Wolterstorff on the Competing Conceptions of Justice 1.3

Wolterstorff is not content to demonstrate that the Hebrew Scriptures presuppose the existence of a rights-based account of primary justice. Might these rights, he muses, derive from the “right order” exemplified in the Torah? Could one not conclude that “by issuing the Torah, God has established a matrix of obligations for the ordering of Israel’s life,” which, when followed by Israel, would have insured that “justice is present in the land?” (89) Wolterstorff rejects this understanding in favor of an inherent rights perspective for several reasons, the last of can be encapsulated in the following syllogism: (i) God has rights, (ii) God’s rights are necessarily inherent, not right-order based, (iii) human beings are God’s images, and (iv) the Old Testament Scriptures advert to that image when grounding our rights (e.g., the right not to be murdered (Gn 9:6)). Therefore, human rights are inherent. (94-95)

So far, so good. And there’s more in the next two chapters as Wolterstorff moves through the New Testament and vindicates the centrality of justice to an understanding of the Gospels and Epistles. One can hardly deny that forgiveness (theologised around the concept of the “atonement”) is a theme central to the New Testament. Forgiveness (divine or human) entails that a wrong has committed and the presence of wrongs entails the existence of rights. Two chapters reduced to a sentence? Preaching to the choir in my case so read Wolterstorff on your own if you want the details.

Before moving on to Part 2 of Justice, however, let me briefly note one concern: Wolterstorff’s persistent downplaying of right-order accounts threaten practical reasoning about rights. Human rights may well be ontologically grounded in our nature; i.e., I agree that they are inherent. However, I perceive that the Torah is thematized around the right order of living in the land by God’s covenant people. This is especially clear from Lv 26 and Dt 28 where collective blessings and curses are held out for Israel contingent on maintaining a community ordered by the preceding rules. While many of the rules simply instantiate elements of primary or rectifying justice, others pertain to patterns of living that are difficult to conceptualize as rights. I believe that the Scriptures describe the right order as well as rights. If so, we may presume that right-order thinking is valuable at least for pedagogical reasons. That is, we can reason back from the right order to identify rights, even if those rights are ultimately inherent and do not derive their status as rights from the right order.

This sort of inductive identification of rights is particularly important for me as a teacher of contract law. Inherent rights provide little content for the rules of a regime of private ordering. Sources of such rights, including rules of contract law, must be developed from a variety of perspectives including an evaluation of what contributes to a “right order.” Of course, Wolterstorff is not focusing on this point but I am concerned that his vigorously reiterated attacks on right-order thinking tout court presage an impoverished toolkit for the move from rights qua our humanity to the texture of civilly-sanctioned private rights.