfect_òbugationr. È" points out'thràlnstances in which
there can be debates,discuisions, and dìsputes.
It ir-porrifr, as regardsthe
ways in which the attention due to human
.iÀntrlrr"rrd be best paid.
Questionsmay arise regarding valuation of different types of human
relative to each other and with regard to the int"giutii'n-ór rights
tn"i, demands.
sometimes the craim_sof humanights must
be consolidated with other
evaluative concerns thq may also à'eserve
ethicar attention. open pubric
reasoningis centrar t9 the system of human
rights presentedby sen. This
public reasoningcan help tó settle some
dispu"tes,,iitt ,"À*o to coverage
and content. Sometimegthe disputesmay be left
unsettledor concrusions
tentative.An adequatetheory of rationality has
to
rv rraue
rr4Ywroom
rv'r for this sort of
incompleteness.'o'

2.3 The Possibitityof fnternal Variations

. As_regardr,tltg nru"tical applicationof human rights the above
mentionedtypesof debates*e andcustomrq^Tffi ;r;;p.ffii;
trueamonghumanrightsactivists. "o*iroo
For Senthesedebateíareactuallypart of
genela.l
disciplineofhumanrights.rney *" part
the narureof
human rights.Thesedebatesmayieadto sómeinternar "iitvariations.
" "tt".al A theory
of human rights can allow considerableinternar
imperiling the substantialimportancegiven to trtlrn.orvarìations without
riirrt, and to their
corresponding freedomsandobligationJAccordin! ;" ilihi,
not an embarrassment. u-iuulityi
This variàbititvis present;" theoriesof
substantive ethics.Sendraws* unuíogywith utility-centered
"ll;;;;ral ethics,and
concludesthat the of human.rigtri-isnot nullified - trr*u.t"d
"q?:it allowsanO ' by the
internalvariationsthat iícorporui"r.^il""'-* "^
2.4 Human Rightsand Legal Demands
Sen admits that ethical and legal rights have
connections.However,an ethicalunderstaiqrng motivational
ór humanrights impries
thattheyarenot to be seenaslegaldemands.
wJhave urr"uoypresentedthe
nSee
Sen,"Elementsof a Theoryof HumanRights,,,pp.
t0See 32I.
Sen,"Elementsof a Theoryof HumanRights,,,pp.322_323.
tt see
sen, "Elementsof a Theoryof HumanRights,"
p. 323.Herethe anarogybetween
utilitarian-ethicsand rights is, perhaps,used by sen in order
criticismson thepartofl"Tl" to.overcome
utilitarianttr"odrisagainsthumanriehts.
 84 CHAPTER III: HUMAN RIGHTS AS C,OALS

criticism of Bentham as presentedby sen. Bentham missed the point of

natural rights as he tried to compare them with legislated rights. This
comparisonhas the unavoidableresult that while natural rights lack legal
statuslegislated rights have legal status.BecauseBentham understoodthe
term "rights" in the context of legislation, he criticized natural rights as
imaginary rights in so far as there is no legislated law behind them.rz Sen
observesthat while Bentham was busy in r19l and 1792writing to dismiss
the rights of man, Thomas Paine and Mary^wollstonecraft were exploring
strongly the ethical interpretationsof rights."
The ethical approachfavored by Sen differs both from seeingthem
as legal demandsand from a law-centeredapproachto human rights which
consider human rights as if they were the basic grounds for law. Human
rights are not laws in waiting. They can serveas a basisfor legislation.They
have been frequently used in this way. Providing inspiration for legislation
is one of the ways in which the ethical force of human rights has been
utilized.'" Sen admits the motivational connections between ethical and
legal rights. However, an important point is to be noted. This connection
does not imply that the relevanceof human rights lies exclusively in the
realm of legislation even though to utilize them in this way is actually an
important use of the concept of human rights. The u. s. Declaration of
Independenceand the Bill of Rights are examples of such use. In the
legislative history of many countriesthe idea of human rights has provided
inípiration.rs
This contribution of inspiration is one of the powerful ways in which
the force of human rights is deployed.This doesnot meanthat the relevance
of human rights lies exclusively in providing this inspiration. The idea of
human rights is rightly used in other ways as well. since they are powerful
moral claims, there are different ways for promoting theseclaims.

''
See Sen, "Elements of a Theory of Human Rights," p. 325. sen refers to Jeremy
Bentham,Anarchical Fallacies, in Collected Worl<s,vol. 2, p. 523.
13
Senrefers to the works of Thomas Paine,The Rightsof Manand of Mary Wollstonecraft,
The Rightsof Woman.See Sen, "Elements of a Theory of Human Rights," p.326.
ta
see sen, "Elements of a Theory of Human Rights," pp.326-32g. Sen refers to Herbert
Hart's view that some natural rights are parents of law. This means that some natural
rights can inspire legislation. H. L. A. Hart, "Are There Any Natural Rights," Tàe
Philosophical Review 64 (1955), reprinted inTheoies of Rights,Jeremy waldron, ed.
(oxford: oxford university Press, 1984), p.79.Hart does not make any reference to
human rights in this article, but Sen assumesthat the reasoning about natural rights in
this article can be applied to the concept of human rights as well.
15
SeeSen,"Elementsof a Theory of Human Rights,"p.327.
 li
I
iF

i*
F
1l
lì

,'i:

''.
 CHAFTER III: HUMAN RIGHTS AS C,OALS

3 Sen's Evaluation of Some Approaches to Human Rights

. Even though the conceptof human rights is widely influential, there
is no particular way of understandingthe meaning of rights. sen refers to
tom"_ major approaches to this matter in contempoiary philosophical
thought.

3.1 Utilitarianism
.The rrst approach is the instrumental view of rights held by
utilitarians. Utilitarian principles rest ultimately on utilities ónly. Utitide;
are regardedas adequateinformation for judging statesof affairs, for the
assessmentof rules or actions. In this view rights are justified not in terms
of their intrinsic value but becauseof their insirumentaipower. Right-based
rules, conventions, institutions, etc aÍe useful in puisuing otÉ. righr
independentgoals. The assumptionhere is that they are valuaile if they"can
leadto a happiercommunity.ro
Sen points out the limitations of utilitarian ethics. The concenffation
of utilitarianism is on maximizing utility. Indifference to freedoms,liberties,
and rights is a basic characteristicfeature of utilitarianism.lT If they are
useful for the maximization of utility they are important, otherwise not.
Here rights are not valued intrinsically but for their instrumental utility
alone. tn this case
-the agency aspect of the person is neglected. Th;
goodnessof a state of affairs is judged simply by the sum totai of personal
utilities in that state.This approachdenies the fàct that the realizaijon and
failure of rights should enter into the evaluation of statesof affairs. Rights
are valued only for their consequences, namely the maximization of utíity.
There are both victims and winners in this approach. The losses of tÉe
victims and other affected are contrastedwith the gains of the winners in
terms of relative utility features.sen uses a very pòwerful example. There
might-have_bee,ngood utilitarian reasons for iorcing men to hght wild
animalsin the Colosseum,.outweighing the utility losJ of thosefew forced
to engagein this activity.róThis would not, however, adequatelyjustify
sucha forced act.
In the classical Benthamite form of utilitarianism the utilitv o f a
person standsin some measurefor his or her pleasureor happiness.Here
attention is paid to the well-being of each peison, and it iJ viewed a s a

ró
see Amartya Sen, "Rights and Agency" in consequentialism and its citics, Samuel
Scheffler,ed. (Oxford: Oxford University press, l9gà), p. lgg.
tt
o-utttasen, Developmentas Freedom(oxford: oxford university press, 1999),p.
Y
57. This criticism of utilitarianism is a principal feature in the writings of Sen.
He has
been critical of utilitarianism in the course of the development oi his thought
on
developmentaleconomicsand on human rights.
t6
see sen, "Rights and Agency" in consequentialismand itscritics,p. r91.
 86 cHAprERrrr:HUMANRTcHTS
As coAl.s

mental characteristic.In economics utilitarianism has been

the dominant
ethical theory, and the most influential theory of justice. He points
out three
distinct componentsof utilitarian evaluation. rÉ"y are, consequentialism,
welfarism,and sum.ranking.In the utilitarian view in;ustice
consistsin the
aggregateloss of utility comparedwith what could have been
u"fri"u"j.ìé
Senexplainseachof thesecomponents.
consequentialismclaims that all choices must be judged by
their
consequences.Here importance is given to the results genèrated.
This
concentrationon results deniesthe tendencyof some normàtive
theoriesto
legard some principles as rights irrespectiveof their results. what maffers
here are only the consequenies.Utilitarianism is in the
class of welfarist
moral theories.welfarism doesnot pay any direct attentionto
things such as
fulfilment or violation rights, outiós, etc. rt restricts the judgements
9l of
statesof affairs to the utilities in the respectivestates.sum rintiig requires
that the utilities of differenr people be simply ,u*"d io!"tn", to"geittreii
aggregateresult. Here attention is not paid io the distribùtion
of tÀat sum.
u!1tity is to be maximized irrespective or inequalid;.
since in the
utilitarian view injustice consistsin the aggregateìossof utility
compared
with what could have beenattained,un unllit sóciety is one
in *ti"r, pàopre
are lesshappy than they could be.20
. sen points to both the merits and demeritsof this way of thinking. In
his view there are two merits in this approach.t*portuncÉ
is given to"the
results of social arangements when
iuàling them.it rr", À inbrest in the
well-being of the people invorved. tir spitJor thesemeritr,
ho*"u"r, there
are three main deficiencies in a utiìitarian approach.
First, there is
distributional indifference becauseit tends to igno.e inequarities
in the
distribution of_happiness. second, it doesnot attachany intrinsic importance
to
1ghts, freedoms,and.othernon-utility concerns.Théseaspectsare valued
only indirectly and to the extent that they influence utilities.
Sen observes
thq 19body wanrs ro be a happy srave. Third, the utilitarian view of
individual well-being is_not strùg as it- cannot resist
being influencedby
mental conditioning adaptive attitudes. This is particuiarty evident in
-ang
the caseof persistentlydeprivedpeople.He points oui
,orrr" groupsof these
people: the usual underdogs in stràtified sàcieties, p"r"*iitty^oppressed
minorities in intolerant communities, routinely overworked
emplày"", in
exploitative economic arrangements,and hopellssly
,uuJuJ housewivesin
severelysexistcultures.sometimesthesedeprivedpeople
Àay teno to come
to terms with their deprivationsbecauseof tÀe necessity
of survival, but this
is not a fully acceptable situation. Thus, concentrating
exclusively on

re
SeeSen,Developmentas Freedom,pp.59-60.
20
SeeSen,Developmentas Freedom,pp.5g_59.
 CHAPTERtrI: HUMAN RIGFITSAS GOAI^S

mental characteristics such as pleasure, happiness or desires

can be
restrictivewhen making interpersoìal comparisonsor *err-ueinlll

3.2 sen's Responseto Rawls' concept of the priority of Liberty

sen considersJohn Rawls' theory of justice as the most influential
and in malry_ways the most important contemporarytheory of justice.
Rawls
has argued.that justice,requireJthe provision àr .qúuibasíc
ubertiesand fair
opportunitiesfor all. Social and economic inequality can be justified
only
where it is to the benefit of the least advantaged.He levelops
-né.ronsthe idea of an
impartial social contract t9 j.u,stify these"principr"r.
are free,
rational, equal and endowedwith a moral cufu"ityio, jur,L".
Free persons
would rationally aqeg to these two principrès or justióe-
rnis is to secure
their equal statusand independenceand to purrue ri..rv their
conceptionsof
the good.
Rawls speaks.ofar_r griginal position which is wholly non-historical.
The contractorsare placed behind aìomplete ..u"1 or itnoi*ce,,
regarding
their particular situations. They have io knowledge"of
their individual
places in society, or about tireir race, gender,
locial class, personal
characúeristics,or conceptionsof good frel rney'"un ,"*on
only on the
basisof generalknowledge.The panies in the origi*l
úiti"" are mutually
disinterested.The original position is designedtoi"f."i"ni
trr" uutono-y o'r
citizens in a democracy,and the resulting conceptiònof justice
is an ideal
one. The contractorsare strictry equar.TÈ" con"eption oijustice
that would
be agreedto in this original poiition is justice as fàirness.JAtt
social values-
liberty_and opportunity, incóme and wealth, and the bases
of setf-resfeci-_
are to be distributed equally unlessan unegualdistribution
of any, o, àil, of
thesevaluesis to everyone;sadvantage."2/Justicei, *ú
c* uó ugr"eú to
-general
among
.free persons^ from a positi,on of equality. Ér"- this
conceptionof justice follow the iwo principles àriuii"".-irre
first of these
two principles states"that eachpersonis tó have in equal
right to the most
extensive^totalsystem gguaÍ basic liberti". .o-pàtibte
9f with a similar
systemof
.liberty for all."23The secondprinciple toto, itut..social and
economic inequalities q" to be arrangedio that they
are both: (a) to the
greatestbenefit of the l.eas1advaljaged, consistent
íiin the jusì ,uuin!,
principle, and (b) attached to officés positions open to all undér
conditionsof fafr equality of opportuni,y:Tf
The basic liberties.of j.h: first principle are riberty
of conscience,
freedom of thought, equal poritical rigirts, fàedoms
,p""ín"o to maintain

tr
SeeSen,Developmentas Freedom,pp. 61-63.
" John Rawls,A Theory of Justice (oxford: oxford university press, 1999),p. 54.
23
J. Rawls,A Theoryof Justice,p.266.
2a
J. Rawls,A Theoryof Justice,p.266.
 88 cHAprERtrr: HUMANRrcHTsASGoAI-s

the liberty and integrity of the person, and the rights and liberties covered
by the rule of law. These liberties have priority over the ..difference
principle" in which priority is given to furtheàng the interestsof the worst-
off. Becausethese liberties are basic, their inequality cannot be justified
even if the inequalities in these basic liberties would increase the
opportunitiesor wealth of those least advantaged.parties agreeon the two
principles underlying justice as fairnesssinceihey provide éach party with
primary_goodsadequateto realizethe interestseac-hpurty t *.
. In s.en'sopinion, the Rawlsian formulation òr túe priority of liberty
is comparativelymoderate.However, this priority of liberty takes a sharper
form in modern libertarian theory.As a consequence,somerights in modàrn
libertariantheory, extendingfrom personallibèrties to propeiy rights, have
a completeprecedenceover the pursuit of social goals.fnése rigtris take the
form of constraints,that demandthat they never be violated.2
ln Rawls the rights that receiveprecedenceare lessextensive.They
c.o1sisl^of;,ariouspersonalliberties,includingsomebasicpolitical and civíl
nghts.-" However, the precedencethat these limited rights receive is quite
gopnlete. They cannot be compromisedby the force of economic needs.
Pointing to economic needssen arguesthat the Rawlsian approachshould
be a qualified one. The demandfor the priority of liberty shbuld not have
the effect of_yaking intenseeconomic needseàsily overlóoked.sen points
out that in his later book, political Liberalism, iìawls suggestswàys of
accommodatingthe force of economic needs within the structure of his
theoryof justice."
. sen distinguishesbetweenthe Rawlsianproposal that liberty should
receive overwhelming precedencein the case ol a ìonflict and his general
procedureof separatingout personalliberty from other types of advintages
for specialtreatment.The seòondproceduróis more g"nó*I. It concernsthe
need to assess and evaluate liberties differently from other personal
adrrantages. sen arguer t_hulthe safeguardingof tibórty has to be ultimately
,:lut"1l to the generalpolitical acceptabilityor its impbrtance.The political
significance-of rights can far excèed thè extent tò which the personal
advantageof the holders of theserights is enhanced.The interestsóf others
are also involved becauseliberties of different people are interlinked. The
violation of liberty is a bad thing. Here there ii an asymmetry with other

25
SeeSen,Developmentas Freedom, pp.63-64.
26
sen has here in mind Rawls' A Theory of Justice andpolitical Liberalism.
27
see. Sen, Development as Freedom, p. 64. David Hollenbach thinks that
in Rawls,
version of liberalism the-question of satisfying social and economic needs
arises only
after the basic liberal rights have been assured-Between the right of liberty
and rights
such as the right to food or housing or work there is no trade off. SeeDavid
Hollenbàch,
Claims in Conflict: Retrieving and Renewing the Catholic Human RightsTradition (New
York PaulistPress,1979),p. 17.
 CHAPTER III: HUMAN RICHTS AS C'OALS 89

sourcesof individual advantages.Sen gives the example of income. The

safeguardingof liberty and basic political rights has procedural priority.
This priority proceedsfrom this asyÍìmetric prominence.'o

3.3 Sen's Responseto Robert Nozick and Libertarianism

Libertariansarguefor a completepriority of the rights of liberty. Sen
examines Nozick's version of libertarianism. In his Anarchy, State, and
Utopia*Nozick has argued for a consequent-independent way of seeing
rights.'v According to Nozick rights are constraints,and they should not be
violated even if such violations would lead to better statesof affairs. "The
rights of others determine the constraints upon your actions... the side-
constraintview forbids you to violate thesemoral constraintsin the pursuit
of your goals: whereas the view whose objective is to minimize the
violation of theserights allows you to violate the rights (the constraints)in
order to lessentheir total violation in the society."" Here rights are given
intrinsic importance,but rights affect only judgement of actions and not an
evaluation of statesof affairs. Consequencesare neglected.The complete
priority of rights means that the entitlements people have through the
exerciseof theserights cannot be ignored becausethe results are bad. The
concenffationof Nozick is on the rightnessof the libertarianprocedures.
Sen considersNozick's libertarian theory as more demanding." Sen
considersthis way of seeingrights as fundamentallydefective.Sen refers to
the occurrenceof large famines where food was not lacking. This shows
that consequencescan be important in judging what rights we do have and
what rights we do not have. This meansthat one should take a less narrow

2E
See Sen,Developmentas Freedom,pp.64-65. Sen also gives pre-eminenceto liberty and
civil rights, without neglectingthe economic needs.
2eIn Anarchy, State, and Utopia Robert Nozick presents an image of a society of rights.
The book begins with the assertionof rights. He arguesthat individuals have rights, and
there are things no person or group may do to them (without violating their rights).
Nozick argues for a minimal state. This state is limited to the narrow functions of
protection against force, theft and fraud, enforcement of contracts, erc. A state that
controls more than these minimal functions violates the rights of the persons.It means
that the state should not force some citizens to aid others. See Robef Noziclq Anarchy,
State,and Utopia (New York Basic books, 1974),p. ix. Rights of othersare constraints
upon one's actions and they should not be violated in the pursuit of one's goal. He thinks
that a welfare state would violate people's rights. Nozick's theory of the minimal state
has serious consequencesas it rejects a system of taxation, welfare payments, and it is
againstredishibutive policies. SeeR. Nozick" Anarchy, State,and Utopia, pp. 169-170.
30R. Nozick, Anarchy, State,and Utopia, p.29.
31
SeeSen,"Rights and Agency" in Consequentinlismand its Critics, p. 189.
 90 CHAPTER trI: HUMAN RIGHTS AS GOALS

view of rights, rejecting assessmentby proceduresonly.32 The only

exemption that Nozick gives concerns "catastrophic moral horrors." Sen
here points out that the consequencesof the operation of uncompromising
rights can be problematic. It can lead to the violation of substantive
freedomsof human personsto achievethe things which may include being
well nourished and healthy, being educated,etc. The importance of these
freedoms cannot be ignored on the basis of the notion of priority of
liberty.33
Thus, it is clear that the priority of liberty without any consideration
of consequencesis affected by considerable indifference to substantive
freedomsof people.Sen saysthat one cannotacceptsimple proceduralrules
irrespective of consequences.Ignoring consequencesin general is an
inadequatebasis for an acceptableevaluative system.Libertarianism as an
approachis too limited. There is the need for a broaderinformational basis
for justice.'" This theory cannot do justice to the rights associatedwith
positive freedom. Even with negative freedom, the rationale of the
constraint-basedapproachto rights may fail. Sometimesthe only way of
defendinga very important negativefreedomof a personby anothermay be
by violating the less important liberty of anotherperson. The justification
of this action necessitatesconsequentialreasoning. Sen calls such cases
instancesof multilateral interdependences."
Sen arguesfor a consequencesensitivemoral theory with regard to
rights. Consequencesare important. For him it is incredible to claim that
consequenceslike death, life, starvatioî, etc are morally indifferent. The
libertarian view is concernedmainly with negativefreedoms.sen adds that
valuing negative freedoms has some positive value. One should do the
things one can do to stop othersfrom violating one's negativefreedom.The
positive implications of negative freedom can go further. If the situation
requires it, it is right to violate somebody's negative freedom in order to
prevent a more seriousviolation of the negativefreedomof someoneelse.36
Because the constraint view of rights rules out consequence-sensitive
evaluation,that theory, accordingto Sen,is defective.

4 Human Rights as Goals

The theory of rights that Sen advocatesis a system which values
rights intrinsically as well as for their instrumentalvalue.The inadequacyof

32SeeAmartya
Sen, "Rights and Capabilities" in Morality and Objectivity: A Tribute to J.
L. Mackie,Ted Honderich,ed. (London:Routledge,1985),pp. 133-135.
33
SeeSen,Developmentas Freedom, pp.65-66.
3a
SeeSen,Developmentas Freedom, pp. 66-67.
3sSee
Sen, "Rights and Agency" in Consequentialismand its Critics,pp. 190-191.
36
SeeSen, "Rights and Capabilities" in Morality and Objectivity, pp. 135-136.
 CHAPTERtrI: HI.JMANRIGI{TS AS GOALS 91

welfarist consequentialismand constraint based deontology leads to an

alternativesystemwhich can be called the goal-rights systeri.iTThis system
encouragesus to think of the fulfilment of rights as general goals to be
promoted. sen looks at rights in terms of rights to capabilities. By
critically utilities as claimed by welfarists and priùary goods as
"Igirylg
claimed by Rawls, sen arguesfor substantivefreedomstoìhoosé itife one
has reasonto value.'o He is interestedin the lives that people actually lead.
He makes referenceto the Aristotelian conception of human good, and io
Adam Smith's idea of appearingin public without shame.Hé uses these
ideasto substantiatehis interestin the actual living conditionsof the people.
sen analyzesand evaluatesRonald Dworlin's approachto àgh^ts.3e
For Dworkin to take rights seriouslymeansto allow thenito trump poìi"i"r.
They should override the competing consideration of policies àssociated
with
.collective goals. "Individual rights are politicai trumps held by
individuals. Individuals have rights whén, for somereason,a coîlective goal
is not a sufficient justification for denying them what they wish] as
individuals, to have or to do, or ngJ a sufficiént justification fór imposing
some loss or injury upon them."a0Rights shouid provide a trump caté
aqainstargumentsfrom utility. According to Dworkin any particutariheory
of rights will give importance either to goals or to righti, br to duties. He
considers utilitarianism a goal-based theory. The Kantian categorical
imperative is considered a duty-basedtheory. Thomas paine's thóry of
revolution is considereda rights-basedtheory.arRights impose limité on
morally permissibleactions.The main importanceofowo.Én's thought is
its relevanceto the political rights of the útizen againstthe state.He aigues
thal a right gives the individual some protection against wrongful ltate
-
action.
lg"i-"t utility doesnor jusrify an act that infringés a1,.ght.az
while accepting the advantagesof Dworkin's claisification, Sen
arguesthat the realization of rights can itself be a fundamental goal and
ryrhap9 lne only fundamental goal. Sen goes on to examine the
admissibility and the advantageof considering right fulfilments as goals
themselves.He refers to the general theme orlquatity. According tJsen

3t
see sen, "Rights and Agency" in consequentiarismand itscritics,p. 1g6.
38
SeeSen,Developmentas Freedom,p.74.
3esen
refers to Ronald Dwgrkin, Taking Rightsseriously (London: Duckworth, 1977), pp.
l7l-172. In developing his famous theory of rights, Dworkin has specified his'owì
approachby placing it in the coordinatesofa classificationofpolitical theoriesinvolving
contrastsbetween"goal-based,"'îght-based" and "duty-based"approaches.
{ R.
Dworkin , Taking RightsSeiously, p. xi.
ot
SeeR. Dworkin, Taking Rights Sertously,pp.l7l-172.
n2
see carl wellman, 'concepts of Right" in Encyclopedia of Ethics, vol. 3 (New york:
Routledge,2001),p. 1501.
 92 CHAPTER III: HUMAN RIGIITS AS C,OALS

equality is both a right and a goal. It is a moral right on the part of the
relatively deprived,and it is a goal of a political or rnoral system-.His point
is that
_the rights in question can be formulated as genéral goals to be
pursued. He argues that there is an apparent consisténcy between right
basedoandgoal basedthinking and theré are advantagesin seeingrightJas
POalS. "

The Admissibility and Advantage of considering Rights as

it -
GoaIs
sen does not consider the admissibility of a system that considers
right-realizationsas goals a seriousproblem. He claimi that the reasonsfor
the admissibility of rights as goals appearedto be problematicbecauseof a
historical association with utilitariànism. Utilitarians have succeededin
generatingthe idea that goal basedtheorizing belongsto utilitarianism. The
historical associationof utilitarianism with tÉe deniàl of natural rights adds
to this problem.#
As we have already seen,in the utilitarian systemone need not put
rightrealization in the formulation of goals. This ij also the casewith any
moral systemthat considersrights as having only an instrumentalrole. The
real_ difficulty arises as regards systems that consider rights to be
fundamental. sen examines the righi of all men to the greatéstpossible
overall liberty. If this right is viewed as a goal to be generaúypursuedthere
possibility of going in a parricular direction in workingìut its moral
i, 4:
implications. [n choosingone courseof action or anotherone òan choosethe
one that is conducive to greater overall liberty. sen gives the example of
saving a person from.being kidnapped by-violatiig another's ti'oerty.
According to sen this violation of another's liberty can be justified only ir
the^.greatestpossible liberty is considered as a goal to "be pursued. If
fulfilment of rights is not consideredas a goal, thenihere is no o^bligationto
purzue the goal of maximization of the fulfilment of rights or the
minimization of the violation of rights. sen thinks that the pùrsuit of the
goal of right-realization is indeed in conflict with the view of rights as
constraintsto be obeyed. It is questionablewhether such a systeni really
considersrights as fundamental.sen arguesthat if rights are fundamentai

a3
SeeAmartya Sen, "Rights as Goals" in Equality an^dDiscimination: Essaysin Freedom
y1! Justice, StepehenGuesr and Alan Milne, eds. (stutrgarr Franz Steiner verlag
wiesbaden, 1985),pp. rl-L2.rî aright, for example the righlto [berty, is considered
ai
a goal to be pursued,then in choosingbetweenone coruseofaction and another,
one can
choose the one that is conducive to greater overall liberty. Here the purpose
is the
maximization of fulfillment of rights or minimalization of viólations of rishts.
a
SeeSen,"Rights as Goals,,in Equality and Discrimination,pp. 12-13.
 CHAPTER TII: HUMAN RIGH|S AS
C,OALS
93
then they are varuable;,if they
are intrinsicaily valuable, then they shourd
figure amongthe goals.as
In his view if right-rearizations
systematicallv enter moruf calculations are goals, then they can
consideringright-rearizarion u";;;' who can help.
"i
as g;;r, has obviour'uJuunruges
with positive freedomssuchas úr? in dearing
right to meoicui*I"ri,on, emproymenr,
the right nor to be hungry, wl;;aearinl-wiitr'"iuiirv,
of theserights can bà irr""Àu*i, of the realizarion
an eualuation of statesof affairs.
capabilitiesareoneway of characterizing
positive ilJ;, andtheycanbe
consideredas rishts.The rearizationì
of basiccapabilitiescan be the basis
of an evaluation-ofrtur"r oi uriui.r."r"
poo. iuuing the right to
adequate nourishmenr "
a-sparr of the gÀ1rr'; "éunr.y
goodnessor badnessof tire rtut"r o"l"ir'rràlred ro assessthe
Liunui;qy ,""t;lìo* manypeople
havefailedto havethatright n rúiJ*d
how badlytheyhavefailed.*o
In the caseof nJgativefreeàomssuch
interference, asimminity, liberty from
etc theadvan"tales;-f ,tú, approachcomeout mostobviousry
in theabsence of perrecr rn"-.iÉr,, violatedby B,
tor example,theright not"o*?iu*;."*tél
to ù kidnapped,thereis"anoo_"o-priunce
"r"Àis
part of B, and this non-compliance, on the
iepending on the situations,makesa
claimon C to hetps::o^:îird;"'**
The links hereinvorveconsequentiàrevenby _v_iolaring the liberryof D.
reasoning. Hererighrrearization as a
up the various.oruiiudlements witl
l""Xt.ti* eachotlier in a sysremaric

0., SenrsAdvocacyof Broad Consequentialism

Accordinsto sen furfirmentof rights_as
from goals
-ro hasto bedistinguished
"onr"qu"itt:lr:l ;;. ,,'orui reasoning. In
consequentiarism _ judsed
actionsqe F';proach
of the consequent uy ,t g""onessor badness
"ifturiu"ty
statesof urruir. This can mean "
actionis just a matterof furfirment that-the rightnessof an
or goutr,.However,the questionas
whetherrights shourdu" .onrioì;J;, to
goalsis clearly a differenrissue.
what sen arguesfor is sensi,i"irli"
Jonr"qu"n"esbut not in a way as to
makethemexclusivein the -utti lr,igttr.
goals that take the form of n rniÀ"", rrrelxisterr"" of fundamental
usefulness of rights does nor reducethe
of instrumentar rights. In-bringinj-uoouì"iatuaute
instrumenralrights ,ave outcomes
d; t"l" rrus"ror" i; eriminared
considering " loml;A;,
the fulfilmentof by
direcrly; ";
tur;;;"nral goals.
makethepoinrclears:l ruy: ,r,{.,rr3i,9ritiveígÀiil;;" To
treatedas an importantgoal might hungrywhen
biringabout a systemin which the

os
SeeSen, "Rights as Goals,,in Equality
6 and Discrimination, pp.l4_I5.
SeeSen, "Rights as Goals,,in Equatity
a7 and Discrimination, pp. 16_17.
SeeSen, "Rights as Goals,,in Equality
and Discrimination, pp. 17.
 94 CHAPTERtrI: HUMAN RIGHTSAS C,OALS

government'sinstrumental.rightto procure food grains in situationsof

shortagemight be accepted.oo
The distinction between fundamentalrights and instrumental rights
is not the sameas the distinction betweenabsolute andprimafacle rightí. In
the latter casethe distinction is concernedwith the force of the right,-thatis,
whether it can override conflicting principles. In the former càse, it is a
matter of whether the right in questionis directly in the goals of the moral
system or whether it is derived from other goals through consequential
linkages.sen showsthat a fundamentalright can be a very weak one. It can
be overriddenby a greaterurgency,becauiebeing fundamentalfor Sen is an
issueof origin and not of force. There can be weak intrinsic riehts. strons
intrinsic rights, weak instrumental rights, and strong instrumenial rights.49
Thus, according to sen the approach of seeing right-realizations as goals
leadsto types of moral systemswhich may be càtea goal-rightssysteml
The fulfilment or the non-realizationof righis in the evàluation of
statesof affairs is possiblein a goal-rights system.Íhe goal-rights systemis
a moral system.In this system the fulfilment and non-realizition óf rights
are included among the goals in the evaluation of statesof affairs. TÈese
goals are applied to the choice of actions through consequentiallinks. This
goal-rightssystemforms a wide class.It admits non-rightì considerationsin
the evaluation of states of affairs. This system has a sensitivity to
consequencesin the evaluation of actions. It does not exclude the uie of
instrumental considerations.For example, the violation of the right of
frgedom of speechmight be viewed as making the outcome worse because
of the violation itself and becauseof the negative impact it has on other
righrbased objectives.In this caseit would be difficult ior the economicallv
deprived to make claims on the state for corrective action. In order tó
include goal-rights in the evaluation of the states of affairs Sen uses the
concept_of capability rights. A goal-rights system is a capability rights
system becauserights are viewed as a relation between one peréon and
somecapability to which he has a right, ratherthan the relation bètweentwo
parties.)u

5 Focus on Freedoms: The Capability Approach

5.1 The Fundamental Diversity of Human Beings

our- physical and social characteristics make us greatly diverse
creatures. sen takes into account differences in age, r"x, physical and
mental health, bodily prowess,intellectual abilities, cimatic cùcúmshnces,

a8
SeeSen, "Rights as Goals" in Equatity and Discrimination, pp. I7-lg.
ae
SeeSen,"Rights as Goals" in Equatity and Discrimination,pp. 1g-19.
50
Seesen, "Rights and Agency" in Consequentialismand its critics,pp. 199-200.
 CHAPTER III: HUMAN RIGHTS AS C,OALS 95

epidemiological vulnerabilities, and social surroundings. These are

examplesof differences.A measurementof inequality basedon income is
an inadequatecriterion. Interpersonalvariations between personswith the
sameincome level are a problem. According to sen a handicappedperson
and a normally healthy person, even though they have the same income
level, manifesta differencein the level of well-being and freedom.sl
The distinction betweenachievementand freedom is quite central to
social evaluation. utilarianism is a theory that is coicerned with
achievements only. The exclusive focus on achievements has been
challenged by argumentsfor basing political evaluation on the means to
achievement.Rawlsian concern with the distribution of primary goods and
the Dworkinian concentration on the distribution of iesources are two
models in this direction. Sen points out that these two models, while
advocating equalization of ownership of resourcesor holding of primary
goods, need not equalize the substantivefreedoms enjoyed-by dìfferent
persons becausethere can be significant variations in the conversion of
resourcesand primary goodsinto freedoms. For example,two personswith
identical incomes,and other primary goodsand resourcesmay not be free in
the same way to avoid undernourishment.Here metabolic rates, gender,
pregnancy,etc. play important roles. Thus, although Rawls and Dworkin
have helped to concentrate attention on freedom, their models are not
sufficient to deal with the extent of freedom. They are imperfect indicators
of the freedomthat a personreally enjoys to do this or that.52

5.2 The Conception of Capabitity

The concept of capability refers to arternative combinations of
functionings that are feasible for the personto achieve.s3It involves a kind
of freedom. It is the substantivefreedom to achieve alternative functional
combinations.sen gives the exampleof two instancesof hunger: an affluent
personwho fasts and a destitutepersonwho is forced to starvé.The first has
the freedom to decide,while the seconddoes not. Here the first personhas
the capability to be nourished,which he forgoes for his own reason. while
the combination of a person's functionings reflects the actual achievement
of that person,the capability representsthe freedomshe enjoys to lead the
kind of life he has reasonto value. This meansthat the p"ison can choose
and achievealternativefunctioning combinations.sa

t see Amarty
a Sen,Inequality Reexamined(oxford: clarendon press, r 992), pp. 2g-30.
! SeeSen,Inequality
Reexamirwd,pp.31-3g.
seeAmartyaSen,"capabilityandwell-Being"inThe euatity of Life,MarthaNussbaum
andAmarfyaSen,eds.(Oxford:Clarendonpress,1993),p. 3i.
SeeSen,Development
asFreedom,p.75.
96 cHAPTERIII: HUMAN RIGI{Ts AS c'oAls

A capability approachto ethics differs from other approachesthat

use other informational focuses for evaluation. Sen distinguishes his
capability approach from other approachesbased on variables such as
primary goods, as in Rawlsian analysis,resources,as in Dworkin's social
analysis, or real income. According to Sen these variables are concerned
with the instrumentsfor achieving well-being and other ends.They can be
consideredas meansto freedom. In contrast to this functionings belong to
Capability is the freedom to pursue
the constitutive elementsof__well-being.
theseconstitutiveelements."

5.3 The Concept of Functioning

,_Sen points out that the concept of functioning has Aristotelian
roots.)ÓAccording to Sen living may be seen as consisting of a set of
interrelated functionings, consisting of being and doings. A person's
achievementcan be consideredas the vector of his functionings. Sen argues
that functionings are constitutive of a person'sbeing. Thus, an evaluationof
well-being has to take the form of an assessmentof these constituent
elements.Functioningsreflect the various things a person may value doing
or being. Capability is the freedom to choose and achieve the different
functioningsthat a personhas reasonto value. The valued functionings may
vary from elementary ones to very complex activities or states. Being
adequatelynourished is a functioning. Likewise being able to take part in
the life of the community and having self-respect, avoiding escapable
morbidity and premature-_mortality,being in good health, e/c are some
examplesof functionings.t'
Both capability and functioning give two different types of
information. Functioning shows the things a person does, and capability is
about the things a person is substantivelyfree to do. Sen arguesthat this
freedom basedapproachcan take into accountthe utilitarianism interest in
human well-being, libertarian involvement with processesof choice and the
freedom to act, and a Rawlsian focus on individual liberty and on the
resourcesneededfor substantivefreedoms.This means that the capability
approachhas a breadthand sensitivity that gives it an extensivereach.This

s5
SeeSen,Inequality Reexamined,p. 42.
s6According to Sen the philosophical basisof this approachcan be traced to the writings of
Aristotle. Sen refers to The NichomacheanEthics I,7. Aristotle's conceptsof the good
of man, and of human flourishing are especially referred by Sen. Martha Nussabum
comments that Sen's Aristotelian allusion is not clear in the development of his
conception of capability. According to her even though Sen does not express her
understanding of the Aristotelian-Marxian roots of the capability approach, this does not
mean that he disagreewith it. SeeMartha Nussbaum,Womenand Human Development:
The Capability Approach (Cambridge:CambridgeUniversity Press,2000), p. 13.
s7
SeeSen,Inequality Reexnmined,p.39.
 CHAPTER III: HUMAN RIGFTS AS GOALS 97

extensive reach is possible becausethe freedoms of the persons can be

judged through explicit referenceto outcomesand processesthat the people
havereasonto valueand seek.58

5.4 Capability and Freedom

Human capabilities constitute an important aspect of individual
freedom. Sen admits that a full accounting of individual freedom goes
beyond the capabilitiesof personalliving and pays attentionto the person's
other objectives. A personmay have objectivesother than the pursuit of his
or her own well-being.Assessingwell-beingmay take us in one direction,
andjudging the achievementof the personin terms of his overall goals may
take us in a somewhat different direction. Judging achievementof either
kind may also differ from the evaluationof freedom to achievebecausein
spiteof having more freedom a personcan end up achievingless.se
Sen makes a fourfold classification of points in assessinghuman
advantage.This classification is basedon two distinctions. One distinction
he makesis betweenthe promotion of a person's well-being and the pursuit
of the person's overall agencygoals. Agency goals can include goals other
than the advancementof the agent'sown well-being. The seconddistinction
that he makes is between achievementand the freedom to achieve. Sen
applies this contrast to the well-being and agency aspectsof the person.
Thus, there are four different conceptsrelated to a person, namely, well-
being achievement,agency achievement,well-being freedom and agency
freedom.Thesedifferent notions are interrelatedand not identical.ou

5.5 The Agency Aspect of the Person

According to Sen there is an essentialand irreducible duality in the
conceptionof a person in ethical calculation. The person can be viewed in
terms of agencyand in terms of well-being. In the agencyaspectthe ability
to form goals, commitments, values, and so on are recognized and
respected.We can, however, also see the person in terms of his well-
being.o' The well-being aspect covers the person's achievementsand
opportunitiesin the context of his or her personal advantage.The agency
aspectgoes further and examinesachievementsand opportunitiesin terms
of other objectives and values. This can possibly go beyond the pursuit of
one's well-being.In assessingthe issuesof distributivejustice and personal
advantages,the well-being aspectis especiallyimportant. The agencyaspect
takesa wider view of the person.It valuesthe various things he would want

58SeeSen,Development
as Freedom,pp. 85-86.
t'
SeeSen, "Capability and Well-Being" inThe Quality of Life,pp. 33-35.
Ú
SeeSen, r'Capabilityand Well-Being" inThe Quality of Life,pp. 35-36.
6r
SeeAmartyaSen,Ethicsand Economics(Oxford:Blackwell, 1987),p.41.
 98 CHAPTER III; HUMAN RIGHTS AS GOALS

to happen and also the ability to form such objectives and to have them
realized.The agencyaspectpays more and completeattentionto the person
as a doer.o' The particular sphere in which tÈe person's agency iole is
especiallyimportant is the person'sown life. To this specialróte or agency
in personal life are related the conceptsof autonomy and liberty.63Sen il
againstviewing personsonly under the aspectof his own well-bèing. ..The
concept of personsin moral analysiscannot be so reducedas to attach no
intrinsic importance to thi; agency role, seeing them ultimately only in
termsof theirwell-being."ou
Both these aspectsare related in the sensethat for an integrated
personit is likely that the person'swell-being will be affectedby his agency
-weli-
1ole. Some types of agency roles can have negative impact on the
being of the person.whether the impact is positive or negative,the agency
role is in itselfimportant.ó)
_ sen distinguishestwo aspectsof agencyobjectives.The first one is
the occurrenceof those things that on" vàlueJ and one aims at achieving.
The secondaspectconcernsthe occurrenceof things that result from oneis
own efforts. Here in bringing about these results the agent has an active
role. The former can happen regardlessof one's efforts and participation.
Sen uses the expressions "realized agency success" and ;instrumental
agencysuccess"to these aspectsrggpectively.The secondaspectis related
to the notionof freedomas control.óó

5.6 The Features of the Aspect of Well-Being

The primary feature of well-being can be seen according to Sen in
termg-of how person functions in his various functionings.-HereSen
.a
considersfunctions in a broad sense.Thesefunctionings can bé activities or
statesof existence,or being. Sen mentions exampleJof activities such as
9aling,_reading,or seeing,and statesof being such as being well nourished,
being free from malaria,not being ashamedòf poverty, ,r.]sen calls the set
of. functionings a person actually achieves the functioning vector. The
primary feature-of a person's well-being is the functioning vector that
personachieves.6T
There are interpersonal variations in transforming goods into
functionings.This interpersonalvariability is important with,égaro to many

62
SeeSen,Ethicsand Economics,pp.5g-59.
63
see Amartya sen, "well-Being, Agency and Freedom: The Dewey Lectures rgg4,- The
Journal ofPhilosophy82 (19S5),pp. 186-187.
s
Sen,"Well-Being, Agency and Freedom,"p. 1g6.
65
SeeSen, "Well-Being, Agency and Freedonr,"pp. 1g6-1g7.
66
SeeSen,Inequality Reexamined,p.5g.
ó7
SeeSen,"Well-Being, Agency and Freedom,', pp. I97-19g.
 CHAPTER III: HUMAN RIGHTS
AS GOALS

policy issues.sen givestheexampre

of nutritionalachievements of menand
womenin poor countries.Interpeisonal
variation,*" ^ii"ro,
,oi confined only to
the elementaryfunctionings.ri l, ,"r"uunt
central feature of well-È'eing in ,o"iur ^'urt as welr. The
- ----è is it ."p"ùiiirv'-to
!r'v w*ycurrrry
functionings.6S "
to i i.u" varuable

between Agency and the Well-Being

:ú _"*""Distinction Aspects
The distinction does not- mean
that the person,s agency is
independent of his weil-bein!.
th"r" two aspects are distinct
interdependent.However, theseàspects but
are not identical. one is not a mere
transformationof the other. s"n
ireì", that for un i*ù,ed person, the
person'sweu-beingwirr be innu"n8J ut ilr;;;;:;;;'É
impactwill be n"eative.Thir ÀJ;;, sometimerhis
iÀut.tr,",gencyiole may reduceweil_
being.This is sorn-etimes,*. *irt, àg*,"
importanceof the agency aspect fulfilling onesobrigations.The
ias to be- Éistinguished
o' from the
i mportanceof thei mpactoíug.n"y à"'*"u_Li un-' "é''
"g.
5.8 Well-BeingFreedom
Senargues ,h:, well_being aspectof a personmustbe seenin
terms of freedomt:, as wet as achie-veme1t.
freedomis necessary _The'"on""pi.of .wer_being
to judge *rtui tino of a dear
the opportunityto qyrsuéhi"sweti--u-eing. a p"rsoi nasrn termsof
welr-being
on a person'scapabilityto havevarious'functioning freedomconcentrates
í*ìo*
corresponding welr-beingachieve*"nÀ.This concept *a to enjoythe
distinguishedfrom p9 rieeoom;;l;rJ.to of freedomis to be
rhe
"The generalideaof_therreeaomto 1g9n9vaspe* of a person.
aÀieve well_being
beingfreedom."7o canbe ca[ed welr_
w.tt-u"ing ú;;;rr""à"- r""'f"iltl"
particular.A person's acruar"weilb;ilg r,^u,intrinri; ;;;*ce. somerhingin
that for responsibre adu-rts sen says
tr," .on."piof
relevancein judging tt. oppo.tunìil, weil_being fridom hasa clear
advanrase. u personhas for pursuinghis
well-being freedóÀ is a refine;;;;;
well-beingaspectof à person,uui *rir-rr"edom ,rJ *ifrr-ent of the
is onry a specifictype of

68
See Sen, ..\Mell-Being,.Agency and Freedom,,,
analysisregardingnutritionil *-rti"ur,n"nttììnu*èàpp. 199_200. Sen arguesthat often
therelativedeprivationof womeni" uv ,vrl"-uti"Jr", uiur. It conceals
-""v poo.co.rnFies. If, however,atúention
given to rhe acrualfunctionings is
;h;;;i;y "irrr" _q women,rhe analysiswill be
improved'In socialneras,^"applarin! T:n
i;;;;" wirhourshame,,,raking parrin rhelife of
thecommunity,andotherfunctiont
@See areemphasized by Sen.
Sen,.,Well-Being, "rr"iÀ""*re
AgencyandFreedom,,,pp.
70Sen,'Well-Being, lE6_1g7.
AgencyandFreedom i, p.201.
 r00 CHAPTERIII: HUMAN RIGHTSAS C,OALS

freedom. This concept cannot reflect the person's over all freedom as an
agent.One hasto turn to the notion of agencyaspectin that context.Tl

5.9 Agency Freedom

According to Sen a person's agency freedom refers to what the
personis free to do and achievein pursuit of whatever goals or values that
person regards as important. under this agency aspect come the aims,
objectives,goals,allegiancesand obligationof the personand the person's
conceptionof the good. [n comparingthesethings with well-being freedom,
the idea of agencyfreedom is seento be more general.It is the freedom to
achievewhateverthe person as a responsibleagent thinks and decidesthat
he should achieve. since the agency aspect views personsas responsible
agents, the responsible agency of the persons must be recognized. The
person as a responsibleagent decideswhat he should achieve.There is an
open conditionality that makesthe natureof agencyfreedom quite different
from that of well-being freerlgm. However, there is need for discipline in
the matterof agencyfreedom.''
The responsible agency aspect of persons must be recognized in
moral accounting.[n moral accountingboth well-being and agencyaspects
are important.open conditionality is central to agencyfreedom.The agèncy
aspectcannot be examinedin terms of any pre-specifiedobjective as in the
caseof well-being aspectbecausewell-being freedom is seenin terms of the
freedom to achievethe specific objective through the choice of functioning
vectors.For the agencyaspectopen conditionality is important.T3

5.10 The Distinction between agency Freedom and well-Being

Freedom
The well-being aspect and the agency aspect of persons have
dissimilar roles in moral accounting.The well-being aspectis important in
assessinga person's status. The agency aspect is important in ìssessing
what a personcan do in accordancewith his or her conceptionof the good.
This may not always be to the advantageof the person.seì explains this by
an illustration of a drowning person. Sen arguesthat if you try to save thL
drowning person by breaking your current activity there is a reduction of
your well-being and your well-being freedom too is affected negatively.
saving the person is, on the other hand, an expansion of youi ugenóy
freedom. As an agent you value saving the peison more than thè lo;t
opportunity for your well-being. What Sen wants to make clear is that the
ranking of alternative opportunities from the point of view of agency need

" SeeSen,"Well-Being, Agency and Freedom," pp.203-205.

72
SeeSen, "Well-Being, Agency and Freedom,,' pp.203-204.
73
SeeSen,"Well-Being,Agency and Freedom,,,pp.2O3-204.
 CHAPTER III: HUMAN RIGHTS AS GOALS 101

not be the same as the ranking in terms of well-being. It means that

judgmentsof agencyfreedom and well-being freedom can-move
im contrary
directions.Ta
. In moral judgmentsboth the agencyaspectand well-being aspectare
important. However, they are impoftànt fór quite different reasons.This is
due to the differing perspectivesof both aspectsin regard to the person.In
the agencyaspectthe person is viewed as à doer *du judge. In the well-
being aspect the person is viewed as a beneficiary w"hoseinterests and
advantagesare to be considered. whatever the differences, both these
aspectsdemand attention. They dg so in different ways and with varying
relevance to different problems.tt The well-being àspect is especíall!
important in such mattersas social security,poverty-alleviation,removal of
gross economicinequality, and in generalin the pursuit of social justice.
It
has great importanceof its own for the analysisoÌ social inequality and the
assessment of public policy.76A person'sfreedom is valuablein aàdition to
his or her achievements.Freedom assistsachievement,and it goes beyond
the state of achievement.It has its own value. The perspectiveof freedom
can be both to the well-being aspectand thè agency aspectof the
person.'f/nlieo

5.1I Freedom: The Elements of power and Control

Sen points out two distinct elements within the idea of freedom.
They are the elementsof power and control. This is an internal plurality. In
his opinion the assessmentof freedom has to deal with this internal
plurality. The distinction between these two elements is important
to
particular issuesof freedom suchas liberry and autonomy.Ts
Freedom as power means the power to achievè chosen results. It
points to whether the person is free to achieve one outcome or another.
It
also concernswhether the choice of the person will be respectedand the
co^rrespondingthings will happen. Sen calls this element of freedom
effective power, or in short, power. This element is not really concerned
with the mechanismand proceduresof control. The person', fi""do* -uy
be assessedalso in terms.of the personis himìeH exercising o"l
over the processof choice.1lrether "ont
This element of freedom is called pócedural

7a
See Sen, "Well-Being, Agency and Freedom,,, pp. 207-20g. There
can be conflict
between agency freedom and well-being freedom. It is precisely
because of the
possibility of conflicts that the distinction between agency'freedom
and well-beins
freedom is important. SeeSen,Inequality Reexamined,pp. S:í_AZ.
75
SeeSen,"IMell-Being, Agency and Freedom,"p. 20g.
tu
SeeSen,Inequality Reexamincd,pp.TI-72.
77
SeeSen,Ethicsand Economics,pp.60-61.
7E
SeeSen,'"!Vell-Being,Agencyand Freedom ,', p.20g.
 102 CHAPTER III: HUMAN RIGHTS AS GOAI-S

control or in short,control. The successor failure ofthe personin achieving

his choice does not matter for this idea of freedom. Sen observesthat in
political philosophy the control elementof freedom has receivedthe major
attention.This is particularly true of the literature on liberty and freedom in
political philosophy. According to him over-concentrationon control tends
to producean unacceptablynarrow view of liberty and freedom.Te
The perspective"freedom as control" is seriously limited. It is not
1lways necessarythat the levers of control be directly moved by ourselves.
Many freedomstake the form of our ability to get what we value and want.
In modern society,due to its complex social organization,it is very hard for
a personto have all the levers of control over his own life. The "freedom as
control" view is concernedonly with the instrumental aspectof freedom.
Here the focus is only on the active agency of the person. The idea of
effective freedom is related to a broaderview of successas well. It may be
pointed out that the emphasis of Sen in this aspect is to insist on the
importanceof public policies in enhancingour freedom to achievevaluable
functioninss.ou
thó oirrerence between effective power and procedural control is
important in practice.According to Sen it is not always possibleto organize
a society in such a way that people can directly exercisecontrol over all
important aspectsof their personallives. There are many instancesin which
the individual has effective power but not control. Sen does not deny the
importanceof control, but his criticism is against an over concentratiónon
this aspect.According to him the power element cannot be denied in any
adequateformulation of freedom or liberty.st The notion of freedom as
effective power to achieve what one would choose is an important part of
the generalidea of freedom.82
Sen's arguments with regard to well-being freedom and agency
freedom are in the line of consequencesensitivity. His analysiscanriot bé
reconciled with consequenceindependenceapproach.Both well-being and
agencyare important. So accordingto Sen it is not believablethat a pèrson

7e
SeeSen, "ì#etl-Being, Agency and Freedom,,' pp.208-209.
80
see Sen,Inequality Reexamined,pp. G4-6s.In the caseof epidemics,a public policy thal
eliminates epidemicsis enhancingour freedom to lead the life unbutteredby èpidernics.
This life is one we would chooseto lead. Here the issue is our freedom to lead the kind
of life that we have reasonto value. It is in this sensethat the expressionslike 'Treedom
from hunger," "freedom from malaria" are used. Even though the levers of control are
not in the hands of the persons concerned,does not reduce the enhancementof theiî
effective freedom to live as they would choose.
81
see sen, "well-Being, Agency and Freedom," pp. 2ro-212. sen does not deny the
control element of freedom. He admits that it is impofant in many contexts,but it is not
the only important elementin freedom.
82
SeeSen,InequalityReexaminzd,p.69.
 CHAPTERTII:HUMAN RIGHTSAS GoALs
IO3

tng can morally evaluatehis actions without considering

,in their effects on both
theseaspectsof others.Their well-being freedomuno"ug"*"y
freedomare to
úor be consideredin the evaluative proceJs.sen holds
th"ut
tin relevant.83 are
"onr"quences
lds
5.12 The connection between Human Rights and Freedoms
not For Sen the starting point of discussionabout human
'es. rights is the
freedomsincorporatedin thó formulation of human
mt. ;gil;. Recognition of
these freedoms is important. Rights are claims.
for Thef involve claims on
others who are in a position to riake a difference.
L ÍIS Fródoms are primarily
descriptivecharacteristicsof persons.Freedom as
)m. the starting point has an
l1ryt*',uÍvantage. It gives us a motivating,uron to our own
of ngnts and lrbertles and to take a significant interest ""t"urut"
be in the freedoms of
others.o*
the Freedomscan vary in importance.This variation
ble can be seenalso in
regard to the extent to which these freedoms
can be inRuencedby social
help. In order to be part of human rights a particular
is ireeoo* must be
imp,ortant This-importancejustifies the requirement
íze that others should be
ready to pay substantialattentionto promote this
all freedom. Through
suchan inrerestand action there shouidbe the p"rriuirityìl
ich make a material
"kt;;
difference."There have to be some .thresholdionditioís'
ù€ of (i) importance
and (ii) social influenceability for a freedom
on to figure within the
interpersonaland interactive spectrumor nuÀun
ny .igt ir."#"dometimes these
threshold conditions may prevent particul*
as f.ódo-s from being an
appropriate subject matter of human^rights. All
of -their the freedoms the person
requires do not necessarily amount to being
rights. Here there is place fór discussionand fruitfuidebut". as human
"onrio".o
rn" analysesof
Ey thresholdsaccordingto sen have a significant ptu."
be in-ite discipline of
humanrights.
trd
m The rmportance of opportunity and the process
:'13 , aspects of
Freedom

. T" concept of freedom as developedby Sen involves two aspects,

namely, the processesthat allow freedom of
h u"iion, and decisions,and the
actual opportunities that people have in the context
br of their personal and
LI
social circumstances.tnadequateprocessesand
opportunities give rise to
n unfreedoms.violation. of votìng rght is an e"ampié-
of inadequateprocess.
- Absence of opportunities to^ós"ui" pr".ature
mortarity or involuntary
ri starvationis in an example of inadequìte opportunity.
Each aspecthas its
t 83
n SeeSen, 'TVell-Being, Agency and Freedorq,, pp.
215_216.
e
SeeSen, "Elementsof a Theory of Human Rights,,,
pp. 32g_329.
E5
Sen,"Elements of a Theory of Human Rights,,, pp.3Z9.
 104 CHAPTER III: HI,IMAN RIGI{TS AS C,OALS

importance, and it is necessaryto avoid limiting atten^tiononly to one

aspect. Each aspect deserve special acknowledgement.uo Sometimesthe
libertarianslimit their attention only to the processesinvolved in freedom
without worrying about the deprivations of substantiveopporhrnities.The
important issue for them is the total priority ol- rights.st The
consequentialistsmay limit their concentration only to the opportunity
aspect without taking seriously into consideration the nature of the
processesthat bring the opportunitiesabout or the actual freedom of choice
that peoplehave.
More freedomgives us more opportunity to achievethosethings that
we value and have reason to value. This aspectof freedom is concerned
with the ability to achieve.The processthrough which things happenis also
important. The procedure of free decision by the person himself is an
important requirement of freedom. These two aspectsare interdependent.
when a person values something through free choice, rather than the
achievementbeing delivered to him by someone else the process and
opportunity aspect are interrelated. Here the process aspect has a direct
bearingon the opportunity aspect.88 Both these-aspects cai figure in human
rights. The processaspectis related to freedom of choice. The opportunity
aspectis related to options with regard to actions. tmprisonment without
trial can be a subject matter against human rights as if affects the process
aspect of freedom. The denial of the opportunity of medical treatment is
also a subjectmatter againsthuman rights. sen saysthat for the opportunity
aspect of^^freedom the idea of capability
L J can rprovide
---- a very helpful
aPProach.sg

5.14 Rights are More than Negative Freedom

The considerations of well-being and agency are impossible to
reconcile with any proposal exclusive of consequencedependence.Moral
systemswhich give absolutepriority to certain constraintsrelated to rights
have some drawbacks. In such a system rights impose unrelaxàble
constraints.The constraints involve the exclusion of certain alternatives.
People have to obey these constraints, irrespective of their results. sen
thinks that at times there is good ground for violating someone'srights if
that preventseven worse consequences.Sen gives the example of violating
the rights of property and the violation of privacy. tn certîn casestheii
violation may yield better results than their fulfiiment. The violation of

86
SeeSen,Developmentas Freedom,p. 17.
E7
See Amartya Sen, Rationatity and Freedom (Massachusetts:Harvard University press,
20o2), p. 635.
88
SeeSen,Rationality an^dFreedom.p. 585.
8e
SeeSen, "Elemenrsof a Theory of Human Rights," pp.33l-332.
 CHAPTER trI: HUMAN RIGFNS AS GOALS 105

some-one'sproperty rights can, in somecases,prevent a developingfamine

and decimation. violation of pllvacy may help to prevent some one from
beingkidnapped, torhrred,etc.eu
^ well-being freedom and agency freedom can also yield straight
forward notions of rights. tn this context Sen saysthat minimal demandJof
well-being and well-being freedom are rights. For example, not to be
hungry and having the means of avoiding hunger can bJ considered AS
rights that command attention and call for support. This analysis of
freedomssuggeststhat rights are somethingpositive with regard to agency
freedom some demandscan be seen as rights. Sen refers to autonomy anà
liberty in regard to the capability to decide and choosefor one's peisonal
matters."'

5.15 The Value of Negative Freedom

considerationsof negativefreedom may limit other people's actions
yery forcefully. Immunity from interference by otherJ may help in
funhering various intrinsic goals. This may includè the enhancingof well-
being freedom and agency freedom. sen admits that much of thé force of
negative freedom and the rationale of institutional rights are due to
instrumentalconsiderations.Without denying instrumentafapproaches,it is
possible to argue that there are more intrinsic sourcesof valúe in negative
freedom.To violate a negativefreedom of someoneis a direct failure òn the
part of the personas a moral agent.If the agencyaspectof a personis given
central place in moral assessment, then this faiiurebn the part of the àgent
becomesclear. This is a failure of a responsibleagent. He-reSen consiéers
the act both on the part of the agentand ón the partóf the personaffected.e2
. Sen points out that this way of considèring basedon agency is not
limited to negative freedom. Agency failure can hàve a different form. If a
person is drowning and anotherwho happensto seethis and does nothing,
there is agency failure. Here the agent does not violate the drownin"g
person's negative freedom. The point is that he has not used his positivé
freedomto savethis person.The agencyfailure includesmore than à tailure
to respectnegative freedom. This considerationprovides some reasonsfor
intrinsic interest in negative freedom. Negative freedom does have some
intrinsic importance of its o,wn, in addition to its instrumental role in the
pursuitof positivefreedom.e3

s
SeeSen, 'TVell-Being, Agency and Freedom,,, pp.216-217.
er
SeeSen, "Well-Being, Agency and Freedom,,, pp.2l7-21g.
e
SeeSen, "Well-Being, Agency and Freedom,,, pp. Zlg-220.
e3
SeeSen,"Well-Being,Agency and Freedom,,,pp.Zl9-220.
 106 cHAprERtrr: HUMANRtcHTSASctoAr-s

6 LimÍtations of the Capability Approach

The idea of capability has considerablemerit in the assessmentof
the opportunity aspect of freedom. However, it cannot possibly deal
adequately with the process aspect of freedom. capabilitiés are
characteristicsof individual advantages.They cannot tell us enough about
the fairness or equity of the processesinvolved. They cannotlndicate
enough about the freedom of the citizens to invoke and utilize procedures
that are equitable. sen gives the example of medical care to men and
women. since women have a greater chanceto live longer than men, and
somebody argues that men should be given more medical attention than
woman for the same health problems, this would violate process equity.
This meansthat attention to the opportunity aspect,namely capabilitiès,is
not enoughfor a theory of humanrights.
"A theory of justice, or more generally an adequate theory of
normative collective choice, has to be alive both to the fairness of the
processesinvolved and to the equity and efficiency of the substantive
opportunitiesthat people
9al enjoy."") capability can provide a very helpful
perspectivein dealing with the substantiveopportunities that peóple ìan
enjoy. However, as regards the considerationJrelated to proceises, it can
hardly function as the only informational basis. While critical of Rawlsian
"primary goods" Sen.appreciatesprocess considerations,including liberty
and procedural equity, in the Rawlsian formation of justicé. Botir
_
capabilitiesand the opportunity aspectof freedom are important. They have
to be supplementedby considerationsof fair processesand the làck of
violation of the individual's right to invoke and utilize them.e6Sen gives
two casesin which a persol's capability is reducedexactly in the sameway.
when someoneviolates the liberty of a person or when through internàl
debilitation a person suffers, a person's capability may be reduc-edexactly
i1
1he same way. An adequatetheory of justice cannot really ignore tÉ
differences between the two cases. This shows that tÉ òapability
perspectiveis not entirely adequatefor a theory of justice. Sen admits thó
needto give importanceto the demandsof liberty as an additional principle
in a theory of justice. Negativefreedom has its own specialsignificànce.e?

ea
SeeSen, "Elements of a Theory of Human Rights,,' pp. 336-337.
e5
Sen,"Elementsof a Theoryof Human Rights," p.337.
e6
SeeSen, "Elements of a Theory of Human Rights," p. 33g.
e7
SeeSen,InequatityReexamined, p.87.
 CHAPTER TII: HUMAN RIGHTS AS GOAI-S 107

7 The Importance of Freedom for a Society

7.1 The ConstitutiveRole of PositiveFreedom

Freedom is intrinsically important for a good social structure. A
good society is a society of freedom. Even though Sen criticizes
libertarianismhe admits their contributionsin regardto the idea of freedom.
According to Sen Marx's political philosophy also has contributed in this
line.e8Sen views developmentas a pfocessof expandingthe real freedoms
that people enjoy. In this approachfreedom is viewed as both the primary
end and principal meansof development.Sen characterizestheseaspectsas
constitutive and instrumental of freedom in development.The substantive
freedoms include elementary capabilities such as being able to avoid
deprivations like famine and starvation, undernourishment, escapable
mórbidity, and premature mortality as well as being literate, and he
enumeratesenjoying political participation and freedom of speechin this
regard.ee
Sen considerspolitical participation and dissentconstitutive parts of
development.Participation in public debatesand decisions are aspectsof
freedom that a person has reasonto value. When a personcannot exercise
thesefreely that meansdeprivation, and the processof developmenthas to
include the removal of this person's deprivation. Political and civil rights
are part and parcel of the processof development. Sen considersfreedom
as an end of development.Freedomof different kinds has an instrumental
role too in as much as it promotes human freedom, but the intrinsic
importance of human freedom has to be distinguished from this
instrumentaleffectiveness.

7.2 The Instrumental Role of Human Freedom

Human freedom has an instrumental role. There is a constitutive
linkage betweenfreedom and development.The effectivenessof freedom as
an instrument lies, however, in the fact that different kinds of freedomsare
interrelated and freedom of one type may help in advancing freedom of
other types. Sen mentionsfive distinct types of instrumentalfreedom.They
are, namely, political freedoms, economic facilities, social opportunities,
transpa.rencyguarantees and protective security. [n Sen's view these
instrumental freedoms link up with each other and with the ends of
enhancementof human freedom in general. They help to advance the
general capability of a person. This link between freedoms of different
kinds with each other is qualified as empirical connections. These
connectionsare central to a fuller understandingof the instrumentalrole of

e8SeeSen,InequalityReemmined,p.4I
e
SeeSen,Developmentas Freedom,p.36.
 108 CHAPTER III: HI'MAN RIGHTS AS GOALS

freedom. Sen considers freedom as not only the primary object of

developmentbut also as its^principal means. This ionception-relates
particularlyto theselinkages.'"

7.2.1 Political Freedoms

_ when speakingof political freedomssen speaksof civil rights.
under this aspectcome the rights of the people for political participalion,
the right to determinewho should govern and the principles of goueitance,
the possibility to scrutinizeand cnticize authorities"the freedom of political
expression and an uncensored press, the freedom to choose 6etween
different political parties, etc. political freedoms include the political
entitlementsassociatedwith democraciesin the broadestsense.Votins
rights,political dialogue,dissentandcritique,etc aÍerelevanthere.l0l

7.2.2 Economic Facilities

under this heading come various opportunitiesthat people have to
utilize economicresourcesfor the purposeof consumptionoi pròduction or
exchange.Here Sen considersthe resourcesavailablè, the pàces, and the
working of markets.As the processof economicdevelopmeit increasesthe
income and wealth of a country, they enhancethe economicentitlementsof
the population. Sen takes into account distributional considerations in
regardto national income and wealth. personsas economic agentsare to be
ableto secureeconomicentitlements.lo2

7.2.3 Social Opportunities

The arrangementsof a society for education, health care, etc
influence the individual's substantivefreedom to live a good life. These
facilities are important both for private lives as well foi more effective
participationof individualsin economicand political activities.Sen gives
the example of illiteracy. An illiterate person cannot actively participite in
economic activities which require a high quality of production. He iannot
participatein political.activitiesactivelybecausehe cànnotreadnewspapers
or corrrmunicate in writing.'"

7.2.4 Transparency Guarantees

society operateson.some basic presumptionsof trust. Transparency
guaranteesdeal with social interactions. This involves a category oi

100
SeeSen,Developmentas Freedom,pp.37-3g.
r01
SeeSen,Developmentas Freedom,p.3g.
102
SeeSen,Developmentas Freedom,pp.3g-39.
r03
SeeSen,Developmentas Freedom,p.39.
 CHAPTER III: HUMAN RIGHTS AS GOALS 109

instrumental freedoms.They deal with the need for openness,namely the

freedom to deal with one another under guaranteei of disclosure-and
lucidity. when that trust is violated, it may affect adversely the lives of
many people. In preventing corruption, financial irresponsibility,
- and
underhanddealingstheseguaranteesare very important.lM

7.2.5 Protective Security

It is possible that in a society, even where the economic system
operatesvery well, some persons can be vulnerable. They can easily be
subject to great deprivation as a result of material changeswhich have
adverseeffects on their lives. Protectivesecurity is neededó provide social
security for thesepeople. This can prevent their being reducédto hopeless
desolation,which can in some caseslead to under nourishmentand àeath.
Institutional arrangementssuch as unemployment benefits and statutory
rncome arrangements
- such as famine relief, etc are included in this
category.lo5
These instrumental freedoms directry enhance the capabitities of
peop.leand they supplementone another. They reinforce one another. In
considering development policies these interlinkages are important.
Economic growth can make for growth in private incomes, but it can also
help to make it possible for the stateto finànce social insuranceand active
public intervention. An expansion of social services is also a criterion to
judge
_economicprogress. similarly the creation of social opportunities
through services such as public education,health care,etc caniontribute
both to economic development,to significant reductionsin mortality rates,
and other social developments.sen points out a significant linkage bltween
political liberty and civil rights on the one hand and the avoidance of
economic disasterson the other hand. According to Sen famine does not
occur in democracies. A country however pooi it is can prevent famine
through various mear,rs. A country with a democraticsystemof government
and a free media has strong political incentives io undertake famine
prevention' This indicatesthat political freedom in the form of democratic
arrangementshelps to safeguardeconomic freedom and the freedom to
survive. [n a perspective of developmentin which freedom is placed in
centrestagepeople areseen as active agentsshapingtheir own desiiny. The
-rolé
state and the society have here supporting in strengtheningand
.a
safeguardi ng humancapabilities.Iuó

re
SeeSen,Developmentas Freedom,pp. 39-40.
r05
SeeSen,Developmentas Freedom,p. 40.
rffi
SeeSen,Developmentas Freedom, pp. 40-52.
 ll0 CHAPTERtrI: HUMAN RIGHTSAS C,OALS

8 Poverty as a Central Issue in Human Rights

According to sen empirical argumentsare quite central to moral
philosophy. In his presentationof capability and freedom sen examines
particularly famines and hunger. Sen shows that many famines occur
without any decline in the availability of food. He gives as an exÍrmplethe
Gleat Bengal famine of 1943, in which three miÍlion people died, even
when there was considerablefood availability. The Bangladeshfamine of
1974took place in a year of great availability of food. Histausal analysisof
famines points out the failure of public policies of prevention. These
policies include strengtheningthe entitleménts of the vulnerable groups.
Some of thesepolicies may require violation of the property rights or mòre
prosperousgroups.sen arguesthat here property rights ate to be considered
as instrumental. This violation is justified on the basis of favourable
consequences. Here he applieshis view of rights as goals.lm

8.1 The Right Not to be Hungry

The crucial point in analyzing hunger is the substantivefreedom of
the individual and the family to establish ownership over an adequate
amount of food. A person may be forced to starvation even when there is
plenty of food around. on the other side, even when the food supply falls
everybody can be saved by a better sharing of the available food. Here
governmentpolicies have a crucial role to play. Many threateningfamines
have been-preventedthrough a more equal iharing of the reducedlomestic
supply.lo8
_ According to sen the discussion about this right is a recent
phenomenon.There is much scepticism in treating it as i true right. This
cynicism does not reveal the practical affairs of the world. It is a réfusal to
investigate the existence of rights that are not guaranteedby existing
institutional arrangements.The assertionof this right is primariiy u *oru'i
claim as to what should be valued and the institutionaÎ structures to be
gmed at. This right can be placed in the category of backgroundrights.lOe
Sen points to the existence of the right to an adequatelivelihood in the
constitution of India and says that it can be argued that the general
acceptanceof freedom from hunger as a major goal has played an important
role. in preventing famines in independeni tndia. The^recognition of the
intrinsic moral importanceof this right has helped as politicafinstrument in
India to avoid famines. This has triggered a public policy of intervention

tot
Amartya Sen, "Property and Hunger," Economicsan^dphilosopfty a (l9gg),
1"" w. 62-
64.
108
See Sen,Developmentas Freedom,pp.l60-161.
ton
See Sen,"Property and Hunger,,'p. 64.
 (IIAPIER m: HUMAN RIGHTSAS C'OALS 111

and relief to help potential victims. At the same time Sen points out that
undernourishmenthasnot beenpreventedin India.110

8.2 Povertyas Capability Deprivation

Sen considers poverty to be the deprivation of basic capabilities
rather than merely a lowness of incomes."'"If poverty is seen as the
deprivation of some minimum fulfilment of elementary capabilities, it
becomeseasier to understandwhy poverty has an absolute and a relative
aspect."ll2In consideringthis Sentakes into accountthe age of the person,
genderand social roles, location and circumstances,etc. The difficulties in
regardto taking part in the life of the community are also emphasized.In an
affluent country the requirements for this participation are different from a
less affluent country. This imposesstrains on a relatively poor person in a
rich country, who has a comparativelyhigher level of income than peoplein
the poor countries. [n poverty analysis the capability perspectivehelps to
enhance the understanding of the nature and causes of poverty and
deprivation by shifting primary attention away from mg+lts to ends. Here
endsmeanthe freedomsthat peoplehavereasonto value."'
Though the perspectivesof seeingpoverty as capability deprivation
and as lowness of income are distinct, they are related. Sen points out that
when there is capability improvement,there can be expansionof a person's
productivity and the capacity to earn a higher income. There is a connection
betweencapability improvement and greater earning power. However, the
understandingof poverty and deprivation should be in terms of lives that
people can actually live and the freedomsthey actually have. Here one sees
the importance of the expansion of human capabilities. Capability
improvement is beneficial both directly and indirectly in enriching human
lives and in making human deprivationsrarer and less acute.'
In his description of poverty Sen discussessome types of poverty
which do not have direct connection with income poverty. A person with
high income but no political participation is poor in terms of an important
freedom.A personwho is richer than most othersbut suffers from an illness
very expensiveto treat is also a deprived person. Here one seesalso the

tlo SeeSen, "Property and Hunger," p. 66.

trr See Sen, "Capability and Well-Being" in The
Quality of Ltfe, p. 41. Here Sen refers to
the term "basic capabilities". Capability approachis not confined to basic capabilities.
This expression means the ability to satisfy certain crucially important functionings up to
a minimum level which is adequate. This has value in considering poverfy as a
deprivation of capabilities.
"' Sen,Inequatity Reemmined,p.9.
rr3SeeSen,Developmentas Freedam,pp. 88-92.
Ito SeeSen,Developmentas Freedom, pp.9I-92

I
 lt2 CHAPTER TII: HUMAN RIGHTS AS GOALS

aspect of unemployment. sen considers this an instance of capability

deprivation. Sen considersunemploymentnot merely in terms of income
poverty. unemployment may result in psychological harm, loss of work
motivation, social exclusion, accentuation of racial tensions, atc. Sen
examines the approach to unemployment in western Europe and in the
United States.He studies the inequality that exists in health care between
the different racial groups in the united States.According to Sen African
Americansin this regard are decidedly poorer than American whites. They
have more prematuremortality ratesthan people who have lesserincome in
some third world countries. All this shows that the shift from income
poverty to the basic capabilitiescan enrich our perspectiveson poverty and
inequality in quite radical ways. sen examinesthe natureof poverty in India
and in sub-saharan Africa. He takes into account problems such as
mortality, illiteracy, undernourishment,and gender inequality. Sen points
out that thesefocal featuresof deprivation bring out some striking failures
and somecrucialpolicy issuesthaidemandimmédiateattention.lls-
_ sen's approachhas effects on economic policies. lvhen poverty is
considered under the aspect of capability deprivation, issues suctr as
unemployment,ill health, lack of education,and social exclusion become
important. The respectiveroles of personalheterogeneities,environmental
diversities, variations in social climate, differences in relational
perspectives,and distributionswithin the family have to be consideredwhen
Ttrng. public policy. sen also points out the importance of public
discussionand social participation in the making of policy in a demócratic
framework. Public participation in these debates is a crucial part of the
exerciseof democracy and responsiblesocial choice. There is no escape
from the needof public evaluationin mattersof public judgement.politicìl
liberties and civil rights are crucial parts of the exerciseof economicpolicy
making.ll6

Conclusion
In this chapterwe have tried to examinethe framework under which
sen explains human rights, namely, the capability approach. Rights are
viewed in this approachas rights to capabilities. This way of coniid".ing
them makes their realm wider than considering them as ielation betweei
two parties. His criticisms of utilitarianism and libertarianism show the
advantagesof his approach.While appreciativeof Rawls he is critical of his
neglect of economig and social rights. His study on famine and poverty
shows that the capability approachcan give a very clear analysis òf sucir

tts
SeeSen,Developmentas Freedom, pp.93-IO7.
r16
SeeSen,Developmentas Freedom,pp.108-110.
 cHAPTERIII: HUMAN RIGTITSAS C,0ALS
I 13

iliry'- deprivations.This chapter shows that

the inclusion of human rights in his
Dme capability approachis à result of a gradual
developm"* his thought.
rork dignified human
..-A life ir"un, that a^p"rron"r shourd have the
Sen capabilities to lead the kind of life he
has ."*ron to value. Importance is
the given to the positive role of human
freedom,and this is very relevantto the
/een treatment of universal human rights.
we have examined the reration
ican betweenrights and capabiliries.ca;;ifity
approachis basedon freedom.Ir
he1' is not basedon dependency.Thus,lot
onty the opportunityaspectbut arso
ein the processaspecfis involved. preedom
í, not i;giÉ-;"od forrune.The
xne rreedomto rive a.dirferenttype or rire
i;,"fl;;;;ìí'ri"'.upubirity aspect.
and Non-interference is not suffióienttoilreeaom in slnr, ;i;*.
tdia from his treatmentof capability to function This is evident
in determining the quality of a
as person's life. Here freedom is nor
dependent,p"; À;;;od wil of some
ins superiorpower but on the choice of the person.
ues We have .:"1:h1 the capabilityapproach
is a pluratisticapproach.
It has elementsof consequentiaiism,
à.oniorogy,*oiur*rar sensitivity.
lis sen arguesfor a broad consequentiaiirt
upp.ou"t to human rights. This has
as merits and demerits. rhe mect i,
tt it it takes inìo' ac"ount resurts.
)fn€ Functioning makes a persor's being.
rnis uroJfonsffintialism includes
úal some important deontologicar
too. approach is consequence
oal sensitive. It is not utilih;an, no.
"onc"-, l{i9
out-"o*e inoepèno"ni. r" his approach
h rights have intrinsic and instrumentalìUue.
tlic The humanpersonis viewed from the
well-being and agencyaspect.
ric Thehumanperson is a doer,
tu be veryhelpfulespeciarly T "út;-h" "nà"ràr"*a"alis.rnis viewcan
wtr"nirr"-ttrinkof undsociar
|pe Herepositiveaction,from- ""ono-i"role. The userights.
the.societyhasan important
crl term"humanperson"is veryimportintbecausert of the
icy t u ri"t-.oncept.Human
is
{yr1tv
rmportant r iln11unt nótion anJ ptu.at inror*uiionli basisis anorher
notionin thisapproach.
Sen'sthinkinghaiìontributedmuchto the
development."Freedomfrom nungel i.J;;;iilffiil. emergence of a right to
epidemics"-these freedom from
icù
rc pòhcie,,-",kJ;;;H::L::'*T',"x?litffi,Í,,H,i'f ;J;,Hr,Jilt
13 conceptionof broad consequentialism.
poverty and hunger
this approach.His s.rudy.on are incrudedin
EI pou"rty il'ituri;;ri""
new way of thinking. He provides This is a
b ";i'i"n"rìgnrrur.
a rigft uaseJ-^ffiacn
eradication.He emphàsizesa personi, ro poverty
fr ou"*rl commanéfìer trrings,taking
rù note of all rerevantrighls and obtigations.
His studiesàr, rà*n" show the
ct relevanceof this approach.
sen pointsbut
-the rimitationof the capabirityapproach.A furl
accounting of human freedom goes beyond capabilities. There
agency goals, but human capa6ihties are other
constitute,an important aspect of
freedom. wh'e criticizing nui"i,
sìi"is appreciativeof tire positive points
of his approach.The Raùrsian theory
orjustice ;u";; ilir", adequatery
 ll4 cHAprER III: HLTMANRrcrrrs AS @AIs

the problem of those in extremedeprivation.It can answerthe questionsof

human rights in societies relatively advancedin social development.The
capability approach does not replace a rights based approach but
complementsit. Many cnticize the languageof rights as western, but this is
not so strong a criticism as it appearsto be. The languageof capabilitiescan
overcome cultural barriers. on the other hand, an advantageof rights
languageis that it can make the claim more urgent and sharp.
when we appreciatethe capability approachto human rights some
doubts may arise, for example, a6out the measureof control is regards
Tghts to capabilitiesand what is the natureof responsibilityof the perón to
the_community. Sen expresseshis thought here by *uy br respectingthe
rights of others and the prevention of t6eir violatión. This tenninoloiy is,
however, not strong enough to emphasize the duties of human p"iront
towards the community. Another point to be noted is that we see an over-
emphasison freedom which may give rise to a too individualistic notion of
freedom. Freedom as presented by sen is a concept which requires
hierarchical treatment for a just society. Not all freedoms are équal.
otherwise the freedomof a rich personto pursuehis industrial goals *uy oo
harm to the life of many poor people.This is a dangerto be avoìded.
_ ._Anotherpoint of ambiguity is that sen does not specify the central
capabilities. This may make the capability approachvague. s-enattributes
ambiguitiesin the conceptionof capabilities6 ambiguitiesin the conceptof
freedom. sen's capability approaòhis not withoul critics. charles Éeitz
criticizes Sen for an exclusion of a criterion of normality. Not all
capabilities stand on the samefooting. When we comparetwo óapabilities
there should be a criterion for ordering capabilitiej according to their
significance. For example, the capacity to move about has a different
significanc.e-than the capacity to play. Béitz observesthat sen is not clear at
this point.117

117
see charles R. Beitz, "Amartya Sen's Resources,values and Development,,'Economics
and Philosophy 2 (1986), pp.283-29O.Beitz thinks that Sen facesa ditemma in regard to
the concept of functioning as it can be interpreted either absolutely or relatively. An
absoluteinterpretationrefers to a list ofessential capabilities.A relativistic interpretation
refers to functioning according to ones' conception of the good. This approach
would
make sometimesunreasonabledemandson community frori ttre part of a person.
With
regard to absolutefunctionings the problem is that noi all functioìings are
of the same
natule, for example some are related to biological survival and some ùe retated
to social
relations' In regard to social functions they must be explained either by reference
to an
objective conception of human good or to a standard expectation in a society.
This
meansthat there is need for a criterion of normality relative to societies,and
sometimes
relative to individuals. According to Beitz the exclusion of a criterion of normality
is
incorrect becauseinterpersonalcapability comparisonswill require a list of
capabiliiies
and a mechanismfor arriving at an overall index foia person.The derivation
of this index requires referenceto norms that "upàUlity
are to some extent relative to societies.or
 CHAPTER III: HUMAN RIGTTTS AS C'OALS r15

A further demerit that can be pointed out here is that the value of the
dignity of human life, in the face of issues such as abortion, euthanasia,
stóm óeI research,etc, is not properly asserted.This approachcannot give
answersto theseethical issues.In theseissuesthe functionings as Sen has
usedcannotbe applied.In Sen the ethical value of the humanpersoncannot
be protected propèrly. It is due to his viewing man as a being separatedfrom
supernaturalends.The concept of the human person emerging from Sen is
not a theistic conceptionwith orientation to supernaturalends. In a secular
context there are advantagesto this, but while individual autonomyplays an
important role in Sen moral voices of society are not given adequate
attention.

perhaps to individuals. However, Beitz appreciates the usefulness of the capability

approachin the study ofpoverty, living standard,and so on.
 Chapter IV

TIIE DEFENCE OF I{UMAN RIGHTS IN SOCMTY

Introduction
In this chapterour attempt is to find out how Sen defendsuniversal
human rights in the face of various criticisms. The main conceptswe are
going to discussare the nature of obligation in regard to human rights, the
main criticisms against human rights, the role of public reasoning in the
promotion of human rights, advancing the cause of human rights, the
importance of democracy for the promotion of human rights, and the
relevanceof individual freedom as social commitment. In all these issues
the flow of Sen's thought is from the basic assumptionthat humanrights are
ethical demands.
Human rights make claims on individuals, collectivities, and the
design of social arrangements.[n order to make clear the nature of
obligationsin regardto human rights, Seninvokes the Kantian distinction of
perfect and imperfect obligations,and he showsthat both theseconceptsare
relevantin the caseof human rights. He emphasizesthe idea of reasonable
consideration.This makes anyone in a relevant position responsible for
helping. This approach can accommodaterights which do not have a
correspondingagent with obligation to fulfil. He evaluatessomeprominent
criticisms against human rights and then tries to give his responses.The
main criticisms confrontedby Sen are the legitimacy critique, the coherence
critique, and the cultural critique.
To support his argument that the idea of human rights is not
exclusively Western he searchesdifferent cultural traditions outside of the
West and tries to find in different cultural traditions and practiceselements
of conceptssuch as tolerance,freedom,respectfor human dignity, concern
for the poor, governmentresponsibility,etc.He is againstdividing humanity
into dominant systems of classification such as Western civilization, the
Islamic world, Buddhist civilization and the like. This type of division is
much sharperthan the universe of plural and diverse categoizations that
the world in which we actually live. The above mentioned division
a seriousthreat to human rights. Sen shows that plural diversity can
a greatunifier, but a systemof tight divisions cannot.
Public reasoninghas an important role in the formulation and use of
rights. Public reasoning is not limited to the boundaries of a
icular society. He takes into accountideas from John Rawls and Adam
. sen refersto the Rawlsianconceptof public reasoningand its role in
objectivity in regard to the viability of human rights. However, for
in contrast to Rawls, the domain of public discussionin the case of
rights is not limited to a given society only. In contrast to this
ian limitation sen argueslike Adam smith for views from a certain
 118 CHAPTER IV: THE DEFENCE OF HIIMAN RIGFTS IN SOCIETY

distance.According to Adam smith the view from a certain distancehelps

to survey and judge our own sentimentsand motives. Sen thinks that cross
cultural values are to be given importance. For advancing the cause of
human rights he points out the role played by recognition, agitation, and
legislation.
Sen gives political freedoms and democracypre-eminent roles. He
strongly argues for a democratic form of government. He considers the
prevalence of democracy as the greatest development of the twentieth
century. His appreciation for democracy is not unqualified. Democracy
should protect liberties and freedoms. He argues that democracy is a
universal value. sen disagreeswith the claims that liberal democracy is
incompatible with Asian cultural traditions. He does not accept the often
heardnotion that non-democraticsystemscan be more effective in bringing
about economic growth. He questions the role of authoritarianism as a
promoterof economic growth. on the other hand, he showsthat democracy
and human rights promote human development and security. They can
reducemajor social and economicdisasterssuch as famine.
The social dimensionof individual responsibilityis emphasized.A
sharedhumanity is the ground for this responsibility. However, individual
responsibilityhas relation to social and environmentalcircumstances.Thus,
a person is empowered by education, nutrition, health care, political and
civil participation,etc to exercisehis responsibility.An acceptablesociety is
a responsiblesociety.

I Rights and Obligations

The questionof obligation is an important issue in regard to human
rights. It is in his broad consequentialframework that Sen presents the
correspondencebetween rights and obligations. According to him in a
standardconcept of rights there are two aspects.First, there is the freedom
of the right holder to do certain things or achieve someconditions. Second,
there is the demandof some obligation on the part of others to help in the
realizationof this freedom of the right holder. This obligation can be in the
form of non-interferenceor of positive assistance.He illustrates this point.
supposethat person A has a right not to be assaulted.This right conìerns
both the freedom of A to avoid being assaultedand the obligation of others
not to assaultA. There is also the obligation for others to try to prevent a
third person from assaultingA. If B tries to assaultA it is a non-fulfillment
of B's duties and a violation of A's right. In the broad consequential
framework both the realization and the non-realization of subitantial
freedomsas well as taking adequateaccountor not taking - adequateaccount
of obligationscan figure in ethicalaccounting.I

'
See Amartya Sen, "Consequential Evaluation and Practical Reason," The Journal of
Philosophy97 (2000), pp.492-493.
 CHAPTERIV: THE DEFENCEOF HUMAN RIGFITSIN SOCIETY Ir9

Sen points out that the inclusion of the fulfillment of rights and of
correlatedduties within a consequentialframework differ both from a rights
independent consequentialevaluation and from a rights inclusive non-
consèquential procèdure. Sen has here in mind the ideologies of
utilitarianism and libertarianism. Utilitarianism is an example of a rights-
independentconsequentialevaluation. On the other hand, libertarianism is
an example of a rights inclusive non-consequential procedure. In
utilitarianism there is no importancefor the realization of freedomsor the
fulfillment of rights or duties. They may be valued instrumentally for the
utilities they may promote. In libertarianism rights are viewed as
consffaints.Rights expresswhat others are not permitted to do. If someone
violates a constraint, it is wrong. Libertarians do not say anything about
what should be done positively. When there is violation or non-fulfillment
of rights, in contrast to both these approaches,a broad consequential
evaluationthat takesinto accountfreedoms,rights and obligations,and their
violations, argues that bad things have happened precisely because
someone'sfreedom has been violated and some duties and rights are not
tulfilled.2

1.1 The Idea of ReasonableConsideration

Obligation is related to the very idea of human rights. For Sen
human rights are rights that individuals are supposedto have by their very
statusas human beings.The valuation of theserights includesthe relevance
of the freedoms attachedto these rights and the responsibility that others
have to help a personto attain thesefreedoms.

Sincefieedomsare important,peoplehavereasonto ask what they

should do to help each other in defendingor promoting their
respectivefreedoms.Since violation or non-realization,of the
freedomsunderlyingsignificantrightsare,in this evaluativesystem,
badthingsto happen,evenotherswho arenot themselves responsible
for causingthe violation have a good reasonto considerwhat they
shoulddo to help.'

Becausehuman rights are rights which personshave irrespectiveof

citizenship,nationality and other denominations,the obligation to help also
surpassestheselimits. As a natural developmentof this idea of humanright,
responsibility also surpasses these limits. Sen extends the realm of
obligation to third parties too. Anyone who is in a suitableposition to help
is responsiblein regardto human rights. Sometimesthe agentand the extent
of obligation is not specified. In a reasonable situation a responsible

2 'ConsequentialEvaluation and Practical Reason,"pp.493-494.

SeeSen,
3
Sen, "Elementsof a Theory of Human Rights," p. 338.
120 CHAPTERTV:TFIEDEFENCEOF HTJMANRIGHTSIN SOCIETY

consequentevaluating agent is to consider his general duty to help. Sen's

point is that if others can help, then there is a responsibility that goes with
that." Freedomsare important. Therefore, people have reasonto ask what
they should do to help each other in the defense or promotion of their
respectivefreedoms.Violations or non-realizationsof human rights are bad
things. Thus, even those who are not responsiblefor causingthe violation
have good reasonto help in a way they can.
Sen arguesthat one has a duty to give reasonableconsiderationto
many different types of actions in regard to human rights. However, this
does not mean that one may carry out the totality of all those actions.
Obligation in the context of human rights need not always be absolute.
Here, it may be observed that Sen wants to defend the inclusion of
economic and social rights by emphasizing this type of obligation. His
supportof the aspectof reasonableconsiderationmeansthat there is a need
for the evaluation of priorities and for discrimination in the obligation to
give reasonableconsiderationthat may be followed up. The choice of action
must be basedupon these aspects.This method of assessingobligation is
different from absolute obligations to undertake an action irrespective of
other values and considerationsthat the agent has. One has a duty to give
reasonableconsiderationto what one can reasonablydo for the protection
and promotion of the human rights and the underlying significant freedom
of others.The demandsof reasonableconsiderationmay vary dependipgon
the many parametersrelevant to the person's practical reasoning.t Sen
views consequentialevaluation as a discipline of responsiblechoice based
on the chooser's evaluation of states of affairs. All the relevant
consequencesare viewed in the light of the circumstancesof that choice.
This sùowsthat it shouldbe a responsibleevaluation.6
The agency role of the person has an active part to play in the
executionof responsibility.Here the personhas to exercisehis judgment. tn
his evaluationthe agencyrole is active. The person has to make a judgment
taking into considerationthe importance of the freedoms and the rights in
questioncomparedwith other claims on the person's possibleactions.Here
come into considerationother rights and freedomsand the various concerns
that the personmay reasonablyhave. Regardingthe natureof the action Sen
goesinto detail. The personcan act alone or in conjunction with others. He
is to decidethe extent to which he can act and make a differencein the case
in question. He has to take into considerationthe supportive actions that
other agents can be expected to perform and the appropriateiressof this
sharing of obligations. In great many casesthis detailed reflection is not
needed.What is neededin many casesis a willingness to do this scrutiny if

o
SeeSen, "ConsequentialEvaluation and Practical Reason,"p.493-494.
5
SeeSen,"Elements of a Theory of Human Rights," p. 339.
6 SeeSen,"ConsequentialEvaluation and Practical Reason,"p.477.
 CHAPTERry: THE DEFENCEOF HIIMAN
RIGFNSIN SOCIETY r2l
it seemsrelevant The demandsof responsibility cail
[r. Sen's -
Td .upp..opnate.j for
as with
agent-sensitiveevaluation.E
The point emphasized is that
sk what of obrigations in
of their
relation t9
$e rightf and freedoms oflhe-_recognition
ail truian
-b-a-Jc
consideredalwavs as absolute demands-.,The Liig, need nor be
i are bad g"";."r obhgation is
that one must be to lo"rioà. seriously *dt d;';ìrould
violation -relevant
ryilling reasonabry
do, taking note of the parametersof the casesinvolved.,,e
questionis a begin-ningof an ethical Thi.s
nationto rlasoning, uno iil, oifferent from
assumptionthat if I have not actually the
rrr, this harmedà p"rron ioo not have a duty
to that person. with this r"asoninfinerg
actions. are serious exercisesof practical
reasoningto be und.ertaken. This"practicarreasonirr;r;,
ùsolute. to understand
one'svariousobrigatrons in an expricitor impricitf;;."-''
rsion of
ion. His 1.2 Imperfect Obligations
s a need
ption to Recognitionof.human rights is an acknowledgement
:^ rn
rs :_ that if someone
rf action a suitable condition to óo something
violation of a humanright then on" preventing the
gationis "rr""fiu"^lr.
oo"i have the obligation
the obligation*tl:"::*:_^tt.r1 to do that. Here
rctive of of wtì?r is
'" caned
vi imperrect
r to glve obligation. Sen makesreterenceto :"tiory
Immanúelîu;;.td'
The Kantian rcategorical imperative
totection states that ..act only on that
maxim throughwhich you can at the
freedom sametime
universal law."rr The categoricalimperative wiil ttrai itìrrourd becomea
rdine on requiresus to treat others with
,.act
tg.' Sen ]mpartlal respect. It meani that in
r based
t'*uoitv, *î"tr,",invou.
own personfltl";lJrJTrAl
televant :. time asun àa.; Kant
simplyasa means,bui arwayrqt^tnàru-"
"illlt":T3l
distinctionin regard p".r*t
to duties.ri makesa
r choice. duties *" auii", which can be

y in the '
See Sen,"Elements of a Theory of
ment. In Human Rights,,,p. 340.
8
SeeSen, 'ConsequentialEvaluation
dgment and practìcal Reason,,,p.4gg.
e
rigùs in Sen, "Elementsof a Theory of Human
r0 Rights,,,p. 340.
m- Herc See Sen, "consequentiarEvaluation
and practical Reason,,,p.495.Sen
xxloerns Immanuel Kant, Critique of practical refers to
n"^oi.
tt
lion Sen K-t, Groundwork of the Metaphysics
t2 of Morals, p. gg.
bers. He Kant, Groundwork of the Metaphysics
of Morals, p. 96.
tbe case 13
In the Groundwork of the Maanhylics
of the Moralsthere is a fourfold
ms that duties; between dutles to oneself classification of
and duties to- others, between perfect
r of this imperfecr duries' See Grlundwork duties and
if ,ii un"4\tsigs of Morars, pp.
duties are proscriprions of specific 89-90. perfecr
pduties
n is not aíti"r. rr,* urLuonJi#;;;
blameworthy. The imperfect duries are morary
nriny if u,"p."r"iption, of g*n"ri
-o fulfilling them
rs prarseworthy.It is often clear whar
a perfect àury p.oníuit" onJrrìoiooing.
""0,
of imperfect duriesonefrar."t".|ragiriir"g.qrlg In the case
"Kant,Immanuel" tt" g*"J"nd. seepaurGuyer,
in o{
l,"r*!f" .b:;,g;;i;;";à
Alten w' wood, Kant'sE:h.:*t rnLiiíi7èi:bridge:llitosophy,vol. 5, p.le0. Seealso
1999)'pp' 324-325' cambridgeúniversirypress,
Theprohibitionor rui"iè is a perfectdutyto oneserf. prohibirion
deceitfulpromises
is a perfectdutyto-ot-he-rs. of
'.À" curtivatíon ;i;;",, rarentsis an
122 cHAPTERIV: THE DEFENCEoF HUMAN RIGgrs IN socIETY

observedby eachtowards all others.Kant said that a perfect duty allows.no

exceptionin the interestof inclination. Imperfect duties are thoseof helping
others in need or developing one's own ialents. They cannot be observed
towardsall others.Nobod^yii in a position to help all others.The distinction
betweenperfect and imperfect duties may be that the distinction is between
duties owed to particular individuals and duties that are not owed to anyone
but only which concerns them. Perfect duties are often associatedwith,
stringent, negative duties..and imperfect duties are associatedwith less
strinlent, politiu" duties.raln Crltique, of Practical Reason we find the
moAilty oi perfect and imperfect duty.l5 A perfect duty is an act that can be
directly coÀmanded or óne whose maxim reqlires a certain act. An
imperlect duty is one in which there can be applied exceptions.This is to
avóid confliiting with another mo141 rule. Moral duties are always
imperfect,
^ and lelal duties are perfect.l6
Sen appliés this Kantian distinction to the area of universal human
rights. Imperfèct obligations are ethical requirementsthal stretch beyond
fu"lly delineated duties, namely, the perfect obligations. Imperfect
obdgations involve the demand that serious consideration be given by
anyònewho is in a suitableposition to provide reasonable-helpto a person
*úor" human right is threatened.Sen points out the difference between
imperfect obligatlons and perfect obligati,onsin regardt9 hqman rights. The
imperfect obligations corrèlateto the recognition of rights-in the same way
as fully tp""ifi"d perfect obligations do. The general_correspondence
betweenrlgtrts and óbtigations apply in the sameway both to imperfect as

imperfect duty to oneself. Benevolenceis an imperfect duty to others'_SeeGroun'dwork

of-the Metaphysics of Morals, pp.96-98. In Metaphysics of M?mls. Kant works out a
detailed desòriptionof duties basedon the schemein the Groundwork. Ttte distinction is
that duties ofjustice are duties that can be enforced by coercion and duties of virtue are
those duties which are not subject of coercion. Only a limited number of duties are
duties of justice, and the majority of our moral duties are duties of virtue. They are not
appropriatesubjectsof legal coercion. Duties of virtue are duties to promote one's own
pà.feótion and itre happinessof others. There are ethical duties to oneself and ethical
àuties to others. Ethicai duties to oneselfinclude the prohibition of injury to the physical
and mental basesof free agencyand the prescription of efforts to improve the exerciseof
one's freedom. Here comes the cultivation of one's talents. Ethical duties to others
include respectingthem by avoiding injuries to theil dignity and efforts to improve the
conditions for others to exercisetheir freedom. With regard to duties of justice there is
cgercivejuridical legislation. Prevention of injury to personsand the property of others
are two iealms of duties of justice. See P. Guyer, "Kant, Immanuel" in Routledge
Encyclopediaof Philosophy,pp. 190-191.
to
SeeRobertL. Frazier,"Duty" inRoutledgeEncyclopediaofPhilosophy,vol.3, p. 180'
15
See Kant, Critique of Practical Reason in Great Boot<sof the Western WorM, vol. 42
(Chicago: EncyclopaediaBritannica, Inc, 1971), p. 3 19'
16
SeeLewis White Bech A Commentaryon Kant's Critique of Practical Reason(Chicago:
The Universityof ChicagoPress,1961),pp. 151-152.
 CHAPTERtV: THE DEFENCEOF HUMAN RIGHTSIN SOCIETY
r23

well as perfect oblig.ations.The differencebetweenthem is in the natureand

form of obligations."
Í-egal rights have a certain precision. Sen calls this precision-a
presumed"precis-ion. This element of precision is sometimeslacking in the
iealm of Àoral rights. In ethical claims of human righls there are some
inescapableambig[rities.Sometimesthe presu1ed prypion of legal rights
is conirastedwith the ambiguities of human rights. This contrast is not in
itself a great embarr*s-"it for ethical claims including the claims of
iÀp".f.tí obligations. A framework of normative reasoning can sensjbly
alàw variatioÀs that cannot be easily accommodatedin fully determined
legal requirements.Some ambiguities of duties cannot be avoided in an
adequatetheoryof humanrights.'"
The importance givJn to imperfect obtigationsdoes not mean that
there are no pèrfect obligations in regard to human rights' Sen does not
exclude the realm of perfect obligatión that is important in the field of
human rights. From hit *gu*"nts in favor of imperfect obligations, one
should noi conclude that the obligations in regard to human rights are on]y
imperfect ones. Depending on the right in question^a1dfe situation the
obiigation may be perfect ór imperfect. In the case of the human right that
the state must not arbitrarily arrelt a person the obligation is fu[ly specified.
However, this is not to say that a person has a right to help in escaping
starvation. The point to be noted is that demandsof human rights can take
any form, with ór without specifying the duties that the obligation begerg
aró asked to accept. .the fulfillment or violation of precisely determined
obligations can go with imperfect obligations of others to help in a g91er-al
*uyb. Sen illustiates this pbint from a real life case.[n Queens,New York,
in \964, a woman named Kitty Genovesewas fatally assaultedin full view
of many who were watching the event and did not do any thing to prevent
her murder. Sen analyzesthir event in order to clarify perfect and imperfect
obligations and their interrelations.He points out three realms of violation
in tús event. First, the woman's freedom not to be assaultedand killed was
violated. Second,the murderer violated the immunity that anyone should
perfect obligation'
-othersassaultand killing. This is a violation of a
have against
Third, who did not try to prevent this violation violated their
imperfect.obligations to help. This analysis shows tqut tn the righrduty
coàespondencóthere are both perfect and imperfect obligations."

tt SeeSen,"Elements of a Theory of Human Rights," pp.34l-342'

18
SeeSen,"Elements of a Theory of Human Righs," pp.342-343'
te
SeeSen,"ConsequentialEvaluation and Practical Reason,"pp' 494495'
' SeeSen,"Elements of a Theory of Human Rights," p.341' The caseof Kitty Genoveseis
notorious.It was a casein which the people failed to exercisetheir responsibility.Thirty-
eight people watched or listened for forty minutes this event without doing anything. See
alsoM. A. Glendon,RightsTaIl<,p.83-
 1.t^
CHAPTER IV: THE DEFENCE OF HUMAN RIGHTS IN SOCIETY

There is difference betweenthe presumedprecision of legal rights

and inescapableambiguities in the ethical claims of human rights. The cla
ethical claims have a naturethat allows variations.As a result, the imperfect ins
obligationsneednot be necessarilypreciseand clear. Theseambiguiiies are rigl
inescapablein human rights, but this is true sometimeseven in legal rights inl
where someobligation is attributedto third parties.2l opj
cel
2 Sen Answers Various Criticisms rig
It is amazingthat the idea of human rights has gained much ground jur
. be
in recent years. Human rights have an important place in internàtional
discourses.There are various committeesto discussitre futfilment and the ap
violation of human rights, both on the national and internationallevels. Sen hu
usesthe expression"the rhetoric of humanrights" in order to point out these rif
growingdiscussionson variouslevels.The rhetoricof humanrights is much ac
more widely acceptedtoday than before. Human rights have an important to
ro^le_indealing with development.All of this showsthe currency and victory rh
of the idea of human rights. However, the idea of human tgrrts coexisti er
with some real scepticism about the real depth and coherenceof human et
rights. These criticisms are very important. rn Developmentas Freedom N
Sen analyzesthree principal critiques of this sort and triès to defend human c(
riglq. These critiques are the legitimacy critique, the coherencecritique, hr
andthe culturalcritique." dr

2.1 The Legitimacy Critique

This is the issue of the legitimacy of the demandsof human rights.
This view states that there are no pre-legislation rights. It contends that o
human rights confound effects of legal systems wi-h pre-legal principles rl
that cannot give anyone a justifiable right. These critici hold that beciuse n
the state is the ultimate legal authority human rights have real status only c
through entitlements that are sanctionedby the state. There are no pre- tr
legislation rights. when the state does not guaranteethese right, o, *ih"n h
the state is -not in a position to guaranteethese rights, then they are not T
rights at all.23 L

Sen refers to Marx's insistence that rights cannot precede the a

institution of the state and to Bentham's criticism of naiural rights. i

According to theseand similar lines of criticism rights must be viewed as

instruments I
!n post-institutional terms rather lhun as prior ethical I
entitlements.This criticism militates in a fundamentalway againstthe basic
ideaof universalhumanrish$.24

" SeeSen, "Elements of a Theory of Human Rights," p.342.

22
SeeSen,Developmentas Freedom,p.227.
23
SeeSen,Developmentas Freedom,pp.227-22g.
2a
SeeSen,Developmentas Freedom,p. 229.
 CHAPTER fV: THE DEFENCE OF HUMAN
RIGHTS IN SOCIETY
125
fits sen admitsthat if takenas aspiringregar
claimscan hardly^,be entities,pre-legarmoral
he seenas givingjustifiablerightsin courts
institutions of enforcement. and other
xt Howev{,.t'ir.is not a groundto rejecthuman
ìre rights.Rejectionof human_
investigarion. Theqe.m?nd lghts on thispointis to.frr, tt" rearpointunder
rts
opinionthisdemandis jusrifieol; r"guiilvijno morettun u demand.[n Sen,s
u"ytÀéerhicarimpo;;; of acknowredging
certainrightsasappropriate entitiements of ail himan b"ingr. Thus,human
rights may standfòr chimr, p";;;
judgemenrs. and. immunitiessupportedby ethical
nd Thereis intrinsicì.pÀnun""in these.isÀtr.
be effectivelyinvokedin ront"ii, à*n i humanrightcan
rd *n"." its legarenforcement would
h€ appearto be impossibre. sen givestwo examples
humanrights càn exceedthe-realmof to show thatthe realm of
RN legal rights.A wife hasthe moral
s€
right to participatein importantiamrty
deóision"s. rni, *o.ur right may be
ch acknowledged by many ùho wourdnevertheless
to belegalizedand"enfoled,.by not wantthis requirement
nt thepolice.anotneiLx;;i" givenby Senis
ty
the right to respecr.Accordingto s""t"r";È
enforcement of this right wouid ue proutemuti..l;glìt*rÍon u"o anempred
[s rr"rÀun ights are a set of
m
ethicalctaims,andtheyn'urr no, LJìa"ntined
Neverrheless, witÀ i"girlt.a legalrights.
m rhis neeà nor obliteratethe;#il;?
contextin which humanrights are typica'y rn" idea in rhe
ln inuoteo órr" has to judge
q as a sysremor'etticai réasoningand as
!f,###.gfts ite uasisof poritical

2.2 The CoherenceCritique

s Thecoherence critiqueconcernsthe
of humanrights ta5e,rrr1i.ritiq". ,i"res form thatthe ethicsandporitics
requireconelaredduties-r som.uooyhasrhat rights are enritremenrs
I
that
5 a dghii;";;ùing, rhen rhere
must be an agentt!,at tra.sthe.duty'to proviàe
E rhis ri;;;.
ly
corresponding duty,thentheright in qu"riion-i,n"rr"*."rrrisIf there is no
tremendous problem. viewposesa
!- for takingiuman'righi;d;;;;h;, #urr.
human rights are heart-wrtilt ;uments, In thisview
n but they are incoherent.
Demandsfor humanrighrs u.;
T
unlessthey are matchedry. ;rJl;.ose-ralk. Rights are not rearizabre
any sensein a righrunlesJit"gl.Jrpotrt auti"r. i?me liri", do nor see
t is baiancediy
-- or a parricular
agentfor thefulfilmentof that rig61.za "rpàJri"ió
l.
sen arguesthatit is poriibr" to resist
f
rightswithour"corresponding the argument thatcraimsof
l perfecrotrigations ;il'i;;k
-no..utiu" cogency.
claim is vatid in many regaióonte*ir. This
3 i" oir"Jrìion, rights are
defendedas entitrements or powersor immunitigsthl aregoodfor
to have.Humanrightsaresharedby ;ir people
inespectiveof natioiarity,or sex,or
race' or curture.Everyoneshouldhave
the benefit given by them. sen

25
SeeSen,Developmentas Freedom,
p.229.
26
SeeSen,Developmentas Freedom,
pp.229_230.
 t26 CHAPTER IV: THE DEFENCE OF HUMAN RIGTffS IN SOCIETY

makesreferenceto the "imperfect obligations" of Immanuel Kant. It is not

always the particular duty of any spècific individual to assure that the
personcan enjoy his rights.The claimsare addressed to anyonewho is in a
suitableposition to help. some demandsare placed on bthers that they
should try to help. The ethical assertionof a right goesbeyond the value of
the correspondingfreedomonly to this extent that Jomedernandsare placed
on others that they should try to help for the fulfilment of the fràdom.
some demandsmay end up unfulfiiled. It should be noted that Sen is
invoking the languageof freedom rather than the languageof rights in
Developmentas F.reedom.,,Hesays that the ranguige or .igtti* can
supplement thatof freedom."

2-3 criticisms against the Inclusion of Economic and social

Rights
Economic and social rights such as the right not to be hungry, the
right to basic education, or the right to medical attention ur" pari ór tr,"
contemporarydiscussionof humanrights. Even thoughtheserights did not
figure in the classicpresentations of àghts such as tÀe u.s. Declarationof
Independenceor the French Rights of Man, they are very much part of the
contemporarydomain of human rights. However, consideringeconomicand
social rights as human rights is seriouslycriticized.ttre irain criticisms
levelled against the inclusion of these claims in the field of human rishts
are, accoordingto Sen, the institutionalization critique and the feasibílity
cnnque.-"

2.3.1 The Institutionalization Critique

This criticism is a form of both the legitimacy critique and the
coherencecritiquediscussedabovebut now put tógether.2e It is^particularly
aimed at economic and social rights. It relates to the general iisue of thè
exact,correspondencebetween authentic rights and precisely formulated
correlateduties. The argumentis that such a correspondencL exists only
lrhen a right is institutionalized.If it is not instituti,onalized,there is nó
right. To answerthis criticism Sen invokes the notion that obligationscan
be both perfect and imperfect. This is a key concept used by sén to meet
criticisms against jepending on
.human rights. According t; Sen
institutionalpossibilitieseconomicand sociatrig'htscall for both perfeótana
imperfect obligations. In regard to what sociàty and the state can do to
prevent violations of certain economic and social rights such as famine.

27
SeeSen,Developmentas Freedom, pp. 230-231.
28
SeeSen,"Elementsof a Theory of Human Rights,', pp.345-346.
'e
The difference may be mainly in terminology. The coherencecritique can be considered
in a general way, while the institutionalization critique is directed against
economic an6
socialrights.
 CHAPTERTV:THE DEFENCEOF HUMAN zuGFITSIN SOCIETY I27

undernourishment,and lack of medical care there is a vast areaof effective

and the statecan do,
'hor"u"tdiscussionand pressureconcerningwhat socie^ty
public
impoverished the stateand society may be."
In a ìociety where human rights are violated individuals and groups
have both imperfect and perfect obtigations for the prevention of their
violation. Thè supportive activities of social organizations can be
considered imperfèòt obligations. Often these organizations aim at
institutional change. The ethical significance of welfare rights provides
good grounds foiseeking their realization through appropriateexpansion
ànd rJform. There can be a variety of approachesfor this purpose such as
demanding and agitating for appropriatelegislation, political recognition,
and sociaimonitoring of legal demands.To deny the ethical statusof these
rights would be to ignore what motivatesthe constructiveactivities through
wf,ich this expansioí and reform is forwarded.3l

2.3.2 The Feasibility Critique

This too is a criticism directed against economic and social rights.
The argumentis that even with the best of efforts it may not be feasible to
-r*gà for the realizationof many of the economicand social rights for {f.
Accoiding to Sen this criticism is basedon an empirical observation,and it
assumesthat recognizedhuman rights must be wholly accomplishablg.This
assumptionhas thé effect of putting many of the economic and social rights
outsidè the domain of possible human rights, especially in societieswhich
are poor.
Sen's answerto this criticism is that the fact that somerights are not
fully realized, and that many rights are not fully realizable under present
circumstancesdoesnot lead to the conclusionthat theseare not rights at all.
It would be a misapplication of the principle "ought implies can" if it is
arguedthat human rights that are not yet fully realizable are not rights at all.
T?re need to work towards changing the unfavourable circumstancesto
make realizable those rights which are not yet fully realized should be
emphasized.Sen observesthat the questionof feasibility is not confined to
ecoìomic and social rights only. This criticism of lack of complete
feasibility is a threat for liberties and autonomies.If complete feasibility is

30SeeSen, "Elements of a Theory of Human Rights," p.347 .In regard to this criticism Sen
refers to Onora O'Neill, Towards Justice and Virtue (New York: Cambridge University
Press, 1996), pp. l3l-132. O'Neill does not opposewelfare rights but wants them to be
institutionalized. ff they are not institutionalized, there is no right. She insists on the
constructive role of virtue instead of that of rights. For her rights unaccompanied by
specifiedperfect obligationsdo not make any sense.
31SeeSen,"Elements of a Theory of Human Rights," p.347.
t28 CHAPTER IV: THE DEFENCE OF H{JMAN RIGT{TS IN SOCIETY

madea condition, any liberty, autonomy,or political right would fall short
of cogency."

2.4 The Cultural Critique

This criticism is engaging,and it has received much attention. The
cultural critics say that the concept of human rights demandsuniversality.
They argue that there are no universal values and that human rights as
understoodtoday are only Western values.The most prominent among the
cultural critiques, according to Sen, is the opposition of "Asian values"
towardsuniversal human rights. Sen points out that the world of Confucian
culturesis mainly invoked in support of this criticism. The argumentis that
the demandfor universal human rights may collide with the "Asian values"
suchas order, discipline, loyalty, etc.In fact this Asian value criticism is an
important issue in human rights, and it is very often^invoked to provide
supportfor authoritarianpolitical arrangementsin Asia."

2.4.1 Asian Value Criticism

Sen examinesthe validity of this criticism. First of all he says that
these claims come not from independenthistorians but from authorities
themselvesin order to justify their authoritarian claims. Generalizations
about Asia, considering its vast area and regional diversity, are not easy.
"There are no quintessentialvalues that apply to this immensely large and
heterogeneouspopulation, none^that separatethem out as a group from
people in the rest óf the world." 'o By th" help of historical andiocial facts
he shows that there are various cultural influences from within the region
and outsidethe region that have affectedhuman lives in Asia, whether it be
East Asia, SoutheastAsia, or South Asia. Attempts to generalize Asian
values are crude. Sen says that these generalizations have serious
implications for massesof people with_differing convictions, faiths, and
commitmentsin this areaof the world. " Moreover, cultures and traditions
often overlap regionsand differ even in the samecountry.

" SeeSen,"Elements of a Theory of Human Rights," pp.347-348. Here Sen points out that
the after September11, 2001 it is rather difficult to realize even liberties and autonomies
in the sensein which the feasibility critique demands.
33SeeSen,Development
as Freedom,p.228.
3aSen,Development
as Freedont,p.23I.
35See Sen, Development
as Freedom, pp.231-232. According to Lee Kuan Yew there are
fundamental difference between Western concepts of sociefy and government and East
Asian concepts.Here he considersEast Asians countries such as Japan,Korea, Chin4
and Vietnam as distinct from Southeast Asian countries. Sen says that even in the
country of Lee Kuan Yew, namely Singapore,there are vast variations of historical and
cultural traditions.
 -

CHAPTERIV: THE DEFENCEOF HUMAN RIGHTSIN SOCIETY

I2g

2.4.2 Western Claims to Uniqueness

Sen criticizes the western claims to the primacy of political freedom
and democracyas a fundamentaland ancientf*tut" oi w"it"-
culture and
one not to be easily found in Asia. This claim is more or less
implicir
However, this is an indirect backing to the authoritarianclaims
of .,Àsian
values" criticism. The claims abóut "western democracy,,,.,western
values" make the western promotersof personaland politicai
tiuerty in the
non-western world appear to be bringing occidental values
to Asia and
Africa.36
Sen arguesthat in all theseclaims there is a substantialtendency
to
extrapolate backward from the present. It is a fact that
the European
Enlightenmentand other reratively recent developmentshave
made certain
values common to the west, but ihese values cannot be seen
as part of an
ynlarig_dlong run western heritage.There existed values contrary to these
in the West. Sen acceptsthat we can find in some Western
classicalauthors
support for the componentso.f.thecomprehensivenotion
that makesup the
contemporafy idea- of political liberty. However, support
for ìuch
componentscan be found in many writings in the Asian trad'iiions
u" *"iif-
Sen evaluargj t!: conceptthat personalfreedom for ail is important
for a good_society.He distinguishestwò componentsin it,
namely the value
of personalfreedom and the equality of freeàom. s"n *gu",
that Aristotle
has supportedthe former point, but ihe exclusion of freed"om
for slavesand
women shows that he did little to defend the latter. This type
of support to
freedom can be seen even in stratified societieswhere the privileged
few
gave much value to_freedom. with regard to the idea
of toleration sen
makes a distinction between the value-of toleration and
ttre equaritv à?
toleration. The value of toleration means that there must
be toleration of
diverse beliefs, commitments,and actions of differeni
ol.pr". Equality of
tolerance means that toleration is offered reasonably'io'arr.
In earlier
western writings there is plenty of support for some ú"g.""
of tolerance.
However,this support.isnot
{ways rup-pie*ent"o oy equ-aTity
This analysisshows that
of tolerance.
the roots of modern democíatic and liberal
ideas can be sought in terms of constitutive elemeni,-*tt".
than as a

3ósee sen,
Deveropment as Freedom,p.233. samuerHuntingtonhasarguedthatthe
waswest long beforeit wasmodern.This is a craimto oíiqo"n"rr. west
ire hasalsoargued
that ideassuchas a senseof individuatismand the traditión
of individualrights and
liberties are uniquely western.Sen refer to.samuel-p.
Hunti"!ìon, The crash of
civilizationsand the .neÀEnts
HumanRights,"p.351. _Remakingof worrd order. SeeSen, of a Theoryof
GertrudHimmelfarbarguesthat ideasof justice,right, reason,
andloveof humaniry andp"rttup, uniqu"iyw"r** varues.See
GertrudHimmelfarb,{!-pre{grrunantly "u"o
"The Illusions ór cos-opólitanis-,,' în io, I"ove of country:
oyblins the Limits of patriotism: Martha Nussiaumwith
nespondenfs, Joshuacohen,
ed.(Boston:Beaconpress,1996),pp.74_75.
37SeeSen,
Development asFreedom, p.233.
 130 cHAprER Iv: THE DEFENCEoF HTJMANRIGI{TSrN socrETy

whole.38Sen also points out that there are oppositeideasand doctrinesthat freer
clearly do not emphasize freedom and tolèrance. Authors championing assir
order and discipline can be seenin Westernclassics.Sen mentionsauthori certÍ
suchasPlatoand St. Augustinein supportof this claim.3e socir
In order to find whetherthe freedom-orientedperspectivesare absent with
in Asia he examines Asian traditions and emphasiies iheir diversity. He does
arguesthat in Buddhist tradition great importance is attachedto freedom.
The earliest Indian theorizing in which Buddhism has influence has much who
room for volition and freedom. The ideas of liberation have this same acce
feature.The presenceof ideas of freedom in Buddhism should not conceal reco
the importanceof order in confucianism. confucianism is not, however,the and
only tradition in Asia. According to Sen confucius did not claim blind equa
allegianceto the state.He arguesthat the championsof authoritarianismdo level
lessthanjustice to the variety within Confucius;sown teachings.confucius level
notesthat there can be tension betweenloyalty to the family ànd loyalty to quite
the state. The advocatesof the "Asian values" see the staie. on the other woul
hand,as an extensionof the family.a0 peric
In Indian traditions one can find a variety of views on freedom, exan
tolerance, and equality. According to Sen in the writings of the emperor the c
Ashoka a most interesting articulation of the need foi tolerance oì an Jewir
egalitarian basis can be found. His inscriptions, influenced by Buddhism, patrc
give special importance to tolerance of diversity. The importance of
tolerancein his edicts is perceptiblein both public pó4cy by the government 2.4.3
'
and in the behaviourof citizens towardsone another.al
Sen analyzesthe Indian author Kautilya, whose writings are often poss(
quoted as a proof that freedom and tolerancewere not valued in the Indian
modr
classical tradition. According to Sen, Kautilya is a consequentialistof a influr
quite narrow kind. In his Arthnshastra, on the one hand he presents
mode
penetrating ideas and suggestionson practical subjects such as famine
inesc
prevention, and administrativeeffectiveness.on the óther hand he advises
fundi
the king to get his way even by using violations of the freedom of his
econ(
opponents and adversaries.He attaches little importance to political or econ(
economic equality, and his vision of good society is stratified. white the
king has the duty to_support the deprived people, this support is very far
cultur
from the valuing of the people's freedom.Hòwóver, in rautiìya in regard to
howe
the upper classes the idea of freedom has much importance. Dénying
econ(
freedom to them is viewed as unacceptable.Sen admits ihut *" do notiinA
choic
in Kautilya anything like the clear articulation that Aristotle provides for the
regarl
importanceof the free exerciseof capabitity. Even when it úpholdsonly the
of the
peopl
38
SeeSen,Developmentqs Freedom, pp.233-234.
3e t' seeì
SeeSen,Developmentas Freedom,p.234.
o0 t3
SeeSen,Developmentas Freedom, pp.234-235. See I
ar
SeeSen,Developmentas Freedom,p. 235. 4^
òee i
 CHAPTERTV:THE DEFENCEOF HUMAN RIGFITSIN SOCTETY 131

freedom of the upper class and a paternalistic form of attention and state
assistancefor the avoidanceof deprivation and misery, however, there is a
certain conceptionof good life in all this. It is limited to the upper groupsof
society. In any case this is not radically different from the Greek concern
with free men as opposedto slavesor women. According to Sen Kautilya
doesnot differ entirely from the particularistAristotle.*'
With regard to tolerance Sen refers to the Moghul emperor Akbar,
who reigned in India in the period of 1556-1605.He emphasizedthe
acceptability of diverse forms of social and religious behaviours. He
recognized human rights of various kinds, including freedom of worship
and religious practices.At the same time there was no gender equality or
equality between younger and older people. Tolerance and equality at one
level were combined with inequality and lack of tolerance on the other
level. However, the generaltolerancein mattersof belief and practiceswas
quite remarkable.Sen notes that at that time in parts of Europe theseideas
would not have been easily tolerated.Sen refers to the lnquisitions. At that
period the Inquisitions were in full bloom in Europe. Sen gives further
examplesof tolerance in the Isalmic cultures. The Turkish rulers were, in
the opinion of Sen, more tolerant than their Europeancontemporaries.The
Jewish scholar Maimonides had to flee the intolerant Europe to the
patronageof a Muslim leader.a3

2.4.3 The Growing Influence of Western Culture

It is a fact that in the world today Western culture and traditions
possessan enonnousmomentum.This influence may underminetraditional
modes of living and social mores. Contemporary society is greatly
influenced by the West. To those concernedwith indigenous culture and
modes of life this can be considered a serious threat. This threat is
inescapablein a world of globalization. With regard to economy there are
fundamental changes.This can become a challenge for the non-Western
economic and cultural world. Sen says that equity in cultural as well as
economicopportunitiesis profoundly important in a globalizing world.a
However, the cultural issue has a different aspect. In the case of
culture sometimespeople may feel greatly the loss of traditions.Sometimes,
however, the preservationof old forms of living would entail considerable
economic costs. Here Sen observesthat it is up to a society to make a
choice. He comes back to the perspectiveof capabilities.[n decisionswith
regard to what is to be preservedand what is to be let go, different sections
of the society should actively participate.It is a matter of socialjustice that
people,if they want to do so, paficipate in thesedecisions.Attention to the

a2
SeeSen,Developmentas Freedom,pp.237-238.
a3
SeeSen,Developmentas Freedom,pp.239-240.
*
SeeSen,Developmentas Freedom,p.240.
 r32 CHAPTER IV: THE DEFENCE OF HIJMAN RIGHTS IN SOCIETY

elementarycapabilities such as reading, writing, being well informed, and

having chances to participate in public matterl through election,
referendumsand the use of civil rights is important S9,nsayJ that human
rightsin the broadestsenseareinvolvedin thiJexercise.as
sen appreciatesthe value of cross cultural communication and
interchange.He evaluatesthe danger both of ignoring the uniquenessof a
culture and of insularity of a culture. There can be p"of,t" who are culturally
fry1ful. They may underestimatethe ability to lèam from other cultures
without being overwhelmedby them. we can understandthat there can be
many influences from outside cultures which are not objectionable,if we t(
examinethe rhetoric of national traditions.It is misleadingto hold that there h
is regional sufficiency in cultural matters.The value ofi<eeping traditions S(
pure and uninfluencedis difficult to sustain.sen does not argue-against ic
the
uniquenessof a particular culture. His point is that one should understand A
cross cultural influences and should have the basic capability to enjoy ul
productsof other culturesand lands.a6 UI
fo
2.5 Universalist Presumptions
Sen has a strong belief in the ability of different people from
different cultures to share many common values and to agree on some
common commitments. sen's conception of freedom has this feature of
..t-ng universalistpresumptions.we have alreadyseenhis criticism against
the claim that "Asian values" are indifferent to freedom. He arguesulainrt
the view that tolerance.with to oppositeviews and matteri of reigion
are always western values.lggqd
He shows,moreover,that the western claiir of
tolerancewas not unique. Sen admits that religious toleranceincluding the
toleranceof atheism and scepticismis a cent al aspectof social freedom. clai
grilics say that this is not true in Asian
cultures. Sen, however, points to the:
Ildtur philosophical systems.There we have examplesof different schools hun
of.thinking and tolerance.Budhism which is in a iay agnosticis Asian in isr
glgin. He points out the existence of atheist schoólsín Indian systems. CSS€
This shows that religious scepticism and tolerance are not particularly unfc
western phenomena.Examplesof violation of toleranceare eviàent in repr
any
culture, both in the west and in the East. Mediaeval inquisitions, moderí regir
camps,and the oppressionof the Taliban are all examplesof
!on.:n1.1tton
suchrntolerance.-'
A freedom basedapproachto ethics is not the exclusive patrimony
of western traditions. Authoritarian leaders in Asia have promoted
thó asenh
"Asian values" criticism-againstuniversal human rights. The importance
of reasol
basic freedomsand the formulations of them in terÀs of rights are valid
in is gui
thinki;
os the co
SeeSen,Developmentas Freedom, pp.240-242.
a6 Senre
SeeSen,Developmentas Freedom, pp.242-244.
P P 'l l t
*7 on
SeeSen,Developmentas Freedom, pp.244-246. sen,
 CHAPTERTV:THE DEFENCEOF HIIMAN RIGIITStN SOCIETY 133

any_cultural, religious tradition. Governmental spokesmen or religious

leadersdo not have a monopoly in interpretinglocal culture and values.The
voices of dissent in a society are everywhereimportant. There is need for
public participation in matters of values. This public participation in the
^human
form of debatesand discussionsis important in the schemeof rights
presentedby Sen.

3 The Role of Putrlic Reasoning in the promotion of Human Rights

Human rights are ethical claims. However, not all ethical claims are
to be consideredhuman rights. [n order to approve or disapprovethem as
human rights Sen arguesthat there must be sometest of open and informed
scrutiny.Sen assertsherethe role of public discussion.Hè refersto Rawls'
ideas of public reasoningand the role it plays in ethical objectivity.48
According to Sen the status of these ethical claims must be dependent
ultimately on their survivability in unobstructeddiscussion.For Sen an
understanding of the connection between public reasoning and the
formulation and use of humanrights is extremely important.

Indeed,the connectionbetweenpublic reasoningandthe formulation

and use of humanrights is extremelyimportantto understand. Any
generalplausibilitythat theseethicalclaims,or their denials.haveii
dependent, on this theory,on their survivalandflourishingwhenthey
encounterunobstructed discussionand scrutiny,alongwith adequatè
4e
informarionalavailability.

With unobstructeddiscussionand scrutiny the plausibility of ethical

claims can be decided. they survive, when they encounterpubiic scrutiny,
tf
they can be considered rights; otherwise not. The force oÌ a claim to a
humanright would be seriouslyunderminedif it is possibleto show that it
is not likely to survive
-openpublic scrutiny. This public reasoningis
essential both for the defence of human rights and fbr the dismissal of
unfoundedclaims. Here anotherfact is to be kept in mind. In many of the
repressiveregimesthere is no possibility for this public discussion.These
regimes do not take seriously many human rights. However, the case of

Sen has in mind Rawls' A Theory of Justice and Political Liberalism. Public reasonis the
reasonoffree and equal citizens in their capacity as democraticcitizens. This public reason
b guided by considerationsin regard to the common good among citizens. In Rawls'
thinking the common good is specifiedby the political valuesof public reason.The aim of
the common good is to promote and maintain the basic interestsóf f.e" and equal citizens.
Sen refers especiallyto Political Liberalism (New York Columbia University Èress,1993),
p. ll0-113.
t
sen, "Elementsof a Theory of Human Rights," philosophy and public Affairs 32,p. 349.

..à-,
134 CHAPTERTV: THE DEFENCEOF HI.IMAN RIGFITSIN SOCIETY

human rights cannot be simply disregarded by pointing to repressive

resimes.sfr

3.1 The Non-parochial Nature of Human Rights

Human rights have an inescapablynon-parochialnature. They are
meant to apply to all human beings, irrespective of different societies.
Cultural intègration and growth is possible through human rights.sl Thus,
the domain of public reasoningshould not be confined to a given society
only. Here Sen standsin contrast to the Rawlsian position. According to
Sen, Rawls in his later works tries to limit public confrontation about
deciding what would be just, at least in domestic affairs, to the boundaries
of each nation. Rawls rpéaks of regional collectivity as a "people."52Here
Sen refers to Adam Smith's idea of views from a distance." Even for
domestic matters of justice it can be demandedthat the discussionmight
include views from a certain distance. Besides the basic social structure
chosenfor a society caî have influence on the lives of others outside that
society. The effects of decisions are not always limited to the particular
societyin which they are taken.sa

3.2 Global Justice

Sen views global justice as different from internationaljustice. In his
opinion decisionstaken about the basic strucfureof a society can affect the
lives of people in other societies.The insights and instructionsof a cross-
border public framework of thought can be of great relevance. Global
discussionsare important and have great practical influence. This does not
mean that institutional Íurangementsare necessary. The ties that bind
human beings in relations of duty and concern across borders need not
operate through the collectivities of the respective nations. Interpersonal
relations across country borders can go far beyond international

s0
SeeSen, "Elements of a Theory of Human Rights," p.349.
5i Oppressedwomen, if they are given the choice, do not choose oppressionfor
cultural
reasons.ff cultures respectthe human rights of oppressedgroups, they do not ceaseto
exist. Instead,they will have a dynamic growth.
52See
Sen, "Elements of a Theory of Human Rights," p. 350. Sen has in mind The l^aw of
Peoples andPolitical Liberalism of John Rawls.
tt
See Sen, "Elements of a Theory of Human Rights," p. 350. "We can never survey our
own sentimentsand motives, we can never form any judgment concerning them; unless
we remove ourselves, as it were, from our own natural station, and endeavor to view
them as at a certain distance from us, but we can do this in no other way than by
endeavoring to view them with the eyes of other people, or as other people are likely to
view them," Adam Smith, The Theory of Moral Sentiments(Oxford: Clarendon Press,
1 9 7 6 ) ,p . 1 1 0 .
sa
SeeAmartya Sen, "Open and Closed Impartiality," The Journal of Philosophy gg (2W2),
p. 448.
 CHAFTERIV: THE DEFENCEOF HUMAN RIGTITSIN SOCIETY
135

interactions.Sen points out that if fully understood

the identity of being a
Ity-1n person may have the effecr óf broadeni"g ii"wpoint. This
identity is our most basic identity. we are membersóf"*
the wide
human
-beings. Even though human beings ; ;;b"rs of"ut"go.toi
particular
e nationalitiesor sectsor tribès, the normative demands
of beins euided bv
L the senseof humanity can build on our membership r"/
in this *iJ;?"ì;;;;
\ This point hasbearingon contemporarydiscussions
or numaíriltrts.
I sen gives the reasonfor thii relevance.It is related
to the very notion of
) human rights. The notion of human rights builds
on our sharedhumanity.
I rights are presumed to be claiirs or entitlements
Jhpse of every human
D being irrespectiveof citizenship in any country
or membershipin any
D nation.'o In a universalist approactrthe idea
of open impartiality is
I fundamental,s7but this unive^urirt upproach_ does not necessitatea world
I governmentoI hypothetical social contract.s8
_a As we have already seenin
l the context of human rights, obligationsare mainly
imperfect obligations,
I and anyonewho is in a suitablepoiition to help is requiràio
oo ,o.
I
3'3 The Acceptability of varues in Different curtures
and
Societies
we have already seen that many raise the question
of uncrossable
barriersbetweenthe valuesof different óultures,and'that
tr,i, i, projectedas
a criticism againstthe universal nature of human
.igtÀ. aicoroing to sen
the differences in the subject of freedoms and rights
that actually exist
between different societieJ are often much exaggerated.
He says that we
must distinguish between the values that are
dóminantly favoured in a

55
See Sen, "open and crosed_Impartiality," p.
466. For a person to be moved to do
somethingpositive to.better tle piight of othér
human beings outsidehis own nation it is
not necessarythat his own nation should have
sympatn]", *rtr,-tn" plight of these
people' The senseof affinity that moves person
a need not be attachedto his citizenship
in a particular nation' sen draws examplesfrom
cross national rru-unrtu.iun activities,
global culture, conmerce, politics and èven
from grobar p.or"r,r. rt are affiliations
and associationsthat cross national boundaries. "."
56
SeeSen,"Open and Closed Impartiality,,, pp. 467_46g.
57
SeeSen,"Open and ClosedImpafiality,,,p. 46g.
Sen makesa distinctionbetweenopen
impartiality and closed impartiality. with'closea
impartiality tt" pio""our" of making
judgments invokes only the members
lmpartial of Àe group. rtere sen considers the
Rawlsian conceptofan original cóntract.In such
a contraftariàn p.o""our" no outsideris
involved' rn his Theory of Justice Rawls has proposed
this social contract. In contrastto
this' in open impartialiry, rhe procedure
Lr'making r-p*iu1-luogments invokes
judgments from outside as well as from
inside the groui In ;;;;o this is altogether
necessary'open impartiality is a demandthat
the vìew points or otrr".. outsidethe group
receive adequateattention. This has much
bearing on s"n', p."r"nàtion of universar
human rights. Both these methods demand impartiality.
However, the difference in the
natureofprocedure can have different results.
5t
SeeSen,"Open and ClosedImpartiality,,,p.
46g.
 136 cHAprER rv: THE DEFENCEoF HUMAN RIGFTSIN socIETy

society and the values that can be expectedto gain broaderadherenceand

support when open public discussionis allowed, when information from
other societiesbecomesmore freely availableand when disagreementswith
the establishedviews can be expressedand defendedwithout suppression
and fear. when there is this participation,new values may be accèptedand
approved.This again requiresparticipation of people in public disiussions
and debates.People'sparticipationcan do a greàt deal witir regardto human
rights.
.. In many societies information is extremely restricted, and
discussionsand disagreementsare not permitted. Becaúseof this lack of
respect
_fo_rpeople's participation, prevailing priorities are uncritically
accepted.sen distinguisheswidespreadaccepúbiiity of ethical claims from
pre-existing, ubiquitous acceptance.In dealing with the role that human
rights play in internationalrelationsthis distinction is important.se
In presentingthis argumentSen admits that therè exist considerable
variationsin the balanceof manifest opinions and observedpreconceptions
in various societies and various countries. A lack of broader intellectual
engagement,however, is also reflected here. Therefore, an open scrutiny is
very relevant here particularly because information about practi""t
elsewhere in the world can help to renew existing priorities. In
understandinghuman rights Sen says that Adam Smith s insistence on
viewing actionsand practicesfrom distanceis important.60
In an insulaúedsociety what is considereúnormalmay not be able to
survive a broad-basedexamination through critical scrutiny. When there is
awarenessof variations in practices and nonns in different parts of the
world, there can be much improvement. The need for interaciions across
borders is important both for rich and for poor societies. The critical
assessmentof moral sentimentsis needed. It demandsa cross-boundarv
scrutiny.

4 Advancing the Cause of Human Rights

In the theoreticalliterature in the field of humanrights the legislative
and institutionalization aspect of human rights is always emphasized.In
much of the institutional undersrandingof human rigÉts thii legislative
outlook has been firmly incorporated. sen admits the importance of this
consideration.He points to some other means,however, which are also
effective in the promotion of humanrights.

4.1 The Recognition Route

This route is to be distinguished from the legislative route. Here
there is acknowledgementof a class of fundamentalhtr-manrights, but there

5e
SeeSen, "Elements of a Theory of Human Rights,', pp. 353-354.
60
SeeSen,"Elementsof a Theory of Human Rights,,'pp. 354-355.
 CHAPTER fV: TTIE DEFENCE OF HUMAN RIGT{TSIN SOCIEfi
137

is not necessarilyany legalization or institutional enforcementfor these

claims. The Universai Deólarationof Human Rights of the United Nations
falls in this category. Sen considersthis Declaration the most important
*orr. in the piombtion of human rights in_.the last.century.- Other
international diclarations followed in ttre line of this Declaration
general
,ubr.q.r.ntly. These documentshave given recognition to.various
demands.TLey are also based mainly ón the line of recognition rather than
According to s.e1this approach is
on ttn line of legal and coercivestatus.
ilil"trd by the"ideathat the ethical force of human righls is made more
p"*".n 1 in practice by giving- it social recognition *9 T$?wledged
ltrtur, but thii is possiblèevenwhen no enforcementis instituted.''

4.2 Active Agitation

A second line of advancing the cause of human rights is through
active agitation.This agitatiott can be carried out in an organizedmanner'
itr. ugiàtion is for to--pli*." with somebasicclaims of all humanbeings'
ThesJbasic claims *" i""n as humanrights, and when there are violations
oi tft".. rights agitation can generateeffective social pressuresfor their
redress.Sei referlto the workóf global NGOs. They ptay an importantrole
in advancinghuman rights anOputticizing and-criticizing violations' The
;ghtr inuof.EAin this alitation may or may_nothave ar.rYlegal statusin the
;;t y in question. \ I*terr". the case, advocacy and support for human
úilr;" *èru. Public activism is requiredeven for the enforcementof the
relevantlegislation*tti"tt humanrights sometimeshave'ó2

4.3 The Role of Legislation

It is a fact that much legislationhas beenencouragedor inspiredby
human rights considerations.Individual states or groups of states have
tn-*y lu*r that give legal force to certain human rights. sen here
"nu"t"o
refersto the b.rropean
^humanCourt of Human Rights. It can considercasesagainst
the violation of rights from the concernedstates' There can be
examplesof this sort in different partsof the world. Senadmitsthat it is not
at*ayr ideal to legalizea humanright. Through ccrrimunication,advocacy,
gain
,*po'r*", and ù'formed public discussion, human rights ucan
importancewithout necessarilydependingon coercive legislation."'

5 The Importance of Democracy for flumln Rights

In internationaldiscussionsdelegatesfrom several countriesoften
argue against the general endorsementof basic nlliti_caf and civil rights
uJ-r. tÉe world, úA itt particular in the third world. [t is arguedthat the

ut See Sen, "Elements of a Theory of Human Rights," p' 343'

u' SeeSen,"Elementsof a Theory of Human Rights," pp' 343-344'
6' SeeSen."Elementsof a Theory of Human Rights," pp' 344-345'
138 CHAPTER IV: THE DEFENCE OF HUMAN RIGHTS IN SOCIETY

focus should be on economic rights related to important material needs.

There is often discussionabout priority, whether economic needsshould
come before political liberty and civil righs. The claim behind these
argumentsis that poor peoplehavelittle useóf the latter rights.s

5.1 The Pre-eminenceof Potitical Freedomsand Democracy

Sendoesnot acceptthejust mentionedclaims.Economicneedsare
indeedforceful, and sen is a strongsupporterof economicneeds.However,
his opponents'way of approachingeconomicneedsand political freedoms
is, in his view, wrong. He assertsthat their argumentsmiss the real point.
There are extensive interconnectionsbetweenpolitical freedomsand the
understandingand fulfillment of economic needs.These interconnections
are to be taken into account.Theseinterconneciionsare both instrumental
and constructive.Sen always standfor public debatesand discussions.For
the mattersof public discussionspolitical and civil rights are needed.The
conceptualizationof economic needs dependsremarkably on these open
debatesand discussions.His point is that the force of economicneedsadds
to the urgency of political freedoms.6sIn order to estabtishhis point Sen
examinescritically the main argumentsagainstpolitical freedomsand civil
rights.

5.1.1 Arguments against the Importance of Political Freedomsand

Civil Rights
These argumentscome from three different directions. tt is argued
that thesefreedomsand rights hampereconomicgrowth and development.
It is claimedthat the denial or suppressionof theserights helpsto stimulate
economic growth and that this is good for rapid economic development.

*
Here Sen refers to the Vienna Conferenceon Human Righs held in the spring of 1993.
This was supported forcefully by the offrcial delegationsof a number of developing o
countries, led by China Singapore,and other East Asian countries.Countries such as ir
India and other South Asian and West Asian countrieshave not opposedthe movement. D
See Sen,Developmentas Freedom,p. 147.The Universal Declarationof Human Rights ol
recognizestwo sets of rights: the so called "traditional" civil and political rights, and
economic,social, and cultural rights. ln regardto theserights and their gradualevolution
de
there exists a formal consensusÍìmong different nations, but there exist deep and
enduring differences also, especially over the proper status of economic, social, and
cultural rights. Someclaim that economicrights are superiorto civil and political rights,
and othersclaim that all of the claims set forth under this categoryare not rights at all.
An example of extremism here is the claim that there is no use for free speechwhen *s,
people are starving and illiterate. Treating economic claims as rights distorts individual
S(
freedom becauseit necessitatesunnecessarystate intervention is an argument against
economicand social rights. See Henry J. steiner and philip J. Alston, eds.,"Economic
rh
ut se
and Social Rights" in Internationol Human Rights in context (oxford: oxford
UniversityPress,2000),p.237. ut se
65 cri
SeeSen,Developmentas Freedom,p. 148.
un
See
 CHAPTER IV: THE DEFENCE OF HUMAN RIGHTS
IN SOCIETY 139
Somehave even arg'ed for harsherporitical systems,
denying basicpolitical
and civil rights for the promotion of economi" gro*ti.uu "
Another argument against political ané civil rights
is
people are given the choice 6etweenhaving politicarfrJaoms that if poor
and fulfilling
their economicneeds,they will invariabr/ònoor"
ità-rutt"r. sen saysthat
accordingto this reasoningthere is a coniradiction
betweenthe practice of
democracyand economic developmentbecause
th;;;j""ty would tend to
.?":l democracyin favor of economic rights.
s";;il;;ìnrs our a varianr
of this argument.It states-thatsincepeoplé have
^huu" reasonio-want to eliminate
ecg.ngmicdeprivation and misery, they ,"uso; ;"""d not to insist on
political freedoms.Here itis p.oum"à that
there ir-;;;^.rnflict
';;;Ji";';#; between
political freedoms and the fulfillment
of economic
argument-he-resays that emphasis on civil liberties
*à d"-o"racies is"
specifically wesrern prioriry. This priority goes
ugui^t *lturur di;;ii;:r-
5.1.2 Democracy and Economic Growth
sen answersthe first criticism at hand arguing
that the Lee thesisis
basedon very selective and limited information]
rtE growth of
some authoritarian nations is not a proof that "Àno-c
authoriìarianism helps
economic growth. There is rather little general
evidencethat authoritarian
governanceand the suppressionof political
and civil righ;s are helpful in
encouragingeconomicdeveropment.The statistical
pr"tuÍ"ì, very complex,
and is_no proof that tirere is a general
.there between political
freedomsand economic performan"". uÀil" "onfli"t
ro*rnooin!*, ,to* a weakry
negative relation, some bther findings show
a ,i.;ùly;"sitive relarion.
However, it is to be noted_thatpolitiJar fiberty
and freedom have their own
importance.According to Sen the economicgrowth
of thesecountriesis due
to independent, favorabre economic poli"cies.
rt"r"-lori"i", are not
inconsistentwith democracy,and they can
be sustained#iitout depending
on authoritarianism.Further, sen thinis that growth
of-GliÉ or some other
indicatorsof economicexpansion* not the
ònry criteria oidevelopment..e
Democracyand political fìeedomshave impact
ó" tt" irres ano capabilities
of citizens. This fact is to be taken into
consioeratiàn in judging
development.

66
see se]l' Deveropmentas Freedom,p. 15. Here
Sen refers to the Lee thesis,attributed in
some form to the former prime miniiter of singapore,
Lee Kuan yew. This thesis claims
fhat the denial of political rights and civil fiu".tì",
is good for róù-""ono*. progress.
67
SeeSen,Developmentas Freedom,pp. l4g_149.
ó8
see. sen, Developmentas Freedom, p. 149.
we have already discussedthe cultural
criticism.
6e
SeeSen,Developmentas Freedom,pp.149_150.
 140 CHAPfER TV:THE DEFENCEOF HUMAN RIGT{TSIN SOCIETY

5.f3 Poor People,Democracy, and political Rights

In order to verify whether poor people are indifferent to political
1eht9, Sen says that the matter is to be puf to democratic testing in free
elections with freedom of expression and opposition. Despite the claim
often madeby authoritariangovernments,they ào not allow ihir to happen.
The governmentleadersof many third world countriesdowngradepoliiical
rights. That does not mean that this is in accordancewith thi vieù of the
people.Sen gives empirical evidenceof this suppressionand the expression
of the people's resistanceto this suppression In India the emergency
declaredby the then Prime Minister Indhira Gandhi was basedon such à
claim. However, in the general election that followed, the people rejected
her claim by voting in favor of the opposition party. ThiJ shòws à Rr-
rejection
!v tlre people of the suppresii,onof poìitiiat and civil rights. It
points to the fact that poor people do care about political and civil-rights.
The strugg!;s for theserights in different parrs of ihe world show thatihey
arevalued.'"

5.2 The Instrumental Importance of political Freedom

Political and civil rights have their own independentimportance.
The-importanceof political freedom is a part of basic political capabilities.
We have reasonto value liberty and freedòmof expresiion and action in our
lives. Human beings are social creatures.This iocial nature means that
unrestrainedparticipation in political and social activities is reasonable.The
formation of our values also requires opennessof communication and
arguments'For this processpolitical freedoms and civil rights are central.
Free speechand democratic choice are necessaryto expresspubticly what
we value and to demandthat the respectiveagenciesstroìld pay attentionto
that demand.This showsthe direct importancéof political fréedom.7r
In addition to this general importance, pbtitical freedoms play an
instrumentalrole. There are political inientives that operateon governments
and on the personsand groups that are in office. If thè rulers are to face the
criticisms.of the people and their support in elections, they listen to the
people.His argumentis that no substaniialfamine has ever occurredin any
independentcountry with a democraticfrom of governmentand a relatively
free press. In a democratic country where op:positionparties can voicl
criticisms and where newspapers repo.t freely and question the
governm€nt policies without extensive "an censorship, famines
have never
occurred. Famines have occurred in authoritarian societies, in primitive
tribal communities, in modern dictatorships,in colonial economiesand in
countriesrun by despoticleaders.T2

70
SeeSen,Developmentas Freedom,pp.5l-152.
771
l
SeeSen,Developmentas Freedom, pp. 52-153.
72
SeeSen,Developmentas Freedom,p. 153.
 CHAPTERIV: THE DEFENCEOF HUMAN RIGHTSIN SOCIETY t41

5.3 The Constructive Role of Political Freedoms

There are connections between economic needs and political
al freedoms.This connectionhas a constructiveaspect.The conceptualization
]e and comprehensionof economic needs itself may require the exercise of
m political and civil rights. In order to understandthe content and force of
n. economic needsdiscussionand exchangeare needed.This meansthat open
al discussion,criticism, dissentand debateare important. Theseelementshelp
it€
in the formation of values and priorities. This requires the exercise of
)n political and civil rights. In the formation of values and priorities public
;y debatesand interchangeshave a crucial role. When people are not allowed
a these, there is a serious deficiency. It is a sad fact that the reach and
d effectivenessof open dialogue are often underestimatedin assessingsocial
m and political problems. In the reduction of high fertility rates,accordingto
It Sen,public discussio:rhas a great role to play. Sen proves his argumentsby
ls. empiricalevidences."
ey In the conceptionof needsand in the understandingof what can be
done about theseneeds,political rights have a crucial role to play. Political
rights can be pivotal both in including social responsesto gconomic needs
and in the conceptualizationof economicneedsthemselves.'"
E.
ls 5,4 The Working of Democracy
ttf While pointing out the relevanceof civil and political rights in a
nr democracy Sen is realistic about the actual working- of democracies.Sen
hc does not exaggeratethe effectivenessof democracy." The effectivenessof
od political and civil rights dependson how they are exercised.The inadequacy
rL of practice may lead to the failure of a democracy.Only a fuIl practice of
IT democracycan bring about effective observanceof civil and political rights.
!o Institutional reforms alone do not bring social justice. Effective practice is
needed.Sen shows that this practice is of central importance. To clarify
I inadequaciesof practice, Sen points to the failure of Indian democracyin
IT the matter of eradicating undernutrition and deprivations in health care,
ùc education, and social environment. These deprivations call for a deep
b analysis and a more effective use of communication and political
ry participation. The inadequacyof practicescan be seenin relatively mature
*t democraciestoo. Sen does not considerdemocracyan automaticremedy of
ica social problems. Democracy creates a set of opportunities. These
b opportunitieshave to be positively taken advantageof in order to achieve
ftf their proper effect. When speakingof the positive aspectsof democracySen
it
-
t'See
Sen,Developmentas Freedom,p. 153.
7a
SeeSen,Developmentas Freedom,p. 154.
i5
SeeSen, "Freedom and Needs," The New Republic (January l0 and 17, Igg4)31 at32in
International Human Rightsin Contert, H. J. Steiner and P. J. Alston, eds.,pp. 269-271.
 142 cHAprER rv: THE DEFENCEoF HUMAN Rrclffs rN socIETy

also thinks of indifferencc to voting in democraticcountries

and other signs
of apathyand alienation.i6

5.4.1 The Role of Opposition in a Democracy

The achievementsof democracydependon the way its
opportunities
are usedby its citizens. To utilize thesèopportunities
a variety oi factors are
M"ltiparty politics and the dynamiìm of moral arguments
l9:1, and value
Iorrnattonare needed.The activism of political participaÀts
is an important
aspect of a successfurdemocracy. Tire activir-
oi opposition can be
effective in preventing famines *d in sharply.ono"*ninf"governments
for
allowing starvation to occur. This activirrn -ut",
tt" iJu".nments give
attention.tothe prevention of such calamitiesas
tr;p;;rity. The action
of-oppositioncan be extendedto condemningillibàcy, " undernutntion,land
reform, erc. rf the opposition parties are docile
in assertingthe needs,the
governmentsmay neglectvital matters.ttEven
in non-demòcraticsocieties,
oppositionpartieshave a role to play. T_qy can
- exert their influencein
someway to bring abouteffectivechanges.T8
This is true in the case of issues such as gender
equality and
elementaryeducation..wlgn neglectedissues
d;-puuri" debateand
confrontation, the authorities have to provide "";"
some sort if ."rponre. In a
democracy_people tend to get what they demand uno it aì not ordinarily
get what they do not demand. when the
opposition "y ,iut demands on
issuessuch as gender equality, erementaryedúcation,
there",is a possibility
for good legislation in theie areas. Són refers
to the experience of
democracy in India in the midst of extreme
diversities.ú'5;;;;J;
institutionsare not mechanicaldevicesfor oevelÀpmenr.-it"
working of
democracydependson the way its processesare
exercised. It is crucial to
safeguardthe conditions and circumstancesthat
ensurethe range and reach
of democraticprocess.

5.4.2 The RoIe of the State

sen makes a distinction betweenthe state and the government.
stateis a broadconceptwhich includesth" gou"rnmeni. The
rt?ìro includesthe
legislature,the politicàl systemthat regulateselections,
the role that is siven

tu
sen, Development as Fleedom, pp. 154-_155.
f*". Sen points to the exftaordinary
deprivations in health care, education,aù social
environment of Afncan Americans in
the united states. These deprivations have not
been prevented by the working of
American Democracy.
t7
see sen, D.evelopmenta.sFreedom,p. 156. Here
Sen refers to the experienceof India
The opposition was active in condemning famine,
but it has nof pruy"o a vital part ia
matterssuch as land reform, eradicationoi illiteracy,
etc.
tt
Here Sen refers to pre-democraticSouth Korea
and pinochet,s chile.
7e
SeeSen,Developmentas Freedom,p. 57.
 CHAPTER IV: THE DEFENCE OF HUMAN RICT{TS IN SOCIETY 143

to opposition parties,and the basic political rights that are upheld by the
judiciary. In his view a democratic state makes it hard for the ruling
governmenîto be unresponsiveto the needsand values of the population.
The ruling governmentis only one part of the state.Thus, the natureof the
stateis very important.ou

6 Individual Freedomas a SocialCommitment

6.1 The InterdependencebetweenFreedom and Responsibility

For the changeand developmentof the world in which the people
live they should take responsibility.There is a social dimensionin this
responsibility.This social dimension of responsibility means that the
problemsthat are aroundus are quintessentiallyour problems.The realm of
responsibilityis due to the fact that we are competenthumanbeingsand that
we are reflectivecreatures.Sen considersthis aspectof responsibilityas
something central to our social existence,and he holds that this is not
limited to the afflictions our own behaviourhascaused.[t is extendedto the
realm of miseriesaround us where we have not inflicted wrong but where
we can help. We do have a shared humanity. The realm of social
responsibilityis not a substitutefor individual responsibility.
However, personal responsibility in many cases is dependenton
social and environmentalcircumstances."The limited reachand plausibility
of an exclusive reliance on personalresponsibility can best be discussed
only after its essential role has first been recognized. However, the
substantive freedoms that we respectively enjoy to exercise our
responsibilities are extremely contingent on personal, social and
environmentalcircumstances."o'He points out various instancesthat show
that the exerciseof responsibilityis dependenton social and environmental
circumstances. A person who is denied elementary education is
handicappedall through life. He has to dependon others for many things
suchas reading,calculation,e/c. Someonewho lacks the meansfor medical
treatmentfor an ailment, which preventshim from exercisinghis freedom
as a responsibleagent, is another instanceof this dependency.Here the
exerciseof his freedomsmay be for himself or for family. The bonded
labourerborn into semi-slavery,and the oppressedgirl-child in a repressive
societyare all deprivedof the ability to lead responsiblelives. All these
instancesshow the importanceof social responsibilityin order to allow the
personto exerciseindividual responsibility.There is a linkage between
freedomand responsibility.Freedomis necessaryfor responsibility.In order
to be responsiblefor doing something a person must have substantive

80
See JeanDrézp and,Amartya Sen,India: Economic Development and Sociat Opportunity
(Oxford: ClarendonPress,1995),pp. l5-18.
8t
Sen,Developmentas Freedom,pp.283-284.
 144 CHAPTERIV; THE DEFENCEoF HUMAN zuGHTSIN socIETY

freedomand the capability to do what is called for. when the personhas

this freedomand capability,it is up^tothe personto exercisethèm or not.
Thismeansindividualresponsibility.82
Sendoesnot arguefor an overly protectivestate,namelythe narìny-
state.The responsibilityof the state is not for nannyingan individuai's
choices,but for creating more opportunity for choics anl for substantive
decisionsby individuals.when the individualshave these opportunities
they.can act responsibly.The stateis not the only institution which operates
in this area. other institutions are also called on to act with social
commitment to individual freedom. political and social organizations,
community-basedarrangements,non-governmnetalagencies,the media"
and the institutions that allow the functioning of marÉetsand contractual
relationsare importanthere.83

6.2 The Conceptof an AcceptableSociety

^ . - The conceptof an acceptablesocietyemergesthrough the treatment
of rightsand freedoms.An acceptable societyis a Ésponsibl-e society.It is a
societyof freedomandjustice. It is a societyin whicl the personshave the
capabilityto leadthe kind of lives they havereÍNonto value. The success
of a society is to be determined by the substantivefreedoms that the
membersof that societyenjoy.sen saysthat "... individualfreedomcan be
seenas being constitutive of the goodnessof the society which we have
reasonto pursue.""*The capabilitiesthat a personactually has dependon
the nature of social arrangements.Here the state and ihe society have
responsibility.It is a sharedresponsibilityof the society that the syitem of
labor bondageshould end and bonded iaborers shouli be free tb accept
employmentelsewhere.It is also a social responsibilitythat employmeàt
opporfunitiesbe created. The denial of educationaloppórtunitiesto à child
or essentialmedicaltreatmentto the ill is a failureorsòòiatresponsibility.8s

Conclusion
. [n this chapterwe have seenthe justificationsprovidedby Sen for
universalhumanrights and his inclusionof economicand sociai rights in
the field of human rights. The argumentthat rights should be matcÉedby
exactly correspondingduties is challengedby Sen by his emphasison
imperfect obligations.His point is thai sincé human rights are ethical
demandsobligationsare not of the samenatureeverywherelThough this is
particularlytrue with regardto economicand socialiights, it can bé applied

82
SeeSen,Developmentas Freedom,p.2g4.
tt qs Freedom,p.2g4.
SeeSen,Development
8a
Sen,Inequality Reexamined,p. l5l.
85
SeeSen,Development as Freedom,p.2gg.
 CHAPTERTV:TFIEDEFENCEOF HUMAN RIGTTTS
IN SOCIETY t45

to other rights as well. He offers a powerful defense of the idea of

universalismagainstrelativist and culture-basedcriticisms.
The idea of imperfect obligations is a powerful argument for the
recognitionof economicand social rights. It helps to considerthem as rights
even when their complete execution is not possible. It involves the
obligation of third parties for the promotion and protection of human rights.
It also helps us to value positively the negativefreedom of others not only
by non-interference,but through positive action. Sometimesinterferenceis
needed for a greater good. Intrinsic and instrumental considerationsare
certainly a positive development of the position of Nozick. The
improvement is with regard to the nature of rights and the nature of
obligations.This provides a broaderperspectiveon rights. It emphasizesthe
positive role of the state.The role of the stateis not minimal. A responsible
stateprovides for education,health ca.re,unemployment,medical care, and
social securities.
sen's reflections on the universality of human rights and pluralism
are illuminating. His analyses of different cultural traditions show the
weaknessof the argument that human rights have their unique root in
western conceptionsof natural law and natural rights. By pointing to other
cultural traditions he also establishes the unreasonablenessof cultural
insularity. sen questionsthe validity of "Asian values" criticism by showing
the remarkablevariety in Asian cultures and the presenceof different valué
systems in these cultures. His examination of the various traditions
prevalent in Asia supports his arguments. Through a cross-cultural
examinationSen shows that human rights are universally valid irrespective
of cultural barriers. Moreover, one can understandthat universal human
rights are neither a threat to cultures nor are they an attempt of domination
by any particular culture. universal human rights empower different
cultures.The inclusion of rights in the framework of capability can function
as an instrumentto overcomerelativist threatsto universalhumanrights.
Sen's support of universalist convictions is relevant for the
)f promotion of human rights. Many Western thinkers claim that the concept
n of universal humanrights is uniquely western in origin, but Senproves that
v there are cross-culturalideasin regardto humanrights. This analysisis very
n
lelpful for the promotion of human rights everywhere.while appreciating
rl this analysisof Sen we should note that the ideasof universal rights possesi
b a sharpness that is notable in the west. This is to be taken into
d consideration.Sen invites one to think from his own cultural perspectives
and from the perspectivesof other cuhuresabout what a good life ii, which
are the good valuesin politics, morality, and economics.
Sen promotes the positive value played by democracy in the
promotion of freedoms.He presentsdemoóracyas a universal value which
is compatiblewith varioustraditionsand not opposedto'oAsianvalues",but
he is also aware of the limits of the functioning of democracy.political
participation of the people is given importance. He does not consider
 146 CHAPTER IV: THE DEFENCE OF H{IMAN RIGI{TS IN SOCIETY

economicincentivesa substitutefor political freedom,and he showsthat the

putative empirical connection between economic development and
authoritarianism lacks evidence. Democracy and human rights are two
important aspectsfor the overall developmentof the humanperson.
civil and political rights are not limited to males alone.They extend
to both genders.Actually when sen uses the term "person" he uses the
pronoun "she." He shows the inter connections between economic and
social rights, and civil and political rights. He arguesthat in the context of
deprivations of a drastic kind political and civit rights have a crucial
instrumentalrole. He shows the validity of this argurnentby his study on
famine. It can be seen that this study of famine has been-centralto the
developmentof his thought. The interconnectionin play heredoesnot mean
that political and civil rights are valid only instrumentally.They have value
on their own.
. In dealing with criticisms by speakingof imperfect obligations,there
is a certainweaknessin Sen'stheory.By sayingonly that anyòn" who is in
a suitableposition to help anothermay make no one responsible.Imperfect
obligations are valuable in a society which has consideiabledevelopment.
However, this weaknesscan be consideredas part of the general idea of
luryan,rights. since the central capabilitiesare not specifiedit is not easyto
find which are to be exercisedwith priority. If thù is not specified, then
question arises about the criteria according to which théy are to be
considered.
Th9 role of public debatesis important, but there remainsalways the
questionabout the limit of this debate.sometimesthe majority of the people
may vote to deny rights to a minority group. public debate, demócritic
participation, etc are ideals which require lavorable conditions and an I
ethical direction. However, we do not find such ideal conditions anywhere. I

Thy.r, the role given to public debaresshould be qualified. In the case of \

traditional values the role of public debate should respect some values as
fundamental.without such a structurethe result *ay nòt be ethically good.
This is true both in giving up some values and in adoptingnew vàlues.
Itejlfer-all existing values nor all new values need neóessaritybe good.
Public debateshould not be a weapon for permissiveness. sen has much
faith in human reason, but without some fuìdamental principles how can
humanreasonoperateethically?
sen treatseachpersonas an end. He speaksofpersons as having the
liberty of acting as citizens who matter and whosé voices count. This
involves more than being well-fed, well-clothed, and well-entertained
vassals.His concentrationis on the agencyand judgment of individuals.
Personsare viewed not as patientsto whom benefits ùitt ue dispensedby a
processof developmentbut as responsibleadults who are in chirge of tÉir
*s
ts
 CHAPTERIV: TTIEDEFENCEOF HUMAN RIGFITSIN SOCIETY t41

own well-being. They decide for themselveshow to use their capabilities.

The exerciseof freedomis ultimately a matter of personalresponsibility."'
The centre of attention in Sen is his capability approachto human
development. The perspective of human capabilities focuses on the
substantivefreedom of personsto lead the lives they have reasonto value
and to enhancethe real choices they have. Human beings are ends. Public
policy should view them as ends and not merely ÍN meansof production.
This showsthat freedomsare important.Capability expansionhas,however,
an instrumentalrole in bringing about social change.This instrumentalrole
goes beyond economic expansion. An expansion of female education is
needed to reduce gender inequality. An expansion of basic education is
needed to improve the quality of public debates. These instrumental
achievements are very important. The capability approach has direct
relevance to the well-being and agency freedom of persons. It has an
indirect role in its influencing social changeand economicproduction.
Functionigsare constitutiveof a person's being. The well-being of a
personmust be thoroughly dependenton the nature of his being, i.e. on the
functionings achieved.A personhas goals and values other than the pursuit
of his own well-being. These goals and values need not necessarily be
connectedwith his own well-being.
The language of capabilities is not limited by any culture. It is
valuable for people of every culture. This approach can provide moral
substanceto processesthat are occurring in a world of rapid globalization."'
The central role of individual freedom in Sen's works is to be appreciated.
Sen considers freedom both as the end and as means of development;
various freedomsare taken into account.Human rights and developmentare
interrelated.In this regard,Sen has exertedgreat influence. One can find in
Sen a thinker who is seriouslyengagedin the social issuesof the time and
who hasa universalvision.

E6SeeSen,Developmentas Freedom,pp.288-289.
87SeeM. C. Nussbaum,Womenand Humnn Development,p. 105.
 PART THREE
Chapter V

AN APPRAISAL OF TIIE CONTRIBUTION OF TTM THOUGHT

OF MARITAIN AND SEN TO TIIE NOTION OF HT]MAN RIGHTS

Introduction
After having analyzedthe approachto human rights by Maritain and
Sen here we shall make an appraisal.The aim in this appraisalis not to
judge which of thesephilosophersis better or worse but to seethe points of
convergenceand the points of divergence in their philosophical task of
understanding and explaining human rights. Even though there are
differencesin the backgroundand roots of their thinking, we would argue
that there is a rich complementarityof ideas between these two thinkers.
Their ideas are helpful to form a sound philosophy of human rights.
Representingtwo periods in the development of human rights they are
relevant for the promotion and protection of universal human rights in a
pluralist world. Recognitionof the rights and dignity of the humanpersonis
an important common ground that we find in these two phiJosopherseven
though they do not view human personsin the same way.' However, for
both Maritain and Senthe humanpersonis an end.
There are similarities and dissimilarities in the languageof rights in
Maritain and Sen. According to Hittinger there are equivocations in
identifying the rights languageof a Maritain with that of a Nozick, Rawls or
Dworkin.' The latter writers do not give an accountof a good life. They are
neutraltowards the questionof a good life. Maritain, following St. Thomas,
gives an account of a good human life. Contemporary discussionsabout
human rights are much influenced by Lockean conceptions.Sen uses the
language of rights much in the contemporary sense, even though he
modifies it. He incorporateshumanrights in a consequencesensitivesystem
which considers the fulfillment of rights as goals. His is a goal-rights
system,which considersboth the consequences and the intrinsic importance
of rights. We shall now point out some of the specific areasin which there

'
See Luk Bouckaert, "The Project of a PersonalisticEconomics," Ethical Perspectives6
(1999), pp.20-23. He considersAmartya Sen as a personalisteconomist. According to
Bouckaert since thirties Maritain, Alexandre Marc, Emmanuel Mounier, and many
othershave been searchingfor a third way betweenindividualistic capitalism and statist
socialism on the basis of a personalistic view of man. Sen is one Íìmong some
economists, who have tried to bridge the gulf between persoanlistic view of man and
economicrationality.
2
SeeJ. P. Hittinger, Liberty, Wisdomand Grace,p.49.
I50 CHAPTER V: AN APPRAISAL OF THE CONTRIBUTION OF THE THOUGr{T OF MARITAIN
AND SEN TO THE NOTION OF HUMAN RIGHTS

are important similarities and differencesin the rights languageof Maritain

and Sen.

1 SomeCommon Areas of Thought

1.1 The Context of Their Thought

Maritain was a French Catholic philosopherwho basedhis political
ideason St. Thomas.Through his writings and activities Maritain becamea
championof humanrights and pluralist democracy.He exertedconsiderable
influence on the social teachings of the Catholic Church and on the
ideologiesof many political parties.Maritain wrote The Rightsof Man and
Natural Law dunng World War II, the Holocaust, and totalitarian regimes.
We can say that theseeventsprovided the initial stagesfor the formation of
the modern concept of human rights. By the time Maritain was giving the
Walgreen lrctures the war was over, but it was the time of the Cold War.
As an ex-patriot from war-torn Europe he felt a deep necessity for
strengtheningdemocracyand human rights.
With his scholarshipin Europeanthinking and Christian philosophy
Maritain tried to give a deep grounding for human rights. His UNESCO
experiencehad inspired him to have a project. In Man and the State he
could offer insights for new political thinking based on classical and
Christian traditions, taking into account contemporary developmentsand
experiences.It was an attempt to support liberal democracystandingin the
framework of Thomism. He sought to find support for his allegianceto the
political and philosophical stance of liberal democracy in his broader
philosophical commitment. He attempted to unite Thomistic and
Aristotelian traditions with the human rights thrust of modern political
philosophy.3He tried to offer new possibilitiesfor human fulfilment and
liberty by being faithful to Christian traditions.
Sen is an economist and philosopher, who tries to humanize
economicsby assertingthe importanceof the dignity of the human person
in economic activities. He is also a champion of human rights in the
contemporary world. Like Maritain he stands for a just society with
political, economic, and moral liberty. While Maritain representsthe early
period of the evolution of modern thought on human rights evolution, Sen
wrote in a period when human rights had become, after an earlier
introduction of this notion in modern thought, an important issueof debates
and decisions.The issueof humanrights was invoked for variouspu{poses
in the domestic and international realms served through various agencies.
The literature on the material had increased, allowing one to examine

3 the Liberal State,p.3.

SeeT. Fuller and J. P. Hittinger,Reassessing
 CHAPTERV: AN APPRAISALOF THE CONTRIBTJTION
OF THE THOUGHTOF MARITAIN 15I
AND SENTO TFIENOTIONOF HUMAN RIGHTS

vanous aspects of this complex theme. Important

aspects such as the
justification and nature of,human_rights,
staie soverergnty,culture, and
pluralis.m were deeply analyzed.ThJ Cold
War ** íu"i. and through
lncreastng means of communication and globalization
the world was
becoming smaller. sen was in contact witÈ variou,
,"""nt international
documents and writings on human rights and was
familiar with various
criticisms lodged against the nature, tf,e foundation,
ical anJ ihe relevanceof
these rights. However, we find hardly any reference
EA to St. Thomas or
Maritain in the works of Sen. This is óonrpi"uàu,
ùle ,in." Sen makes
referenceto so many other relevantauthorsin his
the studv.
úrd
1.2 The Question of the Foundation of Human Rights
les.
tof I nhllosophicalaccountof human rights must face the issueof their
ú€ foundation. without conceptualclarification the
idea of human rights may
lar. not appeal to the mild^s of human persons. For
, an inquiring mind a
for reasonableexpositionof foundationhelp_s to clarify the conceptualproblems
of the idea of universal
claims foundarional doubts .huqan rights. In _o.Id".tó prl"ii" varidiry for rhe
ùv have io be philosopÀiJ"rlv'"óproached. As a
co realisr Maritain acceprsthe possibirty or oine.eirt
rouíoatiínil;;;#h.;
h to humanrights. This approachcharaóterizeshim
u. riu"rui. However, as a
md philosopherhe wants to give his own account justification.
"
of He considers
nd the Thomistic conception of natural law as the
true foundation of human
úe rigltg' and he justifies his argumentsby an elaborate
accountof natural law
úe and the evolving of humanrigtrts basedon the natural
tu*.f-
b
lnd o
Authors such as chris Brown criticize laking natural
i:al law as the foundation of human
rights. However, the origin of the notion oi
hu-un rgrrts can-oeLced back to the
tod natural law conception in the classical and christian
t uàltion. Îris À., nor mean that
the current understandingof human rights is
'úze entirely in line with that hadition. It is a
ev_o_l1edconcept, and it is -u"h influ"nced by the
Sucn social contract theories of
xn Thomas Hobbes,John Locke,.andJeanJacques
Rousséau.The American Declaration of
tu Independencewas also much influenceo uy
advantageof a natural raw conception as conceived
the social contractarian traditions. The
rith by St. Thomas is that it can offer a
criterion to judge existing moral practicesand
rly can give support to a common humanity
which is the basis for fundamentalrighfs. Even
ha whén are alainst fundamental
human rights and even when tyrannicil rulers "urloo,,
deny fundamentar h".;; rights, a natural
lilr law conception enables a person to claim his
human rights becauseof his conìmon
Es humanity- However, the problem according
to Brown is that culturally diverse
ES communities do not necessarilyhave such uìo*on
conception of practical reason.
GS- Different people have different understandings
of practical reason, which leads to
practices which are contrary to one another.
irc some practi"", ;hi;'are accepted by
certain societiesare considered.immoral by
other socìedes.practicui reason has to be
placed in an authoritative tradition in order'to
be validly una"rrtooa.-rnis is a problem
for universalisticclaims becausea particular
tradition is not universur.À"" chris Brown,
"universal Human Rights: A critique" in
Human Rightsin Gtobat politics,Tim Dunne
152 cgep,rgR v: AN AppRAISALoF THE coNTRIBLTtIoN oF THE THoucnr oF MARTTAIN
AND SENTO THE NOTIONOF HUMAN RIGHTS

In the beginning stagesof his thought Sen was not involved in

resolvingfoundationalissuesof humanrights. As we have seen,this attitude
is changedas his writings become more advanced.Sen gives justification
for the generalidea of human rights and provides reÍNonsfor the inclusion
of economic and social rights in the field of human rights. He considers
humanrights as primarily ethical demands.Peopledo have humanrights by
virtue of their very humanity. The assertionof humanity alludes to natural
law, even though Sen does not mention this. Sen does not speak of the
relation between natural law and human rights. He stresses human
autonomy.The right not to be hungry, the right to education,and the right to
medical attention are included in his project. Jack Donnelly observesthat
without minimum economic and social guaranteesa life of dignity is
impossiblein modernmarket economies.t

and Nicholas J. Wheeler, eds. (Cambridge:CambridgeUniversity Press,1999), pp. 106-

110.
This criticism evokes a serious point in regard to different understandingsof practical
reasonin different cultures. However, it does not prove that natural law is not a valid
foundation for human rights. Human rights are not optional matters but sound moral
principles concerninghuman life. Natural law is a valid foundation for those who accept
the fact that there is a common human nature. Our argument against Brown is that there
is a human nature and that it is the same in every human person. This common human
nature requires for every human being cefain conditions of life. A common human
nafure is an idea with moral implications. This idea requires objective norms because
there is a normalcy of functioning. Human beings cannot dispense with objective
principles ofjustice and right. The demand ofjustice andjust social order is universal,
though the ways of stating this demandcan be different. ff there is this demandand it is
a justified demandon the basis of a common human nature, this meansthat that there is
a moral order which gives justification. This moral order is not an invention of any
particular tradition. This moral order is part of the intrinsic worth and dignity of the
human person. A particular tradition such as the Aristotelian-Thomistic tradition only
gives it clarity in presentation.If one examines the concepts of various cultures and
societies a common moral order is seen to be discerned.This is an implication of the
social and political nature of man. The understandingof natural law involves variations
in details and not in essentials.Concern for objective principles stemsfrom what man is.
It is the practical reasonwhich indicateswhat man is. Without someobjective criteria we
cannot even enter in discussionabout what is right and what is wrong. Human rights are
moral ideals emanatingfrom human nature, and they are sound principles of human life
everywhere.Authors such as Roger Trigg argue that morality cannotjust be a matter of
individual taste. It is not just a matter of the creation of the customs and traditions of a
particular society. Ideas of freedom and toleration are possible only in a society with a
'îigg,
definite moral position. See Roger Morality Matters (Oxford: Blackwell, 2005),
pp.l-2.
s See Jack
Donnelly, International Human Rights:Dilemmas in World Politics (Colorado:
West View Press, 1998), p. 26. Donnelly says that many American and British
conservativeshave arguedthat economic,social, and cultural rights are not really human
 CHAPTERV: AN APPRAISALOF THE CONTRIBUTIONOF TI{E THOUGT{TOF MARITAIN I53
AND SENTO THE NOTIONOF HUMAN RIGHTS

1.3 The Development of Thought

Usually responsesto human rights stem from experiencesof their
violations. This is true of both of the thinkers we have studied,though they
are apart from each other in regard to the period in which these responses
occurred. The development of Maritain's thought on human rights is a
gradualprocess.It was influenced by his experienceof the two world wars
and the terrible atrocities committed by some nations which acted on the
basis of a false conception of sovereignty. In lus The Ríghts of Man and
Natural l-aw Mantaanprovides a list of basichuman rights. He helpedin the
formation of the U.N. Declarationon human rights.oThis role provided him
the opportunity to understandhow divided the world is on the level of ideas
and views.
He tried to find support in the Thomistic account of natural law for
his concernfor human rights and the world wide enthusiasmfor the notion.
His efforts involved an attempt to justify human rights against a Christian
philosophicaland theological background.It was his belief that the modern
notion of human rights can be founded on natural law as developedin the
classicaland the Christian tradition. It is a notion different from the modern
nominalist and self-interestedgrounding with which it is often associated.
All human beings sharethe same nature and so all are accordedthe same
fundamentalrights. Rights are for the promotion of the good human life.
Maritain is againstany inflation of rights which lay down claims arbitrarily.
Sen, as an economist, approacheshuman rights from a perspective
characterizedby his vision of the human situation.Both a moral philosopher
and an economist,he tries to bring ethics to bear on the realm of economics.
He observeshuman experiencesand then tries to enrich and transfonn our
understandingof famine, missing women, relative poverty, and other related
issues.He has proposed a positive approach to well-being and freedom,
namely the capability approach,and situateshis conceptionof human rights
in relation to the notion of capabilities. Human rights give corresponding
freedomsto human personsto lead the life they have reasonto value. The
focus on freedomscan contribute to the understandingof our responsibility
for others. Sen arguesfor human rights on ethical and economic grounds.
By bringing into public discussionpoverty and other deprivationsas relative
to human rights he has enlargedthe perspectiveof discourse.An important
issuein Senis the deprivationof thosewho are disadvantaged.

rights. According to Donnelly critics of economic and social rights deshoy their own
arguments by defending the right to property which is an economic right. He sees the
right to life and the right to food as different aspectsof the samecoin.
ó
SeeT. Fuller and J. P. Hittinger, Reassessing
the Liberat State,p.6.
|-

I54 CHAPTERV: AN APPRAISALoF THE cONTRIBUTIoN oF THE THOUGTIToF MARITAIN

AND SENTO THE NOTIONOF HUMAN RIGTITS

1.4 The Nature of Human Rights

All human p€rsonspossesscertain fundamentalrights. Some rights
Ii nalienable,ano
are nailenaDre, and some
some nghts
rights are
are conditioned
conditionedby
by social
roóiul and pohtìcal
and political
conditions. Maritain gives importance to civil, political, economic, and
social rights. we have to say that the attention hè gives io economic and
social rights is rather general. His main concentiation is on civil and
political rights. However, it is striking that he speaksof the right to work, a
decent wage, and a sufficient standardof life. be-ocrucy can best realize
theserights.
For sen humanrights are necessaryfor a just and decentlife, worthy
:f ly"qr dignity. His capability approach aims ar a fulry human anó
dignified life, worthy of a human pèrson. A fully dignified human life
requires adequatefood, education,hèalth care, religious"freedom,freedom
of. expression,employment,civil and political rigÈts, and many such like
things. Here we may note that in ordei to includà some basic needsin the
realm of rights sen employsthe goal-rightssystem.some importantbasic
needsare claimed as rights on the basis of human dignity. Theserights are
in conformity with the principles expressedin the u.tri. oéctaration.

1.5 Theoretical Influences

Maritain's writings were developed under the influence christian
faith, particularly Roman catholicism. He *a. a deeply convinced believer
who tried to find a justification for his political anà social philosophy in
christian philosophicalprinciples.Thomiim providedhim with a solid basis
to build up his thought in responseto contemporary developments.His
experienceof American democracyalso influenóed his thinking. He spent
much of his fruitful years of thought in political philosophy in ttre united
States.
His attempt was to accommodateto Thomistic political philosophy
^the
the languageof humanrights which was gradually deveùping in coniext
of liberal democracies.Issues such as a demociatic foÀ òf government,
popular elections,political participation, civil rights, social
pluralism were his principal concerns.He pointed óut itreir impbrtanceJustice, and
in a
changingworld and presenteda new model of christendom which is
not
hostile to human developmentas was a misinterpretedview of christendom
in some intellectual circles. As he was writing, the democratic
form of
governmentswas gradually emerging in different parts of the
world and he
thought that it was necessaryio giu" u justifièation for it within
the
backgroundof his religiousconvictionsandphilosophicalvision.
It was his belief that Christianity is the historical condition necessary
for the emergenceof a philosophy-of human rights. óhristianity
tras
contributedto matrersof,human dignity, the dignity óf lubour, the rigîts
of
conscience,and so on. However, the role oichristianity here
hai been
 CHAPTERV: AN APPRAISAL
OF T}IE CONTRIBLNIONOF THE THOUGHT
OF MARITAIN I55
AND SENTO THE NOTION
OF HUMAN RIGHTS
limited. Maritain, it seems,
is somewhatex.crusivistin
this aspect.There are
rs tt'." à?
;T:iì:i|J?ffil,1 "'"'s"n." pruF'"iú
ffi; ;ghtsand idears
rl
oemocr{ffi ;i-"T,lH:'#""1"'f"",T.:r:i*m*1tffi
É
d
ffiff**l:n
of contemporary
oernociatic *1",*
pracricesr,íitt,ct.irtianitv
d is
I gÎp,"I inspirationand chrisrian
t*,rft3:ff",,t:.,,"t"^ background
of
D
withthe
ihr;;,;;';L';":ffiî:f;:nJ:î.::,
H#*,ifll,,;fiiJ-::i*#
destinyof h-umanpersons.
V Aristorle,
Adam
sen deveroryhi; ;óL.i "*rtr.,arusionsto
d
senpresents 9*trr, iu,1inil;.::
hisexposition
s..laiìr-,"r."ii;;, andR. Dworkin.
b
refersto Arisrotre, t i, o*n ,"i""ri'n" ,ì"1"r. u""n
I ii-i, to u" thoughSen
Maritain,burto theuniver*ió""r.i"tion
"rliìt", s"n oo", ;;;;" any reference
I
of il;'i$;rs. ro
norseemro find anyreferen." In Senwe do
I
ú"$:rn"Àìr,,til'ffirr*.enrar
;;;;;i'ú;;Jpil"s
in,hewes,,
in rhe
I
"#r'rn:1;:t:iliì:"ffi#'
sen thinksthat.theuuri. irui,
of humanrightscanbeseenin
culturesin differing.o"gr"r.-rt"l"*"^n9, various
particularculrure. r*1u,i. ríylq,n" ttre àxclusiu"p.op".ty of any
Ilt no difficultTin
rights wourd presenr ót rirr#ìnrii.ution of human
somebodysaysthat g-ospel ,ueing accepredby s"n, but when
probrems is the ànty ,-" basisof ìí"r" rights,then
wourd C;"pr1suc!
Ioveof hum3nlty 11T*'p"": as jusrice,reason, rights,and
arese^e1ìn
Theinfluenceof Marxi.-
"*i*r.íitures in Sen,s view.
;;'$" is evioeni.ihi;;;ro be
centraliryhe givesro socio-econo.iJigntr. seenin rhe
theu'N' Deciaration.rrtir rr,rr'i.,ril;"" is seenalsoin
u"r*urio"n emptrasizeo
positiverights.Articres ùÀÀ-""g-tiverightsand
22-27give that .r. +r;j;;"'nrno À"- rio"ài'iruoi,ion.
Articres
compromises.s 1r," "i
,""Jiri*i'o;oirions.ihi;;;,
The.righrs ,h"rìil; a resulrof
economicandsociat d,::]T*,r:
pàrJ:., ;; ;il ?p".uk,of in regard to
íten overlooked.
arein creasingry depri
v.a.i *t" il'dui ;"onomic oroer. The-r"'p:::rr,"ff
positiveú;; il TJ;
:ffiú:6."r:courase towardstt" of
"nr,àn"ing basic
1.6 The Conceptof the Human person
Yyl"it providesa soundande
o"t:ot.r'a*tuin'ti::.,bdiliÉ:#1",il*.tTlî,",r1f ,?:.llf
guided by the christian
image of the t u,n- person. fl T
He gives an important

'
SeeJ. p. Hittinger, Liberty,
o Wisdomand Grace, p. g2.
SeeD. Hollenbach,Claims
in ConJtict,
rO. rr-r,
156 cHnrreR v: AN AppRArsAL oF THE coNTRrBUTroN oF TIm rHoucHT oF MARTTAIN
AND SENTO THE NOTIONOF HUMAN RIGHTS

role to human reason.This is due to his conceptionof the human personas

createdin the image and likenessof God. His philosophy about the human
situation is determined by his understanding of the nature of ultimate
reality. Maritain contendsthat there is a universal human nature sharedby
every human person.Man as a human personhas two aspects:individuality
and personality.Relating to thesetwo dimensionsthere is a twofold destiny
for man, temporal and spiritual. The spiritual destiny transcends the
temporalorder.
The personis social by nature.Man has obligationstowards society,
and man enjoys many benefits from this common life in a society. The
social nature of the person plays an important role in the enumerationof
humanrights. Human rights presupposethe notion of a stablehuman nature
and a hierarchy of goods as dictated by natural law. Becausethe human
personis social by his very nature, he lives in a community of persons.In
this community the common good is important, and each member should
strive for the furtherance of this common good. The notions of Justice,
rights, freedom, and equality are developedfrom his conceptionof human
dignity and the common good. Man is more than part of the temporal
society. The person is not ordered to political society by reason of
everythingthat is in him. He has transcendence.
Maritain views man as a person with dignity and freedom. The
conceptionof the dignity of the humanpersonis a pivotal point for Maritain
in enumeratingthe human rights. Human rights protect human dignity. His
philosophy limits human rights in the sensethat whenevera claim is against
this dignity as understood by him, he cannot accept it as a right. This
conceptionof the dignity of the personis againstan arbitrary view of human
freedom which arguesfor gay rights, abortion rights, and so on. It is to be
emphasizedthat Maritain is againstan inflation of rights.
The centre of Sen's capability approachis the human person,not the
stateor any collectivities of persons.Sen prefersto use the term "person" in
speakingof human rights rather than the term "individual." He takes into
considerationthe well-being and the agencyaspectsof the person.For Sen
spiritual, transcendentalaspectsof personsare left to the private sphereof
individuals. sen neither denies nor assertsthe spiritual dimension of
individuals. If the person values this dimension,Sen would say that he
shouldhave the freedomto follow his choice.Sen's expositioncan appeal
both to believers and non-believersbecausehe does not favour a particular
religious conception of the world, while Maritain affiliates himself with
Christianity. Sen should concentratemore on the positive role of religion for
the promotion of human rights. catholic attempts for the promotion of
fundamentalrights provide a good examplecalling for suchconcentration.
Sen takes the worth of the human person as it appearsin the U.N.
Declarationfor granted.All humanpersonsdo have worth. It seemsthat this
 CHAPTERV: AN APPRAISALOF THE CONTRIBUTIONOF TI{E THOUGHTOF MARITAIN I57
AND SENTO THE NOTIONOF HUMAN RIGTITS

document has religious tones because it accepts concepts such as

brotherhood,person,and so on. The conceptof brotherhoodin some sense
seemsto imply the conceptof fatherhood.Even though unlike the American
Declarationof Independence,this documentlacks any explicit referenceto
God we can, however, seeindirect allusion to the divine in it. We can say
that there are, therefore,indirect religious influencesin Sen even though he
considershimself a non-believer.
Human personsare responsibleagentswho can decide what kind of
a life they want to lead. Individual responsibilityis a recurrentthemein Sen.
He views human persons as ends of development and not as mere
instrumentsof production. Freedomis at the centre of development.People
are activelyinvolved in shapingtheir own destiny.They are not just passive
recipients of the fruits of development.He emphasizesthe agency role of
humanpersonsand the substantivefreedomof the peopleto lead the kind of
life they have reason to value. He concentrateson the agency of human
personsin the field of economicswhich is principally concernedwith the
aspect of well-being only. Both men and women are active agents of
change. Sen sees importance in the reasoning and judgment capacity of
humanpersons.
Sen like Maritain emphasizesthe social nature of human beings.
This social nature requires communication and participation, which entails
that civil and political rights are necessaryfor human beings. Sen does not
accept the view that human beings are uncompromisingly self-interested.
Social responsibility and justice are part of individual freedom. People do
have a senseofjustice becausethey are socialbeings.This senseofjustice
is reflected in the way we think of our family members,neighbors,fellow
citizens, and other peoplesof the world. He assertsthat the developmentof
social values and a senseof responsibility may reducethe need for forceful
stateaction for an efficient provision of public goods.The role of values is
importantboth for human behaviorand for democraticthought.

1.7 The Concept of a Good Human Life

From a definite conception of a good life Maritain derives human
rights. In his conceptionof freedom there is emphasison moral virtue and
moral responsibility. Human rights are for civilization and culture. The full
flowering of the human person according to the natural law is the aim of
human rights. For Maritain a good life is a life of virhre and movement
toward moral perfection.He is opposedto an individualist interpretationof
human rights. The proper good of the human person is not opposedto the
common good. The trans-political end of the human person is part of the
commongood.
We can say that Sen lacks a true conceptionof the human good. It
seemsthat on this matter personshave to decidefor themselves.This liberal
 158 cuarrsR v: AN AppRAIsALoF THEcoNTRlBUTroN
oF TFIETHouct{ToF MARITAIN
AND SEN TO THE NOTION OF HUMAN RIGHTS

approachhas a certain amount of validity becauseit respectsindividual

freedom,but it should be qualified by ethióalprinciples. otlherwise,the use
of freedomwould be arbitrary, and iimay lead to permissiveness.For sen a
good life consists in the capability of leading the life one has reason to
value. It may seem that sen is in the line of John L,ocke.sen does not
consider the issue of a knowable human nature which morally constraints
the humanpersonto an end quite independentof arbitrary wishes.sen has a
completely secular view of good life, even though he neither denies nor
affirms a role for religion. The well-being that catòheshis attentionis well-
being from a secular vision of human pérsons.He does not deal with the
importanceof an ultimate meaning of fife nor the role that it plays in the
outlook of the humanpersonregardingtemporalissues.Howeveì, regarding
moral matters, especially matters of conscience, there should bè somé
perspectivesregarding the spiritual and transcendentdignity of the human
person-.whichrequires objective moral nonns. Here sen's concept of
capability is to be refined and morally oriented. unless there is moral
education, the individuals' choice of good becomes arbitrary and their
decisionseven if they contradict the common good seemunobjectionable.
Belief in fundamentalhuman rights must involve moral belief. This means
that there should be moral norrns in deciding functions relative to the
valuable. This can be argued from sen's conCeptionof human rights as
-ethical
ethical demands.Regarding personal choice alsò there should be
considerations. "The reason to value" should be ethical. Therefore. there
should be a role for moral norrns when the individual choosesfrom his
capabilities.

1.8 Social Justice

The issueof socialjustice is an important themein Maritain. For him
the
-principalrole of the modern stateis tlie promotion of socialjustice. Sen
prefels to speakabout simplejustice, althoughoccasionallyhe uÀesthe term
socialjustice also.It seemsthat he usesboth-termsto signify the sameissue.
sen concentrateson justice and development.In this appróachpersonsare
seen as responsible and in charge of their well-being. Sen's main
concentrationis on the economicand socialdevelopmentof humanpersons.
For him the ability of people to participate in social decision-mJkingsis
alsopart of socialjustice.
In_ contemporary potitical philosophy the capability approach as
develop_ed by sen offers a framework to think aboút social juitice. The
meri.tof this approachis that it concentrateson the freedomspeople enjoy in
lgading valuable human lives. This approachgives a re-orientation to our
tlútrog about poverty, inequality, development, cultural relativism,
democracy, and so on. The theoretical implications of sen's capability
approachhave beeninfluential in developmentprograms.
 CHAPTERV: AN APPRAISALOF THE
CONTRIBUTIONOF THE THOUGHTOF
MARITAIN 159
AND SENTO THE NOTION OF HUMAN
RTCTITS

sen's capabilityapproachcancontributeto
thoughit is not a a theoryof justice,even
9omp19te lheory oilurti.". n" óù;;. rheforceof rhe
Rawlsianconceprion of justice tltrougnr,eir'.'Jti"J or it. TheRawrsin
theoryof justicec?nngriear adequatery
"í"n wTthtrreneeJiolimit theeconomic
Iibertyof the rich in rheinteresróiii;o;"
in
with questionsof hlmg rights oniy in ""t "* o"fJuution. It candeal
societiesrer'ativetyadvancedin
sgcialdevelopmenlsen's upproachcanbe usedfor anevaluation
of the.oppoplitv for ju.stice."up'uuitityótricrr
\tgh6 ;" i;il;;paper becomereal
only throughthe capa6ilitiesor [re person. sen hasa radicalcommitment
to economically peoplemore than we seein the writings
_vulnerable
Maritain,who has_gnrl,u of
g"nlruiupp-ach to theseproblems. In
Maritain can be considerédas an'i'nspiration, this realm
but sen,
experiencein economi"r,.un concentrare due to his rather
Ltri:: more on poverty and

1.9 The Conceptof Equatity

Maritain's conceptof freedomis croselyrelated
equality'Maritaindeniela nominalist-empiricist'anJun to his conceptof
equality,and he advocatesa realistappròach, io"uristapproachto
which ailows
diversityin rhe hyr* species.e Àminatisr-empiricist for unity and
questionassertsall inequàhdes, approachto this
and deniesthe essàntiaiequality of human
nature.Idealistsdeny.allinequalitiesand
arguer* egaritarianism.
According to Mariiain somè naturui in"qíutiri;; "ui"rrt"
floweringof humanrife. In ru.n u ìlrt"m ;^;ecessary for rhe
tlre natural gifts personsare
acknowledged. He proposesthe conceptof equarityin of
nature,which consistsof persons'communion^in essentialhuman
species'This is basedon the túe mystery of human
tr"itr"rh#"#r*ed by Judeo_
christiantraditions.'
Accordingto""--"n
Maritainchristianityassertsthe necessity
of. some.inequarities becausJtneylrovide variety for human
enhanceits richness.Equarityin íutiu." life ani
demandsínaiviouatinequalities.
Equality is primary und_in"quurities are o"riu"ùi".- nqùriry is primary
regardingthe fundamental rightsandcommondignity orí" humanperson
andjustice.This meansthaidiscrimination
race'and so on areasailsj the principle on ti" i*i, or g"no"r, class,
of.essential Accordingto
Maritain, however,óertain roiiul iiàquarities "l*riìv.
inequalitiesor arerequiredby them.VÀ"n are the resurt of natural
a personrendersmoreserviceto
the whole he shourdreceivemor"- rit"*ir"
proportionto the necessities inoiuiouurssiouro receivein
of their life andthe deveropment of the means
forputting rouse,h:'r,liglr in nrnoÀ'e'nij.igr,,r,
rn respectto humandignity,,io::.Éilarity
poriticaieqúarity,
equality
equalitvof opportunityàre strésseo u"fore raw, and
ov ttir. "quuù,y
Maritain is the absollte egalitarianiJm Th";;;it#Jrur,n denied by
in the ,oliuiirt-tuoition,
"irom which
deniesindividualdiversity.iti.
i, aiii".lit that which
"Àìrit"rianism
 160 cHesren v: AN AppRAIsAL oF THE coNTRrBLnroN
oF TFmrHoucrm oF MARITATN
AND SENTO THE NOTIONOF HUMAN RIGT{TS

Tqy".q by philosophersSuch^asRawls or Sen, who accept the role of

individualmeritsanddiversitv.e
Maritain also emphaiizes an organic distribution of the common
go9! a1d a free participation by all in necessarygood things,
material and
spiri-tual,by which naturalinequalitiesmay be cónipensateo.rrris allows
the
weak and the less favoured to sharein the benefiti which the
social whole
owes to its memberg..This- conceptionof equality offers eachpersona great
number of possibilities, but allòws at the same time for
differences in
growth and in development. This is an equality
of proportion which
appreciatespersonal merits. Maritain is agiinst'the suppression
of all
inequalities,but for compensationin this relard, and for'subordination
of
inequalities to the higher equality of the common use of the good
things
which nourish the human naturè. He is strongly aware of
the christian
influencein the spreadof the idea of equality.î problem
with Maritain,s
conception of equality is that it is formal and nòt concrete.
It does not
sufficiently attend to the concrete inequalities that stem
from social
backgrounds.However, his insistenceon sócialjustice in other
conrexrscan
be.employed apply to concreteproblems. It can be pointed
!o out that the
criticism of absolute.egalitarianism by Maritain prouid", a
metaphysical
treatmentof equality in the context of socialistthousht.
For Sen,equality is both a right and a goal.it is a morar right
^ on the
gf th_elelativelydeprived, and iiis a goal óf a political or moùl
t"rt system.
sen like Maritain thinks of a sharedhumànity and mutual responsibility.
In
dealing wilh equality and inequarity te takes into
consideration
interpersonalvariations.He consideisthè evaluation of inequality
basedon
income levels is an inadequatecriterion. He speaks
of inlquarif on the
level of freedom, well-being, healfh, politicar participÀtion,
-sen -resuli employment,
and gender. According to famiìe is a of inequàtity. rri,
broadeningof the conception of inequality enriches our
understandingof
inequalities in various rèalms. There-is an advantage
to Sen,s notion of
equality of capability il considering the whole
oi un of
opp.orr'nity. sen arguesfor equality of capability"onJ"pt
freedóm.This is "quutiry
a kind of
egalitarianismwhich is cenìred-on niroo,n il-."qr""s
differential
treatmentof persons.lMhile the guaranteeof equality
oi opportunity may
remain as a constitutionalright ìt may not neòessarily
increasethe real
capability freedom of the people. sen is .nor" p.""irÉ
liiun Marirain in
examiningthe problem-ofinequality. His egalitariaì vision
doesnot destroy
theautonomyof individualsand shów a dyiamic vision
of socialjustice and
socialprogress.It takesinto accountinterpersonaldiversities.

Rawls argues for equal basic liberties and opportunities

for all and Sen stands for equal
capabilify freedom for all.
 CHAPTERV: AN APPRAISALOF TTIECONTRIBI,.TTION
OF THE THOUGTITOF MARITAIN 16I
AND SENTO THE NOTIONOF HUMAN RIGFTTS

1.10 The Nature of Obligation

Obligation in regard to human rights is a complex issue.In Maritain
we do not find enough concerning the nature of obligation in regard to
economic and social rights. The human rights in Maritain's list are mainly
concernedwith the stateas the responsibleagentas far as their fulfillment is
concerned.Here the obligation is mainly in the nature of non-interference,
without excluding positive duties.However, the treatmentof positive duties
to othersis of a generalnature.On the other hand, in Sen we seea detailed
exposition of the nature of obligation in regard to economic and social
rights. This is due to the period in which Sen is writing, in which economic
and social rights are matters of seriousdiscussionregarding their validity,
and the nature of obligation in regard to their fulfilment. The nature of
obligation in Maritain can only be deducedfrom his conceptof the common
good. Maritain's concern with the Christian ideal of brotherhood which
makeseachone responsiblefor the other may also be helpful here.
Sen gives weight to both perfect and imperfect obligations in the
realm of human rights. These ideas are basedon Kantian conceptions,and
Sen admits this indebtedness.The extensionof theseconceptshelps him to
answer those criticisms which reject the consideration of economic and
social rights as human rights. Anyone who is in a reasonableposition to
intervene has the obligation to help in the matter of human rights of other
persons. Individuals, groups, and governmentshave their obligations in
their own realms. Human rights are claims on these persons.Affirmative
social Íurangementsare neededto safeguardhuman rights. Sen's empirical
research shows the ways in which a denial of civil and political rights
functions as an obstacleto humandevelopment.
In Sen there is emphasison public action and support,especially as
regardsenhancingbasic capabilities.In the elimination of poverty and lack
of healthcare, and the promotion of educationpublic participationcan exert
influence. The public can exercise this role creatively either through
positive helps or through pressureon the state.Sen's writings challengethe
conception that human rights thwart economic progress.Actually human
rights help socio-economicdevelopment.

1.11 The Role of Democracy

In supportingdemocracythere are conìmonelementsin both authors
under consideration.Maritain is a strong supporter of liberal democracy.
This might be due to his experiencesof power accumulatedin the handsof
a few who ruled not for the common good but for their own personalgood.
Maritain considersliberal democracyas the only way of bringing about a
moral rationalizationof politics. Due to thesehistorical reasonshe develops
 162 cHavreR v: AN AppRAIsAL oF THE coNTRrBurroN oF THE THoucFrr oF MARTTATN
AND SENTO THE NOTIONOF HUMAN RIC} TS

the Thomistic underslandingof democracyas a political regime as opposed

to despoticregimes.'uFor Maritain philosophy can legitimate any fàrm of
government:aristocratic,monarchic and democratic.It is to be trere noted
that St. Thomas does not considerdemocracyas the best regime.ll For him
the best regime is a mixture of various regimes. Howeverl Maritain goes
beyond st. Thomas in his defenseof liberal democracy.He finds the óots
of democracy in the gospel and argues strongly for such a form of
government.
The democracy that Maritain advocates is a pluralist type of
democracy.tn this democracythere is a variety of groupj and assoói^ations
of citizens. These groups have rights and responJititities. This pluralsit
democracy has a common faith. This is a raith in the principles of
democracy.For this democraticsociety there is a moral charteidealing with
human rights and justice. It is this practical moral charter that keeis the
democracy integrated. Faith in this moral charter is a practical faith.
However, this moral
^"!1lo is deepty related to, in his opinion, gospel
inspirations. People of different religious and philosophic convictions can
explain and justify this charter according to thèir faiths. He also speaksof
teachingthis charterin the educationalsystems.
Both Maritain and sen stand for social democracy in which states
are expectedto exercisemore than a minimal intervention in social welfare.
Since in the classical liberalism and in the libertarian tradition onlv
minimum intervention is accepted,this fact shows that both authors aró
liberals in a qualified way only. Here it can be seenthat Maritain and sen
were influenced by Western Europeanthinking on the welfare state. Both
require worthwhile action from the concerned governments so that the
q"gpl" may,enjoy freedom. This is not mere non-intervention.However, in
this aspect Sen is more emphatic than Maritain. In Maritain the posiíive
intervention of the state is less specific. Sen emphasizesthat governments
must createthe social conditions whereby actual participation o-fall persons
in socialhfe is a real possibility.
Maritain combinesreligious and theological thinking with principles
of liberal democracy. There is a metaphysical p"trp""iiu" oifered'by
Maritain in defenseof liberal democracyon a ratioìal ànd religious basis.

r0
see J. P. Hiftinger, Liberty, wisdom an^dGrace, p. 49. Hittinger argues that there
are
doubts as to whether the Thomistic account of rights is coisisteùt with the liberal
interpretation given to them in the modern jurisprudence. The Thomistic
account is
communally based and has a subscantivenotion of a good human life. The modern
account is individually based and is neutral toward a conception of a good human
life.
Thig contemporary notion of rights is a development from HóUUesand iocke. According
to Hittinger Maritain did not considerthis issue sufficiently.
tt
SeeJ. P. Hitinger, Liberty, Wisdomand Grace, p, 50.
 CHAPTERV: AN APPRAISALOF THE CONTRIBUTIONOF THE THOUGFITOF MARITAIN 163
AND SENTO THE NOTIONOF HUMAN RIGHTS

This is a point of great value, that is, a supportto the aspirationsof mankind
on a rational basisbut with religious inspiration. He stressesthe importance
of the religious and tle theological to the progress of liberal democracy.
Maritain shows that catholicism is reconcilable with liberal democracy,
indeedthat the founding principles of liberal democracycan be provided by
catholicism.l2 Howeveì, today in a world of pluialism the religious
theologicalaspectof things is neglectedor relegatedto the private sphJreof
persons.An argumentis often madein favour of a religion free potitics.
sen does not provide a metaphysicalaccount of human rights and
democracy.However, he explains elaborately the intrinsic releva]rce,the
protective role, and the constructive importance of democracy.He shows
the invalidity of criticisms levelled against democracy and political
participation by authoritarian governments. By empirical evidence Sen
proves that no famine ever occursin a country where a democraticform of
government and a free press are active. He puts forward a powerful
argument in favour_of the importance of political rights for pooi people.
Thereby,he shows that there is an instrumentalrole for polidc;l hberty ànd
civil rights in regard to economicdevelopment.By his study on faminé and
poverty he shows that democracy can safeguard economic freedom.
According to Sen, scepticism about the relevance of political rights to
economically backward nations is superficial. For him political rigits are
pivotal in inducing a political responseto economic needi and even for the
conceptualizationof economicneeds.
Maritain is concerned also with exaggerationsof democracy. He
criticizes democratism. Sen explains failings in the practice of demoóracy.
They both insist on the proper functioning of demociacy. Sen speaksof an
effective practice of democracy and shows the interrelation between civil
and political rights and economic growth. Both have a concern for
participation in political decision making. Maritain does not elaborateas
doessen the insffumentaland constructiverole of political freedoms.

l.l2 Humanism
The humanism championed by Maritain is theistic. It is by this
theistic humanism that Maritain provides a religious dimension to a mere
secular vision of human rights. Maritain wanted to show that Christian

" In fact, Maritain was the lrst Catholic thinker who elaborateda complete philosophy
of
human rights in the context of modern political life. His participation in the formation
of
the Universal Declarationof Human Rights is particularly important in this aspect.When
we consider the reservationstowards human rights on ttré part of various Christian
churchesat that time, this contribution becomesparticularly important. See Francesco
compagnoni, I diitti dell'uomo: genesi,storia e impegno ciistiano (Milano: san paolo,
1995),p.128.
 164 cHaprsR v; AN AppRAIsAL
oF THE ..NTRTBUTI'N
oF T'E THoucHT oF MARITAIN
AND SENTO THE NOTIONOFHUMAN
RIGTITS

humanismoffersa soundphilosophy
of humanrights.This showsthat the
underlyinghumanismor nir.nunri'giítr'i,
the contrary,humanrightsarer"à?Ji" not u!ui"".i ór,ir,i"" thinking.on
of the humanpersorir u it. wf;il" tÀ" èilrtiun conceprion
""ntruì"irfirarlon ro. uurìiui"t philosophy,sen
advocatesa securarnuruni*.'""ta*i,uin
humanism .o;;à;r;d anthropocentric
anerror.arn.T'"t ;il; òil;;t"' ;;#;;lor
considersGod thecentreof min manMaritain
andmanespeciailyinn""à of redemption.
He is againstthe view rrr",
"""Jo"rr'*un himself as the centreof man.
Maritain is opposed.touotr,-inoiuiàuuri*
proposesan intesralhumanism. u"l Instead,he
tn this contextone ""rr""tìism.
sees the importance
his distinctionbétweenindividuai,y of
destructiveness u"o personality.Maritain showsthe
of inoiviauatisnil"ú iur"iialism in"a
only with moralconsciousnd;;" à"io"ruti" sociery.
probremor it" worrd
!3^ ytveo AnragonismrourÀo* .uliur, ethnic, religious, "onì"mporary
reasons cannotbesorved,only and sectarian
througrreconomic
There is a fundamónturàlri".ence ol""r,riÀ""t.
regardingtheir attitudeto human betweenMaritain and Sen
rirà. u*iruin criticizestte secutarization
of the modernworld. w"-."ì"i'ini
criticizes racism and tvtarxisÀ.---Éo. ,u"r, a concernin sen. Maritain
him both
anthropocentrism. Both are JirtoJon, or_rn" true image are resurts of
the christian faith. sen is-.'"ú-ffiàar of man basedon
of any disórimination,bur he
friendship
iffiffij:r, ":",*:^^30^y.,
and 9i ri*"i
transceloì".1
^il;i::';"iffi1î01*iTil?ó:"'.":,,",';
g"{tiny'
r.. ùJ.i,iì-""'.]hasizescivic
thebodypolitic.l3
TruepoliticutemanJpadontends
a fraternalcity. For t i- u ,t"" to the establishment
;;il;;sr of freedomdemandsvirrue of
a perprtul and
::lî:^--d
morarconcerns "ig*/"i"Àn over himserf.virnrous rife and
*" of civirizati"".îiri-, masteryof serfis
a recurringthemein i*qo-.tTt.aspects
Maritain.'rtrougi ttr"-r""i"i
essenrialtydistinct flom rhe ,pil;;Ì; order is
""i"p"riri"al
it is pervadeO ano inrrinsically
^
;i1:frrln,,1""nî1,T,îl;
righ
tsand *t *iil"_,t:""pr _acraim
which
praces
fi fi# digniiy
;;; ;;"d;"!Tofi1".0,
iffilT,Jff î :l"f:
Maritain is critical of Kant and
rh
.
epersonn".,ilt,li,": ;h;i R
if he obeyshimself atone i ;;ffi ;iTfi:l
. :::trH?
and that man rs.constituted
Hf iJ?l""#,
iJ
suchastat".,r_rr..^n^_
sucha srare orrreedom. ..*.,^ t^^f,- . by right of natureií
n'i' rà"or;;;à#,;ìilffi:#":?ti,:iffl;,:Xî
Sj;'ifi'?:1fjT,:':::::1 in soci
ar,poriricar,
economic -S"n ^ury"
lire.rhedisappearan* - u* ìàlJffi"Là;1ff,ll'j1i"i;; and
{:i:"nuences
these consequences.
ir "r enzed by some elements
"À**,
t3
Martha c' Nussbaum..aprominent
advocateof the capability approach
';;;i#,Y:;:;;::*;i";;b"'ffi similar to thu

i
i
"t#l""Jr'i"no'r'p'i;"ff.ó:Nussbaum,won

f'
I
 CHAPTERV: AN APPRAISALOF TI{E CONTRIBUTIONOF THE THOUGHNOF MARITAIN 165
AND SENTO THE NOTION OF HUMAN RIGTITS

anthropocenffismcriticized by Maritain. It seemsthat Sen is concernedwith

an individualist accountof humanrights.

1.13 The Role of the State

Maritain is more eloquent than Sen in articulating a philosophy of
the state. Maritain considers the primary duty of the modern state the
promotion of socialjustice, and in pursuit of this goal the statemay control
many functions. Even though Maritain does criticize Marx, there can be
influenceson him in an indirect way from the Germanthinker. One example
that can be pointed out is his idea that all should insofar as possible
participate free of charge in the elementary goods neededfor social life.
Another influence can be attributedto the importancethat Maritain gives to
economic and social righ6.r4 The economic and social rights need not be
considered as Marxian in origin, but that tradition has influenced in
consideringthem as humanrights.
Maritain is concernedwith personalmorality. This is clear from his
demandfor state intervention when the right to free expressionharms the
common good. Sen is in favor of state neutrality in regard to personal
morality. Maritain explains concepts such as the state, the body politic,
sovereignty,and so on. Sen doesnot give explanationsabout the conceptof
the state.However, the role of the state in the thought of Sen is important
more than that found in the liberal view of the state. In enhancingbasic
human capabilities, especially in overcoming deprivations such as hunger
and lack of medical care and of basic educationthe positive actions of the
state are very important.
Sen emphasizesthe responsibility of the governmentfor communal
well-being. His concernis with what the governmentcan and should do for
the enhancement of human freedom. The welfare functions of the
government are needed to help human beings live as free persons.The
welfare functions are not to make human personsdependenton the statebut
to make them independentso that they can live as responsibleadults. Both
authorsseegovernmentas accountableto the people. They advocateactive
public participation by way of elections.Only a governmentaccountableto
the law and to the people will respect human rights. Even when
emphasizingthe role of social arrangementsfor individual freedom Sen is
against an overprotective state which does not allow opportunities for
individualchoice.

ra See Maritain, Ransomingthe Time, p. 29. See

also J. P. Hittinger, Liberty, Wisdomand
Grace,p. 149.
 I66cuerren''
^. oF
MARITATN
xn:iffi ffi ffix1ffiTr#ouc'r
l.l4 The Situation of pluralism
_Throughouthis philosophical career Maritain had a deep concern
with pluralismin social living. The principle of pluralism is consideredby
Maritain as an importanr aspectof tÈe boày pofiìic. The pluralist principÉ
demandsa democraticregime becauseonty in a democraiic regimè *" ih"
people free to exercisepersonalinitiative. Citizens in a demociatic society
may
fold yery differentworld views.Religious,philosophical,cultural,anà
social differentiations play a role here. In this- contexì there is need for
peaceful coexistencefor the common good. There is need for a practical
consensus. The foundationsof common life in such a pluralist democratic
regime are freedom and a practicar secular faith in u do-*on democratic
charter.
Regarding pluralism sen has contributed much. The enormous
amount of literature that has been produced in this field in the modern
period has contributedto an evolved understandingof pluralism. Regarding
social consensuson basic principles sen is in igreement with Maritain.
sel's capability approachis baséd on value plura"lism.sen insists on the
role of public discussion relative to the accèptability of some claims to
humanrights. He allows considerableinternal variations about the coverage
and content of human rights. Sen rinks rights with the formation of social
yatues.However, in Sen there is a probleniwith this type of consensus.The
individualistic character of his àccount of humai rights may lead to
permissiveness.only a genuineconceptionof the good can check
such individualist tendencies. Here the subject"o*ón maffer also should be
considered. claims to rights can sometimós contradict sound moral
principles. This is evident from the many referendums which result
in
decisionsagainstgood moral principles.puutic discussionand debate
are
very useful in their own ways, however, especially in overcoming certain
practices which have negative cultural roois su"ú a, genetic mútilation,
genderdiscrimination.and so on.
Maritain's philosophical explanation of human rights based on
-
natural law, and the importangehe gives to the gospel and c-hristianitymay
be.challengedby cultural relativiJts, who deiy universal human iightJ.
cultural relativistschallengeuniversalmoral norrns.For them values
are
culture bound and, therefore, there is no universal norm applicable
to all
human beings.The proponentsof cultural relativism hold that morality
is a
productof culture.tn their thinking one cannotjudgea socially
acceptédact
as good or bad as there is no objective moral no*. However, we
do not
considerthe argumells from the part of cultural relativism againstuniversal
human rights as sufficiently founded. understanding of a"principle
may
imply variations in different cultures but that doei not mean
that the
principle is relative. However, his liberal position in regard
to the practical
consensusregarding the content of the democratic charter is an answer
to
 CHAPTER V: AN APPRAISAL OF THE CONTRIBUTION OF THE THOUGFM OF MARTTAIN 167

AND SEN TO THE NOTION OF HUMAN RICIITS

thosewho reject his argumentfor the role of Christianity, and his exposition
based on the Thomistic concept of natural law. Sen answers cultural
n relativism in the areaof human rights. Becausehe tries to show that values
v are cross cultural and elementsof universal human rights can be seen in
e various cultures, he can answer this issue. His responseto the cultural
E critique in regardto human rights is helpful in this maffer.
v
d 1.15 The Nature of Liberalism
r Maritain and Sen are both influencedby liberalism. Their liberalism
rl is aimed at a respectfor the different ideologiesthat peoplereasonablyhold.
E In giving justifications for political principles people may differ along
tc religious, philosophical,cultural, and ideological lines, but they should
fespect common practical principles in spite of these deep differences.
s Maritain has a vision of global unity achievedthrough a rational processof
tr agreementon practical principles and not through philosophicalor religious
I agreement.This stancemight be a resultof his working in UNESCO,where
il. he met with different and seeminglyconflicting ideologies.The framers of
E the U.N. Declaration came from different national, religious, and cultural
b traditions. They agreed, however, on human rights based on practical
F reasons,not on metaphysicalreasons. Maritain thinks that in regard to
d practical matterstheoreticaljustification is not always easyto achieve.
E Maritain shows that to lead a life with a dignity worthy of human
b beings persons should have some fundamentalrights. On this issue people
* with ideological differencesshould be in agreement.Maritain has his own
t justifications for holding his position. While offering his way for the
rl foundation of human rights based on his philosophical background,
i! Maritain does not deny the possibility of other explanations.He has respect
'C for the views of others which differ from his justifications and he does not
ir want to impose his justification on anyone.He allows that differing people
q can find a justification for human rights in their own traditions. If they do
so, they will enrich universal human rights. This is a very good exampleof
t political liberalism in a world of pluralism and democracy. However,
ly Maritain is a qualified liberal. His conceptions of human rights and the
L common good are fundamentallyat variancewith the principal theoristsof
tt the liberal tradition.'' The modern liberal accountof human rights deniesa
ú natural law accountof morality and politics as advocatedby Maritain. That
;l is the reasonthat his philosophy is not referred seriouslyby liberal thinkers
ET as a foundationfor human rights.
I Maritain argues that the state has no right to demand from its
d citizens a particular rule of faith or of conformity to reason.The statecannot
rt
b
J 15
SeeF. J. Crosson,"Maritain and Natural Rights," p. 896.
b
 168 crmgrpR v: AN AppRAIsAL oF THE coNTRrBUTroN oF THE THoucFrr oF MARITATN
AND SENTO THE NOTIONOF HUMAN RIGHTS

impose a particular philosophy or religious creed as the only possible

justification of its practical charter. Maritain provides much scope for
tolerance of different convictions. However, tolerance in Maritain about
other views does not mean that he considersthem equally good as his own
convictions.What mattersis respectfor other's convictions.Thus, he offers
the possibility of a public philosophywhich is religious in its inspiration,
yet rational in its presentation.It maintainsthe possibility of dialogue in a
context of pluralism. Sen proves that practical notions on which there is
agreementare not an exclusive property of any particular culture but can be
seen in varying degreesin different cultures and societies.He shows that
peoplehave a sharedconceptionand awarenessof values.
In Sen public scrutiny is an important element in determining
whether a particular claim is a human right. This is a part of democratic
practice. However there should be guiding moral principles, otherwise
public scrutiny can decide for immoral claims which are arguedfor in the
name of rights. There are other problems which may arise from an
oppressivepublic scrutiny. Societies which are oppressive can continue
oppressionsbecausethey find reasonsfor such practices on the basis of
religion or other reasons.This happenswhen public scrutiny and decisions
are basedonly on majority opinion. This is particularly true in the case of
equalrights for women or genderinequalities.

1.16 Some Missing Elements

we can note that Maritain does not give adequateattention to the
historical origin of the modern theory of human rights. In his attempt to
insert human rights in a Thomistic backgroundhe has not given suffiòient
attentionto the history of modern human rights. Sen gives a rather realistic
presentationof the modern conception of human rights. His approach is
interdisciplinary. Civilization and societies considered by Maritain were
mainly western christian societies. His Christian inspired democracy is
suited to the nations which sharea conìmon backgroundof Christian faith
and philosophy.However, in his expansivevision, democracyas a way of
life can,gncompass any culture that respectsthe fundamental democratic
charter.'oSen takeswestern culture for grantedwithout analyzingits roots.
christianity has deeply influenced western culture, even though it may not
be its only inspiration. classical and biblical traditions should not be
excluded in discourseon human rights. Some general moral standardsare
leeded to respecthuman rights and to limit excessesin the name of rights.
If all human beings have rights by virrue of their common humanity, iican

tu
see John Di Joseph, Jacques Maitain and the Moral Foundation of Democract
(Lanham:Rowmanand Littlefield, 1996),p.l5l.

l'

I
 CHAPTERV: AN APPRAISALOFTI{E CONTRIBUTIoN oF THE THOUGT{ToF MARITAIN 169
AND SENTO THE NOTION OF HUMAN RIGI{TS

be only becausethere are somegeneralmoral standardsthat are universalin

application. some common notion of human person is neededfor human
flourishing. sen doesnot deal with suchgeneralmoral standards.

2 The Need for a Global Society of Freedom and Solidarity

The traditional focus on human rights is very much changedin the
contemporaryworld. There are many agenciesinvolved in human rights. It
is no longer only a matter of the state and citizens. Rapid globali-zation,
underdevelopment,global debt, and other pressing problemi ar" giving
human rights discoursenew dimensions.Affluent naiions speak of-righti
violations in other nations, often of civil and political rights. They Iail,
however,to recognizeneedsin other nationsand to help in the promotion of
social and economic rights. Rights talk should nof becomè a form of
western cultural imperialism either through thoughtlessspeechor through
opportunism.tTMen and women should- be fró to lead a
"u"ry*h"." go together.
dignified life. Freedom,responsibility, rights, and community
only by emphasizing true human dignity (even this concept can be
manipulated) can human rights promote freedom and human flourishing.
This is possibleonly in a societyof human rights basedon sotidarity

2.1 Interdependent,GlobalizingWorld
The world is becoming increasingly interdependent.violations of
luryan rights in part affect the other areasof concern, and this will grow
furlhgr due to globalization. In this situation different nation ,iut"r,
multinational corporations, religious agencies, and other institutionai
structureshave a role to play in the promotion of human rights. Economic
policies followed by a particular nation can affect the quaúty of life of a
relatively poor nation. In order to maintain justice in this interdependent
world we should focus on human fellowship with a genuine resiect for
human dignity. This term "respect" involvei a genuiné considera:tionfor
thosewtto are deprivedof genuineequality due to various deprivations.
The market has enormous importance on both national and trans-
national levels. Free markets produce benefits for some but also serious
inequalities.The value of labour suffers as a result of a concentrationon the
maximization of products.A Utilitarian substitutefor justice prevails. As a
rgsu-lthuman rights are_neglected, especially economió and sócial rights of
the less fortunate. In western Europe due to the prevalenceof the cóncept
of the welfare state,to a great extent theseadverseeffects can be controlleà.

t7
see Mary Ann Glendon, "Foundationsof Human Righs: The unfinished Business,,,
zfte
American Journal of Jurisprudence44 (1999), p.9
170 CTTN'TER V: AN APPRAISAL OF THE CONTRIBUTION OF THE THOUGHT OF MARITAIN

AND SEN TO THE NOTION OF HUMAN RIGHTS

Third world countries are the sufferershere. Redistributive policies which

assurehumanrights for all needto be enactedfor socialjusticè.I8

2.2 The Task of Civil Society

The languageof human rights should be considereda coin. On the
one side there are rights and on the other the responsibilities.Citizens have
to eachother responsibilities,individually and collectively.For example,in
F'uropea personwho fails to come to the aid of anotherin seriousnecessity
is answerablebefore the public. The violation of civic responsibilitiescan
be grounds for a law suit in France. The sensebehind this is that we are
members of a society, and we have to act responsibly.leThese civic
responsibilities are to be considered not only in the immediate
circumstancesin which one lives. The considerationshould have a global
perspective,which meansthat if I am in a position to intervene,then I have
a duty to do something, for example, for the alleviation of poverty in a
distant part of the world. only with a genuineconceptof the human person
can one extend this willingly, irrespective of citizenship, race, class,
religion, and so on. This is a requirement of morality. Markets without
morality do not lead to human flourishing but surely lead to exploitations.
As ThomasPoggeobservesthe new global economicorder is very harshon
the poor. In negotiations affluent nations make reciprocal concessionsto
one anotherbut rarely to the weak. Eco.4omicpolicies of major powers are a
major causeof deathin poor countries.2O
states should have a conception of constitutional commitment to
protect the well-being of citizens. This is possible through intervention in
the economy and through insuring a basic minimum levefof well-being for
all. This requires the formation of relevant institutions and structures of
welfare and essentialsocial services. This considerationis indeed reflected
in the constitutional view of many western Europeancountries regarding
the duty of the stateto intervenein favour of the poor.
A balance between the person and the community, rights and
personal and social responsibilities, individual fulfilment and general
welfare is needed.The concept of the common good can give lighf to the
civic responsibilities of citizens, state officials, and institutions to act

r8
SeeJ. Donnelly, International Human Rights,p. 160.
te
SeeM. A. Glendon, RightsTalk, p.86.
20
s"" Thomas w. Pogge, world poverty an-dHumanRrgftrs (cambridge (MA): polit
Press,2002), pp. 20-21.
 CHAPTER V: AN APPRAISAL OF THE CONTRIBUTION OF TI{E THOUGHT OF MARTTAIN I7I

AND SEN TO TTIE NOTION OF HUMAN RIGHTS

reasonablyin a way that all can lead a decentlife. Freedomrequiresmany

elementswhich put these responsibilitieshigh in social life. The cornmon
good should act as the moral conscienceof society.Various forms of social
networks are neededfor life in society.
The senseof humansocialityshouldcreatea senseof obligation,an
obligation to intervenein favour of the needy.Actually the task of modern
societiesis to rediscoverthe social person.This is especiallytrue in affluent
societies.Without this dimensioneven the extremeindividualist cannotlive
in this world. The neglect of this dimension of personhood is to be
remedied. Care for the common good is an important aspect of this
sociality. This concern is a fruitful way to overcome intoleranceof others
and indifference to the generalwell-being. Importanceis to be given to the
structures of civil society which foster civic virtues. The family is an
important structure of a society. It acts also as a forming school of civic
virtues. A formation in civic virtues is necessaryto temper the radical
individualism that characteizesmodern rights talk. This formation would
help to form a vision of societywhich is not closedon itself.

2.3 The Role of Public Debate

When issuesof conflict arise increasinguse of public debateis to be
employed. This public debate would help to find solutions in a pluralist
society based on reason and not on emotion. This sphereof debateis an
important realm to be effectively employed in the modern public sphere.
Normally thesedebateswill show that neither side has a monopoly of truth.
This public debateis creative, however, only when democracyis vital and
the citizens have an active interestin public affairs. When the aim of rights
is mere self-development,public welfare is neglected.
A view from a distance is needed to examine a particular social
context. The practices of other nations, societies, and communities are
helpful to judge one's own behaviour. This can be an effective tool in
acceptinghuman rights in a society where the existing standardsare not in
line with what is required, without undermining the positive value of the
culture of that society. This will help to seewhether the existing standards
are worthy of human dignity or are oppressive.This also helps to overcome
the cultural and religious intolerance which have been evident in recent
years.Critical examinationis a meansto determinethe value of preserving
and modifying notionson humanrights.
We are living in a divided world, where fear and suspicionreigns.In
former times the spheresof activities of human persons were limited to
specified boundaries of societies, religions, and similar spheres. Such
uniting factors are changing their role in a world of pluralism. It is
necessaryto find cornmon grounds as Maritain has said. This common
ground is necessary for mutual understanding and human flourishing.
 172 cts^/ercR v: AN AppRArsAL oF THE coNTRrBUTroN oF TI{E THoucr{T
oF MARITATN
AND SENTO THE NOTIONOF HUMAN RIGHTS

Agreement on human rights is such a common ground. Men and women

have enormously varying claims, at least outwardly. coming together to
discusscommon principle can show them that *uny of the differencesare
rather peripheral.Even when there are real differenóes,there can be points
of conse^nsus.Peoplecan disagreewithout losing reasonablerespectfàr the
views of others.

2.4 The Issue of pluralism

Almost all modern nationsexhibit a wide pluralism of religious and
cultural views. Pluralism is not in itself a negativefactor. It has rea'ipositive
value. However, in order to judge how muih the practicesof a particular
community are helpful for the flourishing of humarpersons there should
be
a criterion. The common good is a powirful criteriàn in this area. This
is
especially true and valuable when universal values are challengedon
the
basis of cultural relativism. The conception of the common
food helps
people to acceptideas which are unfamiiiar and to criticize theii
own hvès
and to respectcreativedifferencesin view points.
Modern, liberal, pluralist societiesput forward many opportunities
and problems. There is a richness of expérienceby which one can
learn
from other people's experiencesand world views. t'tre proutem is to
find a
peaceful coexistence,which, of course,
lqquires compromises. what is
neededis a grammar-ofcooperativeliving." This is neàed in a pluralistic
society where each follows his own ideas of life. However, this does
not
mean that there should neutrality in regard to morality. Neutrality
.be in
:"q99-to,morality is radically dangerousfór a society.Itieads to hyper_
individualism and permissivenesr. In a pluralistic society
dialogúé is
necessary,and right languagecombined with the common góod shoùld
act
as a medium and ground for this dialogue.This dialogu" act as a check
on the demandfor rights which goeswithout any -o.àl regulations
"un

2.5 The Role of Culture

- Human rights cannot be met without taking into accountthe proper
culture of a community. Religious perspectivesarJ dominant in
*uny purt,
of the world in shapingworld viewi. Rèligiousloyalties t uu" u ptrìtiu.
and powerful value.. They have played positive and"un negative roles in
shapingvalues,and they.arestill an importantpart of .unfp"ople's
lives.
A approach would not bè helpfùl to create rèspect
.mere_secular for the
universalhuman rights. on the other hand,differencesare often projected
to
the extent of a denial of universal norms. a proper oiatogue
_only lan help
peopleto live peacefullyin the context of thesodiffer"'n""r.

" SeeM. A. Glendon,RightsTalk, p.14.

 CHAPTERV:ANAPPRAISALoFTHECONTRIBUTIONoFTHETHOUGI{IoFMARITAIN|73
AND SENTO THE NOTIONOF HUMAN RICHTS

2.6 The Role of Education

whatisneededisacultureofhumanrights.withoutsuchaculture'
criticisms of Bentham
howevereloquent,ttuy U" the relevantdocuments,the
Rights was a response
*" t *O to dismiss.Úniversal Declarationof Human
and national
to the atrocities of world war II. Several international
Arguments against humanrights
documentsfollowed this central document.
such as Saudi Arabia.
;iJ ;;i gain much giouno, excepr.in countries
a moderate success
rto*"u"rl the realizaíronof the project has had only
problem it 'lt"
outside of the tiUeral democraciei oi the West. The actual
rights-from the
non-complianceto the verbal pfonouncementson human
sectionsof societies'
.Àn.".n"à states,international àgencies,and different
The United Nations, as u."pr"t""ntative body, has tried to formulate generl!
The agreementitself
nonns which u," ugt""J upon by the member states.
even though
ffi;; ouf ttut the"relevant values are universally important,
still left open for
not for the same reasons.Foundational questions are
foundational
fuither inquiry, and there is no easy *ay io find a common
Attractive arguments need
ptrifÀ*pni"at grounA in regard to húman-rights.
themselves on their
not be universally *tirfu"tó.y. Various socièties,basing in
t\99 nofins' Only
own c.rttureand historical context, should try to adant
do human
a cultured society which is tied together by hulan.solidarity
civilized when it looks on itself
tign" Àrf." *"uring. A society becomes
diically and tries to l"u* from othersoutside its boundaries.
Martha
To promote tttir run culture educationhas an important role.
this purpose' This
Nussbaum advocates a cosmopolitan education for .
humanity to
educationshould indicate how io relate the ideal of common
should emphasize
the family, ttre community, and So on. This education
to understand that all human
learning that goesbeyondlational boundaries
that they th9y11,l"
pefsons"have an essentially equal moral value and
and concern." ThiS
considered as part of a tommunity of dialogue
is perhaps_thebest element for the promotion of
""r*"pofitun
,"iiàrì,o Education in thè formal sense may not. always make.people
"du"ution
for solidarity and
better, but human rights education aims at educating
on gloup interests or
,esponsiuility. An ed-ucationthat concentratesonly
of solidarity' The
economic achievementsoften fails to create a culture
developed west,
culture of individualism that prevails, especially T the
the behaviourof
fails to createsuctr-an atmosphère.Educatiòncan influence
rights culture it will help the
tfr"-p"opf". If education imparts a human
both studentsand academics,to alter the ways in which they
expressions of the
view themselvesand others. Becausehuman rights are
"on""*èd,

22See Martha C. Nussbaum,'?atriotism and Cosmopolitanism" in For I'ove of Country:

(Boston: BeaconPress,1996)' p' 9
Debating the Limits of Paíriotism, JoshuaCohen,ed.
 I 74 cHeyreR v: AN AppRAIsAL oF THE coNTRIBUTIoN oF THE THoucHT oF MARrIAIN
AND SEN TO THE NOTION OF HUMAN RIGHTS

ways in which personsand societiesare to be viewed, they set standardsof

civilized conduct.The centre of such human right culture is personsrather
than sovereignstates.23

3 The contribution of Maritain and sen to the Promotion of a culture

of Freedom and Solidarity
We have seenthat both Maritain and Sen are staunchsupportersof
universal human rights. we find complete agreementbetween the two in
their supportof the universality of humanrights. In the goal of socialjustice
and the defenceof human rights their ideas convergein many aspectsand
open possibilities for new developments.Here we would like to argue that
their ideas can contribute to develop an ethic of global solidarity and a
culture of freedom. In a world divided by differences, profound or
superficial,and by inequalitiesand injusticesand the denialof basichuman
rights, thesetwo philosopherscan give helpful perspectivesfor cooperation
for commonpurposes.
It is a merit of Maritain that he can provide a reason for our
necessarybonds with obligations toward others. we are created in the
image of God, and there is a common brotherhood among persons.This
common brotherhoodis a powerful justification for the respectand dignity
of each and every individual and for the specialattentionto be given 6 the
vulnerablesectionsof mankind, whetherpoor nations,or particular sections
of a society, or minorities or disabledpersonsor other weaker sections.In
Maritain the communitarian aspect of life is very much emphasized.For
Maritain the common good is the good human life of the multitude. He is
concernedwith communion in the good life. It is a life common to the
whgle and to the parts. This common good, which is ethically good,
includesnot only a collection of utilities and advantagesbut also rectitude I
of life. This common good is both just and moral, and it opens up the i
greatestpossibledevelopmentof humanpersons.The commongood should
act as a limiting agencyon individualfreedoms. I
Maritain showsthe destructiveness of individualismand materialism
in a democraticsociety.only with a moral consciousness can the problem
of the contemporaryworld be solved.Antagonismsbasedon racial ethnic,
religious, and sectarian reason require more than legal systems and
economic developmentfor their solution. Maritain's political philosophy
offers to some extent a check to the excessesof human rightJ chimj oi
modernity. It can check the individualist utilitarian accountsof human

23
see K. Boofh and r. Dunne, "Learning beyond Frontiers" in Human Rightsin Globat
Politics,p.323.
 CHAPTER V: AN APPRAISAL OF THE CONTRIBUTION
OF THE THOUGHT OF MARITAIN I75
AND SEN TO THE NOTIONOFHUMAN RIG}MS

rights. His defence of riberal democracy in terms of

cathoric political
thought_has a power and point which cannótbe rejected.
. Sen speaks of a sense of humanity wrrictr shourd guide
our
interpersonalrelations. Sen could forwards u
iro*".rui *gu-"nt in favour
of the importanceof political rights for poor péople.Theróy,
he showsthat
there is an insrrumenralrole oipoliticaì rights f";;;;;*i.,
developmenr,
besides^p_ointing ro the construitive role tÉey play in other areas.
By his
study of famine and poverty he showsthat the"sàpii"ir-
oi ttte relevanceof
political rights to economically backward nations
is supemcial. political
rights are pivotal in inducing à political responseto
needs and
even for the conceptualizatioi of èconomicn"èds. "éno*ic
It is an advantage of sen that he gives a
clear picture of
development.Sen dealswith concreteissues.rhii is due
to his formation in
philosophy, economics, and development. His
capability approach gives
clarity to humanrights. It emphasiz", both negativeanlpJritiu"
rights. This
approachconsidersthe human person as thelentu poìni
of thirigs, but ii
gives more attention to the ecónomic aspects
of life and cultural matters
than does Maritain. capabilities are connected to the
securing of human
rights. They make rights claims which matters. sen,s
capability approach
does not see deveropmentas economic developmenr
uio'n" but as human
development.Sen considers freedom as an end of
development.sen has
given a human face to development.
sen considersdeveropmentas a processwhich expands
in a real way
the freedom-sthat people enioy. This view of devel,opri"nt
u, freedom is
respectful.of.theagentrole of the individual. The freedàm
involved requires
the capabilitities for individuals ro lead the kind
il;; have reasonro
value. It requires the elimination of unfreedoms "iii" and tÉ enrrancing
substantialfreedoms.unfreedoms hinder t u*un no*iìning. of
s"n considers
deprivations in the economic, sociar, political ana
civii rights fierd as
unfreedoms.His approachro_developmentinsists ;*dùii;
participarion in
deciding what valuesand traditions are to be maintainàd
and which are to be
changed.Here sen is critical of religiou.sleaders,gou"À."ntal
dictators,
and cultural relativisrs. Limiting pÀrti.iputory rr"Eoo*
on the basis of
religious fundamentalism,politióaf custom, or .,Asian
values,,criticism,
according to Sen, ha; n9 legitimacy. H.rq argumeni-
i, ìnut ttre peopie
affected should have the freedom to participat;
il;tJtrg on whar rhey
w;nnt.and-.whar rhey have.r.eason to accèpt.sen especiallt;;Ì;* to the deniar
of schooling ro female children in certain fu"dd;;-,u-lì'rir"ài-"r.
The role
of participation in Sen is wider than in Maritain.
wnil" larittain speaksof
political participation by means of voring,
deciding on what social varues * _s"n ""t"nàì1it" p"rr*ipation in
tJ be foilowed in-a society. This
approachis part of his vision of development.
 176 cunsreR v: AN AppRArsAL oF THE coNTRrBUrroN oF THE THoucHT oF MARTTATN
AND SENTO THE NOTIONOF HUMAN RIGHTS

Regardingeconomic rights both Maritain and sen speakof bonded

labourers. Sen elaborately attends to various problems and deprivations
which underliethis issue.Bondedlabour,failure of bureaucraticiocialism,
child labour, the denial of the right to work for women, reproductiverights,
and female mortality are given attentionin Sen's vision of developmentas
freedom. For Maritain to serve the private good of another man and to
becometo this extent an instrument for him is in itself an affliction to the
radicalaspirationsof humanpersonality.conditions of work shouldtend to
a stateof real emancipationfor the human person.Improvement of human
life which enableseveryoneto exist on earth as a free person and to enjoy
the fruits of culture and spirit is to be achieved through common work.
Theseideas bear witness to the fact that governmentswhich operatewithin
the liberal traditions are likely to respectthe rights of the human personand
responsiblefor his quality of life.
In sen thereis no discussionof breadfirst, or freedomfirst. Having
breadis part of freedom.His conceptionof freedom is of a broad nature. In
Senthis considerationof freedomis articulatedas an option for the deprived
yfo are suffering from a lack of fulfilment of human rights on every level.
His concern is mainly poverty. This concern has helped him to contribute
creatively to development literature. He popularizes the right to food,
shelter,education,nutrition, and so on. This meansthat sen givis more of a
role to governmentalintervention than liberal thinkers woulínormally. It is
the role of the gqyernment that it secures economic necessitiesior its
vulnerable people.'" This is not an argument for paternalism, but for a
concernwith socialjustice.
Maritain offers a moral thrust to the human rights project. while sen
holds that human beings have dignity by virfue oi their very humanity,
Maritain seesthis dignity as due to their being made the image ànd Hkeneis
of God. For him natural law is given by God. when peóple argue for
abortion and euthanasiaon the basis of the claim that thet hive right over
their bodiesor for a dignified death,Maritain's conceptionof humin rights
basedon the Thomistic conceptionof natural law ansùers that such acti,ons
are againstnatural law and, therefore,not a right but unrightful killing. Sen
doesnot directly speakof such ethical matters,but his theóry can be filsely
utilized to justify such unethical claims as riehts foi abortion anà
euthanasia. on the other hand,in positive way sen;s theory can be usedto

2a
See David Hollenbach, Justice, Peace and Human Rights:American Social Ethics in t
Pluralsit context (New York rhe Crossroadpublishing company, 19gg), p. 106. Ir i
impressiveto seehow Hollenbach answerscriticisms thit econòmic and social rights ar
not human rights but are part of human flourishing. Hollenbach argues that, in th
tradition of Pope Leo XIII and John Courtney Murray, minimum economic resourcesal
due to people by right. They are not simply a desirablepart of the common good.

t-
 CHAPTERV: AN APPRAISALOF THE CONTRIBUTIONOF THE THOUCHTOF MARITAIN I77
AND SENTO THE NOTION OF HUMAN RICFTTS

argue againstclaims for abortion. If the foetus is consideredas a person,it

can be arguedthat the foetus should have the capability to lead a life which
it has reasonto value, and that a personhas every reasonto value life over
death,abortion is the denial of sucha capability of preference.
Maritain's doctrine is a Christian responseto the questionof human
rights. This cannot be considered as a limitation becausethe norms of
Maritain are able to be understoodby personsof various religious traditions.
Agreementon the nonns doesnot necessarilymeanthat all understandtheir
foundation in the sameway. Regardingunderstandingof human rights Sen
too allows internal variations. ff human rights are understoodin particular
cultural and religious traditions, this would be a powerful force whereby
these traditions can contribute effectively to a fruitful and creative
understandingof the importanceof human rights. In regardto issuessuchas
gender equalities and religious freedom, however, traditions often hinder
just considerations.
The common good gives importanceto the communitarianaspectsof
human life and thereby promotes solidarity and responsibility. To promote
these aspects of solidarity and social responsibility the concept of the
cofirmon good is very powerful. The relational aspectof human personsis
more explicit in a common good basedapproach.It emphasizesthe culture
of civic virtues, which are often neglectedin the area of rights talk. The
common good is objective, and it is not the aggregateof the personal
preferencesof each individual or a good only of the whole. This meansthat
the common good cannot be relative. This aspectof the conìmon good can
check some of the individualist orientations in Sen and give a more
powerful ethical and moral orientation to the idea of development as
freedom.
We can consider Maritain's concept of the common good as
complimentaryto Sen's conceptionof development.Without a true concept
of the common good the capability freedom mentionedby Sen may not be
utilized for the proper growth of the person and the community. For
example, if citizens have the right to participate in politics but they are
indifferent to political matters,that capability remains as capability merely
on the paper. Concern for the common good impels citizens to vote.
Personalresponsibility and civic obligation are part of the common good.
The common good should be the foundation on which capability freedom
basesitself. The common good fosters care for the community. The right
ordering of our lives on the basisof the cornmongood is important, whether
one admit a transcendentaldimensionof reality or not.
Maritain and Sen stand for a genuine human development. In
developmentthe important aim should be full human developmentand not
only an increaseof materialproduction.This requirementevolves from both
authors' insistenceon a person centereddevelopment.In both authors we
 178 cuarren v: ANAppRArsAL
oF THEcoNTRIBLrrroN
oF THETHouc'T oF MARITATN
ANDSENTOTHENOTION
OFHUMANRIGI{TS

find similarities in their way^ of philosophizing,

namely personaristic
concerns.Maritain's concept of the óommon gooJi,
aimed ui thi, person
centereddevelopment,.eventhough he does noi
speak the nuancesof
humanflourishing. In judging anà formuluting "u""t
poti"i", a genuine
conceptionof the common góod shouldact as"the ""àn;-i.
g"iairí"tni"ur prín.ipi".
Sen emphasizesthe importanceof bringing social
E"p.i"íti""s to the rearm
of public discussion so that their reniovàt *uy
beòome part of political
policies and thereby create opportunities
roi p"opi"-*to have been
deprived' This involv_esa genuinà concern
ro, ,oiiaaiity in economic and
materialprogress.tn sen importanceis given
to and sociarrights.
They reconcilegeneralwelfare with personal ""ono#"
autonomyunJ futntment.
Both thinkers are relevant fòr a philosophy
ór ,*iur justice. The
value of civil society is to be asserted.wìthout
tirir, tt dìsadvantagedand
deprived_maynot find much voice in civit "
socìety.rrvplr-i"aividualism
cannottake into accountthe groupswhich require,pÉ"i"i'"Lndon
The conceptionof the commón gàod, on the and care.
other hand, gives a reasonwhy
I should help another p"rron- to rearize
his humaí rights. Through
subordinatinghimself to the common work
each one subordinateshimself
to the gîgd of personsand at the sametime
to the interior dignity of his own
persol..HuTul expansion achievesa social
character here as part of the
essentialsocial natureof the humanperson.
Justice *d:guty are impòrtanl
languageof fraternity. Nów due io the global _bt1tthey should be spirired by a
labour and ro
transportation facilities we live in a multicultural "i"UiiÚ world.
"i
ideologiesor religion or culture or race or language Forrneriy
*o" *utt"rs of unity in
a nation state. These factors when not used íor
unite-people, but the resurt of a partisan f,urtirun ìni"."rr, can now
use of such factors wourd be
unending conflicts and deniar oi huo,*
rights in our increasingly
multicultural world. The nation states which
share the above mentioned
noy a common
feelingoi irut"rnity, evenin
ffl?::r^"^f":1]11^,il?":1"
the "nj_oy
face of people different from thlmselves. However, th" *;;;;;ilil;
has gomqfex requirements. In our rarge
multicurtural societies, justice,
equality.,liberty, and the rule of the raw
must be important values. Mere
values,however, do not give rise to human
flourishing. This requiresmorc
than these,namely an idJal of common brotherhood
b;ed on our common
humanitv.
 I19
CHAPTERV: AN APPRAISALOF THE CONTRIBUTIONOF TI{E THOUGHTOF MARITAIN
AND SENTO THE NOTIONOF HUMAN RIGFTTS

charucteizedby human rights.2sFor peacefulcoexistencecommon ground

is needed.Respectfor human rights basedon human solidarity can provide
sucha common ground.We havé seenthat the conceptof the common good
is an importani element of this solidarity, and Sen's. conception of
developmèntcan make this concept more dynamic. A society of free men
involvès not only a belief in common principles but also a decent standard
of living for all. This meansthat rich nations have the obligation to assist
poor ,r-utiorrr, to share their resources for poverty reduction and
development.
The treatmentof Maritain is important above all for its assertionof
the dignity of the human person.However, it is presentedon a certain level
of abJtraòtness.This absiractnesscan be consideredas part of the initial
stagesof the developmentof the discussionof human rights. It does not
perietrate
^has like Sen inio the concreteexigenciesof this_dignity.However, it
offered a middle path between capitalism and socialism, without
negatingneither civil and political rights nor economicand social rights'.He
effécdvéty shows the indúpensability of both of thesegroups of rights in a
pluralist society. The moral power of human rights is derived from the
àignity and abs-olutevalue of the human pefson. It is the human personwho
isio be the major agentof society and not states,or cultures,or religious, or
other authorities. These agents ale to be at the service of fundamental
humandignity. Human rights require positive material conditionsfor human
flourishin-g.Theseconditions can be obtainedonly by internationalpolicies
basedon solidarity.
In the contemporary world of pluralism due to diverse levels of
social, cultural, religiòus, economic, political and ideological perspectives
human rights can give a unifying element.They are not Euro-centricor part
of Westeir imperiàlism. They relateto all humanpersonsby the very fact of
their being human. The conditions of contemporafy society require ideas
from the incient, medieval, and modern world, and they require clear
elaborationsand new interpretations.In history we do not find a period of
perfection,but there is continuity betweenthe past and the present.There is
à dynamic continuity. It is in line with this dynamic continuity that Maritain
developsSt. Thomas.
Both Maritain and Sen are doing philosophy in a qualified way.
When dealing with human rights concreteissuesafe to be answered.These
issueslead them to philosophizeand to apply philosophical thinking to the
issues of daily life. Maritain has tried this in the political field. Sen has
worked in the sphere of development economics. Both use speculative

2s
See David Hollenbach, The Global Face of Public Faith: Politics, Human Rights and
christianErlrlcr (washington (DC): GeorgetownUniversity Press,2003), p.226.
180 CHAPTERV: AN APPRAISALOF THE CONTRIBUTIONOF THE THOUGHTOF MARITAIN
AND SENTO THE NOTIONOF HUMAN RIGHTS

reason,and both are concernedwith practical realities. Both thesethinkers

are importantin the field of integral social development.

Conclusion
To put to creative use the ideas of the two thinkers with whom this
thesis has been concerned, one needs to consider what will help the
strengtheningand respectingof human lives in this era of globalization.The
rights of the individual to the fruits of labour and to labour itself, in a world
of competition are stressedby both. Their contribution can help the human
personto lead a life worthy of humanbeings in the economiccontext which
is becoming more and more important. Even though Sen is more eloquent
on this aspect of human development, in the background of the whole
picture of Maritain's exposition we can reasonablyclaim that there is a
strongsupportfor the economicand social rights explicitly taken up by Sen.
Both authorsavoid any illusion of triumphalism in advocatingrights. Their
thought is not in the interestof multinationals,of thosewho arguefor rights
in the liberalist traditions to further nÍurow interests.The rights argued for
by Maritain and Senaim at empoweringpeople.
 GENERAL CONCLUSION
We have analyzedthe philosophical exposition of human rights by
JacquesMaritain and Amartya Kumar sen. In this analysisthe focus of our
interest was to make an appraisalof the two authorsand to point out areas
I of similarities and areasof differences.we have seenthat both of them have
p a strong commitment to the causeof universal human rights. Becausethey
t have particular ways of philosophizing, it is natural that there are
t differences between them. In spite of the differing nature of their
: approaches,however, their contributions are complementaryfor justifying
I the importanceof universalhumanrights.
! In the first part we concentratedon the philosophy of Maritain. In
b the first chapter we saw Maritain's philosophical position in regard to the
I foundation of human rights. He elaboratesthe Thomistic conception of
natural law to include modern accountof human rights. He has enumerated
various human rights as emanating from natural law. The natural law is
universal and invariable. He deals with the rights and duties which follow
necessarilyfrom its first principle that good is to be done and evil to be
avoided. He considers natural law as the normality of functioning of any
being, but as regardsman natural law becomesthe moral law, which man
shouldfreely obey in order to achievehis proper end.
He criticizes someeighteenthcentury philosophers,particularly Jean
JacquesRousseau.His aim in this criticism is to relate human rights to the
common good and to emphasize human transcendence.He reconciles
individual human rights with the generalwelfare of the community, without
siding either with capitalism or socialism. The dynamic development of
natural law helps to accommodatecertain rights which were not considered
as rights in an earlier period but becomeso consideredas human rights in
the progressof history.
He gives an elaborate list of the rights of the human person, the
rights of the civic person, and the rights of the working person.He asserts
the inalienable characterof human rights and attempt to explain that they
are foundedon the very natureof humanbeings.If they are restrictedby the
state,it imperils the common good. He admits, however, that there can be
some limitations relative to rights. Through his proposal of the distinction
between the possessionand the exercise of a right he tries to justify
limitations which are sometimes required. His consideration of natural
rights seesthem as antecedentin nature and superior to society and any
socialcontracttheories.
In the secondchapterwe have dealt with Maritain's treatmentof the
natureof human rights in a pluralist society.we analyzedhis exposition of
the philosophy of human rights in connection with his concepts of the
human person,the common good, the state,democracy,and plurarism. The
human person, who is the image of God, is the bearer of fundamentaland
r82 GENERAL CONCLUSION

inalienablerights. Theserights belong to any human being by the very fact

that he is a person. The role of the state is rather limited as regards
sovereignty.Human rights are best protectedand promoted in a democratic
form of government.There is an essentialrelation betweenChristianity and
democracy. His arguments provide for a social democracy based on
pluralism, solidarity, subsidiarity,and development.
It has been noted that there is a striking theological character in
Maritain's theoretical exposition. He is guided by principles of christian
humanism.He is againstphilosophicalconceptionswhich disregardthe
human person and consider only the material individual. christian
humanism emphasizesboth the material and the spiritual aspectsof the
person.The temporal and the eternal destiniesof the person correspondto
these two-fold aspects.It is in line with this vision that he presentsthe
conceptof the common good. The good human life of the multitude is an
ethical good. The cornmon good requires a limited state, which aims at
socialjustice.
A moral rationalization of political life is an important purpose of
Maritain's project. Justiceand freedom are two principal elementsof such a
political life. The tenetsof freedom, law, and respectfor the dignity of the
human person are basic for a just society and for a good human life. The
social nature of the human person is emphasized.He shows that for the
integral development of the human person life in the society is
indispensable.such a life today requires that men of different faiths and
philosophical creeds should cooperate in a common task and for the
common welfare. [n regard to human rights what is required is a practical
agreementbecauseideological agreementis problematic by reason of the
pluralist natureof modern societiesand cultures.
The secondpart of this thesis has dealt with the thought of Sen. tn
the first chapterof this part, namely the third chapterof the thesis, we have
attemptedto analyze the basic development of the idea of freedom and
human rights in his writings. He considers human rights to be ethicat
articulations. He criticizes approaches to human rights such as
utilitarianism, libertarianism,and the Rawlsianconceptionof the primacy c
liberty. The Franco-Americanorigin of modern ideas about human rights i
emphasizedby sen. The universal Declarationof Human Rights adopted
the united Nations in 1948 is much in line with the eighteenth-cèntu
Franco-Americandefence of natural rights. His view of human rights
ethical articulations has wide implications for the development of
thought. This considerationadmits the possibilitv of internal variations
the understandingof humanrights.
Sen seeshuman rights as goal directed.The structural framework
his presentation is formed by concepts such as substantial f
capability, and functioning. The conceptsof functioning and capability
very important in his approach.Rights are viewed in this approachas ri
 CENERAL CONCLUSION 183

to capabilities.Functioning refers to actualdoing while capability relatesto

the ability of a personto achievedifferent combinationsof functioning. The
importanceof freedom is relative to the capability for choosing alternative
combinationsof functioning. The notion of capability has wide applications
becauseit can be utilized for the study of issuessuch as poveftyf equality,
and inequality.
Human rights have both a constitutiverole and an instrumentalrole.
Political and civil rights are part and parcel of development.Societiesthat
protect basic human rights do more for the promotion of individual well-
being than societieswhich suppressthem fully or partially. The issuesof
poverty and hunger are studied in various aspects,and it becomesevident
that they bear witness to the negation of fundamental human rights. He
showsthrough empirical argumentsthat the promotion of human rights tras
a relation to the elimination of poverty and hunger. The right nòt to be
lun$ry is a key elementin his though.He presentseffectively the validity of
the right to food.
For a dignified human life the person should have capabilities to
choosethe kind of life he has reasonto value. In this choice not only the
opportunity aspectbut also the processaspectof freedom is involved. The
freedom of a personis not dependentupon the good will of some superior
power but on the choice of the person.The capability approachto hìman
rights as seenby Sen is a pluralistic approachwhich-containselementsof
consequentialism,deontology, and cultural sensitivity. This approachtakes
into accountboth the intrinsic and instrumentalvalue of humanrights.
The humanpersonfor sen is the centreof concern,not development
or economic activities. The agency and well-being aspectof the perion is
stressedbecauseSen concentrateson the doing aspectof the perìon. The
human person is not a passiveinstrumentbut an active agent, who should
have the freedom to use things but who has obligations io other persons.
whife appreciating this approach we have also pointed out some
ambiguitiesin it. An inadequatetreatmentof obligation òf the personto the
community, the lack of an ethical conception of the good iife, and the
possibility of an infiltration of unwarrantedclaims in the name of human
rights q'
in our opinion, someprincipal demeritsin sen's thought.
In the secondchapterof the thesison Sen we have seenhis defense
of universal human rights against various criticisms. He deals with the
legitimacy critique, the coherencecritique, and the cultural critique. He
provides a powerful defenseof the idea of universalism against rèlativist
and culture-basedcriticisms. The discussionof the nature òf obligation in
regard to human rights, the role of public reasoningfor the promotion and
advancement of human rights, the importance of demoèracy for the
promotion of human rights, and the relevance of individual fieedom as
social commitment are relatedto his basic assumptionthat human rights are
ethical demands. By invoking the Kantian distinction of perfàct and
 r84 GENERAL CONCLUSION

imperfect obligations, and by showing that both theseconceptsare relevant

in the case of human rights he meets the often posited questions of
obligations relative to the promotion and protection of human rights,
especially in regard to economic and social rights. The idea of reasonable
considerationrequires that anyone in a suitable position is responsiblefor
the fulfilment of relevanthumanrights.
By finding elementssuch as tolerance,freedom, respectfor human
dignity, concern for poor, governmentresponsibility, and so on in different
cultural traditions and practices Sen arguesthat the argument that human
rights are exclusively western in origin is not founded. He is against
dividing humanity into some systems such as western civilizatioÀ, the
Islamic world, Buddhist civilization, and the like. In his opinion public
reasoningwhich is not limited to the boundariesof a particulàr socieiy has
an important role in the formulation of human rights. sen is a sirong
supporterof democracy.Political and civil rights, and economic and social
rights are interrelated.Against thosewho claim that economicdevelopment
is prior to civil and political rights he shows that democracy and human
lgltr promote human development and security. They can reduce the
incidenceof major social and economicdisasterssuchas famine.
A person should be empoweredby education, nutrition and health
care, and political and civil participation to exercisehis responsibility. An
acceptablesociety is a responsiblesociety. Individual responsibility has a
social dimension. Contrary to liberal positions the role of the state is not a
minimal one in Sen. The state is responsiblefor many initiatives which
provide for education,health care, unemployment,medical care, and social
security. Social justice requires institutional arrangements. While
appreciatingthe centralrole of individual freedomin sen'i works, we have
pointed out the needfor ethics in the caseof choosing a valuable life and in
restrainingindividualistic tendencies.
In the third part of this thesis we have compared and contrasted
Maritain and Sen and argued that principles for a gtóbat society basedon
solidarity and freedom emerge from this comparatlve study. ttre dignity
and-the sociability of the person are emphasizedin different ways. rtt"ré
philosophersexpound in a realistic manner the force of human rights for
living a yorthy life. Human rights are part of the chance to live a fully
human life. These rights are not to remaln abstractand only on papers,in
treaties,and in discussions,but they should give to people ieat càpàuitities
in order to lead a life they have reasonto valuè. onlya gòuernmeniwhich is
accountable- the people can be expectedto respecìthè human rights of its
!9
citizens.Fulfilment of human rights is an important aspectof justicÉ.
The f_ocalpoint of all human rights discussionJis the human person.
If a person lives alone there is neither need nor possibility of disiussion
about rights. It is an undeniablefact that humanp".ionr r"quir" society.The
human person is not a lone, autonomousindividual. i{e lives in the
 185
GENERALCONCLUSION l
company of other human beings. The importance of human fellowship
as the ground for a decentlife for each and every human person' It
is a réquiremeni of our social nature that all are to be entitled to lead their
"*"ig"r
lives in a way worthy of human dignity. We have tried to argue that both
Maritain and Sen próvide base for the fundamentalsolidarity and freedom
which are required to assureeveryonesuch a life. We have tried to present
the argumeni fot a minimum standardof life based on justice. As part of
human- sociality this solidarity requires both single and collective
responsibility. The person is to act responsibly rn grder to lead a worthy
human life. The eihortation Pope John Paul tr is to be remembered:
"Dignity, freedom and happiness will nevef be complete without
solidarity."'
Éhilosophicaldiscussionof human rights is valid. Discussion leads
to greaterclarity aboutrights and wider acceptanceof them. So far we know
thit there is no single pliilosophical system which can claim primacy over
other systemsin regard to human rights. What is neededis an opennessto
accepttruths from àll systemsand to find valid grounds in various systems
in supportof basic human rights. Human rights are rel{ed to philosophy in
t"g-d to their foundation. Èu*un rights are truly an issue of philosophy,
bui their realm is not limited to philosophy.They are also a part of politics,
both on a national and internatiónal level. They are in particular matter for
diplomacy. They are related to actions and policy formulations. Now
ec^onomiishas becomea subject closely related to human rights issues'As
the rhetoric of human rights grows it is reasonableto hope that there appear
more explanationsof the link betweenhuman rights and economics.Here
to be avoided.
^ òf funing into individualism and cultural relativism is
the trap
Regardinghumanrights philosophicaland empirical studies are both
valuableuid n""d"d. Given the òomplexitiesof this world Maritain's liberal
position of consensushas a great role to play. Theoreticaljustifications of
Lu*un rights often suffer criticisms in one way or another.It seemsthat a
universali=yacceptedtheoretical agreementon this matter is still a distant
dream consideringthe religious and cultural pluralism of the times' Human
rights, however, are practlcal standardsto which different religions and
can lend supportin their own traditions for applicationsin concrete
"ùtur".
social life. There arè hopeful signs of a growing awarenessof treating
humanrights in this way.
Even after years of debate and discussion,the concept of human
rights has not evolved a crystal clear idea. Sometimespeople argue for any
uid claim, even immoral ones, on the ground of human rights. A
"u".y

1
John paul II, "Message of Pope John Paul tr for the 50ù Anniversary of the Universal
Declaration of Human Rights" ín Human Rightsand the Pastoral Mission of the Church
(Vatican City: Pontifical Council for Justiceand Peace,2000)' p. 63.
 186 GENERAL CONCLUSION

renewalof a sanerights tradition is requiredto balancevariousunwarranted

claims consideredas humanrights. There is, moreover,always the tendency
to extol some rights and to neglect other important rights. To renew
authenticconsiderationsof human rights there shòuld be móre emphasison
relationshipsand responsibility.A good life and civic virtues are important
in individual life and social relations.Often unrealistic expectation,'*" put
forward in the name of rights. A true understandingìr human rights
requires a critical approachtowards various philosophÉs, treaties,clai-ms,
and debates.Both the protection of human rights ànd the control of an
unwarrantedproliferation of humanrights are neèded.
our aim in this work was to appraisecritically two authors who
influencedthe developmentof human rigÀts in contempóraryhistory. Even
^fundamental
though their philosophical approachis different, the flow of
their thought concerns a respect for human rights. This itself shows that
ideological unity is not a prerequisitefor respJcting and acceptinghuman
rights. The authorsstudiedshow that there is a univJrsal standardof human
rights which is cross-cultural.After readingthesetwo humanitarianthinkers
one may think that they are utopiansbecauseto put morality in politics and
economicsseemsunrealistic. The morality of hùman righti often conflicts
power interests.Governmentsare often more interestedln expanding
their
power than in human rights. when a particular nation violates basic Èuman
rights, powerful nalions -ay rupport the offending government or not
proceedto sanctionit for the sakeof economicadvanAgés.only when
their
interestsare not met, do they take up the weapon of hrinan rigúts. The aim
of philosophers is to formurate ideals. It is the art of politics and
statesmanshipthat puts them into practice.The writings of Mariìain and Sen
have more than a theoretical value. This is true when rights
discussioncreatesillusions and impedesclear thinking."rp""iiullyîh"ir contributións,
even with their limitations, can promote solidarity in a divided world of
individualism, cultural relativism, and fundamentalism.
. The important role played by humanrights both on the domesticand
international realms of jt'stice and peace should benefit every human
person.without respectto human rights in an integral way there
can be no
la,sting.peaceand justice. we have seena fundamóntalagreementbetween
Maritain and sen in the defence of human rights, eqiality, and social
justice. A world where the fundamentalrights-of
the'human rights are
secure is a world of peace. we conclude this work by referriig to
a
statementof the late PopeJohn paul tr:
I wouldhoweverlike to emphasize that no humanright is safeif we
fail to commit ourselvesto safeguarding all of thel. ...when the
violation of any fundamentalhuman right is acceptedwithout
reaction,all otherrightsareplacedat risk. It is thereforeessentialthat
thereshouldbe a globalapproachto the subjectof humanrightsanda
seriouscommitmentto defendthem.only whena cultureof human
 GENERAL CONCLUSION

rights which respectsdifferent traditions becomesan integral part of

humanity's moral patrimony shall we be able to look to the future with
serenehope.'

' John
Paul II, "Messageof His Holiness John Paul tr for the Celebrationof the World Day
of Peace,1 January 1999" in Human Rightsand the pastoral Mission of the church, pp.
76-17.
 BIBLIOGRAPHY

Primary Sourcesl

l.l Books by Maritain

MAzuTAIN, J., La Philosophiebergsonienne:études critiques (l*ilt
Rivière,l9l4). BergsónionPhilosophyand Thomisttr,trans.Mabelle
L. Andison(New York: PhilosophicalLibrary, 1955)'
Art et scolastique(Paris: Rouart, 1927).Art and Scholasticism
and The Frontiers of PoetrY, trans. JosephW. Evans (New York:
CharlesScribner'sSons,1962).
à la philosophie
_, Élémentsde Philosophie:Introduction générale-
lparis: Téqui, 1920).in Introduction to Philosophy,trans. Edward.
I. Watkin(London:Sheedand Ward' 1981).
(Paris:Librairie
_, Trois Réformateurs:Luther, Descartes,Rousseau
Flon, 1925) Three Reformers: Luther, Descartes,Rousseau (New
York: CharlesScribner's Sons, 1955)'
Things.ThatAre
-, Primauté du spirituel (Paris: Plon,. 1927). The
NotCaesar's.trans.J. F Scanlan(London: sheedand ward, l93z).
-_, Religíon et culture (Paris: Descléede Brouwer, 1930). Religion
and Citture.trans.J. F. Scanlan(London:Sheedand Ward, 1931).
(Paris: Descléede
-, Distinguerpour unir, ou, les degrésdu savoir
É'rou*"i tizz). Distinguish to (Jnite, or The Degrees
(IN): "f
Universityof
Knowleige, trani. GeraldÉ. Phelan (Notre Dame
Notre DamePress,1995).
_2 De Ia philosophiechrétienne(Paris:Descléede Brouwer, 1933).
An Essayon Chiistian Philosophy,trans. Edward H. Flannery(New
York: PhilosophicalLibrary, 1955).
_, Du régime temporel et de la liberté (Paris: Delc-léede Brouwer,
tq?3). freedom 7n the Modern World, trans. Richard O'Sullivan
(London:Sheedand Ward, 1935).

I The presentationof the primary sour@s is in chronological order. In regard to Maritain

most of his works were written in French,and a few in English. In caseof Frenchoriginal
works we presentthe Frenchtitle followed by the English translation.The primary sources
do not cover the completeworks of the authorsunderstudy.
 BIBLIOGRAPHY
190
Sept legons sur l'étre et les premiers principes de la raison
spéculative(Paris: Téqui, 1934).A Preface to Metaphysics:Seven
Lectureson Being (London: Sheedand Ward, 1948).
La philosophie de la nature (Paris: Téqui, 1935).Philosophyof
Nature, trans. lmelda C. Byrne (New York: PhilosophicalLibrary,
l 9 sl ) .
_, Humanisme intégral: problèmes temporels et spirituals d'une
nouvellechrétienté(Paris:Aubier, 1936).True Humamsz, kans. M.
R. Adamson(New York: CharlesScribner,1938).
_, De la justice politique, notessur Ia presenteguerre (Paris: Plon,
1940).Scholasticismand Politics, trans.Mortimer. J. Adler (Garden
City (NY): DoubleDay, 1960).
Ransomingthe Time, trans. Harry L. Binsse(New York: Charles
Scribner'sSons,194I ).
Maritain, Les droits de I'homme et la loi naturelle (Paris:
Hartmann, 1947). The Rightsof Man and Natural Low, trans. Doris
C. Anson(New York: CharlesScribner'sSons,1943).
_, Christianismeet démocraîie(Paris:Hartmann,1945).Christianity
and Democracy, trans. Doris C. Anson (New York: Charles
Scribner'sSons,1950).
_, Educationat the Crossroads(New Haven: Yale University Press,
1943).
Principes d'une politique humaniste(New York: Éditions de la
maisonfrangaise,1944).
_, Court traité de l'existence et de I'existant (Pans: Hartmann,
1947). Existence and the Existent: An Essay on Christian
Existentialism, trans. Lewis Galantiere and Gerald B. Phelan
(GardenCity (NY): ImageBooks, 1956).
_, La personne et le bien commun (Paris: Desclée de Brouwer,
1947). The Person and the CommonGood, trans.John J. Fitzgerald
(Notre Dame(IN): Universityof Notre DamePress,1985).
Raison et raisons, essais détachés (Paris: Egloff, 1947). The
Rangeof Reason(New York: CharlesScribner'sSons,1953).
_, Man and the State (Chicago: The University of Chicago press,
1956).
_, Neuf legons sur les notions premières de la philosophie morale
(Paris: Téqui, 1951). An Introduction to the Basic problems of
 BIBLIOGRAPHY
t9l

Moral Phitosophy.trans.c. Borgerhoff(Albany (NY): Magi Books,

I 990).
_, CreativeIntuition in Art and Poetry 6.'lewYork: Meridian Books,
le5e).
_, On the philosophy of History O,trewYork: Charles Scribner's
Sons.1957).
_) Reflectionson America (New York: Charles Scribner's Sons,
1958).
The Responsibitity of the Artist (New York: charles scribner's
Sons"1960).
La philosophie morale: Examenhistorique et critique.del.Srayds,
systèmes(Paris : Gallimard, 1960).Moral Philosophy:An Historical,
ànd Critical Survey of the Great Systems,trans. M. Suther ef a/
(London:G. Bles, 1964).
_, On the (Jseof Philosophy(Princeton:PrincetonUniversity Press,
l96l).
-_, Le paysande la Garonne:unvieux laitcs,interrogeà propos du
té*ps piésent (Paris:Descléede Brouwer, 1966).ThePeasantof the
Gaioine: An'Otd Lq'man Questions Himself about the Present
Time, trans.Michael Óuddihy and Elizabeth Hughes (New York:
Holt, 1968).
_,The
-Readings), Social and political Philosophyoflacgyes.Maritain (Selected
JosephW. Evans and Leo R. Ward, eds' (New York:
CharlesScribner'sSons,1955).
_, A Maritain Reader (SelectedReadings),Donald and Idella
Catlagher,eds.(GardenCity (t"lY): ImageBooks, 1966)'
_,
-and Challengesand Renewals(SelectedReadings),JosephW. Evans
Leo R. Ward,eds.(Notre Dame(IN): Universityof Notre Dame
Press,1968).
Law: Reflections
Nalural Law: on Theory and Practice (Selected
Refleclions on
Readings),William Sweet, ed. (Indiana: St. Augustine's Press,
200l ).

1.2 Articles by Maritain

"On Knowledge Through Connaturality," The Review of
4 (1951),PP' 473-482.
Metaphysics
"On HumanKnowledge," Thought24 (1949), pp- 225-243'
 BTBLTOGRAPHY
lg2

1.3 Books by Sen

SEN, A. K., Collective Choice and Sociol úl'elfare (Amsterdam: North
Holland1984).
On EconomicInequality(Oxford: ClarendonPress,1973).
Poverty and Famines: An Essay on Entitlement and Deprivation
(Oxford:ClarendonPress,l98l).
Choice,Welfareand Measurement(Oxford: Blackwell, 1982).
Resources,Valuesand Development(Oxford: Blackwell, 1984).
_, Commoditiesand Capabilities(Oxford: Oxford University Press,
2000).
_, (Oxford: Blackwell, 1987).
On Ethícsand Economr'cs
InequalityReexamined(Oxford: ClarendonPress,1992).
On Economic Inequality, enlarged edition with a substantial
annexe"On Economic Inequality" after a quarter century (Oxford:
ClarendonPress,1997).
ThePenaltiesof Unemployment(Rome: Bancad'ltalia, 1997).
_, Reasonbeforeldentity (Oxford: Oxford University Press,1998).
, Developmentas Freedom (Oxford: Oxford University
1999).
_, Ratíonolityand Freedon (London: Belknap Press,2002).
_) The Argumentative Indian: Writings on Indian History, Culture,
and ldentity (New York: Farrar,Straussand Giroux, 2005).

1.4 Books co-edited by Sen

SEN, A. K. and Williams,8., eds.,Utilitarianismand Beyond(Cambridge:
CambridgeUniversity Press,1982).
_, et al, The Standard of Living, Geoffrey Hawthorn, ed-
(Cambridge:CambridgeUniversityPress,I 987).
NUSSBAUM, M. C. and Sen, A. K., eds., The Quality of Lfe (Oxford:
ClarendonPress,I 993).
DRÈZE, J. and Sen, A. K., Hunger and Public Action (Oxford: Clarendon
Press,1989).
DRÈZE, J. and Sen, A. K' India-Economic Development and Social
Opportunity (Oxford: Oxford University Press,Delhi, 1995).
 BIBLIOGRAPHY
193
(Oxford: Oxford
SEN, A. K. et al, Public Health, Ethics, and EqualirY
University Press,2004).

1.5 Articles bY Sen

_)..Rationality and Morality: A Reply to Kurt Baier," Erkenntnisll
(1977),PP.225-232.
_,..Utilitarianism and Welfarism," The Journal of Philosophy76
(1979),pp. 463-489.

-, "Development: which way Now?" The Economic Journal 93

(1983),PP.745-762.
..Liberty and social choice,,' The Journal of philosophy g0
_,
(1983),PP.5-28.
and Objectiu.ity:a^Tribute
-, "Rights and Capabilities" in Morality pp.
7ol. Ll Mackie,TedHondereich,ed. (London:Routledge,1985),
t30-147.
Discrimination: Essays in
-, "Rigths as Goals" in Equatity and-
Ae"do* and Justice, StephenGuest and Alan Milne, eds.(Stuttgart:
FrarusteinerVerlag,1985),pp. I l-25'
and Freedom:The Dewey Lectures1984"'
-Journal, "Well Being,Agency
of Phllotopnydz ltlts;, pp. 169-203'
4 (1988)' pp'
,"Property and Hungeî,"Economicsand Philosophy
s7-68.
'..Rights and Agency,,^in Consequentialism and its Critics' Samuel
SchefTler, ed.(O;ford: Oxford UniversityPress,1988)'pp' 187-223'
and PublicAffairs
).,Justice:MeansversusFreedoms,"Philosophy
19(1990),PP.I I l-121.
_)..Utility: Ideasand Terminology,"Economicsand Philosophy7
( 1 9 9 1 )P
, P.277-283.
_,..Does BusinessEthicsMake EconomicSense,"BusinessEthics
Quarterly3 (1993),PP.45-54.
22 (1993)'
,..Positionalobjectivity," Philosophyand PublicAffairs
pp.126-145.
pp'
-, "Money and value," Economicsand Philosoplty 9 (1993),
203-227.
_)..Gender
-- tnequalityand Theoriesof Justice"ín Women,culture
a"d Developmàw: A Study of Human Capabilities, Martha C'
 BTBLIOGRAPHY
lg4

Nussbaumand JonathanGlover, eds. (oxford: clarendon press.

1995),pp.259-27t.
_, "On the Statusof Equality,,, political Theory24 (1996), pp. 394_
400.

-2 "Legal Rights and Moral Rights: old questions and New

Problems,"ChicagoLow Review63-(lgg6),pp, ìOlS-tOOt.
-, "Economics, Business Principles and Moral Sentiments,"
BusinessEthics euarterly 7 (1997), pp. 5_15.

--"consequential Evaluationand practical Reason,"TheJournal of

Philosophy97 (2000), pp.477-5AZ
"Open *9_Cl9l"a Impaniality,,, The Journal of philosophy 99
(2002), pp. 445-469
-' "Elements.ofa Theory of HumanRights," philosophyand public
Affairs 32 (2004),pp. 315-356.

2 SecondarySources
ADAMS, E. M., "The Ground of Human Rights," American philosophical
Quarterly 19(1982),pp.l9t-202.
ALDzuCH, L, TheDleloprynt of JacquesMaritain's Epistemolog of the
Natural zaw (Roma:pontificia úniversita Gregoriana,r993I
ALEXANDE& J. M., "capability Egatitarianismand Moral selfhood,"
Ethical Perspectivesl0 (2003),pp.3-21.
ALLARD, philosopher in the worrd (ottawa:
!., (cqltes Maritain: A
Editionsde I'Universitéd'Ottawa,l9g5).
AMoRoso L. A., "Testimony: on the Influence of Maritain in Latin
Americ4" TheNew Scholasticism 46 (1972),pp. 70_g5.
ANDERSON, E., "unstrapping the straitjacket of 'preference': A
comment on_Amartya Sen's contributions to philosophy and
Economics,"Economicsand p hilosophy17(200l), pp. 2 1_íg.-
AQUINAS' T., summa Theologiae,[-II, q. 90-10g. summa Theorogica,
trans.Fathersof the EnglishDominicanprovince,vol. 2 (New fork:
ChristianClassics,l98l ).
ARISTOTLE, Nicomachean Ethics, trans. Terence Irwin (lndianapolis:
HacketPublishingCompany, 1999\.
BBfrz, c. R., "Amartya Sen's Resources,values and Development,,,
Economicsand Philosophy2 (19g6).
 BIBLIOGRAPHY
195
BELL, D.A., o'EastMeets West: Human Rights and Democracy in East
Asia," Political Theory30 (2002),pp. 299-301.
BENTHAM, 1., Bentham'sPolitical Thought,B. Parekh,ed. (New york:
Barnesand Noble, 1973\.
BIONDO, F., Benessere,giustizia e diritti umani nel pensiero di Amartya
,Sen(Torino:G. GiappichelliEditore,2003).
BOUCKAERT, L., "The Project of a PersonalisticEconomics,,'Ethical
Perspectives
6 (1999),pp.20-23.
BROWN, C., Sovereignty, Rights, and Justice: International political
TheoryToday(Cambridge(MA): Polity Press,2002)
BUCHANAN, A., "Rawls's Law of Peoples: Rules for a Vanished
WestphalianWorld," Ethics 110(2000),pp.697-721.
BUCKLEY, M. J., "A Thomistic Philosophy of History," The New
Scholasticism
35 (1961), pp. 342-362.
CAPONIGRI, A. R. ed., Modern Catholic Thinkers (London: Burns and
Oates,1958).
CIAPOLO, R. T. ed., Postmodernism and Christian phitosoplry
(Mishawaka:AmericanMaritain Association, 1997\.
CLAUDE, R. P., ed., ComparativeHuman Rights@altimore: JohnHopkins
University Press,1977).
COHEN, G. A., "On the Currencyof EgalitarianJustice,',Ethics 99 (1989),
pp.906-944.
coMPAGNoN[, F., I diritti dell'uomo: genesi,storia e impegnocristiano
(Milano: SanPaolo,1995).
COOPER, J. W., The Theologt of Freedom: The Legacy of Jacques
Maritain and Reinhold Niebuhr (Macon: Mercer university piess,
l98s).
corrA, S., "Positive Law and Natural Law," The Reviewof Metaphysics
37 (1984),pp.265-285.
cRossoN, F., o'Maritainand Natural Rights," The Reviewof Metaplrysics
36 (1983),pp.895-912.
DAGUM, c., "JacquesMaritain and Human Rights," {Iniversity of ottawa
Quarterly5l (1981),pp. 663-668.
DANIELS,_N, "Equality of what: welfare, Resources,or capabilities?"
Philosophy and PhenomenologicalResearch 50 (1990i, pp. 273-
296.

_I
 BIBLIOCRAPHY
196
DE BARY, W. T., Asian Values and Human Rights: A Confucian
Communítarian Perspective (London: Harvard University Press,
lees).
DENNEHY, R., "Maritain's Theory of Subsistence:The Basis of His
Existentialism," TheThomist39 (l 975), pp. 542-57
4.

-, "The ontological Basis of Human Rights," The Thomist 42

(1978),pp.434-463.
DEVASAGAYAM, X' Integral Humanism;A Hope and Visionfor a New
Humanity in the Third millennium: A Critical Study of Socio-
Political, Moral, Religious and Cultural Philosophy of Jacques
Maritain (Roma:Pontificia UniversitàUrbanian4 204D.
DEWAN, L., "St. Thomas, John Finnis and the Political Good"' The
Thomist64 (2000),pp.337-374.
DOERING, B. E., JacquesMaritain ond the French catholic Intellectuals
(NotreDame(IN): UniversityofNotre DamePress,1983).
DONNELLY, J., International Humon Rights:Dilemmasin World Politics
(Colorado:WestView Press,1998).
DOUGHERTY, J. P., "Thomas on Natural Law: What JudgeThomas Did
Not Say," TheModern Schoolman69 (1992),pp. 395-406.
_, JacquesMaritain: An IntellectualProfile (Washington(DC): The
CatholicUniversityof AmericaPress,2003).
DUNNE, T. and Wheeler, N. J., eds., Human Rights in Global Politics
(Cambridge:CambridgeUniversityPress,1999).
DWORKIN, R., Taking Rights Seriously (Cambridge (MA): Harvard
UniversityPress,1978).
EVANS, J. W., "Church and State: A Maritain Analysis," Thought 26
(t9 5 | -1952),pp.585-589.
_, "JacquesMaritain," TheNew Scholasticism
46 (1972),pp. 2-9.
_) "A MaritainBibliography,"TheNew Scholasticism
46 (19
I t8-128.
FAY, T. A., "Maritain on Riehtsand NaturalLaw." The Thomist
pp.439-448.
FECHER, C. A., The Philosophy of Jacques Maritain
GreenwoodPress,1969).
FELICETO, G., I fondamenti dei diritti dell'uomo nel pensiero
Jacques Maritain (Roma: Pontifica UniversitasLateranesis,
 BIBLIOGRAPHY
197
FINNIS, 1., Natural Low and Natural Rights (Oxford: Clarendon
Press,
1980).
FORTIN, E. L.,
ll$ N:* Rights Theory and the Narural Law,,, The
Reviewof Politics44 (l9g}), pp. 590_6t2.
-' Human, Rights virtue and the common Good: {Jntímery
Meditation.s politics (Lanham: Browman
-on Rerigion and and
Littlefield,1996).
FULLER, T. and Hittinger, J. p., Reassessing
the Liberar state: Reading
Maritain's Man and the state (wlshington (DC): Americai
MaritainAsocciation,200I ).
GEEST, W van der and Trànkmann,B_.,eds., Democracy,Human
Rights
and Economic Deveropment:conflict or compíement (Brusúls:
European[nstitutefor Asian Studie;,l99S),
GEWIRTH, A., o'MorarFoundationsof civil Rights Law,,, The
Modern
Schoolman64 (1997),pp.235_256
GLEND_ON,M.A., RighrcTark: TheImpoverishmentof poriticar Discourse
(New York: The Freepress,l99l).
-' "Reflectionson the UDH&" FirstThings(April l99g), pp.23-25.
-' "Foundationsof H_umanRights: The unfinished Business,,,The
AmericanJournalofJurisprudence44 (1999),pp. l_14.
-, A lv'orld Made New: Eleanor Roosevert and the {Jniversal
Declarationof Human Rights(New york: RandomHouse,200r).
GRIFFIN,J., "WelfareRights,"Journalof Ethics4 (2000), pp.27_43.
GLTNNEMANN, J.
f,, ...Humanfughts and Modernify: The Truth of the
Fiction of Ind^ividualRights;" The Journat of'Religious Ethics
16
( 1 9 8 8 )p, p . 1 6 0 - 1 8 9 .
'w.,
GURIAN, "on Maritain' s politicarphilosophy,,,TheMaritain vorume
af TheThomist(1943),pp.7_22.
GwozDZ, T., "Derrida" Maritain and Deconstruction,,,
International
Philosophicaleuarrerly 39 (l 999),pp. 305_3I 6.
HAGGERTY, D. F.,,JacquesMaritain ayd the Notion of
connaturaríty:
The valid role of NonconceptualMoral Knowledge"i,the Existential
Order (Roma:AcademiaAifonsiana,1995).
HALAMA, J. ed.,
!!: ldea of Human Rights: Traditions and presence
(Praha:UKETF, 2003).
HARRELS'N' w' J., The Ten commandments
and Human Rights
(Philadelphia:Fortresspress,I 9g0).
 BIBLIOCRAPHY
I98
..The
HESS, M.W., Question of civil Autonom/," The Philosophical
Review63 (1954),PP.20-423'
HILL, M. ed., ReligiousLiberty and Human Rights(cardiff: university of
WalesPress,2002).
HITTINGER, J. P., Liberty, Úv'isdomand Grace: Thomismand Democrotic
Political Theory(Lanham:LexingtonBooks,2002)'
HOLLENBACH, D., Claims in conflict: Retrieving and Renewingthe
catholic Hum,anRightsTradition Q..lewYork: PaulistPress,1979),
-, Justice,Peaceand Human Rights:American.{c.i7l Ethics in a
Pluralist ContextNew York. Thè crossroadPublishingcompany,
1988).
_, The CommonGood and Christian Ethics (Cambridge:Cambridge
UniversityPress,20AD'
-, Global Face of Public Ethics (Washington (DC): Georgetown
UniversityPresso 2003).
HUDSON, D. W., Moran, Wm. and Gallagher,D' A', eds',The Future of
ThomismQrlotreDame:UniversityofNotreDamePress'1992)'
ISHAY, M. R., ed., The Human RightsReader: Majol Political Writings,
Essays,'speeches, and DocumentsFrom the Bible to the Present
(New York: Routledge,1997).
JOHN PAUL [I, "Messageof PopeJohnPaul II for the 50* Anniversaryof
the Universat Deólarationof Human Rights" in Human Rightsand
the Pastoral Mission of the church (Vatican city: Pontifical council
for JusticeandPeace,2000).
JOHN PAUL [I, "Messageof His HolinessJohn Paul II for the Celebration
of the world Day-of Peace,1 January 1999" in Human Rightsand.
the Pastoral Misiion of the Church (Vatican City: Pontifical Council
for Justiceand Peace,2000).
Di JOSEPH,I.,JacquesMaritain and the Moral Foundationof Democracy
(Lanham:Rowmanand Littlefield, 1996),
KALLHOFF, A. ed., Martha C. Nussabaum: Ethics and Politcal
Philosophy(Múnster:LIT Verlag,200l)
KANE, 1., "Justice, Impartiality and Equity: why the concept of Justice
DoesNot PiesumeEquàlity?"Political Theory24 (1996), pp' 375-
393.
"Basal Inequalities:Reply to Sen," Political Theory 24 (1996),
pp.401-406.
 BIBLTOGRAPHY 199

Morals' trans' H' J' Paton

1., Groundwork of the Metaphysicsof
KANT,'(London:
HutchinsonandCo'' 1958)'
TheModern Schoolman2T
KLUBERTANZ, G. P., "Ethics and TheotoW|
(1949),PP.29-39.
KNASAS,J.F.,.oAquinasandtheL.iberationistCritiqueofMaritain'sNew
pp'247-267'
Christendom,;; fn, Thomist52 (1988)'
KYMLICKA,W.,Liberalism,CommunityandCulture(oxford:Clarendon
Press,1989).
,ed.,TheRightsofMinorityCultures(Oxford:OxfordUniversity
----Tiess,
1996).
and Group Rights(New
KYMLICKA, W. and Shapiro, I', ed'' Ethnicity
York: New York University Press'1997)'
Naturalis!" American Catholic
LEE, P., "ls Thomas'sNatural Law Theory
bhilosophicalQuarterly7 | (1997)'pp' 567-587'
PeterLaslett, ed. (Cambridge:
L'CKE, J., Two Treatisesof Government,
óambridgeUniversity Press,1967)'
ed'
Human tlnderstanding'P' H' Niddirch'
-(o*ford:- An Essw Concerning Press'1975)'
oxford University
'Some Recent Works in Human Rightt Theory"'
MACHAN, T. R., pp. 103-116.
Americsnphitisophical Quarterly17(1980),
Theory"' American
. "A Reconsideration of Natural Righls
-iniúiophical pp' 6r-72'
Quarterlv 19 (1982)'
'..HumanRightsReaffrrmed,,'Philosophy6g(199$,pp.479.490.
Discourses,trans.L. Ricci (New
MACHIAVELLI, N., The Prince and The
York: Modern Library, 1950)'
MACINTYRE,A.C.,ArterVirtue(NotreDame(IN):UniversityofNotre
DamePress,1981)'
Work on the Conceptof Rights,''
MARTIN, R. and Nickel, J. w.,..Recent
(1980),pp. 165-189.
Americanin-iiiiipni"at Quarterly17
ed' (oxford: oxford
MARX, K., Selected writings, D' McLellan,
UniversitYPress,1977)'
MCINERNY,D.ed',TheCornmonThings(Mishawaka:TheAmerican
Maritain Association,1999)'
..Naturalism and Thomistic Ethics,,, The Thomist 40
MCINERNY, R.,
(1976),PP.222-242'
 BIBLIOGRAPHY
2OO
..The Golden Rule and Natural Law," TheModern schoolman64
.
(tgt7), pp. 421-430.

_, The VeryRich Hours of JacquesMaritoin: A Spiritual I/e (Notre

Dame(tN): Universityof Notre DamePress,2003).
MELDEN, A.1., Rightsand Persons(Oxford:Blackwell,1977).
MERCIER, L. J. A., "Maritain's Conceptionof Integral Humanism,"
Thought19(1944),PP.229-246.
MICHENER, N. W., Maritain on the Noture of Man in a Christian
Democracy (Hull: L'Elair, 1955).
MOORE. AndreW "Welfarism in Moral Theory," Australian Journal of
PhilosophyT4 (1996),PP.598-613.
NAGEL, T., Equality and Partiali4r (Oxford: Oxford University Press,
1e91).
NEWMAN. F. and Weisbrodt,D., ed., InternationalHuman Rights:Law,
Policy and Process(Cincinatti: Anderson' 1996).
NGOZI MADHU, R., The RelationshipbetweenReligion and Politics
according to Karl Marx and Jaiques Maritain (Roma: Pontificia
UniversitasLateranesis,1997).
NINO, C.5., TheEthicsof Human Rights(Oxford:ClarendonPress,1991).
'oHumanDignity, Human Rights," First Things (November
NOVAK, M.,
1999),pp.39-42.
NOZICK, R., Anarchy,State,and utopia (New York: Basic Books, 1974).
NUSSBAUM, M. C., Sexand SocialJustice(New York: Oxford University
Press,1999).
_, llomen and Human Development: The Capabilities Approach
(Cambridge:CambridgeUniversityPress,2000).
-, "Adaptive Preferencesand women's ooptions," Economicsand
Philosopltyl7 (2001),PP.67-88.
NUSSBAUM, M. C. and Glover, J., eds., Women, Culture and
Development:A Study of Human Capabilities (Oxford: Clarendon
Press1995).
O'NEILL, O., Towards Justice and Virtue (New York: Cambridge
UniversityPress,1996).
OWENS, J., "Maritain's Three Concepts of Existence," The New
Scholasticism49 (1975),pp- 295-309.
 BTBLTOGRAPHY
201

PAPINI, R., Jacques Maritain e la società contemporanea (Milano:

Massimo,1978).
PAUER-STUDER,H., ed.,Norms, Values,and Society(Dordrecht:Kluwer
AcademicPublishers,I 994).
PAYZS, T., "Human Rights in a World Society,"Thought22 (1947), pp.
245-268.
PERRY, M. J., The ldea of Human Rights.Four Inquiries (Nlew York:
Oxford UniversityPress,1998).
PETTIT, P., "Capabilityand Freedom:A Defenceof Sen,"Economicsand
Philosophy17 (2001),pp. 1-20.
PING, C. L., "Are There EconomicRights," The Thomisr52 (1988),pp.
703-7t7 .
POGGE,T. W., "The lnternationalSignificanceof HumanRights,"Journal
of Ethics4 (2000),pp. 45-69.
-, World Poverty and Human Rights (Cambridge (MA): Polity
Press,2A0D.
PRESSLE& J., "Rights and Social Choice.Is Therea Paretianlibertarian
Paradox?"Economicsand Philosophy3 (1987), pp. l'22.
RAMSEY, P., ed., Nine Modern Moralisls (New York: New American
Library, 1962).
RAWLS, J., A Theoryof Justice(Oxford: Oxford University Press,1999).
_, Political Liberalism (New York: Columbia University Press,
1993).
_, "The Law of Peoples"in On Human Rights: The Oxford Amnesty
Lectures 1993,S. Shute and S. Hurley, eds. (New York: Basic
Books,1993).
RAZ, J., TheMorality of Freedon (Oxford: ClarendonPress,1986).
Ethics in the Public Domain: Essaysin the Morality of Low and
Politics(Oxford: ClarendonPress,1994).
REALI, M. T., La liberta umona e morale: il personalismo di Amartya
Kumar Sen e il personalismoteologico cristiano (Roma: Pontificia
UniversitaSt. Tommassod'Aquino, 2002).
RECK, A. J., "Natural Law and the Constitution," The Review of
42 (1989),pp. 483-51l.
Metaphysics
RENTELN, A. D., International Human Rights: Unîversalism Versus
Relativism(NewburyPark:SagePublications,1990).
 BTBLTOCRAPHY
202

RIZZI,G., L'uomo in Maritsin (Roma:Logos,1990).

ROSENBAUM A. S., ed., The Philosophyof Human Rights: International
Perspectives(Westport:GreenwoodPress,I 980).
ROSSI, 8., Il Pensieropolitico di JacquesMaritain (Milano: Edizioni di
comunita"1956).
ROURKE,T. R. and Cochran,C. E., "The CommonGood and Economic
Justice:Reflectionson the Thoughtof Yves R. Simon," TheReview
of Politics54 (1992),pp.231-252.
ROUSSEAU,J. J., TheSocial Contract and Other Later Political Writings,
Victor Gourevitch, ed. (Cambridge: Cambridge University Press,
1997).
RYDEN, E., ed., Human Rightsand Valuesin EastAsia,Edmund (Taiwan:
FujenCatholicUniversity,1998).
SCANLON, T. M., "Sen and Consequentialism,"Economics and
Philosophyl7 (2001),pp. 39-50.
SCHALL, J. V., JacquesMaritain: The Philosopher in Society (Lanham:
Rowmanand Littlefield, 1998).
SCHEDLE& G., "A Catholic Non Thomist View of Human Rights," Zhe
NewScholasticism54 (1980),pp.153-167.
SCHILLER"M., "Are Thereany InalienableRights,"Ethics79 (1969),pp.
309-315.
SCHNEIDE& H. W., "Commentsand Criticism: Querieson Natural Law,
Human Rights and Human Nature," The Journal of Philosophy 40
( 1 9 4 3 )p, p .5 1 5 - 5 1 6 .
SHAPIRO, 1., The Evolution of Rights in Liberal Theory (Cambridge:
CambridgeUniversityPress,I 986).
SHRADER, F. K., "Maclntyre on Human Rights," The Modern Schoolman
79 (2001),pp. l-21.
SHUTE, S. and Hurley, 5., On Humon Rights: The Oxford Amnesty
Lectures1993(New York: BasicBooks, 1993).
SIMON, Y. R., The Tradition of Natural Zaw (New York: Fordham
UniversityPress,I 965).
SMITH, A., The Theory of Moral Sentiments,D. D. Raphaeland A. L.
Macfie eds.(Indianapolis:Liberty Classics,l9S2).
SMITH, B. W., "The JacquesMaritain Controversy," Thought S0 (1975),
pp.381-399.
 BIBLIOGRAPHY
203
SPARROW, E. G., "Rights, Law and the Right,', The Review of
Metaphysics46 (1993), pp. 699-716.
STEINER, H. J. and Alston, P. J., eds., InternationalHuman Rights in
Context: Low, Politics, Morals (Oxford: Oxford University Press,
2000).
STRAUSS, L., Natural Right and History (Chicago: The University of
ChicagoPress,l97l).
SUGDEN, R., "Liberty, Preference and Choice," Economics and
PhilosophyI(l985), pp.Zt3-229.
_, "Welfare, Resources,and Capabilities:A Review of Inequality
Reexaminedby Amartya sen," Journal of EconomicLiterature 3-l
(1993),pp.1947-t962.
SWEETMAN, 8., ed., The Failure of Modernism: The cartesian Legacy
and Contemporary Pluralism (Washington (DC): Catholic
Universityof AmericaPress,1999).
TALBorr, w. J., which Rights should be (Jniversal(New york: oxford
UniversityPress,2005).
TERGEL, A., Human Rightsin cultural and Religious Traditions(Uppsala:
UppsalaUniversify,I 998).
TIERNEY, 8., "Natural Law and Natural Rights: old problemsand Recent
Approaches,"TheReviewof Politics 64 (2002), pp. 389-406.
TORRE, M. D., ed.,Freedomin the Modern úlorld: JacquesMaritain, yves
simon, M. J. Adler (Mishawaka: American Maritain Association.
le90).
TRAPANI, J. G., ed. Truth Matters: Essaysin Honor of JacquesMaritain
(Washington(DC): AmericanMaritainAssociation,2004).
TRIGG, R., Morality Matters(Malden(MA): Blackwell,2005).
ULSHAFER,T. R., "JacquesMaritain as a Mixed DeontologicalEthicistof
Agency,"TheModernSchoolman57 (1980),pp.199-211.
vlorro, P.,JacquesMaritain: Dizionario delle opere(Roma:città nuova
2003).
VLASTOS, G., "Rejoinder,"ThePhilosophicalReview63 (1954), pp. 424-
427.
WALTERS, G. J., "Is A Global Human Rights community possible?"
InternationalPhilosophical euarterly 39 ( I 999), pp. 209_216.
WARD, L. R., "Maritain's Philosophy of Education for Freedom,,,The
Reviewof Politics40 (1978),pp.499-513.
 BIBLIOGRAPHY

WEIN\!B, L. L., Natural Law and Justice (Cambridge

(MA): Harvard
Universitypress,I 997).
WEINSTEIN, M. A., ..Synthesisof Two Natural
Law positio ns,,,The New
Scholasticism44 (1970), pp. 574_5g4.
WESTEN,P., "The Conceptof Equal Opporfunity,o,
Ethics 95 (19g5),pp.
837_8s0.
WILLIAMS, o. F., cathoric sociar Thought
and the New úfiorrdorder:
Building on one Hundred rears Dame 1rru;, uniuersity of
frotre
Notre Damepress,1993).
WILLIAMS,T.,_Rightsand the person; An Inqujrl
in to the Foundationsof
Human Rightl in the L1q\ of rhomistiò pirsonarism(Roma:
Ateneo
ReginaApostolorum,ZóOt ;.
woLFF, P.'P', understandingRawrs(Gloucester:peter
smith, 1990).
Encyclopaedias
BECKER,L. C. and Bejkgr, q. 8., eds.,Encyclopedia
of Ethics,vols. l_3
(Ì.{ewYork: Routledge,200I
).
CHADWICK, R., ed., E3Wct"t"ljf of Apptied
Ethics, vots. l_4 (San
Diego:Academicpreis, fqqt).
CRAIG, E., ed., RoutledgeEncyclopediaof phitosophy,
vols.l_9 (London :
Routledge,I99S).
MARTHALE& B. L., od., New Catholic
Encyclopedia, vol. I I
D.c.: The cathoricú*uerrií-;i" ;;;.i"u' p."sr,
lf-astrineton,
2003).
SAFRA,J.. E., ed., The,New Encyclopaedia
Britannica, vols. 19 and29
(Chicago: EncyclopaeOia giitaniica, Inc, 2002).
{