What’s Right About Rights

Last updated on: January 30, 2015 at 1:26 pm by Pascal-Emmanuel Gobry

What’s Right About Rights 2015-01-30T13:26:11+01:00 Pascal-Emmanuel Gobry

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A fascinating thing is to watch the culture percolated through the mind of a child who has started to give in to school, and therefore increasingly brings home bits and drabs of the noosphere that haven’t been communicated through her parents. Now, when my daughter wants candy, she doesn’t ask “Can I have candy?” (or, on good days, “May I please have candy, Papa?”) she asks “Do I have a right to candy?”

So it is with great sympathy that I look upon the increasingly frequent Christian criticism of rights-language, share it to an extent. Here Stanley Hauwerwas gives a good, archetypal example of Christian criticism of rights-language, predictably drawing mainly from Simone Weil.

But I do think a lot of this criticism misses essential parts of the classical doctrine of human rights and what makes it still relevant and still important.

Hauerwas cites Weil’s thought experiment that if a farmer at the marketplace who is pressured to sell his goods at a too-low price protests using rights-language, we find this perfectly apposite; but if a woman is being forced into a brothel, it would seem completely inappropriate to the horror of the situation to use the language of rights, rather than the language of justice, or of the good. This, to Weil, points to the inherent mediocrity of rights-language, its inherent incapacity to formulate a moral vision that reaches the depths that a useful moral vision should. Furthermore, the use of rights-language is inseparable from the image of a lawcourt, and therefore is always pregnant with confrontation, when true justice must be based on mercy and compassion.

Furthermore, asks Hauerwas, does not rights-language impoverish our moral vocabulary, and therefore our moral imagination? Hauerwas recalls dismay at watching a public prosecutor condemn a murder in terms of “Her rights were violated,” seemingly incapable of mustering up stronger, more worthy language.

I think a lot of this is valid, and I think under this heading I would nonetheless recall some important aspects of the classical understanding of human rights that hopefully can clarify a lot of things.

The first is that in the classical understanding, human rights are inalienable. In contemporary discourse this tends to be regarded as vaguely meaning “important” or more specifically the fact that no one can take it away from you. But the word “inalienable” is a technical word from Roman-influenced French law which means “unsellable.” The fact that human rights are inalienable means, for instance, that under classical human rights doctrine, you cannot sell yourself into slavery, even if you really want to, because your right to liberty is inalienable–even you cannot sell it. The right to liberty doesn’t just mean that I can’t enslave you, it means that you cannot sell yourself into slavery even if you want to. Your right to liberty means you don’t have the right to do that. (Classic 1L essay question: “Is a person’s body their property?” Answer no, because it is inalienable, and property is the right to sell something or even to destroy it.) This is not merely theoretical: the French Revolutionaries banned lifelong unemployment in order to prevent the return of serfdom under another guise (and, arguably, in order to ban religious orders: we see the mixed blessing of Modernity right there).

This character of inalienability points us to the fact that in the classical doctrine, human rights are inherently anthropological and teleological. The language of human rights is not, or doesn’t have to be, as so many Christians and progressives alike now seem to think, a license for an absolutely unbounded, purely volitional liberty. This is why the Declaration of Independence has all these appeals to natural law. Human rights are one aspect of human nature, a “nature” in the very much thomisto-aristotelian teleological sense of the term, and they both bespeak and spring from humankind’s lofty vocation. It is in recognition of this fact that the Vatican II document recognizing the use of rights-language for the Church bears the extremely appropriate title Dignitatis Humanae.

This is why a part of Weil’s critique of rights, that this language comes to us from Roman law and from the inherently unjust, slave-owning Roman order, seems to me to miss the point. (In Weil’s highly idiosyncratic thought, this is merely one figment of a much broader historico-philosophical critique of the Roman Empire, and Empire, period, which is fascinating and precious but must be ignored here.) The Roman civitas excluded most people from the privilege of citizenship and rights, but human rights make us all citizens. Rights language incorporates the Roman notion only by inverting it and putting on it the yoke of justice.

A final and important element is that, properly construed, rights language refers only to persons in relation with the state. It certainly reflects an absolute poverty of the moral imagination that we live in a culture such that my daughter learns at school to speak of a right to candy. At the same time, while I understand Hauerwas’s dismay at the prosecutor who only knows rights-language, I cannot share it, because I do want my functionaries of the state, stewards of the monopoly on the legitimate use of force, to use only legal-juridical language, and I could not help but be at least a little creeped out by a man of violence who uses too-grandiose moral language. As Montesquieu said, magistrates must be the mouth of the law. And when justices of the Supreme Court leave the law to render decisions on crucial life issues based on fuzzy, ignorant philosophy, we have taken a big, big step away from the rule of law in a country of laws. In the Enlightenment tradition, rights-language is a cousin of social contract-language; because humans are political animals (Aristotle again!) our nature has a political dimension, and rights-language addresses that dimension rather than seeking to assert itself as the master language for all moral discourse and imagination. Because, as Weil keenly perceives, rights-language is always pregnant with conflict, it is unfit for interpersonal relationship; but because it is pregnant with conflict, it is very much appropriate for the relationship of man with the state, the state whose claims ultimately only ever rest on violence. Because of the state’s monopoly on the use of violence, it must be regarded with suspicion, at arms’ length, always potentially Pilate, always potentially Caiaphas. Furthermore, a civilized state is a state of laws, and so its language should be juridical.

To assert one’s rights against the state is a fundamentally aristocratic move, it is to assert an inborn dignity inherently much nobler than anything that the coldest of cold monster could comprehend, and is bound as servant to obey.

In this regard, perhaps a slightly comic (perhaps apocryphal) illustration. You may have heard the story that the inventor of the top hat, when he first went out on the streets with it in 1797, caused a riot and was arrested for breach of the peace. Ha ha, silly ignorant English people from the 18th century!

People usually forget what happened next:

Hetherington was compelled to pay a £500 bond to keep the peace. In his defence he said he had not broken any law “but was merely exercising a right to appear in a headdress of his own design – a right not denied to any Englishman”.

A right not denied to any Englishman.

We’re right in Gilbert & Sullivan!

In this comic tale, what we see is in fact an entire history, centuries of cultural progress, come rushing down in a simple, exceedingly mundane moment. We must not forget that the Magna Carta was originally a contract between the King and the most important noblemen of England, and a contract is the original “rights” document. A rental contract between A and B gives A the right to live in a place, and B the right to a certain sum each month, and if one party breaches the other’s rights, they can go to court and have the court rectify the situation. This is where rights-language originally comes from. The Magna Carta was an inherently feudal, not Modern document: it was a private deal between private parties who viewed (what we would now call) the civil order as their private property, not as a commonweal. Historically, it didn’t even have the importance we now ascribe to it, but that is precisely unimportant: what matters is the symbol and its impact on the history of ideas and its practical consequences. The point is: the Magna Carta was a contract between the King and the English nobility that granted that nobility rights.

The framework of the Magna Carta was slowly expanded to include in its remit all Englishmen. To be an Englishman was to be born into some sort of aristocracy, and to thereby–as any noble-born person had in the feudal order–be endowed with rights. (And some feudal rights were inalienable, since they belonged properly speaking to the House, or family, headed by a nobleman rather than him personally.)

Far from representing, then, some kind of universal debasement of humanity, rights-language, in its proper context, endows the human being with the kind of grandeur, gravity and nobility more usually reserved for knights. We are all the noble man.

All of which is to say, then, that in my opinion the proper role of the Church vis-à-vis rights language is not to reject it, to remember that abusus non tollit usus, but rather to offer a critique-from-within that restores it to its proper fullness, in particular stressing the two important notions that I have laid out: its necessary connection to natural law and a metaphysical understanding of human dignity, and its proper role as one among several (a very important one, no doubt, but still) elements of a fully-realized moral language.

In practice, we can look to great Christian moral leaders such as Martin Luther King, John Paul II and Mother Teresa, who did precisely this: they were very comfortable using rights-language, as one color in the incredibly rich palette of the Christian moral vision.

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