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Miguel Vatter

Social Research: An International Quarterly, Volume 80, Number 1,

Spring 2013, pp. 233-260 (Article)
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DOI: 10.1353/sor.2013.0039

For additional information about this article

http://muse.jhu.edu/journals/sor/summary/v080/80.1.vatter.html

Accessed 7 Jun 2015 00:26 GMT GMT

Miguel Vatter
Politico-Theological
Foundations of Universal
Human Rights: The Case
of Maritain
COSMOPOLITANISM BETW EEN P O LITICA L THEOLOGY
A N D BIO POLITICS
Contem porary political theory took a turn tow ard cosm opolitanism
roughly in the sam e years th at the Universal D eclaration o f Human
Rights (UDHR), according to the new historiography (Moyn 2012),
began to take hold as a governance m echanism o f the current neolib
eral world order. This new cosm opolitanism understood as a legiti
m ation discourse o f the em ergent institutionality o f universal hum an
rightsis accom panied by a new respect afforded w orld religions
in the public sphere and by a new understanding o f hum an dignity,
which is now recognized to all individuals by virtue o f their status as
living beings rather than as rational beings.
Jacques M aritain was one o f the earliest philosophical propo
nents o f universal hum an rights, and he played a nontrivial role as
leading intellectual advisor to the drafters o f the UDHR (Glendon 2002,
chap. 5; Moyn 2010). His case serves to support an hypothesis as to
why and how the cosm opolitical underpinning o f the new discourse
o f universal hum an rights brings together a political theology and a
biopolitics o f a special kind.
A cosm opolitan perspective, strictly speaking, requires that indi
viduals understand them selves first as citizens o f the w orld and then

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Vol. 8 0 : No. 1 : Spring 2013 233

as citizens o f a state or m em bers o f a nation. It is often claim ed that

the UDHR functions as the de facto basic law o f a world civil society
(Brunkhorst 2005). W hoever acts in such a way that they understand
them selves as being authorized directly from such a law can be consid
ered a w orld citizen. Considered in this global-constitutional way,
one im portant normative question arises as to how citizens o f nation
states can understand them selves as following directly the basic law o f
the UDHR: W hat kind o f com prehensive world views afford them an
overlapping consensus w ith the world views o f citizens from other
nations such that they both understand each other as citizens o f this
global constitution and thus as w orld citizen s? Not surprisingly
perhaps, this difficult question is frequently answ ered by appealing
to the universalism o f w orld religions, that is, to religions that, in
their own self-understanding, consciously seek to transcend barriers o f
nationality, class, race, gender, and even sex in the nam e o f a com m on
fam ily or brotherhood.1 That in a world religion which appeals to
individuals o f different races or nationalities or classes m u st be the
sam e as that which in another world religion functions in the sam e way;
and this overlap is what the drafters o f the declaration were aim ing at.
Therefore, it is the cosm opolitan structure o f universal hum an rights
that, by itself, seem s to invite world religions to re-enter the national
public spheres in order to reorient its citizens toward their new status
as w orld citizens. In other w ords, the universality o f hum an rights
depends on a politico-theological approach. Thus, it is not surprising
that in the last several years there have been m any attem pts to show
that cosm opolitanism and hum an rights are not a Eurocentric doctrine,
but that they are found in all m ajor religious traditions.
The other im portant norm ative question was posed a few decades
ago by Henry Shue in his theory o f basic rights and has been taken
up m ore recently by Thom as Pogge (2002): the problem o f m otiva
tion. Why should one care about the injustice that happens to another
hum an being thousands o f m iles away with as m uch or m ore passion
and in dignation than one w ould experience an injustice done to
ones fellow countryman or com patriot? (Shue 1980, 132 ff.) Shue and

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Pogge both point out that the indignation with regard to violation o f
hum an rights in faraw ay parts o f the w orld has two m irror com po
nents: the first has to do with the fact that hum an rights violations are
always the result o f actions or om issions o f the nation-states to which
these com patriots belong and whose actions or om issions they often
support (even i f tacitly or passively). Since the person o f the state
is but a representative o f its people, and its actions are perform ed on
the presum ption that they are authorized by the body o f the people,
each m em ber o f the people is, in one sense, responsible for such viola
tions. This hypothesis may also account for the guilt felt by those who
watch such atrocities at a distance.
Second, these violations occur to people who have lost their own
citizenship, either because they belong to failed states or because their
political, indeed democratic, aspirations have been sacrificed to other
national or ethnic interests. In other words, the object o f sym pathy and
indignation that m otivates a world citizen is not sim ply the suffering
o f bare life (see Agamben 1998), but m ore specifically the democratic
aspirations o f this bare life: it is a politicized bare life that m otivates
a nation al citizen to go again st the national self-interest o f his or
her com patriots and uphold the basic rights o f strangers in faraway
lands. That is why Shue insists that basic rights cannot only be rights
to security and subsistence, but m ust also entail som e m inim al politi
cal rights to participation and m ovem ent. Here the cosm opolitan
structure o f universal hum an rights gives rise, o f itself, to a biopolitical
approach (that is, when life itself becom es endowed with a function
o f legitimation) (Fassin 2009; Rose 2007).2
To sum up both approaches, one can say that the new cosm o
politanism depends on the sacralization o f bare life. The sacrality o f
bare life is both politico-theological and biopolitical, as Hannah Arendt
noted w hen she tried to understand the causes o f the em ergence o f
m odern (civil) society:
The reason why life asserted itself as the ultim ate point of
reference in the m odern age and has rem ained the highest

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good o f m odern society is that the m odern reversal oper

ated within the fabric o f a Christian society whose funda
m ental b elie f in the sacredness o f life has survived, and
has even rem ained com pletely unshaken by, seculariza
tion and the general decline o f the Christian faith (Arendt
1958, 314).
In reality, w hat all w orld religions share is, in one form or another,
the intuition that hum an life as such is sacred. This sacralization o f bare
life, which is w hat nowadays is m eant by hum an dignity, is biopo
litical in the sense that it grants to bare life a m inim um o f constituent
power, a law m aking or norm ative power, which now gets articulated in
the discussion as to whether universal hum an rights entail a right to
dem ocracy (Forst 2010; Benhabib 2011).
I want to claim that M aritains understanding o f hum an rights
is perhaps the first theoretical form ulation o f universal hum an rights
in which these two developm ents o f political theology and biopolitics
are joined together. M aritain explicitly m akes the connection between
hum an rights and the sacredness o f life in his explanation o f hum an
rights:
The worth o f the person, his liberty, his rights arise from
the order o f the n aturally sacred things. . . . A person
possesses absolute dignity because he is in direct relation
ship with the a b so lu te .. . . His spiritual fatherland consists
o f the entire order o f things w hich have absolute value,
and which reflect, in som e way, an Absolute superior to
the world and which draw our life tow ards this Absolute
(Maritain 1944, 6).
This new connection o f hum an righ ts w ith political theology m ay
appear paradoxical at first sight because one tends to associate politi
cal theology with the thought o f Carl Schmitt, and Schm itt expressed

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m ere disdain for universal hum an rights, seeing them as a tool for
the im position o f a new Anglo-American em pire (Schmitt 2007, 54 ff.;
H aberm as 2001; Hardt 2000). In reality, the paradox vanishes as soon
as one realizes that, alongside the political theology o f Schm itt, other
political theologies were developed in the 1930s and 1940s that were
m uch m ore cosm opolitan and open to a certain (both neoconservative
and neoliberal) un d erstan din g o f universal hum an rights, o f w hich
the m ost in structive and in flu en tial rem ain s the case o f M aritain
(Duranti 2012).
Already before his 1942 book, The Rights of Man and Natural Law,
M aritain prepared the groundw ork for a cosm opolitan or universal
theory o f hum an rights by putting forward two fundam ental theses.
The first thesis equates sovereignty with totalitarianism . A gainst this
backdrop he sets out a new task: how to conceive a cosm opolitan
dem ocracy beyond the sovereignty o f the nation-state. It is my posi
tion that this allows his approach to the universalism o f hum an rights
to waylay Shues problem o f the priority o f com patriots. The second
thesis has to do with his attem pt to ground universal hum an rights in
natural law. Properly understood, this m eans that the normative order
established on the b asis o f universal hum an rights is for M aritain a
providential order. I argue that this reference to providence in reality
contains a theory o f governm entality that explains the sense in which
the im plem entation o f the UDHR fits within a neoliberal and neocon
servative ideal o f governance.
M A R ITA IN S CRITIQ UE O F SO VEREIGNTY A N D THE CASE
FOR A CHR ISTIAN PO LITIC A L THEOLOGY.
In 1939 Jacques Maritain writes The Twilight of Civilization,3 which is one
o f the first attem pts to understand the philosophical essence o f totali
tarian governm ents, both in the Soviet Union and in Italy and Germany.
M aritain holds the th esis o f the stru ctu ral equivalence betw een
Stalinism and Nazi-Fascism (Maritain 1975, 69-74) because both show
an anti-Christian essence: b oth reject a political ideal o f fraternal

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friendship (1975, 79).4 More precisely, M aritain argues that totalitar

ian regim es are anti-Christian because they turn politics into a religion,
and they elevate their hum an leader into a god.
Totalitarian societies are closed societies not sim ply because
they reject Gods transcendence but because they actually attem pt
to constitute a collective body which attracts into itse lf the hum an
substance and realizes in itse lf the divinity o f m an (1975, 80-81).
For Maritain, totalitarian politics are nothing but the politics o f the
pagan Empire, ju st as it is described in the Apocalypse; and it is against
this Em pire that Christ rebelled (80-81). A politics that is closed to
God is a politics that m akes m an divine, ju st as the Romans did with
their em perors; a practice that Maritain believes had reem erged in the
1930s in Europe with Mussolini, Hitler and Stalin. Conversely, and here
is the real novelty, M aritain thinks that to fight successfully against
such inner-worldly political religions, the rebellion o f Jesus against the
Rom an Em pire m ust be given a new political form . Only a Christian
political theology can d efeat the p o litical th eology o f totalitarian
regimes.
The undisclosed source o f M aritains interpretation o f totalitarian
regim es as innerworldly political religions is the critique o f Schm itts
political theology at the hands o f the Protestant (later Catholic convert)
theologian Erik Peterson in his 1935 book Monotheism as a Political
Problem. Petersons results w ere quickly picked up in Eric Voegelins
book on Die politischen Religionen, first published in Vienna in April 1938,
and in this way reached Maritain. Peterson argued that Schm itts polit
ical theology was an im possibility because it depended on a one-toone analogy between a m onotheistic God and a hum an sovereign. This
idea o f political theology has H ellenistic and Jew ish roots (mostly
in Philo), Peterson showed, and it is taken up by Eusebius in order to
legitim ate C onstantines Christian Roman Empire. But for Peterson,
an authentic Catholic dogm a begins with Augustines rejection o f the
unity o f Church and Em pire by positing the theory o f the Two Cities
(city o f God, the Church, and the city o f Man, the State). This separation

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o f theology from politics was effectively m ade possible by Augustines

introduction o f Trinitarianism as the official Christian doctrine: since
God is now three persons (not one substance), it is im possible for God to
have a sovereign representative: Christian theology disqualifies politi
cal theology as a doctrine o f sovereignty (Peterson 2011).
Although Maritain adopts Petersons critique o f Schm itts politi
cal theology and sovereignty, in 1939 he sees the need to go further and
develop a Christian political theology without sovereignty: a Christian
politics that stands for dem ocracy and against Empire. W ithout nam ing
Schmitt explicitly, in this text Maritain tellingly identifies totalitarian
political theology with a particular politicization o f enm ity that recalls
Schm itts concept o f the political: for the politics o f the pagan Empire,
[the com m unitys] hatred o f the enemy, internal or extern al,. .. emerges
at the sam e tim e as the love for politics (1975, 81). M aritain tacitly
rejects Schm itts claim that the concept o f the political can only m ean
the application o f the distinction between friend and enem y because
if Christ is the savior o f the world then also the [concept of the] political
can be saved (1975, 82; em ph asis added). M aritain is here trying to
bring together a (redeemed) concept o f the political together with the
Gospel in a new constellation, one that goes beyond Schm itts uncon
vincing rationalization, according to w hich Je su ss com m andm ent
to love on es enem y (Matthew 5:44, Luke 6:27) referred to a private
conception o f enm ity (inimicos), and not to a political conception o f the
enem y (hostis) (Schmitt 2007, 29). For Maritain, pagan politics is a poli
tics based on the principle that one loves on es own only in so far as
one hates the oth ers (Maritain 1975, 83). But the new law o f Christian
politics, which shall crush the pagan Empire, is based on the b elief
that love is superior to hatred and is directed to all men because all men
are sons of God (1975, 84; em phasis added). The point is that for Maritain
it is possible to constitute a politics that does not have the friend/enemy
distinction as its prim ary law: this will be an inner-worldly politics o f
universal love that is radically cosm opolitan, since it is directed to
all m en ; and is also radically dem ocratic because it assum es that all

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m en are sons o f God (quoting from John 13:34; M atthew 22:39 and
7:40; and Luke 10:29).
It is an irony o f history that M aritain here partially anticipates
Badious radicalization o f the universalism o f Paul, which for Badiou
is also based on the prem ise that the sonship o f God is not granted
to on e but to all those who have faith in the event o f the resurrec
tion. On Badious reading, Paul understands C hrists resurrection to
m ean the end o f political m onarchism : Christ is that Son o f God who
delivers all hum ankind from kingship. After the advent o f Christ, there
can be no m ore divine monarchs, for everyone (in virtue o f faith) is of
equal value as an equal participator in the son sh ip o f God (Badiou
2003, chap. 7). Seen in this light, it is not surprising that the sam e year
in which he publishes Twilight of Civilization, M aritain also publishes
in New York a French edition, and in London a year later the English
edition o f his presentation o f Pauls thought (Maritain 1942). M aritains
reading o f Paul is entirely centered on the one stum bling block posed
to Christian universalism , namely, the existence o f Jews who are both
Gods chosen people and yet, according to Paul, them selves stum bled
on the path to salvation by not recognizing that Jesus, in and through
his resurrection, becam e the Christ or Messiah. For Maritain, sim ilar to
Badious argum ent, Pauls m ission w as that o f m aking Christianity
becom e conscious o f its liberty from Judaism , o f its pure universality
(M aritain 1942, 2; em ph asis added). U nsurprisingly, w hen M aritain
com es to explain Pauls account o f how Gods hardening tow ard the
Jews was the occasion for the salvation o f the gentiles, and thus for the
aforem entioned universalism o f Christianity (referring to the obscure
discussion o f Romans XI), M aritain cites the words o f the French transla
tion o f Petersons theological tractate on Le Mystre des Juifs et des Gentils
dans lglise: the conversion o f the Jew s, at the end o f history, will
have a m eaning greater still than their lapse, for the cosm os and the
gentiles (1942, 70).
As A gam ben (2007) has recently pointed out, these passages in
Paulfor centuries used as one o f the m ain sources for Christian antiJew ish propagandapose the m ost vexed problem s for any Christian

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political theology supposedly based on universal love. They form

the crux o f the debate betw een Schm itt and Peterson in the 1930s.
And they reappear first w ith M aritain and later with Badiou: in both
French philosophers, the aporia posed by the continued resistance o f
the Jew ish people to the tru th that Jesus is the resurrected Christ or
M essiah calls for a politico-theological modus vivendi. W ith Maritain, as
I shall argue below, the m odus vivendi takes the form o f a regim e o f
universal hum an rights; w ith Badiou, w hom I do not have the space
to discuss further in this context, it takes the form o f a peculiar toler
ance shown to difference and m ulticulturalism despite his belief
in the absolute nature o f the truth o f the radical equality o f all.
In 1939 M aritain announces that the new Christian political
theology should take the form o f a Christian dem ocracy (1975, 96).
M aritain quotes W alter Lippmann, an early proponent o f what is now
called neoliberalism , from a 1939 article in the New York Herald in which
he calls for the reconciliation . . . between patriotism , liberty, democ
racy and religion. Lippm anns point is that this reconciliation is only
possible if we recognize religion as the source o f dem ocracy (1975,
97). This last b elie f seem s to be the point that allows for the overlap
between neoconservatism and neoliberalism with respect to the func
tion o f universal hum an rights in post-World War II W estern liberal
dem ocracies. To show the rootedness o f cosm opolitan dem ocracy in
religion becom es M aritains overriding philosophical project. But back
in 1939 Maritain is unable or unwilling to give m ore precise contours to
his conception o f Christian Democracy, and in particular to the connec
tion with what would becom e the system o f Christian dem ocratic polit
ical parties that ruled for great part o f the postw ar period in m any parts
o f W estern Europe as well as in Latin America. (In 1939, for Maritain it
is no longer Europe but the United States where Christian dem ocracy
finds its destiny.)5 W hat M aritain m eant then by Christian dem oc
racy and w hat w ould becom e the de facto politics o f the Christian
Dem ocratic political m ovem ent and political parties are indeed two
different things: M aritains Christian democracy, in fact, is a far m ore
flexible ideological construction, because its two fundam ental pillars

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are (1) the recognition o f inalienable rights o f the hum an person; and
(2) the principle that those invested with authority are not vicars of
God, but vicars o f the m ultitude, as Thomas Aquinas said (1975, 98).
It is not difficult to see why, only a few years later, Maritain could
envision the drafting o f a Universal Declaration o f the Rights o f Man
as the clim ax o f his new Christian political theology o f the Multitude,
a sort o f new go sp el that could serve as the b asis for the struggle
against totalitarian and authoritarian politics as m uch as for the strug
gle against anti-im perialist Marxist-Leninist and Maoist politics.
M aritains Christian political theology depends on the oppo
sition o f the m ultitude again st the sovereignty o f the state, which
Maritain ascribes to Thomas A quinass political theoiy. In Man and the
State Maritain says: It is my contention that political philosophy m ust
get rid o f the word, as well as the concept, o f Sovereignty . . . because,
considered in its genuine m ean in g . . . this concept is genuinely w rong
(Maritain 1951, 29). The illusion consists in thinking that the legisla
tive authority in a society is an absolute authority, som ething entirely
separate from the political body and standing over and above it: the
Sovereign . . . transcends the political whole ju st as God transcends the
cosm os (1951, 34); he is a full-dress political im age o f God (1951, 37).
Sovereignty is entirely the result o f a false political theology:
[I]n the political sphere . . . there is no valid use o f the
concept o f Sovereignty. Because, in the last analysis, no
earthly power is the im age o f God and deputy for God. God
is the very source o f the authority with which the people
invest those m en or agencies but they are not the vicars o f
God. They are the vicars o f the people; then they cannot be
divided from the people by any superior essential property
(1951, 50).
This is a fundam ental text in that it denies precisely the claim of
Schm ittian political theology according to which only the single represen

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tative of the community (be this representative a king, pope, emperor, or

president) is considered to be the vicar o f God, m aking possible a trans
position from Gods sovereignty to hum an sovereignty. For Maritain,
instead, the relation o f power between God and the people is not m edi
ated by representatives, as if these representatives were the Sons
o f God. The fundam ental notion o f representation or vicariousness is
given a dem ocratic reading, opposed to that o f Schmitt: the very right
o f the people to rule them selves is exercised by the officials whom the
people have chosen (1951, 130). If kings and princes are vicars, they
are so only as im ag es or deputies o f the people, not o f God. The
faith in Jesus as Christ, according to M aritains reading o f a particularly
com plex passage o f Pauls Letter to the Romans XIII, turns every believer
into an equal son o f God. Thus the authority to rule comes down from
God to all people equally, to all o f His sons, and not directly to the estab
lished authorities (1951, 131). I shall call this M aritains charism atic
conception o f democratic authority or gift o f rule, which is received
by the people from God as the Author o f nature, and so pertaining to
the people by nature, in an inherent m anner and through its own
causal poweracting, as everything acts, in the virtue o f Gods univer
sal activation (1951,128).
But fo r M aritain th e T h om istic con cep tion o f dem o cratic
authority also allow s him to set a m edieval conception o f constitu
tionalism in opposition to the early m odern constructions o f national
sovereignty. For Maritain, once the people receive charism atic author
ity, they w ill alw ays govern them selves by way o f estab lish in g the
political body as a legal corporation: society is a legal order before
being a political unity; society is law before becom ing a state (Grossi
2004). This com m o n or cu sto m ary or an cien t legal order is
the very com m on go o d th at elected represen tatives m u st gu ard.6
Thus M aritains turn to m edieval constitutionalism fits in very nicely
both w ith n eocon servative ideologies o f the su b sid iary ch aracter
o f the political state and neoliberal ideologies that see the essence
o f liberty in preservin g th e auton om y o f the econ om ical and o f

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the legal sphere from the in terventions and plan n in g o f the politi
cal state. C hristian dem ocracy in M aritain is therefore both charis
m atic and constitutional: the politics o f universal hum an rights can
only be achieved by the com bined efforts o f prop h etic social and
political actors (for exam ple, A m nesty International or Mdecins sans
frontiers) th at struggle for the dem ocratic representation o f the m ulti
tudes w ithout and against political sovereignty (anticipating w hat is
today called cosm opolitan dem ocracy) and by the estab lish m en t o f
a global legal order th at is effectively su pran ation al and im po ses a
neom edieval rule o f law w ithout absolute sovereigns.
This conception o f cosm opolitan dem ocracy is dependent on a
dem ocratic gift that God extends to all peoples in virtue o f His being
the Creator o f nature. This grace or gift o f rule, therefore, is visible in
two spheres: on the one hand, in the struggle for self-governm ent and
independence (struggle for democracy) o f all peoples in the world, but
on the other hand and m uch m ore im portant, the grace o f God m ust
be visible in the w orkings o f nature itse lfm ore specifically, in the
fact that all governm ents are forced, o f necessity, to govern according
to natural law or ju stice. The expression o f natural law w ill becom e
the universality o f hum an rights. A global legal order based on univer
sal hum an rights brings together natural necessity with hum an free
dom in a way that can only be m ade sense o f by appealin g to divine
providence.
W H Y UNIVERSAL HUM AN RIGHTS NEED TO BE FOUNDED
ON NATURAL LAW
M aritain thus attacks a political theology o f sovereignty centered on
the figure o f the king as vicar o f God in order to propose a political
theology o f dem ocracy that centers around the deduction o f universal
hum an rights from natural law, w here natural law, as in A quinas, is
understood to be the reflection in hum an reason o f divine law. In the
literature on the philosophical foundations o f universal hum an rights,
M aritains foundational strategy has seriously fallen out o f favor. This

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is due in part to a com m only shared belief that giving a Christian theo
logical foundation to the claim to universality o f hum an rights runs
afoul o f the fact o f plu ralism and consequently cannot be used in
order to establish the UDHR as the centerpiece o f a global or cosm opoli
tan understanding o f public reason. On another front, today m ost advo
cates o f cosm opolitan dem ocracy sim ply advocate the legal positivist
(Kelsen) route o f adopting the UDHR as a basic law for a (coming)
global civil society. From this perspective, the very project o f seeking a
m etaphysical or philosophical foundation to hum an rights is at worst
sim ply a m isunderstanding o f w hat the UDHR really is (that is, the first
piece o f global positive legislation), and, at best, is a counterproductive
endeavor.
And yet, again and again a stubborn intuition persists in the
discourse on hum an rights, namely, the intuition th at such rights
belong to everyone because all hum an bein gs share som e com m on
hum an nature or hum anity prior to the variety o f cultural identities
that people end up adopting during the course o f their lives. It is this
intuition that accounts for why the identification o f the UDHR with a
new natural law persists in the literature (Griffin 2008; Parekh 2008).
Likewise, as I discuss below in m ore detail, M aritain h im self thought
that the UDHR did not require a philosophical foundation because, as
he said in a speech to the UNESCO second General Conference o f 1947,
the aim was to achieve a consensus
not on com m on speculative notions, but on com m on prac
tical notions, not on the affirm ation o f the sam e conception
o f the world, m an, and knowledge, but on the affirm ation o f
the sam e set o f convictions governing ac tio n .. . . A ssum ing
they both believe in a dem ocratic charter, a Christian and
a rationalist will, nevertheless, give justifications incom
patible with each other, justifications to which their souls,
minds, and blood are com m itted, and over which they will
fig h t.. . . They remain, however, in agreem ent on the prac

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tical affirm ation o f th at charter, and they can form ulate

together com m on principles o f action (1951, 77-79).
This is as clear a statem en t o f a political, not m etaph ysical
approach to the UDHR as any; indeed, the current post-Rawlsian debate
on whether an overlapping consensus should be achieved on a mini
m alist or m axim alist list o f universal hum an rights could fall entirely
within the perspective opened up by M aritains quotation (Cohen 2006;
Forst 2010, 2011). So the question becom es: If M aritain already had
som ething like a political, not m etaphysical conception o f the system
o f universal hum an rights, why did he think it o f essential im portance
to pursue their foundation in natural law and in a concept o f divine
providence?
I propose the following hypothesis: M aritains interest in finding
a connection between hum an reason and divine law through a doctrine
o f natural law (or hum an rights), which is the functional analogue o f a
doctrine o f divine providence or divine governm ent (the words m ean
the sam e thing), is not a lapse back into m etaphysics but should be
understood as being o f one piece with a political, not m etaphysical
u nderstanding o f universal rights. The reason is that divine provi
dence refers to the problem o f Gods existence in the hum an world o f
history and politics; it is not an attribute o f Gods essence. Providence,
in other words, is an answer to how hum an beings can come to know
God despite the fact that His essence rem ains shrouded in m ystery and
is unattainable by the hum an intellect.
In my interpretation, therefore, M aritain advances the follow
ing thesis: God rules over the hum an w orld through His providence,
which takes two distinct forms. First, God providentially assigns eveiy
hum an being a m odicum o f constituent power: this is His universal
gift o f dem ocratic rule. Second, God providentially sets up a disposi
tion o f political and econom ic and social m atters, a necessary order o f
hum an things, in such a way that all will eventually be able to enjoy the
gift o f democracy: this disposition or dispositif is nothing other than the

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global norm ative order o f universal hum an rights. Stated otherwise,

since Christian political theology posits that Gods rule is the opposite
o f m an s rule (and closed societies are those that deny this distinc
tion, unlike open societies), and m an s rule considered as such leads
to the rule o f a sovereign power, it follows that Gods rule has to be
destructive o f state sovereignty while at the sam e tim e providing for
the security and developm ent o f the sacred life o f hum an beings and
the recognition o f their dignity. The only solution to a form o f rule
that is antisovereign and yet protects hum an dignity and life is a global
system o f legal and econom ical rules that are not positive rules estab
lished by states but rather act as if they were natural law s that force
governm ents to advance policies that will im plem ent the universality
o f hum an rights, as it were, behind their backs and even against their
sovereign wills.
Maritain leaves no doubts that this kind o f deduction o f hum an
rights from natural law is entirely dependent on the b e lie f in divine
providence: natural law is in an ontological perspective . . . conveying
through the essential structures and requirem ents o f created nature the
w isdom o f the Author o f Being (1951, 84). Maritain, like Charles Taylor
today, expressly rejects the foundation o f rights in the interpretation o f
natural law given by Grotius, Hobbes, and Pufendorf. This m odern way
o f thinking about natural law leads straight to a theory o f sovereignty,
which, as he shows in Man and the State, is the antithesis o f universal
hum an rights. Hum an rights m ust be interpreted in accordance with
an idea o f natural law as divine providence, where providence is the
b elief in a natural law o f created natures or essences that contains what
is good for each creature, and from which derive the rights or liberties
o f each creature.
The nature or natural law that corresponds to the essence o f
each created being is called by Maritain the normality of its functioning
the proper way, by reason o f its specific structure and specific ends, it
should achieve fullness o f being either in its growth or in its behav
ior (1951, 87; em phasis added). Natural law is the ideal form ula o f

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developm ent o f a given b ein g or its ideal order (88). The doctrine
o f universal hum an rights, in M aritains interpretation, am ounts to a
return to the state o f nature as the truly political condition o f hum an
beings in the sense that politics ought to follow those standards that
allow every individual being the full developm ent or norm al function
ing o f its capabilities. The list o f universal hum an rights specify what
these standards and capabilities are: they describe the pure n ature
o f hum anity as a biological species endowed with sacrality or dignity,
w hat Jean Porter identifies, in Thom istic term s, as the perfection o f
nature through grace (Porter 2005, 382-391). M aritains point is that
only a hum an governm ent that adheres in its policies to this under
standing o f hum an nature and its flourishing (in Thomistic term s, its
perfection) is therefore legitim ate government.
In this context o f w orking out the m eaning o f natural law and
providence for the system o f universal hum an rights, M aritain rejoins
som e o f the p rin cipal ten ets o f n eoliberal governm entality, which
were being developed by Hayek and others roughly during the sam e
years (1940s-1950s). According to neoliberal doctrine, governm ent
refers to the regulation o f the actions o f hum an beings endowed with
free ration al choice not by m ean s o f external coercive laws b u t by
spontaneous norm ative orders that w ork through the polarity norm al
ity/abnormality. Thus, all legal regulations or governm ent policies are
legitim ate or good if they m aintain or restore the norm al function
ing o f these norm ative ordersfor instance, the spontaneous order o f
the free m arket (Foucault 2010; M irowski 2009). State planning o f the
economy, on the other hand, produces ab n o rm al developm ent o f
the economy. N atural law, as M aritain understands it, is but another
nam e for the idea o f the norm al functioning, self-regulating sponta
neous orders theorized by neoliberalism . This explains why M aritains
Christian D em ocratic b elie f in the subsidiary or in strum en tal role
o f the state could be am algam ated w ith neoliberal conception o f free
m arkets and com petition to produce hybrids like the Germ an social
m arket econom y, w hich w ould acquire n orm ative statu s in p o st-

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World War II Europe and Latin America, and later in other parts o f the
world as well.
Seen in this context, one can better understand why Maritain is
keen to defend the claim that the universality o f hum an rights be ju sti
fied on the grounds o f natural rather than positive law. Universal hum an
rights, on this account, are unlike the rights (and duties) that emerge
from hum an positive law because the validity o f hum an rights are not
dependent on a positive legal constitution, nor can they be deduced from
such a legal constitution. If they could then these rights would not apply
to all hum an life as such, irrespective o f citizenship. To the contrary, for
Maritain universal hum an rights can only be realized outside o f repub
lican constitutional laws, bypassing entirely the classical or republican
understanding o f the citizen as author o f its laws. The regulations that
establish the normative order o f universal hum an rights, in this sense,
are analogous to the spontaneous normative order o f the free market,
which is also a norm ative order that is not created by the concerted
action o f hum an beings, even though it depends on the acquisition o f
form al legal liberties provided by positive law. For this reason, universal
hum an rights are intrinsically the object o f what, since Foucault, one
calls police regulations rather than political legislation.
From a Foucaultian perspective, the universality o f hum an rights
can only be established panoptically, w hen everyone who is victim
ized by state force becom es in turn an instrum ent for the policing
o f this state-based sovereign violence, reporting on its infringem ent
o f hum an rights, punishing its perpetrators through judicial instances
that depend directly from the United Nations, and so on. In his counterhistoiy o f universal hum an rights, Moyn points out that there was a
lag o f several decades between the declaration o f these rights and their
effective im plem entation in a full-blown politics o f hum an rights. This
lag can now be explained on M aritains term s: it refers to the tim e that
it took to set up the instrum ents and dispositifs o f a global panopticon
sensitive to the interventions o f state sovereignty in violation o f the
natural rules o f hum an dignity (analogous to the global panopticon

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that m akes possible a global free m arket and is sensitive to all viola
tions by state sovereignty o f the natural rules o f economic value).
Thus, m y thesis is th at M aritains apparently m etaphysical or
theological grounding o f hum an rights in natural law is m isinterpreted
if it is understood to offer an alternative moral foundation to hum an
rights (for exam ple, an anti-constructivist or a m etaphysical founda
tion). Maritain does not appeal to natural law in order to offer a m eta
physical foundation o f hum an rights, since he was as aware back in
1947 as we are today that universal hum an rights do not require that
kind o f foundation. To the contrary, his interest in a natural law ground
ing to universal hum an rights was intended to offer a way to understand
these rights as an instrum ent o f global governance or governmentality, w hereby governm entality is taken in the Foucaultian sense o f
the term, m eaning ways o f controlling the conduct o f free individuals
(persons in M aritains sense o f the term) through a panoply o f regula
tory and control m echanism s, policing functions, securitization poli
cies that allow for the free developm ent o f each person s n atu re
or capabilities, for the norm ality o f functioning. Only w hen seen
from this governm ental perspective can one understand why Maritain
in sisted that universal hum an rights had to require new social and
econom ic rights (biopolitical rights, rights to quality o f life), and
why he also placed great em ph asis on the universal hum an right to
choose on es conception o f sacredness or religious b elief (Maritain 1951
104-106, 172; 1944). M aritain insists on a hum an right to religion not
for the sake o f theology but as a requirem ent o f dem ocratic politics:
the b elief that God exists m ust be safeguarded, but only because the
very structure o f universal hum an rights depends on a providential
conception o f natural norm ative orders. Gods providence or existence
is m anifest in history only as a function o f the spread o f the recognition
o f the universality o f hum an rights.
There is another advantage w ith grounding universal hum an
rights in such a conception o f natural law, namely, it allows the separa
tion o f the protection o f these universal rights from any positive legisla

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tion o f the state and its coercive power. Since natural law is inscribed in
the natural order o f things, it is an unwritten law and does not depend
on being posited by any sovereign authority the way hum an positive
law does. This claim leads to the obvious question: how is anyone to
know w hat is natural law, w hat are hum an rights, if these are not found
in w ritten legal codes, and are interpreted by authorized ju dges and
legislators? M aritain claim s that there are two ways in which natu
ral law com es to be known. The first is through Gods revealed posi
tive law, which, apart from revealing som e aspects o f Gods essence,
also gives the basic contents o f the natural law in the form o f divine
com m andm ents. This is a crucial part o f the argu m en t because it
perm its the founding o f a cosm opolitan regim e o f hum an rights on
the basis o f an overlapping consensus betw een rational, com prehen
sive world views, which is precisely what world religionswhen appro
priately reinterpreted in light o f this endare able to provide.7 As I
m entioned at the start, M aritain was one o f those theorists behind the
Universal Declaration who argued that any viable cosm opolitan legal
arrangem ent had to w ork through an overlapping consensus on the
basis o f a new dem ocratic charter that calls for new political actors,
new representatives o f the universality o f hum an rights who shall
be like prophetic shock-m inorities am ong elected officials (1951,
139 ff.). Here M aritain anticipates the contem porary fascination with
nonelected representatives o f the m ultitudes in the cause o f univer
sal hum an rights.
The other way to come to know the contents o f the natural law is
entirely secular, disconnected from any positive revealed religion. This
way consists in letting hum an reason discover the regulations o f natu
ral law through the guidance o f the inclinations o f hum an nature, that
is, by following the guidance o f a hum an biopolitics (1951, 91; em pha
sis added). The knowledge o f these inclinations o f hum an nature is a
gradual, dynam ic acquisition: principles o f natural law are revealed
throughout history and in all cultures because they cannot be deduced
theoretically, at one go; but this knowledge o f natural law is obscure,

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unsystem atic, vital know ledge by connaturality or congeniality, in

which the in tellect. . . consults and listens to the inner m elody that the
vibrating strings o f abiding tendencies m ake present in the subject,
and distinguishes this secret m elody from the background noise o f
particularistic custom s and laws (1951, 91-2).
At the sam e tim e, history does not reveal these principles in a
linear, predictive, and progressive fashion. H istorical developm ent
can also experience m om ents o f regression, returns to barbarism ,
such as occurred in the m iddle o f the twentieth centuiy. Natural law is
revealed in the providential structure o f hum an history but since provi
dence is related to the eternal law o f divine w isdom or omniscience,
the result o f this encounter o f tim e and eternity is that providential
order endows historical progress with the character o f m ystery and
unfathom ability.
It is because we are enm eshed in the universal order, in the
laws and regulations o f the cosm os and o f the im m ense
fam ily o f created n atures (and finally in the order o f the
creative wisdom), and it is because we have at the sam e
tim e the privilege o f sharing in spiritual nature, that we
possess rights vis--vis other m en and all the assem blage
o f creatures. In the last instance, as every creature acts
by virtue o f its Principle, which is the Pure Act; as every
authority worthy o f the nam e (that is to say, just) is binding
in conscience by virtue o f the Principle o f beings, which is
pure W isdom: so too every right possessed by man is possessed by
virtue of the right possessed by God, Who is pure Justice, to see the
order of His Wisdom in beings respected, obeyed and loved by every
intelligence___ Natural law is only law because it is a partici
pation in Eternal Law (1951, 96; em phasis added).
In this extraordinary passage, M aritain states outright that hum an
beings have universal hum an rights, in the last instance, because such

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rights are functional to Gods right to see His governm ent realized in
and through His subjects com ing to respect, obey, and love the provi
dential natural order He has established in His wisdom. Is there any
secular, not question-begging way to m ake sense o f this seem ingly wild
extrapolation from hum an rights to divine wisdom?
In his recent book dedicated to Christian theories o f divine provi
dence or governm ent, Giorgio Agam ben has shown that in this tradi
tion providence receives two, related but distinct m eanings (Agamben
2007). According to the first m eaning, divine providence refers to an
econom y o f mystery. Here the m ystery refers to the gift o f salvation
that God gives to the hum an species. But since God does not give this
salvational gift all at once, He m ust em ploy an econom y o f dispen
sations (in the Christian tradition these are usually understood to be
com posed o f three m om ents corresponding to the Mosaic revelation,
to Je su ss Gospel, and lastly to the Holy Spirit). In Maritain, I suggest,
this m ystery corresponds to the gift o f ru le that God distributes
equally am ong all peoples and that determ ines history as the stage o f
a repeated, som etim es victorious and other tim es defeated, struggle
for the em ergence o f dem ocracy as the only global legitim ate form o f
government.
The second m eaning o f divine providence in the Christian tradi
tion is that o f a m ystery o f the economy. A gam ben shows that this
second m eaning refers to the idea that Gods governm ent or provi
dence operates indirectly, in m ysterious ways, because it is an effect
o f the unintended consequences and secondary causes that constitute
the interrelations between the different natures in the world order that
give rise to what I called above, using Hayeks terminology, a sponta
neous norm ative order. From this perspective, divine providence is
an em ergent pattern, an order that develops out o f the interaction
betw een chaotic, arbitrary choices and the com m unication between
such actors. My hypothesis is th at M aritains interpretation o f this
second sense o f providence, that is, divine providence as the mystery
o f the economy, com es into play in order to solve the serious problem

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o f how hum anity comes to know w hat is natural law, what is naturally
good for each and every individual. M aritains claim that knowledge
o f the natural law is knowledge o f the inclinations o f hum an nature
effectively m eans that the hum an knowledge as to what is the good o f
each nature or person is som ething that rem ains mysterious, not trans
parent to each individual, and therefore can only be com puted by an
econom y o f freedom as a whole.
Once again, M aritains intuition w ith respect to n atural law is
not unrelated to Hayeks transform ative idea that useful knowledge
is the best distributed th in g in the w orld (Mirowski 2007). The idea
o f an econom y o f know ledge allow ed Hayek to p o sit th at prices, for
exam ple, are best form ulated in a system in which the knowledge as
to w hat anything is w orth or its exchange value can be com m unicated
freely, and th at as a consequence the free m arket is really sim ply a
m ediu m o f com pu tin g, g ath erin g , and p ro cessin g th is p erfectly
distributed knowledge. If one expands these intuitions to the field o f
h um an righ ts, then one can begin to com prehend why Shue in sists
th at b asic h u m an righ ts can n ot be m erely righ ts to security and
subsistence, but they m u st be also basic rights to participation and
liberty o f m ovem ent. W hat Shue has in m ind here is, ultim ately, a
neoliberal idea o f access to and participation in a global netw ork o f
knowledge, in a world wide web o f inform ation, which, as I showed
above, is an essen tial elem en t o f the p an o p tical structu re o f the
im plem entation o f the universality o f hum an rights. Likewise, Shues
hum an right to liberty o f m ovem ent refers to the liberty o f com m u
nication and flow o f peoples, things, inform ation in this world wide
web or global world order. Only these kinds o f freedom can ultim ately
track the n atu ral inclinations o f the m ultitudes and thus generate
a true know ledge o f w h at n atu ral law really is. M aritains connec
tion betw een divine providence, n atu ral law, and u niversal hum an
rights only m akes sense if understood in light o f the dependence o f
a system o f universal hum an rights on a new econom y o f knowledge
th at is entirely in dependent o f the public reaso n o f the m odern
sovereign.

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I have proposed an interpretation o f M aritains politico-theolog

ical foundation o f universal hum an rights that accounts for the way in
which the UDHR and its subsequen t im plem entation could function
as a lever that could be used by both neoliberal and neoconservative
m ovem ents in order to derail the Soviet locom otive o f history and
im press a new direction to w orld politics, an orientation tow ard the
establishm ent o f a new world order. In conclusion, I would like to point
out that this Christian politico-theological way o f bringing together
divine providence and cosm opolitan dem ocracy to w hich M aritain
gives expression is itself derivative o f an older understanding o f divine
dem ocracy found in Philos interpretation o f Mosaic law, but also in
rabbinical discussions as to the com patibility or lack thereof between
divine and hum an kingship. This interpretation reappears at the start
o f the m odern age with the dem ocratic revolutions in Holland, England
and the United States, and finds perhaps its m ost radical expression in
Spinozas Theologico-Political Treatise and its attem pt to ground dem oc
racy on a non-Christian understanding o f natural right. In order to do
justice to the decisive question o f divine democracy (that is, o f the gift
o f rule to all peoples, to the multitudes) that lies at the basis o f cosm o
politanism , one would need to return to an im partial study o f Philo, the
m uch m aligned Jew ish thin ker w hom Voegelin deprecatingly called
the philosopher o f the Egyptian court, and w hom Schmitt says never
really m eant w hat he said about divine dem ocracy (Schmitt 2008, 72). A
return to this other Jewish and Hellenistic source o f cosm opolitanism
and its career in the subsequent histoiy o f revolutionary republicanism
would give occasion to contest M aritains Christian interpretation o f
divine providence and bring out the existence o f another connection
between cosm opolitanism and providence, which is also to be found
in Spinoza and Kant. This other genealogy o f divine democracy would
help to clarify the fu n dam en tal distinction betw een two form s o f
cosm opolitanism and two form s in which to understand the universal
ity o f hum an rights: either, as in Maritain, a cosm opolitan democracy
and m atching politics o f universal hum an rights as the last m utation
o f Gods pastoral governm ent over men; or, as in Kant, another concep

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tion o f divine providence leading to a democracy o f world citizens for

whom, as Machiavelli and Arendt said, the love o f the world trum ps the
love o f God.
ACKNO W LEDG M ENTS
Earlier versions o f this paper were presented at the Critical Rights
Workshop held at the University o f New South Wales, Sydney in August
2012; at the w orkshop on cosm opolitanism held at the Institute o f
Philosophy, Leiden University in Decem ber 2010; and as a lecture
at Sciences Po, Paris, in January 2011. I w ish to thank Ben Golder,
Herman Siemens, and Lucien Jaum e for their invitations, as well as the
comments from other participants. Parts o f this article are based on an
earlier paper given at the American Political Science Association Annual
Meeting, W ashington, D.C., August 2010, now published in the Social
Science Research Network under the title Political Theology without
Sovereignty: Some 20th Century Examples (Voegelin, Maritain, Badiou).
NOTES

1. The UDHR contains a reference to all members o f the hum an family

in its pream ble, and a reference to a spirit ofbrotherhood in Article 1.
It is apparent from Glendon (2002 chaps. 9, 12) that such language
was inserted to fashion a consensus from the perspective o f the vari
ous world religious traditions over the articles. Indeed, if one follows
Glendons account, the drafters o f the declaration consciously sought
out advice from m ajor representatives o f such world religions on
what in these religions could be seen as offering a support to a char
ter o f universal hum an rights.
2.

It is indicative that, in order to explain the universal appeal to the

UDHR, Glendon cites the follow ing words from a Human Rights
Watch/Asia representative:
W hatever else m ay separate them , hum an beings belong
to a single biological species, the sim plest and m ost funda

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m en tal com m onality before w hich the significance o f

hum an differences quickly fades. . . . The great religious
traditions . . . take for granted the principle of common human
ity. Islam, Buddhism, Catholicism, Protestantism, Judaism ,
H induism , Taoism , an d m ost o f th eir variants share a
recognition o f the hum an condition (Glendon 2002, 233;
em phasis added).
Here one can clearly see how a politico-theological and a biopolitical
approach to the universality o f hum an rights coincide.
3. I will cite from the Spanish edition in Maritain (1975); all translations
are mine. The original version was written in French and appeared in
1941; the English version appeared in 1946.
4. It is im portant to note th at the thesis o f structural equivalence
between Left and Right form s o f totalitarian ideology m akes a come
back in France in the 1970s at the hands o f the nouveaux philosophes,
who were also behind the push for a cosmopolitan politics based on
the universality o f hum an rights.
5. In 1939, for M aritain it is no longer Europe but the United States
where Christian dem ocracy finds its destiny. For Lippm ann and
neoliberalism , see the discussion in Foucault (2010). For the differ
ent reception o f the hum an rights agenda in W estern Christian
Democracy, see the indications founds in Moyn (2010).
6. In this context, M aritain cites Lincoln (Maritain 1951, 25-6). This
shortcut between the m edieval Christian understanding o f ascend
ing representation to Lincolns dictum is precisely what Voegelins
verticalist reading o f representation questions a few years later in The
New Science of Politics. Maritain gave this reading o f Lincolns dictum
government o f the people, by the people, and for the people already
in Maritain (1940).
7. It is interesting to note how quickly, after 1947, proponents o f the
m ajor world religions have undertaken the effort to reinterpret these
religions in order to m ake them adequate candidates for an over

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lapping consensus on universal hum an rights. In turn, these rein

terpretations have since been locked in battle with fundam entalist
interpretations o f the sam e religions. Some o f these efforts, especially
with regard to Islam and Catholicism, are registered in Rawlss Law of
Peoples. For a discussion o f these processes in other world religions I
refer to Vatter (2010) and the literature cited therein.
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