10 PROGRESSLAND

Finally, a cautionary tale. It is late November, and the world is gripped by the greatest economic crisis in generations. Despair, fueled by xenophobia and outright racism, brings a surge of populist strongmen on every continent, each claiming the national emergency requires unprecedented, coordinated, and concentrated power.

There is a mechanism in place to deal with this problem: an international coalition of democratic states created to prevent another world war. But they are divided amongst themselves and ultimately more interested in recouping debts than curbing authoritarianism. The United States, too, remains silent. Emboldened, the dictator continues to press his claims at home and abroad. Other nations stand idly by; a few, led by “strongmen” themselves, watch with interest.

This story has played out twice in the last century. We know how the first ended: in the conflagration of the Second World War.

Hungary, formerly a democratic republic and model for its Eastern European neighbors, had backslid into autocracy under President Viktor Orban. Civil rights for minority groups, particularly the LGBTQ community, were curtailed. An independent judiciary no longer existed. Mr. Orban exploited the pandemic to justify emergency measures intended to allow him unlimited and indefinite rule, much as his ideological predecessor seized upon the Great Depression and Reichstag fire in 1933.

Once again, as in 1933, the international community turned a blind eye. At the height of the Depression, desperate to collect their long-standing debts, Europe and America willfully ignored Nazi Germany’s abandonment of the rule of law in favor of its promise to pay. Germany, whose chancellor served as acting president of the EU, appeared ready to do the same for Hungary and Poland. At this point, as Winston Churchill would have it, “the New World in all its power and might” should have stepped forth to liberate the Old. The United States alone had the ability to prevent this second red tide of appeasement. Wounded as it may be, it was still the largest, wealthiest, and most powerful democracy in the world. The United States also had a long history of defending democratic values and human rights around the globe under presidents of both political parties.

In another world, the EU stalemate could have been a perfect test case for American reengagement on human rights. Here was a crime against humanity unfolding in real time: withdrawal from the rule of law in Hungary was not yet at terminal stage.

Of course, the United States did nothing. President Trump counted Mr. Orban among his closest allies, one of a collection of strongmen the president found appealing. It is more than likely American silence enabled Orban to consolidate his position in the first place, much like Erdogan of Turkey and many others. In the twilight of his presidency—though loath to admit it—Mr. Trump would no more offer democratic assistance to the EU than concede gracefully on his electoral loss. Both actions were entirely out of character.

That problem, like so many others, would ultimately fall into the lap of the president-elect. Singly, it counted for relatively little. But it was part of a much larger and more disturbing pattern: an authoritarian surge unchecked—indeed encouraged—by an ersatz authoritarian American president. It is impossible to overstate the impact four years of silence had upon the world stage. As we have seen, Trump and his allies attempted to deconstruct the entire postwar system of alliances, rejecting nearly every human rights norm and concept of accountability, giving comfort to dictators and the back of their hand to everyone else. The shocking, unprecedented character of Trumpian foreign policy (if it can be dignified with that title) will doubtless be felt for decades to come.

Nevertheless, there is cause for hope. President Joe Biden’s earnestness and decency stand in stark contrast to his predecessor, and thus his interactions with men like Putin and Orban have the catalytic quality of salt on slugs. No less significant is his resolute faith in the “upward path” of history, as espoused by men like Wilson and FDR.

Likewise, the defense of natural rights does not consist of demonstrating, vide Émile Coué, that every day and in every way we are getting better and better. Jus naturale may be immutable and perfect, but those tasked with determining and upholding it are not. The central irony to the concept of a justice transcending individuals is that it relies on those individuals for its relevance. Without human interpretation there would still be law, but it would stand like a marble monument in a vast wilderness. It was for this reason that Cicero, Aquinas, Grotius, and countless others emphasized the importance of wise and good legislators to divine the law; a foolish or cruel one may seemingly negate its progress. As we have recently seen.

The trajectory of natural law encompasses such reverses. Even as it acknowledges the role of individual sovereigns, it places them on a temporal curve where their actions, good or ill, are absorbed by the collective. “For all their activity,” F. W. Maitland wrote of English kings, jurists, and reformers, “they changed, and could change, but little in the great body of law which they inherited from their predecessors.”[1] Not only is the law greater than individuals, it is greater than events. As Franklin Roosevelt’s mentor Dr. Peabody phrased it, when “all will seem to reverse itself and start downward…the great fact to remember is that the trend of civilization itself is forever upward.” The arc of the moral universe is long; it is also bumpy.

This doesn’t make the journey any easier to bear. It is not my intention to mitigate the catastrophe of the Trump presidency, nor to ignore the real suffering inflicted upon countless persons as a result of his actions and inactions. Likewise, in a broader context, the enormous strides undertaken both nationally and globally in the field of human rights have come at nearly equal cost. Every country that embraces a “universal” right is counterbalanced by another that expressly denies it. What, then, of universality? And, as we saw in previous chapters, rights themselves have become political lightning rods. How do we distinguish between privilege and freedom, cultural practice and crime? Is it proper for one state to “blackmail” another into compliance with universal norms? If it declines to do so, is that a failure as well?

The domestic landscape in our own nation is no less baffling. With the advancement of civil liberties and recognition of new minority groups comes a plethora of claimants for protected rights and status. How do we weigh their respective claims, and what happens if they conflict? This embarras de richesses raises a vexing question unimagined by the framers of the Constitution, or even their twentieth-century successors: is it possible to have too many rights? In our Age of Rights, as one author termed it,[2] the stark outline of natural law seems ever more obscured.

There is, however, no doubt that the idea of natural law has had a profound impact on the development of states. We have seen the law’s evolution from justice to right, extending its protection from the few to the many to the whole and ultimately transcending national boundaries to encompass the world entire. Likewise, because of natural law, heads of state are no longer immune from justice, even if that justice is difficult, politicized, and all too rare. It is hard not to interpret these transformations as a form of progress. Yet as the global community continues to engage with a natural law understanding of human rights, “progress” today is erratic, indefinable, incremental, and maddening.

It is rather like a game we played in elementary school. Each student would take one step forward, then divide it in half and step again, half again, and so on. Our destination was the other side of the room. Did one regard this progression with despair, knowing they would never reach their goal? Or with hope, since each step brought them closer? That is the conundrum of natural law. It is defined by belief in a transcendent universal order; therefore its trajectory is progressive, as humanity gradually comes to know more of that order and incorporates it within itself. The inverse posits a Hobbesian universe where all is chaos and law is the mechanism by which we are forcibly restrained from destroying ourselves. Success is not progress but stasis, which is a much lower bar.

Natural law is infinitely harder. “We shall not attain a Utopia,” Franklin Roosevelt cautioned in 1944, even as many in the world community—including his own administration—sought precisely that. “Indeed, in our own land, the work to be done is never finished.” This harsh lesson has been passed down from antiquity. By positing that natural law resided “in the mind of Jupiter,” Cicero recognized it as perfect, complete, and impenetrably isolated from total human understanding. Through logic we could discover its elements but never the whole. If we knew the totality of Jupiter’s mind, Cicero implied, we would be gods ourselves. Thomas Aquinas made a similar point. “The rational creature,” he wrote, “is subject to divine providence in the most excellent way, in so far as it partakes a share of providence…. It is therefore evident that the natural law is nothing else than the rational creature’s participation in the eternal law.”[4] We may always partake of that share of natural law that can be known by us, a share that increases as we evolve. Thus Renaissance humanists likened the contemplation of natural law to astronomy, a reference Winston Churchill might have had in mind when he called the Atlantic Charter “a star.” It was beautiful and remote, essentially unknowable yet ever within sight.

To seek a perfection that can never be realized is a paradox as ancient as human thought. In the nineteenth century, some synthesis was achieved by recasting progress as an end in itself. Utopia might remain forever distant, but that hardly mattered as long as one could measure humanity’s march toward it. In a time of profound and rapid change—political, social, technological—there was comfort to be found in the immutable character of natural law and its evolving influence on the polity. In contrast to a physical landscape whose transformation seemed both hurried and haphazard, the works of historians William Stubbs, Thomas Macaulay, and F. W. Maitland offered a vision of orderly, measured progress. While their historical perspective might be Olympian, it had the virtue of relegating the ephemera of the moment to a broader context. “Law is a body, a living body,” Maitland wrote in his Constitutional History of England.[5] Like any body, it grew and matured; like any life, a single moment—however critical—would inevitably be absorbed within its long arc of existence:

When we speak of a body of law, we use a metaphor so apt that it is hardly a metaphor. We picture to ourselves a being that lives and grows, that preserves its identity while every atom of which it is composed is subject to a ceaseless process of change, decay and renewal. At any given moment of time—for example, in the present year—it may, indeed, seem as though our legislators have, and freely exercise, an almost boundless power of doing what they will with the laws under which we live; and yet we know that, do what they may, their world will become an organic part of an already existing system.[6]

How comforting to think of a foolish legislator as an atom! The Whig narrative has much to criticize, but there is a stark beauty as well. For Maitland and his colleagues, humanity’s struggle to better itself through the law was the best and most enduring proof of humanity’s essential goodness. The lesson, long obscured under a heavy imperialist encrustation, has relevance today: so long as we continue to strive, our collective efforts outweigh any individual failings or frailties. Ennobling that struggle allows us to suffer reverses and even catastrophes without losing faith in the ultimate trajectory of the law and human society.

As the nineteenth century gave the crusade for natural law its nobility, the twentieth proved its necessity. This was the abiding lesson of Nuremberg: if the Nazis’ actions were not a crime, no rational conception of criminality could exist. “At length,” Robert Jackson declared at the trial, “bestiality and bad faith reached such excess that they aroused the sleeping strength of imperiled Civilization.”[7] The issue at Nuremberg was greater than the guilt of the accused, greater even than their crimes. Civilization itself was on trial—a civilization defined by law. This was a truism that men like Henry Stimson and Robert Jackson understood, yet Churchill and Stalin (and even, for a time, Roosevelt) did not. Stalin’s solution—line the Nazi leaders up and shoot them—had the virtue of expediency but no lasting precedent. Victor’s justice would do nothing to prevent another Holocaust. The choice of justice over vengeance was explicitly one of natural over positivist law, as Jackson made clear in his opening statement.

It could be no other way. While a catalog of broken treaties might enable the Allies to build a case for war crimes, nothing in the legal philosophy of Xenophon or Ulpian could reach the deeds committed by the Nazis against their own citizens and those of captive nations. Consequently the tribunal established a set of principles that survive to this day: negating both sovereign immunity and deference to superior orders, while enumerating a list of crimes so heinous that they transcended state law as offenses against the law of nations. The Nuremberg Principles, reinforced and restated numerous times (including in the foundational charter of the International Criminal Court), are natural law codified. On the one hand it may seem incredible it took until 1948 for such principles to achieve international recognition; on the other, one might equally make the case that it took the supreme horror of the Holocaust to make them so.

Having established the doctrine of individual responsibility and a catalog of international crimes, we then spent the next seventy-five years lamenting their failure to be universally prosecuted. It is right that we should feel thus. As with the ongoing debate over human rights, frustration and anger are healthy emotions. To continue Professor Maitland’s metaphor of the “body of law,” one might compare such feelings with the pain of a limb that has suddenly regained sensation. Pain is preferable to numbness, as it means the body is functioning as it should. In the slow progression toward utopia it is anger as much as hope that drives us: outrage at an atrocity helps us redouble our efforts to do justice and prevent similar abuses in the future.

Anger and frustration are congruous with natural law; despair is not. I am often amazed at the cynicism many of my students share at the prospect of universal human rights. Not that I blame them. They are inundated with a daily catalog of horrors on their television sets, Facebook pages, Twitter feeds, and so on. This intimacy with atrocity can lead to resignation: clearly, if the world is such a mess, the law must be failing. At such times Dr. King’s words seem like cold comfort. Yet it is also worth considering how Professor Maitland would regard these developments. In the vast expanse of legal history, human rights and international criminal law are in their barest stages of infancy. To declare them a failure at this juncture is to commit the same shortsighted error as those smug nineteenth-century imperialists who congratulated themselves prematurely on their success. As the Victorians themselves would have said, it is the progression, not the destination, that matters. And the arc of the moral universe is long indeed.

With that in mind, let us consider the work ahead. The question is not whether the United States will reengage with the global community on human rights, but how. One thing is certain: old playbooks are out. A Western, liberal democratic vision of human rights is an anachronism of the past century. Not only does it compound the charge of neoimperialism, it remains hopelessly out of step with present geopolitical circumstances. The United States is not a hegemon. It now competes with Russia and China for markets, political influence, and ultimately hearts and minds. This is not the Manichaean struggle of democracy versus communism: today it is between engagement and indifference. These states are not questioning a Western conception of rights but the validity of rights themselves. We must have an answer, and it cannot be predicated on any political philosophy.

A return to the austere simplicity of natural rights has numerous advantages. First, it ends stale cyclical debate on neoimperialism. Natural rights are not Western or democratic; they predate modern democracy and may be found, as we have seen, in every society. Life, liberty, security, and property are the cornerstones of every nation’s laws. That is why abuses are easy to identify: they transcend individual cultures, faiths, and circumstances. But as I have said, these are categories, not definitions. When we speak a new language of rights, we need to know exactly what life or liberty means. Hence it will be the job of the State Department or like agencies to offer narrow, well-reasoned definitions for each right.

Second, and even more importantly, a return to natural rights is not only expedient but logical. History has provided two watershed moments where universal law came tantalizingly close. The first was at the end of the eighteenth century, when the political philosophy of the Enlightenment transformed into revolution. That momentum ended in the Industrial Era as new philosophies introduced new understandings of rights based not on universality but individual circumstance. The tattered standard of natural law was shredded further by European imperialism, which attempted to export (by force) Western principles of law in a package with political institutions, cultural norms, religion, technology, capitalism, and guns.

The next moment was during the Second World War. “This generation of Americans has a rendezvous with destiny,” Franklin Roosevelt declared in 1936. He was more right than he knew. By 1941, Roosevelt correctly perceived that the complete destruction of Nazism—along with much of the developed world—necessitated social, political, and legal reconstruction postwar. Roosevelt did not wholly reject a democratized vision of rights, but his Four Freedoms and other writings suggested a strong natural law foundation, perhaps emerging from the wellspring of his own deep faith. It was Roosevelt who, with his unshakable belief in human progress, redefined “civilization” for the twentieth century not as an imperialist construct but as a shared set of values under universal law. Even in death, his legacy remains in the United Nations and the numerous international criminal tribunals of the last seventy-five years.

The third moment is now. In the next decade the United States will have no choice but to reengage with human rights, lest it abandon the field to authoritarian regimes altogether. The task will be to work with those nations, and the global community as a whole, to agree upon universal legal standards independent of politics, economics, or faith. In 1850, Senator William Henry Seward spoke of a “higher law” greater than constitutions, untouched by the political tumult of the day. We must invoke that same spirit. The United States must prove through words and action that it will defend natural rights around the globe. Only in this way can we compel a recalcitrant nation to deal justly with its own people. We don’t need to rediscover natural law; we just need to stop ignoring it.

This raises a final point on the character of that law. Just as it is presumed to reside within the individual conscience, it is likewise only as viable as individual resolve. Many persons erroneously conflate natural law with divine law, but there is a crucial difference. Religious faith allows us to surrender to God’s will, mercy, and judgment. Natural law offers no such consolation. It demands the best within us by declaring we are greater than we appear now to be. There is no original sin, no comforting acknowledgment of perpetual frailty. We stand in judgment of our own selves against a future perfection that may never be reached. Yet it drives us to excel and evolve. If blind faith says to us, “It’s not your fault,” natural law admonishes, “You are better than this.” The interrelationship of natural law and statecraft is thus a common search for utopia led by those who truly wish to reach it.

Our generation has its own rendezvous with destiny. The most tantalizing and terrifying aspect of utopia is that its vision is always within sight, but just beyond grasp. There is no biological law preventing humans from coexisting peacefully; indeed, our natural impulses propel us toward sociability. Likewise there is no reason why the community of nations, and each person within, may not choose to live under agreed standards of decency, respect, and justice. This should not be seen as an impossible goal, but a necessary and even inevitable one. As FDR once said, this is no vision of a distant millennium. It is a definite basis for a kind of world attainable in our own time. Yet our disenchanted age has conditioned us to look askance at lofty ambitions, much less utopian ones. That defeatist spirit saw its champion and avatar in Donald Trump, a living embodiment of lethargy, cynicism, indifference, selfishness, and vice. But if we reach beyond his sorry example, there are others who speak to us still. John F. Kennedy: “No problem of human destiny is beyond human beings”; Ronald Reagan: “America is too great for small dreams”; and, once again, the last words of Franklin Delano Roosevelt: “The only limitation to our realization of tomorrow will be our doubts of today.”

Let us, as a nation, heed their words. Let us move forward, with strong and active faith.