The Dignity of Persons as a Normative Groundwork of Human Rights:
an Analysis Based on Franciscan Suggestions
(Université Paris X, Nanterre)
dignitatem importat ratione fundamenti tantum
Duns Scotus, Ordinatio, I, d. 28, q. 1-2
Abstract. My aim is to propose a a jurisprudential strategy for groundwork of human rights in the dignity of human persons. It is an old and sound way, in which I was engaged since some years and I want here to stress some specific aspects: the relevance of Franciscan personalism, i.e. the metaphysics of freedom and love, by the survenance of dignity from freedom of human person; the strenght of this approach in multicultural contemporary world, in that I think it is a very fruitful strategy for normative discussion today, against the positivistic discussion which gives no space to personalistic approaches.
0 - Introduction
1 - The anthropology of person
2 - The Franciscan idea of freedom
3 - The supervenience’s strategy
4 - Scotist’s metaphysics of love
5- Criticism of relativistic approach to human rights
0. The aim of the paper is to propose a jurisprudential strategy in order both to found human rights on person’s dignity, and to justify their universal value. In Gewirth’s meaning, in fact, I think there is an important set of absolute rights to look for, whose existence needs to be defended and grounded on metaphysics in order really to defend each person as person. In fact, if the existence of universal rights simply was possible in force of a normative official document that speaks about them, universal rights would not be different from all other ordinary laws and then, in my opinion, they would be at least useless.
A universal right is always in the upper level in comparison with ordinary law: it is a constraint against ordinary law, as the rights of the English Parliament in the XVIIIth century were rights against the King, that is against the first power of the Kingdom; it is more important and superior to ordinary law; it is something a current government cannot change ad libitum. This is why I need a metaphysical inquiry to insure the foundation of universal rights as rights that always exist before the existence of a government.
It is an old and sound way, I am directly engaged in since some years. Nevertheless, what I would like here to stress is the relevance of Franciscan personalism, and in particular of Franciscan metaphysics of freedom and love as a way to ground human rights on the metaphysical person. The strength of this approach, in fact, is that it seems a very fruitful strategy for normative discussion today, against the positivistic discussion which gives no space to personalistic approaches, in that it arrives at justifying human rights as the immediate result of human dignity.
1 - The anthropology of person
The Franciscan anthropology of person gives us the thesis that there exist a special human freedom (a metaphysical freedom) which is at the same time an intrinsic property of persons and a groundwork of human dignity. In this sense, all human rights are universal in that they are associated to the person as metaphysical person (and not as historical human being characterized by contingent qualities): they are not only directed to protect human dignity, but they are also universal because their groundwork is a metaphysical one.
Universal human rights are at least special rights: on the one hand, in fact, we cannot use them as any other positive right protected in a legal system; on the other hand, they are based on the human dignity. This is why, nowadays, there are not only many political, law and moral philosophers who teach us that human dignity is an essential idea in the philosophy of rights, but there is also the Magistery of the Catholic Church which claims that the person is to be considered the very base upon which we can construct any theory of rights. But in order to understand why a person is always worthy of respect and subject of universal rights, we need a metaphysical conception of person and, in particular, as it seems to me, the Franciscan conception of persons as metaphysically free creatures.
According to Franciscan conception, the starting point in order to understand the identity of persons is an analysis of human will, that is an analysis of persons’ capacity to look for values to follow and to understand which is the aim of each person. The second step is an analysis of metaphysical freedom as an intrinsic property of persons as persons: we have no person, if she is not metaphysically free. The third step, is a clarification of the emergence of human dignity on human metaphysical freedom: each person is in fact worthy of respect in that she possesses a dignity whose ontological base is freedom. The final step, is an inquiry into love, as an ontological instrument in order to assure the existence of (social and political) human communities: I would like in fact to stress that Franciscan anthropology refuses the Aristotelian thesis according to which men are social animals by nature. So, the ontological role of love is necessary to pass, as I will show, from the incommunicability of person to the community of persons.
Let us then start with an analysis of personal will. In fact, it is personal will which produces law-norms and which is able to establish a sort of voluntaristic hierarchy of person’s values even if it is also limited and restricted by some preliminary procedures. Only God’s will is in fact completely free from any restriction. This is why, even if there exist some law-norms fixed by a determinate authority, that is to say the positive law, we have to recognize that these positive norms are always hierarchically subjected to God’s norms which are natural norms (in this sense, Franciscan natural norms are quite different from the Thomist ones, in that these two philosophical positions give us a different qualification of the concept of nature). In this sense, a positive norm is a good positive norm only when human will, which creates it, is conform to divine will: in Ockhamist and Scotist language, the right-reason prescribes to choose what the divine will has chosen for the human will. But saying that personal will is able to produce law-norms and to establish a sort of voluntaristic hierarchy of person’s values means, in Franciscan terms, that it is the very notion of person which founds the idea of right: it is the person who is able to know good and evil, and it is the person who is able to orient her action in that she is a moral agent. In particular, before the Fall, the person is the groundwork of justice, as a set of natural rights; after the Fall, the person becomes the base by which we can justify the existence of a human normative field of rights whose value may be established only in comparison with natural justice. A person’s value is in fact linked to the possibility which each person has to rebel against the positive field of laws when these positive laws hinder her in her march to Heaven. In this sense a person’s value is directly linked to her metaphysical freedom.
2 - The Franciscan idea of freedom
In order to understand this metaphysical notion of freedom I need now to clarify a tripartition about freedom which I see located in Franciscan thought. We are in fact in front of an ontology and an anthropology of freedom which analyzes freedom in three categories: 1) metaphysical freedom; 2) free will; 3) moral freedom. In this sense, the forth category which we can speak about, that is to say political freedom, is just a landing-category because this freedom is not a metaphysical or an anthropological one, but it is just a result of the three first freedoms. Nevertheless, in order really to understand political freedom and all universal human rights, I am now analyzing the particular concept of metaphysical freedom, letting aside both moral freedom and free will. On the one hand, in fact, the notion of free will is quite a trivial notion when speaking of human rights and their foundation: this notion is necessary to conceive human persons as moral agents, but it is a quite trivial notion for the analysis of political freedom as the type of universal rights in that it is an ability of human beings rather then an intrinsic value. In my opinion, without free will there is no moral agent, so that any analysis of human behavior is no more “personalist”: I am conscious that it is possible to disagree, but I assume this as a point of depart of my paper. In this sense, I think that Peter of John Olivi’s analysis of free will and moral agent is correct, and I assume this idea without any more discussion. So, even if free will is a necessary notion in order both to begin an analysis of universal human rights, and to construct a theory of person as moral agent, it cannot be a rule if we want (as we do) to analyze different notions of political freedom (because every notion of political freedom demands it).
On the other hand, the notion of moral freedom is too much linked to a moral and theological perspective and it is not useful to ground universal human rights : moral freedom is only the freedom of those who accept the right moral system; it is not something a person has just in that he is a person. In this sense, I don’t want to suggest that a moral foundation of universal rights is possible if and only if we choose the best moral system, Christian religion for example, to support them and, finally, to determine them. I am convinced that universal rights are the rights of each man, also of persons who don’t believe in the true (or better) moral system. In this sense, moral freedom is not suitable as groundwork of universal rights: the moral freedom of a Christian is different from the moral freedom of a Muslim, because they believe in different sets of moral truths. My moral freedom is the freedom to realize my moral system: so, your moral freedom may be different from mine. This is why, moral freedom cannot be a groundwork of universal rights; moral freedom can be the base only of a theocratic system.
After having put aside the notions of free will and moral freedom, we finally arrive at the concept of metaphysical freedom. Only metaphysical freedom, in fact, allows us 1) to arrive at a metaphysical groundwork of universal rights against juridical relativism, and 2) to avoid to propose the model of theocracy as the only right society. Metaphysical freedom is a notion able to give us a strong foundation of universal rights, because it is an essential element (an intrinsic property) of each person, and every man and every woman are persons, without any reference to their historical and contingent condition. In this sense, metaphysical freedom is a matter of anthropological foundation of the central notion of law, the rights of mankind. Metaphysical freedom is not a matter of moral theory: the right and the good are consequences of metaphysical freedom, but not a criterion of determination of political legitimacy. The problem of political obligation is quite complicated, as Simmons teaches us: but I think that the question of political legitimacy may be easily solved by means of a metaphysical argument, i.e. by the reference to an essential anthropological freedom.
Human dignity is always untouchable in that it is a non-contingent (or essential, or intrinsic, or present in any possible world) property of person as a metaphysically free creature; each lawgiver on this earth has always to respect it because he rules over persons, not over beasts. In fact, what really counts is the foundation of the possibility of human moral order: and in the Franciscan School it is the metaphysical freedom which performs this task. In this sense, freedom is the ontological, metaphysical and moral foundation of the whole Creation. But freedom is not only an essential characteristic of the person: the very ontological statute of the person is inconceivable if we don’t refer to her innate freedom. In front of God, the person is conceivable only in that she is free: the very person is freedom. So, the metaphysical freedom is an intrinsic property of the person, in that without metaphysical freedom there is no person, since a person is essentially free: the dignity is the issue of a supervenience of this property on the (metaphysically) free person, i.e. every person.
3 - The supervenience’s strategy
After having shown that metaphysical freedom is an intrinsic property of persons, I need now to analyze how is it possible to say that each person is worthy of respect in that she is metaphysically free. But in order to do that, I need to show that human dignity is directly based on human freedom.
From a theoretical point of view, in order to arrive at a definition of “Person” we have to look for a criterion able to isolate a set of ontological objects that we label by “person” (to look for a technical groundwork for natural norms - the supervenience as in P. Vallentyne, “Intrinsic Properties Defined”, Philosophical Studies, 88, 1997, p. 209-219). So, in the formation of the definition of person, the definiens is a propert-y, -ies criterion, the definiendum is a set of ontological objects. But when we have defined what is person, the definition of person is no more a propert-y, -ies criterion, it is a normative definition. So, for instance, the definition of person of Richard of Saint-Victor - as referred by Scotus - is, not literally but conceptually: intellectualis naturae incommunicabilis existentia (De Trinitate, IV, 22, PL 196). According to him, a person is in fact an existential being with an intellectual and incommunicable nature. Against Boethius, then, and following the Franciscan school we can claim that: 1) God is not an “individual”, because He is not divisible; 2) not every man is rational (cf. Duns Scot Ordinatio, I, d. 23, q. unica, ed. Vaticana V). In this way, in fact, we can not only explicate our metaphysical experience, i.e. the divine and human personality, but we can also arrive at a normative definition of “person”. Normativity is in fact a general property of definition concerning every ontological set of objects in every possibli world (cf. Putnam’s theory of stereotype natural meaning).
Once person is defined as a normative notion, and once metaphysical freedom is analyzed as an intrinsic property of persons (without freedom, there is no moral agent, and without choice it is impossible to speak of person - God, the stereotype-image of person, is free), we can arrive also at defining human dignity. Human dignity is in fact an intrinsic value of each person that supervenes on her metaphysical freedom. It is because of her dignity that each person must be respected, exactly as God must to be worshipped. This is why the violation of dignity is not only a violation of the natural norm “never harm metaphysical dignity of persons”, but it is also the violation of the divine norm “never hate - i.e. love - God”.
4 - Scotist’s metaphysics of love
The last point in Franciscan position to analyze is the question of love. In fact, after having defined dignity as an intrinsic value of persons which supervenes on her metaphysical freedom, and after having used it as a groundwork of universal rights, I need now to analyze how is it possible for the Franciscan school to justify the existence of human communities. According to the Franciscan school, and in particular according to Scotus (Duns Scotus, De primo principio, trans. E. Roche, St. Bonaventure NY 1949), in fact, persons are not social animals, but they are rather characterized, as we have seen, by an ontological incommunicability nature. Nevertheless, at the same time, persons live in community and are able to communicate because there exist ontological love. When speaking of love, in fact, Scotus does not speak of a simple psychological feeling, but rather of the ontological force which allows persons to communicate each other and to found communities.
As we can see in many passages from Scotus’ De primo principio, love is what allows persons to move to the end in that an ordinate will necessary loves its end. In an ontological deduction of the properties of the metaphysical object “First Being” to the faith’s object “God”, Scotus writes a geometrical treatise as a mystical treatise: geometrical in that it is a rigorous set of theorems and corollaries; mystical in that the activity of First Being is illustrated essentially by love.
So, “for the end moves metaphorically as beloved” (II, 4): the First Being is no more, as in the cosmological aristotelian focus, a First natural Cause - “therefore, the end causes nothing except that which is caused by the efficient because it loves the end” (II, 5). Our very nature is outside ourselves, it is the tension towards our perfection as created creatures, i.e. the supernatural end: everything ordered to an end is exceeded, “because the end is better than that which is ordered to it. This is proved because the end as the beloved moves the efficient to cause. A therefore is not less good than B itself, nor equal; therefore is greater” (II, 16). And if somebody makes a psychological objection, “some will causes something for the sake of a lesser good which is loved”, Scotus replies “the conclusion proceeds from that end which is of the nature of the thing, and such are always the natural end and the end of an ordinate will. The instance of an inordinate will, however, does not destroy the conclusion, because the primary cause of the effect is not of this kind. .. Therefore, everything ordered to an end is exceeded by some end, even though not by the proximate end for the sake of which, as beloved, an inordinate proximate agent causes it” (II, 16). The idea of the elementary action of God is that of a non-natural (non-material, non-causally determined) action - “if the First Efficient acts for the sake of an end, then either that end moves the First Efficient as it is beloved by an act of the will, .., or as it is only naturally loved. The latter is false, because the First Efficient does not naturally love an end different from Itself, as something weighty loves the center of the earth and matter loves the form; for then It would be in some manner ordered to the end because inclined towards it”. Again, “the First Efficient directs its effect to an end; therefore either naturally or by loving that end; not in the first manner, because something which does not know directs nothing except in virtue of something which does know; for the first ordering is characteristic of a wise being. The First Efficient does not direct in virtue of anything else, just as it does not cause in virtue of anything else” (IV, 4). Every action of God is contingent because He is essentially loving, and to love is not to necessarily acting: “nothing is willed necessarily except that without which there does not stand that which is willed about the end. God loves Himself as end and whatever about Himself as end He loves can stand, even if nothing different from Him exists, because what is necessary of itself depends upon no other. Therefore from His willing He wills nothing else necessarily. Consequently neither does He cause necessarily” (IV, 5). The will is the First activity of the First Being: “it follows first of all that the will is identical with the First Nature, since an act of willing is only the will .. It follows secondly that the act of understanding is identical with that Nature, because nothing is loved unless it is known” (IV, 6). Even if our end is not-natural, in our natural existence we can to seeks for this end: “our will can seek or love something greater than every finite end, as also our intellect can understand such; and there seems to be a natural inclination to love the infinite good in the highest degree” (IV, 9).
Scotus analyses human legislative power in comparison to divine power (absolute and ordered), because the function of the will in the Creator and in the creature is the same (Ordinatio, I, d. 44, q. unica, ed. Vaticana VI). The function of ontological love is also the same: God creates and conserves the being of the world by love (by His action), human beings as persons can communicated among themselves, and to became a community, by love. Ordered love is the source of a good community, disordered love is the source of a bad community, in the same way that the first pity of the Bad Angel was the disordered love towards God (Lectura, II, d. 6, q. 2, ed. Vaticana XVIII).
* Cette conférence a été présentée à la Franciscan University of Steubenville, Ohio, U.S.A., pour la Christian Personalism Conference, 10th-11th november 2000.
 John Duns Scotus, Opera omnia, ed. Vaticana VI, § 28; ed. Vivès X, q. 1, n. 7, p. 400.
 A. Gewirth, Are there any Absolute Rights? (1981), in J. Waldron (edited by), Theories of Rights, Oxford 1984; cf. also Idem, The Community of Rights, Chicago 1996, and Human Rights. Essays on Justification and Applications, Chicago 1982; finally, M. Macdonald, Natural Rights (1949), in Theories of Rights.
 K. Haakonssen, Natural Law and Moral Philosophy, Cambridge 1996.
 J. Teichman, Social Ethics, Oxford 1996; B. Baertsch, La valeur de la vie et l’intégrité de la personne, Paris 1995.
 Image of Man in Human Rights Legislations, Roma 1985; Droits de l’Homme. Approche chrétienne, Roma 1984, ch. 3 by Georges Cottier, La réflexion des philosophes.
 A. Soto, The Structure of Society according to Duns Scotus, in Franciscan Studies 11 (1951) 194-212 and 12 (1952) 71-90.
 W. J. Courtenay, The Dialectic of Omnipotence in the High and Late Middle Ages, in T. Rudavsky, edited by, Divine Omniscience and Omnipotence in Medieval Philosophy, Dordrecht 1985; C. K. Brampton, Scotus and the Doctrine of the “potentia Dei absoluta”, in De doctrina Ioannis Duns Scoti, “Problemata philosophica” II, Roma 1968.
 It is a very useful guide the anthology Divine Command Morality: Historical and Contemporary Readings, Toronto 1980. Cf. also for the divine command theory Andrew of Neufchateau, Questions on an Ethics of Divine Commands, Notre Dame IN 1997, with an introduction by J. M. Idziak.
 M. Sylwanowicz, Contingent Causality & the Foundations of Duns Scotus’ Metaphysics, Leiden 1996.
 This anthropological analysis is sometime similar to Nozick’s approach in that it is an apology of the freedom of the individuals (R. Nozick, Anarchy, State, and Utopia, Oxford 1974), but it is finally quite different. Nozick puts the notion of absolute right at the foundation of his political thought. At the contrary, in the Franciscan approach we find the person as absolute freedom at the base of the system, so that absolute and relative rights are only a consequence of this absolute freedom. The chief theoretical consequence is that there is a balance of rights, between natural rights and positive (statutory) rights: the source of natural rights is God, while the source of positive rights is the human lawgiver. There are a lot of possible legitimated juridical systems, as Nozick thinks speaking about individual utopies: some correspond to natural law, others do not, but all are legitimated by some human mechanism, even if they have not the same moral value.
 I. Gavran, The Idea of Freedom as a Basic Concept of Human Existence according to John Duns Scotus, in De doctrina Ioannis Duns Scoti, “Problemata philosophica” II, Roma 1968.
 I have discussed this question in my book Volontarismo e diritto soggettivo. La nascita medievale di una teoria dei diritti nella Scolastica francescana, Roma 1999.
 M. J. Perry, Love and Power, Oxford 1991; S. I. Benn, A Theory of Freedom, Cambridge 1988.
 A. B. Wolter, Native Freedom of the Will as a Key to the Ethics of Scotus, in Deus et Homo ad mentem I. Duns Scoti, Roma 1972, then in Idem, The Philosophical Theology of John Duns Scotus, Ithaca 1990.
 A. J. Simmons, Moral Principles and Political Obligations, Princeton 1979; J. Horton, Political Obligation, London 1992.
 J. Wolff, An Introduction to Political Philosophy, Oxford 1996.
 I think that the notion of supervenience may be quite fruitful in this analysis. For the notion of supervenience, recentely E.A. Savellos, U.D. Yalçin, edited by, Supervenience. New Essays, Cambridge 1995, but it is important the reference to G.E. Moore, The Conception of Intrinsic Value, in Philosophical Studies, London 1922.
 O. Schachter, Human Dignity as a Normative Concept, in American Journal of International Law 77 (1983) 848-854, after in Human Rights Law, edited by P. Alston, Dartmouth 1996.
 For the expression “cosmological focus” and the limits of this notion, J. F. Crosby, The Selfhood of the Human Person, Washington D.C. 1996, 82 ff.