In his latest book. When Hope and History Rhyme: Natural Law and Human Rights from Ancient Greece to Modern America, jurist and historian Douglas R. Burgess Jr. offers up an incisive exploration of natural law for our current era of deep political divisions, while also charting the long struggle to protect human rights.
Burgess, who is a broadly published writer and professor of legal history, covers everything from the Greeks and the Middle Ages to the Enlightenment, Franklin Delano Roosevelt’s Four Freedoms, the Nuremberg Trials, and the 2021 attack on the U.S. Capitol. The result is a book with historical sweep and great contemporary significance that’s a must read for anyone concerned with the future of democracy.
The Millions caught up with Burgess to discuss the book, the connection between natural law and democracy, and being hopeful for the future.
The Millions: Can you explain the connection between natural law and democracy?
Douglas R. Burgess Jr: Natural law states that there are certain universal, inalienable rights which supersede any man-made laws: namely the rights to life, liberty, security, and property. Theoretically any government which exists to uphold these rights is just, whether it be a democracy, monarchy, or whatever. As a practical matter, however, democracies—which base their existence on the consent of the governed—have proven more likely to uphold natural law rights. Many, including the United States, base their entire system of laws on these foundational principles.
But that does not mean democracies hold some form of moral superiority when it comes to rights, nor that democratic government is a necessary precursor to a rights-based body of law. Those assumptions, which have underlaid U.S. foreign policy for decades, are cancerous to future progress because they chain the U.S. to securing universal democracy before universal rights. On the contrary, we should be primarily concerned with the question of whether each nation protects these basic rights for its citizens, and only secondarily consider their political rights.
TM: Can you briefly chart the course of natural law and human rights—how have these concepts evolved and how has that evolution impacted our lives? And where do you see them going?
DRB: The rights to life, liberty, property, and security are to be found in almost every body of laws, ancient or modern, Western and non-Western. Their very universality across time and space is perhaps the strongest argument that they are indeed natural rather than man-made. In the West, the concept of natural law began with a recognition of universal justice emerging, as Cicero wrote, “from the mind of Jupiter.” This Platonic idea of a perfect law outside human creation was wedded in medieval times to Biblical law: the mind of Jupiter became the mind of God. Just as we do not know all of God’s mind, we only know as much of universal law as reason allows us to discover. In the late Renaissance and 17th century a transformation occurred from the concept of universal justice to universal right. The individual rather than the collective became the focal point of law in the writings of Hugo Grotius, John Locke, and others. This led, in the 18th century, to a radical reconsideration of the very purpose of governments: from collective security to upholding individual rights. The 19th century added an imperial perversion: natural rights were bundled up with Western dress, technology, religion, etc. in a package deal called “civilization” that was imposed by fiat by the West on its captive colonies. This, in turn, led to a postcolonial reaction against such “Western” concepts of right that becomes the core of cultural relativism today.
TM: How should American domestic and foreign policy be decided? And who or what should guide that policy?
DRB: Every nation has a moral responsibility to consider the welfare of its own citizens when formulating foreign policy. That said, nations in a global community also have the responsibility to encourage behaviors and practices amongst themselves conducive to universal harmony. Since 1945 we have recognized that certain crimes committed by a state—even if only against their own people—threaten the stability and future of the entire world. As Robert Jackson said of the Nazis, “The real complaining party at the bar is Civilization…The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating, that civilization cannot tolerate their being ignored, because it cannot survive their being repeated.”
The very term “civilization” has been corrupted to mean Western-democratic society, but at its core it is a natural law idea: that all humans exist under the same basic principles of justice and right. All nations have the responsibility to protect those rights in their citizens. If they fail to do so, the greater community—humanity itself—must compel them to do so. Not just for the sake of the victims, but for civilization and progress.
Progress, like civilization, has also become a dirty word. I am not speaking of technological or political progress (nor even whether those concepts have validity). I am speaking of progress towards a distant, utopian goal: universal human rights. This is the idea that we do not merely exist, but evolve. Once described as knowing more of God’s mind, it is now better understood as the “upward path” Franklin Roosevelt spoke of when articulating a vision of global justice. He committed the United States to following that path and ensuring that others did the same, and every president—with one glaring exception—has accepted that mandate.
TM: How did you come to write this book?
DRB: Twenty years ago, in July 2002, my partner David Gritz was killed in a terrorist attack at the University of Jerusalem. He was there on a fellowship studying the philosophical foundations of international human rights. His death left that project unfinished, and for years—even as I completed my JD and eventually received a PhD in legal history—my mind returned again and again to the problem of universal right. It seemed to me that even those promoting such rights had little understanding of where they came from, or what they were. The rights to life, liberty, property, and security were bogged down or obscured by a plethora of other “rights”–all important, but not all equally so. This made it easier for other states to deny their validity, or cherry-pick which rights to favor and which to ignore.
It also disturbed me that foreign policy under presidents George W. Bush and Barack Obama, especially the former, preferenced democratic government over rights, parroting the Reaganite assumption that one was predicated on the other. I began assembling materials for a book examining the natural law foundations of human rights in early 2016, intending it as a kind of scholarly policy guide for the next administration.
Then came Donald Trump. I watched with horror as the American president cossetted dictators, advocated (and exemplified) cultural and moral relativism, turned a blind eye to the most horrific human rights abuses, withdrew from nearly every international covenant, and even attempted to rewrite natural law itself out of existence through an Orwellian “Commission on Unalienable Rights.” My scholarly project took on new urgency. I began writing for a post-Trump world, when the U.S. would have to reassume FDR’s mandate after four (or potentially eight) years of desuetude and disgrace. While Trump himself would inevitably depart the stage, I wanted to scotch out every trace of his racist, nativist, isolationist, and amoral “America First” foreign policy, lest it burrow itself like a parasite in the body politic.
TM: What do you want readers to take away from the book?
DRB: First, the existence of natural law rights, what they are, and where they come from. Second, the necessity for restoring the U.S. and other nations to the “upward path” of legal progress laid out by centuries of scholars and heads of state, and articulated most cogently by FDR. Third, a sense of hope and optimism that such progress is not only possible, but inevitable.
TM: How do you see the concept of natural law playing out in our current political climate, both in the U.S. and abroad?
DRB: The project of reestablishing America’s place in global human rights has already begun under President Biden. To some extent this is a return to the mean: his conflating of political and personal rights–and arguing for a demo-centric view of those rights–places him squarely among his predecessors, excluding Trump. This is good and bad: good that we are again adding our voice to the cause for universal justice, but bad that we are trumpeting the same tired tropes of Western-centric democratic rights that much of the non-Western world has already rejected as a legacy of imperialism.
Moreover, we remain reluctant to call out abuses unless it is to our advantage to do so, or use all the means at our disposal to combat them. The most glaring example is China, which is currently pursuing a genocidal policy against the Uyghur minority. Our ongoing trade relationships, and our participation in the Beijing Olympics (admittedly with a diplomatic boycott) undermine any meaningful attempt to condemn or curtail these abuses.
My hope is that this book will present an alternative to the Western democratic vision of human rights, and a new (old) way to articulate basic rights for all people, everywhere. By asking the U.S. to recommit to that upward path, it also recognizes that the American people and their government must be willing to sacrifice something to the cause—economic hardship, strained relations with both allies and enemies, even the possibility of military conflict in the most extreme circumstances. But a great deal can be done simply by reawakening Woodrow Wilson’s “moral diplomacy,” binding the U.S. to its pledge to promote basic human rights around the world and backing that pledge with real sanctions.
TM: Considering the many challenges to human rights, are you hopeful about the future? Why or why not?
DRB: More than hopeful, certain. I’m always reminded of when Winston Churchill arrived in Washington in Christmas, 1941. At that moment London was on fire, Soviet resistance was collapsing, half the U.S. Pacific fleet was sunk at Pearl Harbor, and the Japanese were on the march throughout Southeast Asia. “Mr. Prime Minister,” a journalist asked, “how long do you think it will take for the Allies to win the war?”
“It will take exactly half as long if we manage it well, and twice as long if we manage it poorly,” Churchill replied.
So too with human rights. That “upward path” is not a mirage or a pipe dream; it is very real, present, and easily identifiable. It is simply not possible to look at the history of humanity for the past 1,000 years and not recognize the existence and evolution of human rights. This trick of perspective gives historians an advantage: we can think in terms of centuries and remain relatively untroubled by present events. Not discount them, certainly: Donald Trump remains one of the greatest threats to human rights and human progress since Adolf Hitler. But he is also an old man who will die soon. What matters most is that we do not allow the contagion of his nihilism to infect our foreign policy, or that of the international community. If that were to happen, it would be a classic example of “managing it poorly.” The cause of human rights would still advance, but more slowly and under different leadership.
Evolution is never a straight line. Nature itself makes mistakes, suffers reverses, scrubs the board and starts again. So too with the evolution of human society. The greatest advocates of universal human right also in the same breath warned us that the path is rocky. “The arc of the moral universe is long,” said Martin Luther King. It is. But it also bends towards justice.
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