05 December 2016

What's Wrong With Rights? Part 3

For Parts 1 and 2 go here and here.

A right-order account of justice works from the top down by asking two questions: What should this society, if rightly ordered, look like? And what should be done when a member of this society departs from that order?

As justice-as-rights approach starts from the bottom and in turn asks its two questions: What are the rights of each human person, and what should be done when someone violates one of those rights?

Which is the correct way of conceptualizing the project of doing justice? And even if one wants to take a bit from each account, which one has priority over (or which is foundational to) the other? It seems that the latter question is the one that divides our two protagonists, Nicholas Wolterstorff and Oliver O'Donovan.

Rights-crazed societies, like those in the contemporary West, are confronted with a never-ending and unsustainable series of claims on the public purse and even other persons. As I argued in Looking for Bedrock: Accounting for Human Rights in Classical Liberalism, Modern Secularism, and the Christian Tradition (download here), pulling more and more rights out of political thin air will eventually capsize the entire rights project. In short, without an ontologically thick account of what it means to be human, there is no foundation for human rights. (In the context of this post it is worth noting that it was Nicholas Wolterstorff's Justice Rights and Wrongs from which I derived some my arguments for this very conclusion in yet another article, Principled Pluralism and Contract Remedies, download here.)

Not only is the current bricolage of human rights incoherent and unsustainable, it has done great damage to some human beings. Untethered subjective rights are regularly weaponized to destroy social institutions like marriage and family that have been been part of every rightly ordered society (e.g., no-fault divorce). Many of the costs thereby created are imposed on unwilling spouses, children, and society at large. In other words, gains (in the form of being free from the fetters of unwanted relationships) are individual but the costs in the form of reduced standards of living (usually for women and children) and increased anti-social behavior are externalized. So much for subjective rights.

On the other hand, right-order accounts such as O'Donovan's and Scruton's, are free-riders on the Western tradition. In other words, the "right order" whose demise at the sword of subjective rights they decry is a very particular form of right order, one that is not interchangeable with other "right" orders. Think, for example, of India's residual caste system and North Korea's Confucianism on steroids; both are societies would fall under the rubric of "right-order" yet neither is one that O'Donovan or Scruton would argue should be impervious to the corrosive effects of subjective rights. At least I hope not.

What is the solution to the problem of justice if neither right order nor subjective rights are free from deforming effects? Of little surprise to those who know my work I believe the answer is in a principled combination of the two accounts of justice. The simplest unifying structure could be Aristotelian: subjective rights are the efficient cause and right-order is the formal cause of justice. The final cause of justice transcends both of its parts and informs each of them but justice cannot be understood apart from its constituent elements.

Alternatively, and one with which I continue to wrestle, is to apply my multi-perspectival approach to justice. (For examples of my multi-perspectival approach to individual legal topics see The Law of Contracts: A Place to Start (download here), Consideration in the Common Law of Contracts: A Biblical-Theological Critique (download here), and Mission Possible: A Paradigm for Analysis of Contractual Impossibility (download here). On my typical three-fold platform of normative, situational, and existential, the latter two perspectives would encompass right-order and subjective rights. For now the third perspective on justice eludes me but I hope to work it out soon.

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