Rights have lost their meaning. This raises a formidable obstacle to normative discourse in the West because, as Harvard Law scholar Mary Ann Glendon observed more than two decades ago, rights constitute the lingua franca of Western normative discourse.
The devaluation of rights reveals a decay that is not recent in origin, and which runs all the way down to the foundation—down to what rights fundamentally are and from what authorities they emanate.This was vividly illustrated in a television debate last year between Alabama Chief Justice Roy Moore and CNN television personality Chris Cuomo. When Moore expressed the orthodox American account of rights that is articulated in the Declaration of Independence, Cuomo emphatically objected: “Our rights do not come from God.” Cuomo explained: “That’s your faith, that’s my faith, but that’s not our country. Our laws come from collective agreement and compromise.”
The Problem of Positivism
Cuomo was expressing a simplistic version of the dominant conception of rights in American law schools, newsrooms, salons, and, as appears from its recent marriage jurisprudence, the Supreme Court of the United States. This positivist fallacy falsely assumes that a right can emanate from the will of a human sovereign lawmaker.
If the sovereign lawmaker is the source of rights, then those rights do not bind the sovereign lawmaker. If rights are not authorized and specified by nature, reason, or some source of authority other than the sovereign power, then rights impose on the sovereign power no obligation.
Early positivists were not so muddled as to fall for the fallacy. Bentham and Austin were quite clear that being a positivist entails giving up vested rights. Bentham observed that the rights that a sovereign power creates it can also destroy. He thought that rights are more properly considered “concessions of privileges,” which bind the sovereign only insofar as a sovereign can be bound “who has the whole force of the political sanction at his disposal.” In short, from the perspective of the sovereign, “they are not laws.”
Austin was also too sophisticated to fall into the now-dominant fallacy. He observed that a claim that one has vested rights is really a statement that those rights are inviolable against legislative sovereignty, a claim that Austin thought was demonstrably false. The legislative sovereign has unfettered power to determine which rights should be abrogated in service to general utility.
This is the source of what legal scholar Jeremy Paul has called the “problem of positivism.” Writing specifically about property rights, Paul frames the problem this way: “[H]ow can government simultaneously be responsible for establishing the property rights of the citizenry and also be entrusted not to render its constituents helpless when conditions dictate defining property rights so as to benefit public officialdom?”
Liberalism is supposed to solve the positivism problem by securing liberty from the state’s totalizing ambitions and powers. But in this matter, liberalism has failed rather dramatically. Contemporary liberalism has been constructed on a radically defective architecture of rights. Confusingly, this defective architecture is often mistakenly conflated with liberalism and called the liberal conception of rights. I will call it the “massivity” account of rights.
The Flawed “Massivity” Approach
In the massivity approach, rights arrive in court or an administrative agency—never in a legislature—as personalized commodities that are placed in the weighing pan of a balancing scale. In the pan on the other side of the fulcrum are placed various standardized masses of the court’s choosing, which are sometimes called state interests, sometimes called rules, sometimes public good, sometimes collective good, and sometimes—confusingly—rights. They are never, under any circumstances, called duties or wrongs because, as all educated people have known for more than a century, duties and wrongs don’t exist.
There ensues a zero-sum contest in which the scale is encumbered with additional weights and measures. In the contest the disputants place other masses and commodities in the weighing pans, bring into deliberation all conceivable second-order reasons for ruling in their favor, whether deontological or consequentialist, legal or cultural or—most influential of all—scientific. Oddly enough, in the confusion other players enter the game and throw their weights into one pan or the other, using a curious device known as the amicus curiae brief. The court or agency then tallies up all the masses and commodities, and everyone steps back to watch with bated breath as the scale tips.
These are anxious moments, for everything is at stake. If the scale tips in favor of the standardized masses then the right is said to be justifiably infringed and the claimant is deprived of her commodity with no compensation, as happened recently to the Little Sisters of the Poor, at the circuit court level. If, on the other hand, the scale tips in favor of the right claimant’s precast commodity then not only does the claimant get to keep the commodity but other people are required to pay for it, as has happened for nearly every sexual-identity right claimant (heterosexual or otherwise) who has filed an action before a non-discrimination commission in the last thirty years.
As should be apparent, the massivity account treats rights no better than positivism does. The positivist fallacy is one problem; the problems with massivity are legion. Treating rights as immutable commodities to be tossed into the scale at the beginning of deliberations makes rights prematurely reified. It invests in them normative significance that they do not possess. Rights are set up in opposition to law, justice, and other rights—and even to the duties with which they are supposed to correlate and that supply their normative content—and must be infringed or disregarded when the balance of weights tips against them. Rights cancel each other out, and the conflicts between and among them invite the sovereign to exercise greater and greater power.
Thus the concept of rights has collapsed—and as this non-exhaustive list of problems reveals, the collapse is systemic. For brevity I will focus on two of these problems. The first problem is that the massivity approach devalues rights almost to zero. On the now-dominant massivity account, infringement of rights is not only permissible but also actually required where the balance of reasons weighs against honoring the rights. To achieve equality of rights the normative currency of genuine rights has to be destroyed. Truly inviolable rights must have the same status as contingent rights so that all “rights” can and should be “infringed” or overcome by competing reasons.
This is how we end up with the same term being used to describe the right of an innocent person not to be killed deliberately and the “right” to kill deliberately the innocent person who happens to be in the womb. The abortion “right” is trading on the prestige and normative force of the inviolable right to life. Meanwhile, the normative force of the inviolable right is degraded.
The second problem is that the massivity approach does nothing to resolve the positivism problem. It simply transfers the sovereign will from the legislative sovereign to the judicial branch or administrative agency. The sovereign will itself remains intact and unrivaled in its totalizing power. Law does not bind the sovereign, and rights are not rights in any meaningful sense.
Thus the prevailing approach to rights is all cost and no benefit. It causes a collapse in the normative currency of rights without delivering at all on the promise of liberalism.
“Perfectionist Jurisprudence” Offers A Solution
Against the prevailing approach, an alternative conception of rights has arisen in recent decades out of the school of legal philosophy called perfectionist jurisprudence.This school builds upon the work of perfectionist liberals such as Joseph Raz and natural law theorists such as John Finnis and Robert George.
Perfectionism means an account in which the good precedes the right. Or put differently, perfectionist accounts of law say that rights cannot be settled and specified without a prior or contemporaneous deliberation about what is good and bad, right and wrong—what to do or not do.
As should already be apparent, the perfectionist account transforms the architecture of rights-construction in two ways. It turns the perspective from the point of view of the right claimant to the point of view of the duty-bearer, the moral agent who owes some obligation or responsibility toward the right-holder and who needs to know what he can and should do or not do. This restores the importance of rights. Rights matter because they provide needed answers to the most important, practical question in human affairs: How should I act toward this person?
The perfectionist account also restores the normative currency of rights by constructing rights on genuine human goods. Rights are settled and specified only in favor of goods that are truly valuable for human beings. And they secure those goods by ruling out of deliberation, excluding from consideration, motivations for action that are contrary to the good and that might direct us away from our obligations to each other.
Consider property rights. The freedom to manage and use things in community with others—what we call liberty of property—has immense moral value. As I have argued at book length, private property enables owners, their collaborators, and their beneficiaries to constitute themselves as practically reasonable people. A statement that owners ought to be free to use their things is a conclusion drawn from the observation that private-property use serves at least one important aspect of well-being. Property rights signify the weight of the human goods served by private ownership. They also secure those goods by excluding from deliberation the motivations that might prevent us from respecting other people’s plans for things under their dominion and control.
This is the payoff for our reconstruction of rights: Because they are grounded in the reasoned deliberations of communities, including pre-political (and intermediary) communities, property rights and others like them (such as the fundamental rights of natural marriage and the biological family) are settled and specified prior to any codification in positive law. They do not depend for their existence on the state, and they can impose various moral obligations on public officials.
Indeed, the rules and judgments of positive law depend for their legal authority in large part on norms that precede them, of which they are not constitutive but only declaratory. Thou shalt not steal whether one lives in Communist China, capitalist Singapore, or a custom-governed tribal region in the remotest part of Africa.
While restoring the structural integrity and normative currency of rights, the perfectionist account also solves the problem of positivism. Law does not depend entirely upon, and is not wholly determined by, the will of the human sovereign. It can be, and is, grounded in the authority of institutions of private ordering, custom, and natural law—even God. Upon this foundation we might begin to rebuild our collapsed rights discourse, the rule of law, and the promise of ordered liberty that the English-speaking nations have held out to generations of people here and around the world.