01 December 2016

What's Wrong With Rights? Part 2

Go here to read Part 1 about the disagreement between rights-based and right-order approaches to justice.

In Justice: Rights and Wrongs, Nicholas Wolterstorff argues that people have inherent rights and that justice is about rectifying wrongs done with respect to those rights. On the other hand, Oliver O'Donovan believes that societies should order themselves aright and that justice is about re-balancing disorders in a society. I believe that both approaches are true. After all, why can't people have rights and live in a rightly ordered society?

I'm not sure why Wolterstorff believes in a plurality of subjective rights to the exclusion of right order* but I think I can account for O'Donovan's recalcitrance to credit a place for subjective rights. Some slightly modified quotes from his The Language of Rights and Conceptual History help make my point:
There is a political problem with the language of rights, which is its apparent serviceability to the subversion of working orders of law and justice.
Does the evolution of a plural-rights concept indicate a civilizational mutation in the practical outworking of which we are still caught up, which has as its end the overthrowing of our traditional conceptions and practices of justice-as-right? 
Our  contemporary quarrels over rights language are no more than a rerun of the vigorous conceptual battles between human rights and social justice that sprang from that attempt two hundred years ago [which is] the use of rights language in the revolutionary era to gain a critical advantage over existing systems of justice.
In short, O'Donovan is a Conservative in the mould of Roger Scruton. How so? Consider how Scruton compares civil society to the family in The Meaning of Conservatism:
The family, then, is a small social unit which shares with civil society the singular quality of being non-contractual, of arising (both for the children and for the parents) not out of choice but out of natural necessity. And (to turn the analogy round) it is obvious that the bond which ties the citizen to society is likewise not a voluntary but a kind of natural bond.
In other words, just as a properly functioning family does not subsist in continual vindication of the subjective rights of each member but is instead rightly ordered in a natural way, so too, for Scruton, is civil society.  And, although O'Donovan doesn't cite Scruton in The Language of Rights and Conceptual History, his view of civil society generally, including its political expression, are substantially the same. Justice as rights is simply inconsistent with the nature of social reality whether in the family or writ large in the state. Wrongs may occur within a family or state, of course, but they are, in many cases anyway, corrected by reorienting the offending family member rather than by asserting claims against the offender. And, to the extent injured parties assert claims in a right-order polity, justice recognizes those claims only to the extent that right order requires.

For O'Donovan, orienting a society around subjective rights is no more appropriate than doing so in a family. The goal of justice in the state is comparable to that of stability in the family: the restoration of orderly relationships. Therein, I believe, lies the appeal of justice as right-order. We all hope for orderly relations consistent with the nature of the relationship involved. Coupled with this sense of nostalgia is the recognition that justice-as-rights (whether in its Liberal or Progressive versions) has played a part in destroying the very relationships for which we long.

Next--and last--my thoughts on how to reconcile the two approaches to justice.

*One might think that Wolterstorff grants priority to the right over the good because he's a a Rawlsian. Except he's not. See my article Looking for Bedrock: Accounting for Human Rights in Classical Liberalism, Modern Secularism, and the Christian Tradition (download here).

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