Summary by Fr John Fleming of "Legal positivism and the New Evangelisation" by Mgr Michel Schooyans
In an important new article, the world renowned and respected scholar Monsignor Michel Schooyans provides a penetrating analysis of two conflicting notions of human rights and their implications for contemporary society
These two notions, one “realist” and the other “positivist”, he describes with extraordinary clarity.
The realist notion is one based upon our prior acceptance of the objective reality of things and, in this case, human beings. Accepting this reality we then begin to make sense of what a human being is, and what a human being is for. We recognise the reality that human being has inherent dignity and inherent rights, that is a dignity and set of rights which derive from and are in accordance with the reality of what a human being is. The Universal Declaration of Human Rights is a contemporary example of this tradition.
Human rights need to be articulated in law, positive law. That is to say, the prior recognition of human rights conditions the positive law. Laws are enacted to protect human rights, thereby setting limits on human behaviour.
The positivist notion rests upon the idea that beyond words there is no knowable reality. Reality is what the law says it is. Positive law describes the rights we have and who has them. Any reference to real human beings and inherent rights is relegated to the sphere of metaphysics and therefore the unknowable. The jurist can only concern himself with legal rules which have been enacted by the legislator. All of those things said to exist prior to the written law are to be disregarded. So it is that the right to life, “pivotal to the realist tradition, is increasingly under threat from positive laws”.
There are two types of positive law, says Monsignor Schooyans. The first, inspired by realism, protects inherent human rights. The second, inspired by positivism, supplants the recognition of inherent human rights with the proclamation by law of what rights are and even who is to be granted rights.
For the positivist tradition, where human rights are concerned there needs to be a supreme law maker. The 'rule of law' in this tradition is an expression of the will of the legislator, unfettered by the recognition of any prior 'metaphysical' rights. As the major theoretician of legal positivism, Hans Kelsen, puts it:
"In terms of judicial science, the law established by the Nazi regime is the law. We may deplore this, but we cannot deny it is a law. The law of the Soviet Union is law! We may abhor this, as we hold a poisonous snake in horror, but we cannot deny it exists, which means it is valid."Monsignor Schooyans goes on to argue that
"we are currently witnessing a demonstrable attempt at systematic deconstruction of the realist notion of human rights."The main players here are the United Nations and the European Union. They present themselves as the
“guarantors of the ‘supreme rule’”.What Monsignor Schooyans is saying is that the 1948 Universal Declaration of Human Rights is being interpreted through the prism of positivism, such that words are emptied of objective meaning and are now used to mean whatever the positivist wants them to mean. So it is that the word 'marriage' is now expanded to include homosexual and lesbian unions, together with homosexual parenthood.
Even more disturbingly, Monsignor Schooyans says this:
"Respect for life, in particular a suffering or declining life, also forms part of the realist tradition. It is in the name of this tradition that crimes against humanity, generally declared indefensible, have been condemned. Now, respect for life has become more flexible and we are witnessing the emergence of 'new human rights', which legalise euthanasia, previously condemned at Nuremberg, and abortion."Monsignor Schooyans concludes with a further analysis of the way in which positivistic influences are leaching into the Church through certain moralists:
"Shaken from the outside by the forces of evil and from the inside by convulsions whose magnitude is downplayed, the Church, today, as yesterday, has to breathe life into the embers, revive the Word of love, rekindle the fire which the Lord entrusted to it to inflame the world."Comments on this blog? Email them to firstname.lastname@example.org
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