Human rights and the draft EU constitution

Richard Abbot, June 2003

A central feature of the proposed EU constitution is the Charter of Fundamental Freedoms, which if the EU constitution is adopted, will become legally enforceable. It is important for Christians to formulate a biblical view of such documents, since, fundamentally, law and human rights are spiritual issues that both reflect the religion of a society and shape its moral framework.

Consider, for example, the controversy over whether reference to God should be made in the draft EU constitution. The suggestion provoked a storm of protest from secular and humanist groups, one of which said: ‘To include references to God or “our Christian heritage” would be to start turning back on our 500-year journey from the Enlightenment.’ [1]

The secularists won the day. Article 2 states: ‘The Union is founded on the values of respect for human dignity, liberty, democracy, the rule of law and respect for human rights, values which are common to the Member States. Its aim is a society at peace, through the practice of tolerance, justice and solidarity.’

Many churches including the Vatican expressed their disapproval at the wording of the text. And for good reason. Unless values such as dignity, liberty and tolerance are affirmed in the context of a transcendent framework they lack fixed or objective meanings. Indeed, the decision to omit reference to God was no mere oversight. It was a deliberate decision, after considerable debate, to base EU laws upon Enlightenment humanism rather than Europe’s Christian heritage.

A biblical perspective

The gap between secular and Christian legal thinking is nowhere more evident than in a discussion of human rights. The biblical view of law begins with God as creator. As such he is empowered to grant privileges to, and place obligations upon, mankind, who are part of his creation. In addition, human beings are created in God’s image (Genesis 1:27–28), a status which confers dignity as well as unique privileges and obligations – which the rest of the Bible proceeds to spell out.

There are no words in Scripture that correspond directly to our concept of ‘rights’ as legal entitlements. The relevant Hebrew words are din, mishpat and tsedek. Din comes closest where it refers to a cause of action, such as pleading the cause of the fatherless before a judge (e.g. Jeremiah 5:28). Tsedek refers to justice in an abstract sense rather than in the sense of an enforceable ‘right’. Mishpat embraces the concept of justice and can refer to ‘divine commands or rules which benefit certain categories of people’ but, again, does not denote specific rights over others as in the modern concept. [2] In the New Testament exousia is sometimes translated as ‘right’. It is used in John 1:12 and refers to the believers’ ‘right’ (exousia) to become sons of God. In this context, however, exousia is not something that human beings possess innately or autonomously. Rather, the right to become sons of God is granted by God’s sovereign authority.

Furthermore, the biblical understanding of privileges and obligations is stated in negative terms, e.g. ‘you shall not steal’. It is this very negativity that guarantees liberty because everything not expressly forbidden is allowed. As such the law provides a hedge around freedom, outlawing only those things that would be injurious to society. This biblical idea of negative law influenced the development of English law, including the Bill of Rights in 1689 which tended to use ‘freedom from’ language as opposed to ‘freedom to’ language.

By contrast the European Charter uses ‘freedom to’ language. The danger with this approach is that people tacitly accept that they are only entitled to such freedoms as the state (or some other body) chooses to give them. In addition, by setting out the law in terms of negative obligations rather than positive rights – and in contrast to the self-centredness of modern society – biblical law reminds us of our duties towards others rather than their duties towards us.

The European Charter

European Convention President Valery Giscard dÃ

European Convention President Valery Giscard dÃ

The European Charter states in its preamble: ‘the Union is founded on the indivisible, universal values of human dignity, freedom, equality and solidarity.’ It would be useful to explore these terms to illustrate further the gap between biblical and modern secular thinking about human rights.

DIGNITY within human rights declarations has ‘replaced the idea of god or nature as the foundation of inalienable rights’, according to Francesca Klug of King’s College London.[3] On this view, dignity is not acknowledged to be a gift of the creator God but is considered innate within each person by virtue of his or her humanity alone. And the general perception of human nature is that it is essentially good – in contrast to the biblical concept of original sin.

The biblical concept of dignity is fundamentally different. Rather than being innate, dignity derives from our creator. This is a subtle but important distinction. God as creator, rather than man, is central to the world’s moral order. In addition, the biblical understanding of the sinfulness of mankind provides moral clarity and a more realistic expectation of human behaviour.

FREEDOM in the modern sense means the right of individuals to define their own existence and their own moral order. However, if all moral opinions are of equal worth, it becomes impossible for one person to accuse another of wrongdoing or even to define what amounts to ‘human rights’. The biblical understanding, by contrast, is that God has established an objective and unchanging moral order to which all of humanity are subject. This alone is a sufficient basis for protecting human freedoms.

EQUALITY as understood by the European Charter is more extensive – and more utopian – than the biblical understanding. In the biblical view, we are all morally equal under God and equally subject to his law. An example of this can be found in the story of Naboth’s vineyard in 1 Kings 21. However, the Bible is realistic. There is no promise of material equality, although there are many injunctions to show mercy to the poor. By contrast, modern human rights declarations often appear to undermine the differences that arise naturally within society. Thus, with reference to gender relations, Article 23 of the European Charter states: ‘Equality between men and women must be ensured in all areas…’

Furthermore, the Charter encourages the state to interfere excessively in the private dealings between people to enforce equality, and thereby enhances the power of the state over individuals. Whereas, in teachings such as the Sermon on the Mount, the Bible places the onus on individuals rather than the state to ensure that they behave correctly towards other people.

SOLIDARITY – both the Bible and the European Charter believe in solidarity but differ in the type of community envisaged. The Charter’s vision is of a ‘social Europe’ with a powerful state – regulating areas such as employment, family and healthcare – as the focal point. However, the biblical social model is multipolar, consisting of individuals in relationship with family, tribe and local community as well as with central government.

The modern notion of human rights strikes against this multipolar model of society. By placing the individual at the centre of human rights, intermediate institutions are subordinated leading to an atomisation of society. The removal of the intermediate bodies between individuals and the state leaves a vacuum, which the state fills as it takes over the functions previously carried out by, for example, families or local communities. The danger is that the individual is then forced to stand alone before an increasingly powerful state.

Conclusions

The rejection of any reference to Europe’s Christian heritage in the EU Constitution is not simply a matter of semantics. The framers of the constitution envisage a Europe with humanity rather than God at the centre. They perceive issues such as liberty and democracy as having been the invention of the Enlightenment and have chosen to ignore Europe’s rich biblical law heritage.

In its favour, the European Charter is an attempt to call people and organisations to account within a moral framework. However, there are limitations to the human rights idea. Rights are often arbitrary, reflecting a particular ideology, and are frequently subjective and unrealistic. They can increase the power of government at the expense of intermediate power structures such as the family and they promote a culture of individual autonomy. In addition the ever-increasing number of rights risk trivialising the central values upon which a free society is based.

Richard Abbott graduated in law from Nottingham University. He has interests in constitutional law and human rights and has lectured in the UK, USA and Lithuania.

[1] Mike Wendling, ‘Group wants God left out of European Constitution’, 4 Feb. 2003, www.cnsnews.com
[2] Julian Rivers, ‘Beyond rights: the morality of rights language’, Cambridge Papers, Vol.6 No.3, 1997.
[3] Francesca Klug, ‘Human Rights: Cause of or cure for the moral crisis in liberal democracies?’, lecture at LSE, 17 May 2001.

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Category: News and Reviews

June, 2003

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