Long, long ago in a place far, far away (India in 2009, to be exact) I posted relentlessly on Nicholas Wolterstorff's book Justice: Rights and Wrongs. Among other topics on which I commented was Wolterstorff's contention that subjective rights--and not an ontological right order--were fundamental to the concept (and reality) of justice.
Backing up a bit. The concept of plural subjective rights, immunities from the power of others, including civil government, finds its explicit origin in late Medieval/early modern times. It is certainly the case that the plural word "rights" did not appear in ancient the Hebrew, Greek, or Latin lexicons. The singular "right" was, of course, a commonplace. How could it not be, for example, in the world of the Hebrew people whose life was structured around Torah? And think too of their prophets, those prosecutors of the Torah covenant lawsuit, whose job it was to convict the people (and particularly their leaders) of violating (and permitting the violation of) the "right order" described in Torah?
But acknowledging that Torah described a right order for life does not exclude the notion that individual Hebrews also had rights as we understand them today. Deprivation of one's life or property wronged the victim as well a violated the right order of Hebrew covenantal society. In other words, Hebraic justice included rectification for wrongs, that is, vindication of rights.
For reasons not entirely clear to me, Wolterstorff seems unwilling to concede the ontological grounding (or even a lexical equality) of subjective rights in a right order. For my earlier elaborations on Wolterstorff's belief that rights precede right order go here and here. For my initial criticism of Wolterstorff's unwillingness to concede that there even is such a "thing" as right order go here.
If Wolterstorff seems a bit one-sided, he has good company. Just as he argues for subjective rights at the expense of an ontological right order, right-order proponents such as Oliver O'Donovan won't budge from their side.
You can go here to download The Language of Rights and Conceptual History, O'Donovan's reply to Wolterstorff. O'Donovan raises a number of objections to Wolterstorff's historical reconstruction that found plural subjective rights in ancient Israel. I found them interesting but ultimately unconvincing. He raises a more significant conceptual objection to the notion of subjective rights under Torah as follows:
On a purely right-order account, there would be no reason for the victim of a theft or personal injury to get compensation. If a victim had no right to life, limb, or property, restitution or damages for the victim's loss could just as well have gone to the the treasury of the priests. Moreover, on a right-order account, the victim's moral status should be taken into account; yet, there's no basis in the text of Torah for that to be done. In other words, theft from a blaspheming, non-tithe paying jerk generated the same judicial remedy as an equivalent theft from a righteous widow or orphan even though theft from the former may have promoted the right order of society. (For what it's worth, awarding damages to the victim of a breach of contract rather than, say, to the state is an Achilles's heel for contemporary contracts-as-efficiency theorists.)
Enough for now. Next time I'll address what I believe accounts for the contemporary appeal of right-order theories of justice and in Part 3 describe how belief in both an objective right order and subjective rights can be reconciled.
Backing up a bit. The concept of plural subjective rights, immunities from the power of others, including civil government, finds its explicit origin in late Medieval/early modern times. It is certainly the case that the plural word "rights" did not appear in ancient the Hebrew, Greek, or Latin lexicons. The singular "right" was, of course, a commonplace. How could it not be, for example, in the world of the Hebrew people whose life was structured around Torah? And think too of their prophets, those prosecutors of the Torah covenant lawsuit, whose job it was to convict the people (and particularly their leaders) of violating (and permitting the violation of) the "right order" described in Torah?
But acknowledging that Torah described a right order for life does not exclude the notion that individual Hebrews also had rights as we understand them today. Deprivation of one's life or property wronged the victim as well a violated the right order of Hebrew covenantal society. In other words, Hebraic justice included rectification for wrongs, that is, vindication of rights.
For reasons not entirely clear to me, Wolterstorff seems unwilling to concede the ontological grounding (or even a lexical equality) of subjective rights in a right order. For my earlier elaborations on Wolterstorff's belief that rights precede right order go here and here. For my initial criticism of Wolterstorff's unwillingness to concede that there even is such a "thing" as right order go here.
If Wolterstorff seems a bit one-sided, he has good company. Just as he argues for subjective rights at the expense of an ontological right order, right-order proponents such as Oliver O'Donovan won't budge from their side.
You can go here to download The Language of Rights and Conceptual History, O'Donovan's reply to Wolterstorff. O'Donovan raises a number of objections to Wolterstorff's historical reconstruction that found plural subjective rights in ancient Israel. I found them interesting but ultimately unconvincing. He raises a more significant conceptual objection to the notion of subjective rights under Torah as follows:
The question is whether wronging persons consists in so treating them as to deny a specific right that they possess. The concept of "wronging" (the verb) is more naturally explained as flowing from the concept of "a wrong" (the noun), which is an offence against the moral order governing relations among God's creatures.Well, no. The concept of wronging does not flow more naturally from an offense against the moral order than as a violation of the rights of the wronged person. Indeed, I think the precise opposite is true and was the case under Torah. How so? Because the wronged get damages. See Exodus 21-22.
On a purely right-order account, there would be no reason for the victim of a theft or personal injury to get compensation. If a victim had no right to life, limb, or property, restitution or damages for the victim's loss could just as well have gone to the the treasury of the priests. Moreover, on a right-order account, the victim's moral status should be taken into account; yet, there's no basis in the text of Torah for that to be done. In other words, theft from a blaspheming, non-tithe paying jerk generated the same judicial remedy as an equivalent theft from a righteous widow or orphan even though theft from the former may have promoted the right order of society. (For what it's worth, awarding damages to the victim of a breach of contract rather than, say, to the state is an Achilles's heel for contemporary contracts-as-efficiency theorists.)
Enough for now. Next time I'll address what I believe accounts for the contemporary appeal of right-order theories of justice and in Part 3 describe how belief in both an objective right order and subjective rights can be reconciled.
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