"Private Rights and the Common Good"

A superb piece by James Gordley here. Gordley performs a great service by clarifying the notion of rights in the context of a traditional notion of the common good. From Aristotle until the nineteenth century, rights were legal powers by which persons could act individually for the good in the context of a community. In other words, rights had a telos. And that telos was the Good of both the individual and the community of which the individual was a member. The good of the community, in turn, was understood in terms of distributive, commutative, and general justice.

Beginning in the nineteenth century, on one account, rights were absolute powers of individuals that could be limited only to the extent that their exercise interfered with the rights of another. On another account, individual rights amounted only to a delegation of power from the state that could be created, circumscribed, or eliminated as the public interest required. Today we find it difficult to think outside either of these accounts even though neither would have occupied the social imaginary of, say, the Founding generation of an independent United States.

I won't take the time to quote from or further summarize Gordley's argument. It stretches across only 36 pages. As an added bonus, Gordley adds a ten-page appendix in which demonstrates that the libertarian account (the first in the preceding paragraph) cannot be drawn from John Locke. Gordley argues with demonstrable care that, while Locke moved from the historical Christian-Aristotelian account with respect to the origins of political society (from innate sociality to the social contract), the purposes of political society were congruent with the Western tradition exemplified in Aristotle, Aquinas, and Richard Hooker: 

In this account [An Essay Concerning Human Understanding], Locke spoke of the pursuit of “true happiness.” When Aristotle spoke of happiness (eudaemonia), he did not mean an agreeable state of mind which is the opposite of sadness.  He meant to live well and to flourish, pursuing what is worthwhile.  Hooker used the word “felicity” in the same way.  It is “the utmost good and greatest perfection whereof nature hath made [us] capable.” According to Locke, “a “steady prosecution of true felicity” requires that human beings choose those things that “lie in the way to their main end, and make a real part of that which is their greatest good.”  “[W]e should take pains to suit the relish of our minds to the true intrinsic good or ill that is in things....”  “[T]he highest perfection of intellectual nature lies in a careful and constant pursuit of true and solid happiness.” ...

[Thus,] “the necessity of pursuing true happiness is the foundation of liberty. As therefore the highest perfection of intellectual nature lies in a careful and constant pursuit of true and solid happiness; so the care of ourselves, that we mistake not imaginary for real happiness, is the necessary foundation of our liberty.”

In short, Lockean liberty consists in the freedom to pursue the Good individually, socially, and as a political community. Locke was not libertarian; he was an Anglican Whig.

Calvin, Calvinism, and Rights

A close associate (thanks, Jeremy) referred this link to me http://www.calvin.edu/january/2009/witte.htm. It’s an hour-long lecture by John Witte, professor of law at Emory Law School in Atlanta. Two years ago Witte published The Reformation of Rights (Cambridge 2007) in which he argued that John Calvin and subsequent Calvinism were the grandfather and father of the modern understanding of human rights. Don’t let the length of his talk put you off, Witte is an extraordinarily engaging lecturer. The best parts of his comments concern the work of Geneva’s Consistory, its highest ecclesiastical court. Unlike the Lutheran reformation, the Calvinists had a high regard for the law within and without the Church (no law-grace dichotomy for Calvin). The Consistory dealt with all sorts of matters (including marriage, family, and sex), resolving most without recourse to the civil law system but referring the recalcitrant to the magistrate and his power of the sword.

However, Witte’s fundamental thesis about Calvin’s place in the history of rights seems simultaneously anachronistic and Whiggish. While Witte admits that Calvin’s understanding of rights was localized (and not universal) and theologically, indeed, scripturally grounded, his paean of praise suggests a closer connection between early-modern and post-modern rights talk than I believe a careful examination will bear. Witte’s discussion of the tight Calvinistic nexus between rights and duties (particularly early modern Calvinism’s identification of rights as means by which to perform duties) is so different from the modern conception of rights as markers of zones of personal autonomy as to call his thesis into question.

Witte’s lecture (and book) also suggests that Calvin’s discussion of rights and early modern Calvinism’s expansion of the scope of rights was sui generis, a rupture with the medieval past and without parallel in the contemporary European context. In fact, a number of Catholic legal scholars were actively developing the concept of natural rights during the 15th and 16th centuries. See, e.g., Domenicus Soto and Tomasso di Vio. See also Nicholas Wolterstorff, Justice (Princeton 2008) and James Gordley, Foundations of Private Law (OUP 2006).

The popular nature of a public lecture, the occasion of his address (“The January Series” at Calvin College, this year honoring the 500th anniversary of John Calvin’s birth), and Witte’s irenic nature all contribute to what I think is an overestimation of Calvin’s place in the story of rights in the Western tradition. The subsequent efforts of Calvinists in the Dutch Republic, England, and New England bear up much better as historical sources for human rights but Witte’s classification of the Unitarian John Adams (and even, IMHO, the Separatist John Milton) as a Calvinist undercuts even this argument.

Nonetheless, I heartedly recommend taking an hour to listen to a master of legal and cultural history at his best