Человеческие отношения как основа прав человека
«Самым первым правом человека должна стать минимальная гарантия против голода. Но самое главное право человека – это гарантия того, что он волен прожить свою жизнь так, как считает нужным», – писал испанский дипломат и журналист Сальвадор де Мадариага (1886-1978) в своем эссе Rights of Man or Human Relations? («Права человека или человеческие отношения?»). Оно стало его ответом на опрос, который ЮНЕСКО провела в 1947 году с целью определения философских основ прав человека. Полный текст эссе мы публикуем ниже (на английском языке).
Сальвадор де Мадариага
No discussion of “the rights of man” can yield fruitful results when the subject is so limited both to the rights and to the individual; and the very form of words is to be avoided. It dates from the era of the French Revolution, which bred a combative, biased and therefore limited outlook. Historically this attitude was only too natural and even justified. A similar attitude has been fostered by the cruel oppression millions of men and women have suffered in the last two decades. But true constructive work in the field of social nature can be achieved only if and when the matter be approached objectively and not aggressively. The first result of this change of outlook is that the word and concept of rights is found to be too narrow, for it only represents one aspect of the relations between the individual and the society in which he lives.
It is commonplace – but often forgotten – that there is no such thing as an absolute individual, i.e. that no human being exists who does not contain a social element as well. Man is a synthesis which might be described as an individual-in-society; and an individual without a society is no more thinkable than a society without individuals. It seems, therefore, that the right approach to the problem usually defined as that of “the rights of man” should be that of the right political relations between the individual and the society to which he belongs.
In our day, the political society in which we are set has become one. For a number of well-known reasons, nations, the separate societies of the past, have become merged into a world society; and the chaos in which we all live is due to the fact that this world society being still without its State, or governmental institutions, the several nations seek to meet the trouble by the disastrous expedient of strengthening their respective authorities. The recrudescence of governmental regulations and the raising of frontier barriers of all kinds are direct, though paradoxical results of the growth of world solidarity.
This paradox can be solved easily once the distinction has been made between objective and subjective solidarity. The owners of – or passengers in – all the cars in a traffic jam are in as “thick” solidarity as the drops of water in a pipe: but their subjective solidarity is probably nihil, and each and every one of them is perhaps wishing the others were dead and in hell. The present chaos is due to the fact that while the objective solidarity of nations has rushed ahead with the increase in the speed of physical and mental communications, their subjective solidarity has lagged behind.
Of the three stages of social nature – man, nation, mankind – it is therefore the middle stage which most requires control and restraint. For it is the nation which, both towards the individual and towards the world society, turns an absolutist face. Towards the individual, the nation, once absolutist on the strength of the divine right of kings, remains absolutist on the strength of “the will of the people”. Towards the world society, the nation remains absolutist, entrenched as it is in the doctrine – and practice – of national sovereignty.
The problem first understood as that of “the rights of man” thus reveals itself as one of the proper relations between man, nation and world community.
This conclusion raises a fresh problem: what is meant by “proper relations”? In other words, what are the standards which are to guide us in our enquiry ? The complete answer must ultimately depend on the faith, the philosophy or the Weltanschauung of the enquirer. The atheist-materialist-Marxist, the agnostic-liberal, the undogmatic Christian, the dogmatic Catholic, will each provide a different answer. This fact might of itself render illusory any hope of agreement on so capital a subject were we to insist on a thoroughgoing definition of our criteria and a rigid formulation of their consequences. Yet, the door remains open for some kind of compromise or common ground of all doctrines; and it is as a contribution to this compromise that the following observations are put forward.
The atheist-materialist-Marxist asserts that there is no life after death; the believer puts this life after death as the forefront of his philosophy. We need not decide the point. If we base our conclusions on the assumption that we do not know and do not prejudice the eschatological issue, we need conflict with neither of the two extremes and dogmatic schools. All we need is the agreement of both on the principle that every individual human being is a singular and precious unit of life with a fate of his own, and with rights and duties towards himself. True, when we come to define what this unit-of-life's chief aim is, differences appear: “the pursuit of happiness”, proclaim the fathers of the American Revolution; “the salvation of the soul” preach the fathers of the Church. Could we again bring them together on a non-committal ground? Let us define man's chief right-duty in life as that of seeking, and if possible, finding himself in experience, i.e. of understanding as much as he can of the world, of himself and of the true relation between the two.
This conclusion leads to the first political right of man: that of freedom to live and learn in his own way. It is a primary right, inseparable from that of merely living. For in fact when we lay down the right to live as the first and fundamental right of man, we assume that what is to live is a man; and therefore the right to learn by experience is no attribute super-added to, but part and parcel of the right to live, which no society can deny its members.
It will be seen therefore that liberty of personal experience – with all the consequential rights that flow from it – is at the very basis of all rights of man, and that it need never be justified, but follows automatically from the very fact that man lives.
All limitations to this fundamental right must be justified before they can be accepted. They fall under three heads:
• limitations of individual liberty for the sake of the individual liberty of others;
• limitations of individual liberty for the sake of the nation;
• limitations of individual liberty for the sake of the world community.
Individual liberty of others
If we come now to consider the first of these limitations, we might be tempted at first to dismiss all discussion of the subject on the ground that a balance could and would automatically be struck between all those equivalent rights. The matter is, however, more subtle than that. For the rights of the individual are of different qualities and values, and it is important that a scale should be set up and agreed upon so that no limitation of the higher or of the essential rights is permitted in favour of lower or less important ones.
It is clear from all that precedes, that the first right of man is to live; and that this right includes: that of living as a body, i.e. of ensuring his subsistence, and that of living as a mind and soul, i.e. of ensuring the freedom of his experience. In the exercise of their remaining rights, other individuals must not overstep the boundaries of these two primary rights, and should they attempt to do so, we know in advance that their claims cannot be legitimate.
It should be noticed that the two primary claims might, and, in fact, do, enter into conflict, and not merely as between man and man, but even when only one individual is considered. For the body can be, and often is, the enemy of the mind and soul; and, particularly in our day, the trend of things favours the right to live as a body against the right to live as a spirit, or, in other words, the claims of security against those of liberty. This trend is unfortunate and decadent: a minimum guarantee against starvation is to be proclaimed as the first right of man; but the foremost right of man is a guarantee that he will be free to live his life in his own way.
Individual liberty for the sake of the nation
No other limitations of individual liberty can be admitted from the point of view of the nation than those required by the very existence and healthy life of the nation itself. Chief among them are internal order and external peace, both indispensable also for the exercise of individual liberty. But in this respect two important considerations arise: one, mostly connected with order, touches on the administration of justice and the police; the other, mostly connected with peace, refers to the army and to military service.
Order cannot be of the healthy kind which allows the free use of individual liberty if it does not rest on a wide basis of national assent. It follows that the rights of man must include: government by the spontaneous, free and well-informed consent of the majority of the citizens, and with adequate guarantees for the freedom and opinions of the minorities. This implies objective justice and a non-political police. The point need hardly be elaborated that, in their turn, these conditions require a free press. Without a free press, no rights are worth the paper on which they are written.
The second point refers to the rights and duties of man with regard to international peace. When we admit the right of the nation to limit individual liberty for the sake of national defence, we have to bear in mind that nations have a way of covering under those words any designs, however aggressive, they may harbour. The problem thus created in the individual conscience was first discussed in the sixteenth century by Francisco de Vitoria in his De Indis. It is possible to adapt his conclusions to a modern setting. The citizen has the right, indeed the duty, to refuse military service if and when he is satisfied that the issue is against his conscience; but the decision is so grave that the citizen must not take it without listening first to the advice of wise men. That is Vitoria's doctrine. In his day, when orthodoxy was recognized by the overwhelming majority of Europeans, the “wise men” were eminent churchmen. In our day, we must endeavour to find some objective standard. The solution might be to lay down the right of all citizens to refuse military service in any war in which his country's side would have been declared in the wrong by a majority vote of the Security Council of the United Nations.
It is clear that a country ready to go to war in defiance of the international authority can hardly be expected to respect the right of its citizens to refuse service for such a war. Nevertheless the right must be stated, for it may act as a deterrent, particularly if, the war over, the statesmen responsible for its violation are made to pay for their guilt. Furthermore, persons having authentically expressed their unwillingness to serve would, if falling in the hands of the other side, be treated as friendly aliens, and not as prisoners of war.
The discussion of the relations between the citizen and the nation does not exhaust the problem set by the existence of these two forms of human life: nation and man. What, for instance, of the right of immigration and emigration? This question is only too often discussed with a background and an understructure of feelings which deprive it of clarity. The point of view of the nation should be borne in mind, both on grounds of theoretical justice and of practical politics. A nation has a right to exist. And this might well be the best moment for establishing it on objective grounds. We start from the individual as the only tangible and concrete thing there is; and we reassert that his chief purpose in life is to find himself in experience, i.e. to acquire a culture. Instruction, information, craft, are all excellent for earning a living and as elements of culture. But culture – a merely relative concept – is the degree of realization, of awareness of adequate relationship between himself and the world a man has reached.
Now, the nation is the best setting for most human beings to rise up the slope of culture. It is the depository of tradition, the “cup” in which the subconscious life of a community is held and accumulated; the setting of individual experiences. This function it is which gives the nation its raison d'être. It follows that the nation has the right to persevere in its being, as Spinoza would have said. And therefore it is plain that the right of moving about and settling anywhere of any one man must be balanced against the right of any nation to remain what it is or to become what it wants to become.
Individual liberty for the sake of the world community
There remain the limitations to individual liberty to be accepted in the name, and for the sake of, the world community. They include barriers against acts injurious to the healthy life and peace of the world community as a whole; and checks on individual acts against nations. In both cases, it is extremely unlikely that individuals, without the backing of a powerful nation, may threaten the peace or interests of the world or of another nation; so that this section practically merges with the next.
A section on the rights and duties of nations towards each other and towards the World Commonwealth should be considered as an integral part of the projected Charter. This field has been already covered twice: by the Covenant of the League of Nations and by the Charter of the U.N. Neither recognized the existence of the World Commonwealth, the logical outcome of the World Community. The problem turns on the issue of national sovereignty.
This issue is too often simplified into what is known as the “surrender” of national sovereignty to a higher authority. Such a thing can never happen except under duress as the outcome of a defeat. National sovereignty can be enlarged so as to include wider territories and populations, but only when the awareness of a common solidarity and destiny is so enlarged first. Surely this is a process which must happen in life; no “charter” can bring it about. The projected charter should therefore be limited to a modest outline of the rights and duties between nations and the cooperative of sovereignties the U.N. may be said to represent.
Discover Salvador de Madriaga’s article, Intuition, intelligence and the making of modern man, published in the Courier, February 1995.