Wolterstorff on the Goods to Which We Have Rights 2.0

At last Wolterstorff moves to the topic that interests us (read: “me”) most: To what can we justifiably say we have a right? But even here he is concerned to establish a framework and clear some detritus before getting to the meat of the matter. Skipping those preliminaries for now, let me pursue a bit of a tangent. Wolterstorff begins by asserting that to which “rights” obtain are states of affairs (happenings or conditions) with respect to oneself, i. e., that of which I am a constituent. (137-38) As Wolterstorff explains, I do not have a right to the aurora borealis but I may have a right to be free to view it; I am not a constituent of the aurora borealis but I am of seeing it. Secondly, he contends that one’s rights are only to another person treating or refraining from treating me in some way. Rights need not be understood individualistically but must be understood personally (thus, we may claim rights against God, angels, and other humans but not rocks, chairs, or planets).

Moving from the objective side to the subjective, do my rights expire with me? I never thought of this but Wolterstorff has and concludes in the negative. Being maligned at one’s funeral doesn’t hurt me but it certainly hurts my history, which continues until the end of time. Do I have a right to my post-mortem history? Is it a state of affairs of which I am a constituent? Indeed. Inasmuch as we cannot isolate events of history from their consequences (e. g., the Treaty of Versailles and the causes of World War II), so too rights extend beyond our lives to our subsequent histories. Conversely, do I have rights to states of affairs before I existed? In other words (and mine solely): Can there be a cause of action for wrongful life? Wolterstorff addresses the philosophical (but not legal) question by emphasizing that one can have rights to states of affairs only during the course of one’s life or history. Since time and thus history flow only one way (so far as we know), we can have rights after our deaths but not before we were.

I have focused on this rather obscure part of Wolterstorff’s larger analysis for a reason: on Friday I will be judging at the Constitutional Governance CREs (court-room exercises). My qualification for judging Indian Constitutional law is that con law here is no more constitutional or legal than in the States. Anyone can do it!

The question propounded by Prof. Anuradha raises the issue of wrongful life in light of the guaranties of Art. 21 of The Constitution of India. If Wolterstorff is correct, no such claim can lie because the relevant state of affairs preceded the subject’s existence. On the other end, so to speak, wrongful death claims would be justified because, after all, we have a right not to be deprived of life, i. e., to the state of affairs of being alive free from another person’s unjustified actions (or failures to act). So too, someone on behalf of our histories (presumably our estates) could prosecute a claim for their disparagement. But no one, it seems, would have a claim arising out of a state of affairs that preexisted him or herself.

I am, however, in India, so Wolterstorff’s failure to address the implications of reincarnation is glaring. Perhaps Friday’s students will get a chance to expound on its relevance to the question.