20 December 2016

What's Wrong With Rights? Part 4

I thought I was done with this topic for awhile when I posted Part 3 here. (You can read Part 1 here and Part 2 here.) But props to reader and friend Ruben Alvarado for directing me to his translation of the works of Friedrich Julius Stahl. (Wikipedia has a stub entry on Stahl here.)

Some historical context: Stahl influenced Dutchman Abraham Kuyper via Kuyper's mentor, Guillaume Groen Van Prinsterer. As a committed Lutheran and legal philosopher active in Germany in the middle of the 19th century, Stahl occupied a space between a revolutionary Liberalism and a paleo-conservative Christian revanchism. He appreciated Liberalism's respect for the individual but not its rejection of a divinely ordered social reality. In other words, he believed in subjective rights (contra Oliver O'Donovan) and an objective right order (contra Nicholas Wolterstorff).

What does Stahl say? Some representative quotes beginning with the foundation for subjective rights:
Being a person, man is an original, independent and thus absolute end [goal] of creation and the world-plan: not mankind, not the concept of man, but the individual, each individual person. The law must conceive him as such. The individual person is condequently an absolute end in the legal order. ... The content of this [innate] right therefore comprises the things belonging to the existence of the person: integrity, freedom, honor, legal capacity, protection in acquired rights. (The Philosophy of Law, Book III at 3)
On the other hand, with regard to right order:
The purpose of law is the preservation of God's world order, albeit in independent and free human implementation. Its first priority is therefore God's commands; its other is rights. ... The efficacy of law therefore consists in this, that it establish and secure on the one hand a definite range of inviolable validity for divine commandments in human common life [right order], on the other a definite sphere of existence and power for men, that is, [subjective] right. (The Philosophy of Law, Book II at 15)
How are the twin aspects of the divine world order related? In short, the fear of God:
The fear of God and full humanity are the twin poles of the ethical world order. The fear of God puts the seal of majesty on the individual man and the public condition. ... For the public order, humanity freed from the fear of God leads on the one hand to fanaticism, as in the [French] Revolution when the rights of man were imposed through the guillotine, and on the other hand, because human society can only be held together through God's ordinances, first to the slackening and then the dissolution of society. (The Philosophy of Law, Book III at 39-40)
Drawing on what Shahl wrote over 150 years ago, perhaps I have discovered my "missing perspective." In Part 3 of What's Wrong With Rights I concluded with the following:
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. ... 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.
In other words, the fear of God is what unites the competing accounts of justice--subjective rights and right order. The fear of God entails a "fear" for individuals created in His image. And the fear of God justifies a "right" social and political order that provides a framework within which the rights of those image bearers can subsist.

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