A recent editorial in the Wall Street Journal here titled "What Went Wrong With Human Rights" is unhelpfully subtitled "The conflation of ‘natural law’ with ‘positive law’ handed communism a philosophical victory after the end of the Cold War." has been making the social-media rounds. With more than enough truth to warrant reading it, the essay by James Taranto (drawing on a book by Aaron Rhodes) conflates enough error with the truth to warrant a comment.
First, the truth. Taranto is correct to observe that the contemporary world of human rights documents is little more than a cornucopia of aspirations for this, that, or the other perceived good. In other words, many (but certainly not all) of the putative human rights found in instruments such as the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Rights of Persons With Disabilities (observations here and here), the Convention on the Rights of the Child, etc. are in no meaningful sense of the word, "rights." Instead they are "goods."
Human rights, by contrast, have traditionally been understood as trump cards or immunities from unauthorized private or state action. (For a few of my many posts on the nature (and future) of rights go here, here, and here. If you're really interested, you can read my article Looking for Bedrock: Accounting for Human Rights in Classical Liberalism, Modern Secularism, and the Christian Tradition (download here or here.). For yet another take on the nature and limits of human rights, read my brief review of an especially fine piece by former colleague Craig Stern here.)
So, what's my beef with Taranto's piece if, as it turns out, I agree with the bulk of his conclusions? Principally this: like many of today's classical liberals and libertarians, Taranto errs in seeming to conflate the political-philosophical category of "natural rights" with that of "natural law." Natural rights philosophy finds its origins in the political thought of Thomas Hobbes and John Locke and is the illegitimate stepchild of the long-standing Classical and Christian commitment to natural law.
Responding to the crisis occasioned by the English Civil War in the middle of the 17th century, Hobbes and then Locke proposed accounts of the justification for political authority that attempted to ground it not on the humanly-mediated authority of God but on the practical needs of a society to keep folks from killing each other. Both believed in a few "natural" rights and that protection of those rights warranted collective action in the form of a modern state that alone had the power of the sword. But nothing more. In other words, if not for Locke then for many of his subsequent American followers, the state existed only to protect and vindicate those few natural rights. Other social goods were outside the jurisdiction of the state. By contrast, the long tradition of natural law worked out by Christian theologians beginning with Augustine (and continuing through the Reformers and beyond) combined rights, duties, and goods in a web of social relations that found a place for state action not only to protect rights but also to achieve social goods.
Giving Locke (and even Hobbes) his due, they had lived through years of civil war, the execution of a king, and a subsequent commonwealth under Oliver Cromwell that regressed to little more than a dictatorship. Much of the turmoil they witnessed was due to a strand of some Puritan thought that had itself rejected the notion of social goods, at least those that did not have specific biblical warrant. Turning from the meliorating wisdom of Richard Hooker, these Puritans helped clear the way for the secularizing reaction less than a half-century later.
But back to now: just what social goods a state should undertake to provide is a question of history and practical wisdom. Whatever goods a state pursues (in addition, of course, to vidicating the natural rights of its populace) must evaluated in terms of (1) the history of the polity, (2) its current resources, and (3) what is actually good. But, pace John Finnis, these goods are not human rights.
Back again, this time to Taranto: a view of natural rights without a metaphysically-grounded natural law is vulnerable to the "sez who?" objection. As I wrote some years ago here,
Human rights, by contrast, have traditionally been understood as trump cards or immunities from unauthorized private or state action. (For a few of my many posts on the nature (and future) of rights go here, here, and here. If you're really interested, you can read my article Looking for Bedrock: Accounting for Human Rights in Classical Liberalism, Modern Secularism, and the Christian Tradition (download here or here.). For yet another take on the nature and limits of human rights, read my brief review of an especially fine piece by former colleague Craig Stern here.)
So, what's my beef with Taranto's piece if, as it turns out, I agree with the bulk of his conclusions? Principally this: like many of today's classical liberals and libertarians, Taranto errs in seeming to conflate the political-philosophical category of "natural rights" with that of "natural law." Natural rights philosophy finds its origins in the political thought of Thomas Hobbes and John Locke and is the illegitimate stepchild of the long-standing Classical and Christian commitment to natural law.
Responding to the crisis occasioned by the English Civil War in the middle of the 17th century, Hobbes and then Locke proposed accounts of the justification for political authority that attempted to ground it not on the humanly-mediated authority of God but on the practical needs of a society to keep folks from killing each other. Both believed in a few "natural" rights and that protection of those rights warranted collective action in the form of a modern state that alone had the power of the sword. But nothing more. In other words, if not for Locke then for many of his subsequent American followers, the state existed only to protect and vindicate those few natural rights. Other social goods were outside the jurisdiction of the state. By contrast, the long tradition of natural law worked out by Christian theologians beginning with Augustine (and continuing through the Reformers and beyond) combined rights, duties, and goods in a web of social relations that found a place for state action not only to protect rights but also to achieve social goods.
Giving Locke (and even Hobbes) his due, they had lived through years of civil war, the execution of a king, and a subsequent commonwealth under Oliver Cromwell that regressed to little more than a dictatorship. Much of the turmoil they witnessed was due to a strand of some Puritan thought that had itself rejected the notion of social goods, at least those that did not have specific biblical warrant. Turning from the meliorating wisdom of Richard Hooker, these Puritans helped clear the way for the secularizing reaction less than a half-century later.
But back to now: just what social goods a state should undertake to provide is a question of history and practical wisdom. Whatever goods a state pursues (in addition, of course, to vidicating the natural rights of its populace) must evaluated in terms of (1) the history of the polity, (2) its current resources, and (3) what is actually good. But, pace John Finnis, these goods are not human rights.
Back again, this time to Taranto: a view of natural rights without a metaphysically-grounded natural law is vulnerable to the "sez who?" objection. As I wrote some years ago here,
Natural rights amount to little more than dogmatic assertions when decoupled from a world of theistic or at least metaphysical substance. Nor can a pure natural rights philosophy deal effectively with the "so what?" objection. Even if there are "things" such as natural rights, who says why anyone should care about them except out of personal prudence? There would be no moral obligation to rectify violations of them.Much--but not all!--of what pases for human rights today represents a bloated Western elite wish list that may do more to doom real human rights than achieve any long-lasting good. Standing on the natural rights platform alone and shouting "Stop!", however, is not enough. Belief in natural rights without more will do little to staunch the burgeoning human-rights bonanza.
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