Natural law and human rights
For centuries and across cultures, the theory of natural law was the moral foundation of societies. No longer. In its place today the emphasis is on human rights.
Not only is this a change in jurisprudence, it is a whole change of mentality, of philosophical approach. Until fairly recently, we thought that just as there are physical processes in nature (the climate, for instance; physical changes of cause and effect), so also human nature was governed by certain immutable laws.
Traditionally most societies had a religious base — be this Christian, Hindu, Islamic, whatever — and religion clearly defined human nature, what was human and natural, and what was unnatural — and perverse, abhorrent, sinful.
Thus natural law became an ethical system with certain values, meant to guide human behavior. It undergirded the legislation of various states. Values such as kindness to children, respect and care for the elderly; rules about injury, murder, theft; and sexual practices related to both inside and outside of marriage.
Usually, this legislation assumed duties towards one’s own, not towards those outside the kinship group.
A classic example of natural law is found in the Ten Commandments, legislation originally from the Judaic tradition, but adopted by Christianity, and also in some measure by Islam.
What really is human nature?
But today there is disagreement about what human nature really is and whether it can provide a foundation for equitable practice within society.
Why is there this disagreement?
Firstly, the idealistic view of human nature, as created by God and perfectible, has taken a severe beating. After the two
wars and the destruction they caused, the idea of an enlightened humankind and the rule of reason and scientific progress, stands completely shattered. For the wars revealed to us the absolute barbarism of human beings towards each other — the genocides, the concentration camps and the atomic holocaust. They shook the very ethical foundations of society. Is this how socalled civilized societies behave?
Besides, today technology is changing everything. “After the cloning of Dolly the sheep, who knows what is ‘natural’ anymore?”(Joan Chittister). We realize every day that technology can improve upon nature, and this gives us an assurance and a comfort, which did not exist earlier.
People live with pacemakers, stents, transplants and artificial limbs. Robots and computers (artificial intelligence) have taken over the workplace. What was strange and artificial yesterday has become natural today!
Our technological culture however comes with its own presuppositions. Inherent in the idea of natural law was the principle of stability, immutability — nature didn’t change, at least not substantially. Life had a God-given purpose, a plan to be accepted and obeyed.
Modern technological culture doesn’t accept this at all. Everything can be exchanged and replaced, not just jobs and instruments, but relationships and values too. So culture takes precedence over nature: friends become more important than families; peer group takes precedence over parents; sexual technique and partnerships have displaced fertility as the goal of marriage; and
the consumer revolution has given this present life a value far beyond the religious values of the hereafter.
Ever since the French Revolution more than two hundred years ago, we have seen societies change. What was considered sacred and natural at one time, was seen to be the imposition of an unjust and oppressive feudal order. Reason gave human beings an awareness of their innate dignity, and the values of liberty and equality. This became the basis of human rights.
Sexual Freedom and Equality
Let’s apply the theory of human rights to sexual behavior.
In earlier times there were sanctions against certain kinds of sexual union — rape and incestuous unions, for example; or between master and slave, between two members of different races (miscegenation), between rich and poor, between those of the same sex. Marriage was a social
right, available to some, but not to all. Slaves, by definition, had no rights, only duties.
Behind the anti-slavery movements of the late 19th century, and the anticolonial struggles of the 20th, are the strong cries for liberty, equality and a new humane community. While this newness has left its mark on class, religion and race, applying human rights to sex and gender relations has taken longer.
For instance, controlling female fertility through contraception was seen as immoral. True, things have changed as of now, but in the church, contraception is still officially banned. In many countries the law of coverture was rigidly enforced: a married woman had no rights or property, but was totally dependent upon her husband.
Homosexuality, particularly, was seen as against nature, deemed immoral and perverse, and denied public space. Operating in secrecy, gays and lesbians came under constant threat of
blackmail, extortion and even imprisonment.
In striking down Section 377 of the Indian Penal Code, the India’s Supreme Court has decriminalized same sex acts and extended freedom, equality and support to the whole sexual community, whatever their orientation.
But it is more than just freedom from sanction: do gays and lesbians have the right to live together in love, trust and commitment? Many societies grant the right of cohabitation as in a civil union, but not as marriage, which is seen as a sacrament based upon a natural sexual difference.
Is marriage always a sacrament?
The value of a sacrament is directly related to the grip of religion in a given society, and how that society handles its cultic rituals and its moral codes. The more secularized a society is, the less the sacrament matters; the more civil law decides.
Just a brief look at the history of marriage tells us that the marriage bond has changed immensely over ages and cultures: earlier societies condemned marriages between races (miscegenation), permitted multiple marital bonds for reasons of status and offspring, redefined the sacrament and made it just a civil contract, dissolved permanence and permitted divorce — even no fault divorce, and so on.
In a pluralist society one must necessarily accept many cultural values, not all of which may be acceptable to ones moral sense. It is the public order and the protection of the weak, which is the duty of the state, not the imposition of religious norms. This is why human rights have emerged as the chief arbiters in civil society today: everyone — no matter his or her religion, class, race, status or gender — is equal before the law.
To argue otherwise is to condemn oneself to live in a medieval theocracy, where rights are enforced or withdrawn arbitrarily, and summary sanction meted out to all who dare to disagree.