by Garrett Robinson
Rights form the foundation of contemporary thought about politics and the responsibilities of government. Governments exist to guarantee rights and become illegitimate when they are unable to provide for and protect those rights. To this end, the Declaration of Independence recognizes “certain unalienable rights” including “Life, Liberty, and the Pursuit of Happiness.” Similarly, the current French constitution begins by enshrining certain foundational documents from previous iterations of the French Republic, foremost among them the revolutionary-era Declaration of the Rights of Man and Citizen.[1]
Rights no longer hold quite the same place in the political imagination that they did in the 18th century. While popular buzzwords, many political theorists view them with trepidation. D.C. Schindler writes that a failure to align contemporary rights with a sense of the “real”—i.e., as fulfilling some sort of teleology—had reduced rights to arbitrary social recognitions:
As a protection against others, a right has a reality [. . . ] only to the extent that it is recognized by others. But if there is no actual reality to give rights real determination, that recognition is arbitrary—that is, it becomes a matter of social decree. It is thus logical that there would be a multiplication of rights according to the ideological evolution of society, that we would regularly discover the paradox of new “innate” rights that never would have made sense to earlier ages.[2]
Scholars on the left have made their own attacks against rights as emblems of Western colonialist hegemony, especially when those rights are claimed as “human rights.” Chantal Mouffe notes as an example that the idea of “autonomy” that is so central to Western ideas of human rights “cannot have such a priority in other cultures where decision-making is less individualistic and more co-operative than in western societies.”[3]
Neither Schindler nor Mouffe are wrong in their analyses. Rights have become arbitrary in the West, and for many societies, “human” rights or rights touted as absolute elsewhere come across as only the latest form of cultural imperialism. The temptation, then, is to abolish wholesale the idea of rights, at least as central concepts to our theories of government. Here Nigel Biggar, Regius Professor of Moral and Pastoral Theology at Oxford and an Anglican priest, calls for moderation. In his What’s Wrong with Rights?, Biggar takes into account these criticisms and more and suggests a middle way that permits the recognition of rights while limiting the abuses noted by Schindler, Mouffe, and others.
From the beginning, it should be noted that Biggar does not claim to write as a historian in this book. Unlike Dan Edelstein, whose On the Spirit of Rights was recently reviewed in the Regensburg Forum by Andrew Kuiper (here), his project is not in cataloguing the origin of rights theory, but in outlining the uses and abuses of rights in contemporary society. Insofar as Biggar does attempt a historical narrative, he, like Edelstein, adopts Brian Tierney’s history of the development of rights.
Biggar spends five chapters on the development of the idea of natural rights and the criticism of such rights and continues with chapters on subjective rights, absolute rights, human rights, and rights in ethics. While Biggar remains unconvinced that natural or absolute rights exist, he finds much to criticize in Alasdair MacIntyre, the O’Donovans, John Milbank, and others who would deny the existence of rights tout court. If Biggar shies away from the “rights as unicorns” critique offered by MacIntyre and similarly minded thinkers, what does he offer in its place?
Early on in his catalogue of critiques of natural rights, Biggar describes the position of Edmund Burke, who, in describing an alternative political theory to that of the radical French revolutionaries, stopped short of condemning all rights. According to Biggar’s description of Burke’s position, “Morally justified rights are those that mediate prudently between natural goods and historical conditions.”[4] And then, pulling directly from Burke himself, “[T]he decisions of prudence (contrary to the system of the insane reasoners) . . . are determined on the more or the less, the earlier or the later, and on a balance of advantage and inconvenience, of good and evil.”[5] Biggar returns to this “prudential” application of rights throughout the rest of the book.
Applying this principle to the idea of natural rights, Biggar asserts that “any polity, should be so arranged as to defend and promote the human flourishing of all of its members, as far as fairness and prudence allow; and that therefore any just polity will provide means for the perceived interests of all citizens to be taken into account in the making of law and policy.”[6] Similarly, violating a supposed absolute right, such as not being tortured, is wrong not because it is a violation of an absolute right, but because torture is disproportionate, and such prudential features “wax and wane according to the circumstances.”[7] Regarding human rights, though there are many widely held prohibitions on, say, not having one’s life taken wantonly, crafting a “human right” to guarantee that and other rights fails to take into account that rights must be guaranteed by a society, which will decide when and under what circumstances such rights will be recognized according to the shared moral reasoning of that society. Per Biggar, “Circumstances might dictate (through the virtue of prudence) that certain rights should not be granted at all, or that they should be suspended; and circumstances always dictate what level of security it is prudent to accord any right.”[8]
While Biggar encourages the use of the virtue of prudence in determining when a society should adopt a particular right, he also hopes that societies would adopt a greater appreciation of the virtues in general as an alternative to a society based on rights-claims. Here Biggar sympathizes with Joan Lockwood O’Donovan’s concern about the lack of relation of rights to a “common moral universe.” Biggar identifies this lack as the “Hobbesian denial that there is any basic natural right other than that of self-preservation or of the absolute freedom of self-disposal, and that social obligations arise only where sovereign individuals contract them in the prudent service of their own self-preservation or arbitrary will.”[9] According to Biggar, such a rights-based society uninformed by the practice of virtues cannot provide a lasting political settlement in a pluralistic world: “A sustainable liberal society needs citizens who have been so formed in the virtues of humility, forbearance, forgiveness, justice, and charity as to withhold themselves from provoking others and to tolerate their exercise of legal freedom in uncongenial ways.”[10] In short, Biggar, while finding fault with the anti-rights critique of Alasdair MacIntyre and similar thinkers, ends by proposing a system that appears to adopt some principles of virtue ethics.[11]
Biggar frames his book as a critique of contemporary rights-theories, but in refusing to accept the critiques of those who would abandon rights-theories completely, he forges a middle path. If society continues to give room for soi-disant virtues to multiply without attachment to a shared conception of virtues or final ends or to what a given society is prepared to recognize, the logical backlash will be to ignore any sort of rights claims whatsoever. What’s Wrong with Rights is filled with the arguments of critics who have already reached this conclusion. Only in the prudential recognition and application of rights can rights-theory avoid the excesses of over-abundant and increasingly conflicting rights or the total abandonment of those rights.
[1] “Le peuple français proclame solennellement son attachement aux Droits de l’Homme et aux principes de la souveraineté nationale tels qu’ils ont été définis par la Déclaration de 1789, confirmée et complétée par le préambule de la Constitution de 1946, ainsi qu’aux droits et devoirs définis dans la Charte de l’environnement de 2004.” French Const. Preamble.
[2] D.C. Schindler, Freedom from Reality (Notre Dame: University of Notre Dame Pres, 2017), 217.
[3] Chantal Mouffe, “Democracy, human rights and cosmopolitanism: an agonistic approach,” in The Meanings of Rights, ed. Costas Douzinas and Conor Gearty (Cambridge: Cambridge University Press, 2014), 190.
[4] Nigel Biggar, What’s Wrong with Rights? (Oxford: Oxford University Press, 2020), 14.
[5] Edmund Burke, “Letter to Sir Hercules Langrishe (1782),” in Writings and Speeches, Vol. IX: 1. The Revolutionary War, 1794-1797; II. Ireland, ed. R. B. McDowell and William B. Todd (Oxford: Clarendon Press, 1991), 600. Quoted in Biggar, What’s Wrong with Rights?, 15.
[6] Biggar, What’s Wrong with Rights?, 127
[7]Ibid., 180. See also ibid., 188: “The reason for this second kind of absoluteness, however, is prudential, as such it waxes and wanes according to circumstances: even if it holds in the vast majority of cases, it will not hold in all.”
[8] Ibid., 218.
[9] Ibid., 136.
[10] Ibid., 164.
[11] I acknowledge that Biggar phrases this particularly in support of a “liberal society”, i.e. precisely the sort of society MacIntyre would like us to escape. Biggar perhaps wants an education in the virtues, but not a virtue-based society. Biggar notably counts “tolerance” as a central virtue, as it encourages persons with differing values to coexist. This is not a virtue under any traditional conception of the virtues and, indeed, rather appears to be a way to argue for a liberal politics while attempting to adopt the language of a virtue ethicist.