In 1946 John Humphrey, a Canadian legal scholar, became the director of the Human Rights Division of the newly created United Nations Secretariat. In 1947 in the aftermath of the Second World War, a Commission on Human Rights was set up by the Economic and Social Council of the United Nations.
The Commission appointed a committee to draft a bill of rights that could be
Concept of Family in International Human Rights Law
adopted as a resolution of the General Assembly of the United Nations. The committee appointed Charles Malik as its rapporteur. The committee decided to give Humphrey the task to conduct a survey of the world’s constitutions and other rights documents and to give a first draft for the Universal Declaration.
(Curle 2007.) According to Glendon (2003: 30) and Morsink (1999: 6-8) the Humphrey draft (Draft outline 1947) was based on a 400-page survey of world constitutions and rights documents (Documented outline 1947). This survey held a lot of clauses taken from Latin American constitutions (Glendon 2003) and featured several mentions of the word ‘family’ but it does not contain any definition as such of what ‘family’ would be taken to mean. Most important of all, it makes no mention of the Constitution of Ireland from 1937, which contains a definition of family which is almostverbatim the same as in the Universal Declaration.
The Humphrey draft itself, the Draft Outline of International Bill of Rights, makes no mention of the word family. One can only speculate whether this was because Humphrey and his assistants thought that family relations were not supposed to be the object of international human rights norms in the same way than in the end product, the adopted version of the Universal Declaration.
Article 13 of the Humphrey draft does contain a mention of marriage (which resembles Article 12 of the European Convention of Human Rights, the right to marry): “Every one has the right to contract marriage in accordance with the laws of the State” (Draft Outline 1947: 6). However, from the point of view of universal or even international norms this kind of an article does not proclaim anything as such. If, for example, “the laws of the State” would not allow people belonging to different ethnic groups to marry, this kind of a clause would not be very effective in deeming this kind of legislation as unacceptable.
Morsink’s historical study (1999) of the drafting process of the Universal Declaration of Human Rights based on the preparatory documents that have been preserved for later generations shows that Malik would have wanted to include even stronger indicators of Neo-Thomism in Article 16(3), but that the main division over the representatives of the States in the drafting process was perhaps rather between defining family with reference to a deity. However, the word ‘natural’ was disputed too, but at root, the understanding of family composed of a heterosexual union with the task of having a raising children was not disputed by the drafters. Morsink describes with the help of the travaux préparatoires (“preparatory works”)6 how Malik proposed in the second session of the Commission that Article 16 should be phrased as follows:
“The family deriving from marriage is the natural and fundamental group unit of society. It is endowed by the Creator with inalienable rights antecedent to all positive law and as such shall be protected by the State and Society” (quoted in Morsink 1999: 254). The only member of the Commission who was against
6 ”Preparatory works” refer to drafting documents, available from relevant archives which are sometimes referred to in both in the historical and legal interpretation of the will and intention of the drafters.
Malik’s definition of the family was the representative of the Soviet Union who stressed that “various forms of marriage and family existed in the world… each form corresponding to the special economic conditions of the people concerned” (Morsink 1999: 255). The representative of Belgium, in turn, proposed a two-part vote on Malik’s proposition. The first part was accepted and the latter part declined (Morsink 1999: 255).
Morsink describes that Malik argued that the word ”Creator” did not carry theological meaning in this case, and it could be interpreted to refer to
”Nature”, for instance (1999: 256). Thus, Malik managed to get his first version of the Article in the draft that was discussed in the third session of the Commission. He appealed to his fellow drafters that the phrase ”the natural and fundamental group unit of society” should be included in the Declaration, because that was, in his opinion, the most important part of his suggestion (Morsink 1999: 256). France, Belgium and the United States stood behind this.
The representative of Uruguay, suggested that the word ’natural’ would be omitted, as “…the essential point was to state that the family was the fundamental group unit of society and that it was the cell around which a State was formed; the way in which family was constituted was of secondary importance” (quoted in Morsink 1999: 256). Morsink (1999: 284-285) notes that the word was allowed to remain as the reference to a Christian deity needed to be omitted. In any case, ‘natural’ in Article 16(3) of the UDHR refers strongly to natural law, not nature or biology as such.
When describing the origins of article 16 of the UDHR, Morsink presents his own, slightly anachronistic view that the proposal by Uruguay would have protected the possibility of non-heterosexuals to found a family. It is hard to believe that the representative of Uruguay or anyone else would have had this in mind in 1948 concerning non-heterosexual sexuality and family formation, as in those times, outlived homosexuality and family life were not really conceived to have anything to do with each other. Nevertheless, Morsink writes that
…[t]he Uruguay proposal would have protected the right to found a family on the part of those whose sexual inclination is not heterosexual and still have done justice to the anthropological data which tell us that over the long haul the monogamous, heterosexual marriage is the best device a society’s continued existence.
Morsink (1999: 256)
It remains unclear what Morsink really means by ‘anthropological’ here:
differences between cultures, cultural diversity or the quest for universal traits of humanity within the discipline of anthropology? In this passage, Morsink refers to a classical text by Lévi-Strauss, his essay called the ”The Family” (La famille), but seems to have strayed from Lévi-Strauss original focus, as in this
Concept of Family in International Human Rights Law
essay, Lévi-Strauss does not present ‘anthropological data’ or analysis that would somehow champion monogamy or heterosexuality (Lévi-Strauss 1971)7. In the essay, Lévi-Strauss sets out to answer the question “What is a family?” He stresses that “the family should not be approached in a dogmatic way” (1971: 338) and that “this is one of the more elusive questions in the whole field of social organisation” (1971: 338). He states that “monogamic [sic], conjugal family is fairly frequent…” but that “…the high frequency of the conjugal type of grouping does not derive from a universal necessity” (1971:
338). He goes on to ponder: “It is at least conceivable that a perfectly stable and durable society could exist without it. Hence the difficult problem: if there is no natural law making the family universal, how can we explain why it is found practically everywhere?” (1971: 338). In trying to answer this question, he identifies three characteristics: that family originates in marriage, consists of a husband, wife and children born in this union, and that members of a family are linked to each other by legal, economic, religious and other kinds of rights and obligations as well as by sexual rights and prohibitions and psychological feelings (1971: 339). Most of the essay is devoted to going through ethnographic data available from various parts of the world, but as always, Lévi-Strauss refrains from delivering value judgements and directs his attention on structures: for example, to him it is more interesting that the division of labour between the sexes exists in all societies, not so much how it is divided (1971).
Daniel Cere, an American scholar of religious studies, has also offered a detailed look into the history of the drafting of the definition of family in the Universal Declaration of Human Rights. He credits the Neo-Thomist content to a memorandum prepared by the International Federation of Christian Trade Unions (IFCTU) and given to Malik for the drafting process. (Cere 2009). The memorandum by J.P.S. Serrarens, General Secretary of the IFCTU, draws clearly from Catholic social teaching and papal encyclicals, and phrased the definition of family in a manner very similar to the one that ended up in the UDHR:
The free development of the human personality implies that man has a right to marry and to raise a family. The family is the natural, primary and fundamental unit of society; it is older than society itself and has unalienable rights antecedent and superior to positive law.
The family must therefore be protected by society and have its free development and its security of life ensured.
J.P.S. Serrarens (1947: 4)
This all offers some explanation how the drafting of Article 16(3) of the UDHR was influenced by different actors such as Malik himself and Serrarens. How about the Constitution of Ireland? In an article on the origins of the definition
7 Lévi-Strauss (1971) is the English translation of Lévi-Strauss (1956).
of family in the Irish Constitution, Finola Kennedy (1998) argues in favour of attributing the content of Article 41, the definition of family as the “natural primary and fundamental unit group of Society” to Edward SJ. Cahill, a Jesuit priest and academic and his bookFramework of a Christian State (1932).
In this article, Kennedy (1998) offers a discussion on different accounts of who actually influenced Éamon de Valera, an Irish politician in the early 20th century and a key architect of the Constitution on the whole (see Ó Tuama 2011). What is essential in Kennedy’s article is the confirmation that the substance of Article 41 can be identified in specific papal encyclicals of the late 19th and early 20th century, namelyRerum Novarum (1891),Casti Connubii (1930) andQuadragesimo Anno (1931), which celebrated the 40th anniversary of Rerum Novarum. In the context of Irish constitutional history, Kennedy argues that
… [Cahill’s] writings derived from the Encyclicals, which, without a shadow of doubt, are reflected in Article 41 of the Constitution. Cahill states that while the individual is “the fundamental element in all civil society”, “the natural and primary unit in the State is not the individual, but the family”. Cahill quotes from Pope Leo XIII’s Encyclical, Rerum Novarum: The family is a society limited indeed in numbers, but no less a true society, anterior to every kind of State or nation, invested with rights and duties of its own, totally independent of the civil community.
Finola Kennedy (1998: 362, note 11)
According to a different translation given to the global public by the Vatican today (Rerum Novarum 1891), the same passage of Rerum Novarum cited above goes as follows:
No human law can abolish the natural and original right of marriage, nor in any way limit the chief and principal purpose of marriage ordained by God's authority from the beginning: “Increase and multiply.”… Hence we have the family, the “society” of a man’s house -a society very sm-all, one must -admit, but none the less -a true society, and one older than any State. Consequently, it has rights and duties peculiar to itself which are quite independent of the State.
Rerum Novarum, para 12
In the following paragraph that deals with the naturalness of private property as a prerequisite for a father to support his wife and children, it is articulated that “[a] family, no less than a State, is, as We have said, a true society, governed by an authority peculiar to itself, that is to say, by the authority of the father” (Rerum Novarum,para 13). Further on in the encyclical, it is said that mothers should not be forced by economic necessity to take up employment outside the home. In Rerum Novarum, it is also said that
Concept of Family in International Human Rights Law
“[w]omen… are not suited for certain occupations; a woman is by nature fitted for home-work [sic], and it is that which is best adapted at once to preserve her modesty and to promote the good bringing up of children and the well-being of the family” (para 42) . The main content of the IFCTU Memorandum (Serrarens 1947) was clearly based on the main teachings ofRerum Novarum.
Obviously, these passages reflect the era when they were written, the late nineteenth century, and the teaching of the Catholic Church on these issues.
The central idea in these encyclicals was how to foster a social order where the needs of the working class and the poor would be taken care of while protecting private ownership and political stability. When it comes to the view these documents had on the roles of men and women and the division of labour between husband and wife, tasks were clearly defined. Particularly important in this frame of thinking was that a sufficient family wage should be paid to the husband, who was unquestionably the head of the household. The place of wives and mothers was in the home, because that was where their primary function to be fulfilled was situated. (Kennedy 1998.) What is important and interesting in the drafting history and the sources of the wording of, for example, Article 16(3) of the UDHR is that words, especially weighty ones in adopted human rights documents, cannot be taken just at their face value and dictionary definition. “Natural” and “fundamental” take on very different meanings from their commonplace meanings when they are put together, and convey a set of philosophical, historical and doctrinal tones.
When religious conservatives argue that they hold the truth to what Article 16(3) of the UDHR actually means, they are right from a certain, historical and contextualised point of view. But when these words were placed in a document like the UDHR which has such timeless and universal aspirations, they were left to stand on their own and to acquire new definitions and meanings as vehicles of political and legal change.