Late in his new book What’s Wrong with Rights? Nigel Biggar quotes human rights lawyer Conor Gearty:
For years now human rights law has been the object of scorn among a wide range of Right-leaning politicians, and their supporters in the traditional print media. . . . Now that the European entanglement has been seen off, the time has come for the finishing of the unfinished business of human rights destruction.
To which Biggar replies:
In many respects I am a rights-sceptic, who for decades has been a daily reader of the “traditional print media,” yet I have never come across a politician of any stripe who was intent on “human rights destruction.” Caricature is a sure symptom of stopped ears.
Biggar’s reply rang true for me. Having recently served on the Department of State’s Commission on Unalienable Rights, and helped with that Commission’s Report, I have been amazed at the “stopped ears” of rights advocates who saw in our work only an attempt to undo decades and even centuries of human rights accomplishments.
To give but one example: Christian Emden, reporting in an article in Telos the view of Commission Chair Mary Ann Glendon that “too great an emphasis on rights ‘dilutes the authority of rights,’” interpreted this as the claim that “having rights impedes a society of virtue and sharpens social conflict.” And he concluded, “From here, it is a small step to contend that it might be best not to grant any rights to others at all. A quasi-Hobbesian state of nature appears to be the social ideal that informs the vision of rights advocated by the Commission on Unalienable Rights.”
An absurd fantasy, as will be apparent to anyone who reads the Report. But such is the treatment often given to those who voice any “skepticism” of rights and rights talk, skepticism such as that voiced in Biggar’s very title. But those with clogged ears who ignore Biggar’s book will miss much of great value. What’s Wrong with Rights is one of the best treatments I have read on the subject, covering a great deal of ground without being shallow, and making many intelligent and nuanced claims. It should be reckoned with by all who think that natural rights are an important part of moral and political reality.
I stress natural because Biggar is not for the most part skeptical of legal rights as such. Rather, part of his concern about natural rights arises precisely because of the inevitable ways in which natural rights cannot live up to the expectations that a regime of legal rights establishes. In a legal realm in which rights and rights talk are in good working order, to say that I have a right to x “implies that what I have a right to—say, a liberty—lies securely in my possession, thanks to the support of social institutions, provided I do not transgress permissive boundaries, and except in rare political circumstances that might justify suspension.”
The problem with rights is not that they are “subjective”; Biggar spends a chapter addressing the critics of the modern “subjective” understanding of rights such as Joan Lockwood O’Donovan and John Milbank. The attempt by such critics to see Thomas Hobbes as the intellectual architect of a uniform contemporary understanding of subjective rights as individual liberty unconstrained by any objective morality is rightly seen by Biggar as insufficiently historically nuanced.
Hobbes and Locke, much less Hobbes and Kant or Hobbes and Grotius, do not all have the same concept of rights (in Hobbes’s case, effectively a view that there are no natural rights), yet all these figures can lay claim to conceptual influence in our current understanding of rights—as can Aquinas and, standing between Aquinas and Locke, the “judicious Hooker.” Subjective rights can, contrary to the worries of some critics, live hand in hand with social responsibilities, with the necessity of virtue, and thus with a rejection of rights fundamentalism—the view that all moral or political considerations bottom out in rights. The proof of possible coexistence lies, Biggar argues, in legal realizations of rights. Relatedly, subjective rights can live hand in hand with objective rightness, with moral norms and obligations whose content is not created by human persons but is nevertheless to govern human action and interaction; subjective rights, that is, are compatible with natural law.
Rather than base his critique on the supposed subjectiveness of rights, Biggar draws his concerns about rights from what he calls the “skeptical tradition,” encompassing Edmund Burke, Jeremy Bentham, the now largely forgotten nineteenth-century philosopher David Ritchie, and contemporary philosopher Onora O’Neill. The skeptics do not all share precisely the same objections, but they coalesce around some core concerns: that natural rights are identified in such an abstract, absolute, and universal fashion that their invocation inspires inflated rhetoric, “reckless, utopian political idealism,” and political imprudence. Late in the book, these and related failings are found to plague recent judicial decisions governing conduct in war and assisted suicide, and in the intemperate language of some human rights lawyers.
By contrast, when a right is properly framed in a legal context, it is typically done in such a way that the content of the correlative duty is clear, as is the identity of the duty bearer. Further, the right will have been tailored in such a way that its contours map to a considerable extent the contours of the public good—pursuing one’s rights will often have some social costs, but will rarely be significantly damaging to society. Again, the content of the right and the conditions under which it obtains will be clearly identified. And lurking in the background is the possibility that, if the situation is significantly bad enough, the right will justly be curtailed. Finally, legal rights can be and are enforced; they are thus stable and secure for those who possess them.
This legal understanding of rights provides, Biggar thinks, the paradigm of rights. And so understood, natural rights fall just too far short for Biggar to think they are very helpful. “Abstract” natural rights such as the rights to life, liberty, or property fail in almost every measure provided by the standard of legal rights: it is unclear what their possessors are entitled to, and unclear what the correlative duty bearers are owed. Without tailoring in light of the demands of the common good, the abstract right to life is likely to entail a Hobbesian situation of no right.
There are additional difficulties with claims to universal or absolute rights, claims Biggar thinks must be sustained if the idea of natural, human, unalienable rights is to make sense. For example, attempts to identify a natural right to life that is universal fail, on Biggar’s understanding: how does a person starving in a famine, in a country in which no one can provide aid, have a right to life parallel to that possessed by a citizen of, say, the UK whose welfare rights are guaranteed by the state? Or again, in what sense is the right to life absolute, when there are various conditions in which one’s life may justly be taken, ranging from just war to lethal self-defense?
Biggar does believe that if universal and absolute rights were shown to exist, then there would be good reason to acknowledge the existence of natural, human, or unalienable rights. But beyond the difficulties with the right to life, Biggar seems dubious of other claims concerning such rights. He criticizes John Finnis’s views on absolute rights, and also attempts by thinkers such as Jeremy Waldron to show that the right against torture is absolute. And in the wake of such alleged failures, Biggar does not think it is worthwhile speaking of natural rights, though he does not doubt the existence of pre-political moral norms that make claims of justice on behalf of those who are owed it. These pre-political moral claims, absent the success of absolute and universal rights, are simply too insecure, too much in need of specification, and too conclusory in the absence of justificatory argument to succeed when framed as claims of natural rights.
As I have said, my admiration for this book is considerable. But I here offer two criticisms, neither of which can be adequately fleshed out, but both of which I hope will suggest possible lines of response to Biggar’s “rights skepticism.”
First, I remain unconvinced after this book, as I did after his last, In Defence of War, of his denial of moral absolutes, and hence correlative absolute rights. On the account given by natural law thinkers such as Finnis, or Pope John Paul II, there are certain kinds of acts, non-morally described, that may never be done, involving as they do a will contrary to fundamental human goods such as life, marriage, or bodily integrity. Norms proscribing these acts are absolute and identify the act in question as always and everywhere wrong. But if such acts may never be done, then there are correlative rights on the parts of all those protected by the absolute norms never to have the acts in question done to them; these rights, like the right not to be enslaved or raped, are truly universal and absolute.
As in my review of that earlier book for Public Discourse, I see the turning point in Biggar’s argument against such rights in his discussion of intention. For Biggar does concede that it would be always wrong to intend damage or destruction of a basic good such as human life. However, he interprets this as limited to a claim about what can be wanted “for its own sake.” But he asks, “What then, about an intention to take someone’s life for the sake of some other, good end? Is this also absolutely wrong? I do not think so.”
Why not? One reason Biggar gives in a footnote is that an account that identifies a choice of good-destructive means as always wrong cannot be squared with the principle of double effect. For that principle has built into it claims precisely about choice: what is permitted, on Biggar’s understanding, is a choice to accept damage to a good, such as the good of the life one is taking in lethal self-defense. So, he concludes, good-destructive choices cannot be always and everywhere wrong.
But, although Biggar does cite a couple of instances in which even Finnis uses expressions such as “choose to accept” or “choose to cause” side effects, I think conceptual clarity requires us to refrain from speaking in these ways. In accepting a side effect, one’s choosing is strictly of what one takes to be needful for one’s end(s); and choosing is one but not the only form of willing. For it clearly bears on one’s will that one accept concomitant side effects, since one could choose otherwise if one thought the side effects too grievous to bear. But the side effects are as such not needful for the pursuit of one’s aims, and so not chosen.
It should not surprise that ordinary speech blurs the distinction between choosing and accepting; but where there is an identifiable difference between two realities, as there is between choosing and accepting (or permitting), then philosophical analysis should recognize the difference. And it matters greatly to our understanding of double effect, as Biggar’s claims manifest. For, with the difference in mind, it is unclear why what Biggar calls intending—willing as an end over other possibilities—should be treated differently in moral analysis from what I am calling choosing—adopting as a means over other possibilities. If the former’s damage to basic goods suffices to rule it out as a permissible option, then so should the latter’s.
But no similar claim can be made about accepting, since one must accept some damage to human goods whatever one chooses, if only the damage of non-pursuit of the option not chosen. This is far too brief to be convincing to Biggar who has addressed these issues in many places. But I raise them in order to raise also a second form of criticism. Suppose an account of natural or human rights that are universal and absolute can be sustained. Should we then consider only those rights to be natural rights, on the grounds that other alleged natural rights must still suffer the defects identified by Biggar in comparison with legal rights?
I don’t think so. For even of those rights that Biggar would consider to be natural, human, unalienable, absolute, and universal if they could be adequately justified—such as the right of the innocent never to be intentionally killed, or the right never to be enslaved, or tortured—it is still the case that such natural rights can be fully secured and realized only by means of law. How precisely these natural rights are to be protected, what the true boundaries of the rights are, what duties are imposed in cases of violation, and many other issues must be worked out in the domain of law if these rights are to lie “securely in my possession.”
So identifying even absolute rights as “natural” cannot do all the necessary work of realizing these rights for all persons. But, of course, that identification is essential for guiding the work of legislation, and subsequent adjudication. There is, in short, a necessary and reciprocal relationship between natural and legal rights. Natural or human rights provide a standard by which legal rights are to be understood and corrected; but legal rights are the means by which natural rights are to be secured and realized in a polity.
And this seems true also of those rights deemed natural but that clearly are not “absolute,” rights such as the right to life (a broader right than the right of the innocent not to be intentionally killed), the right to property, the right to freedom of conscience and religion, and many others.
Here too, legal rights must do the work of identifying with clarity the content of an otherwise too-vague natural right such as the right to life; the obligations that are incumbent on persons other than the right-holder(s) to protect that right; and the identity of those with such obligations, inter alia. Yet again the natural rights provide guidance for the shape to be taken by legal rights. That the identification of natural rights—the identification, to be more precise, of goods that are matters of justice for those to whom and by whom they are owed—requires more specification in order to take legal form is hardly surprising and seems to me not a good reason for ceasing to speak of such rights.
Natural and legal rights are not like individuals of the same species, but analogous ways of identifying what justice demands. They do not share all the same features, and neither do they share the same advantages and disadvantages. Having a more encompassing world of rights than Biggar advocates is not without challenges or opportunities for abuse, many of which he correctly identifies; but rights discourse and practice acknowledge an important truth of the natural law that, prior to politics, and independently of custom or convention, human persons are to be made the beneficiaries of justice, simply in virtue of something from which they can never be alienated: their common humanity.