Governments may seek to base laws on any of four foundations, but only one successfully justifies human rights. Allow me to explain why the three failing sources– legal positivism, social contract, and divine command—impede any consistent understanding and why only a secular version of natural law theory , which I term functional natural law, can make a consistent case for the legality of human rights as part of a universal system of public morality complementary to a mirroring private one.
Contemporary government either expressly or tacitly defends its monopoly of power by positive law. It finds the claim to compel obedience in written statutes backed by force. If this seems to be circular reasoning, it is, for in this model the law is the law because it is the law. This legal positivism boasts two strengths. It eliminates ambiguity over a particular law’s justice (by means of arguing for written law as justice) and so discourages civil disobedience and thereby strengthens civil order, and it confines interpretation to statutes and judicial precedents that are straightforward enough to allow legal professionals to develop expertise in their application (see “Expertise”). These advantages are implicitly challenged by the three other legal axioms that find statutes reflecting some higher law and explicitly challenged by a generalized contempt for legality such as we see in postmodernist critiques that regard state power as inherently exploitative (see “Postmodernism Is Its Discontents”). If law is viewed as a means of domination and control, it is likely to be resisted, but a positivist warrant can offer no more ground to challenge legal power than it can to justify it in the first place. Respect for law can hardly begin when it is only built of ink and paper, and it cannot be maintained for long if written law can find no deeper source of justification. Legal positivism produces an odd dynamic in which those most expert in law must seek no higher sanction that might challenge the nature of their expertise, since the theological or philosophical or political axioms that would underwrite other sanctions are not open to expert warrant. As an example, should legal positivism seek to advance human rights, on what basis could it define or defend them since a simple erasure would serve to destroy them?
A slightly deeper analysis might found law upon a social contract that seeks to warrant law upon the consent of the governed. History might be thought to approve this connection because the first defense of inalienable rights emerged simultaneously with social contract theories in the seventeenth century. The architects of this new foundation for law were forced into its construction by the utter collapse of authority as a guarantor of legality in the Protestant Reformation of the preceding two centuries (see “Why Invent a Social Contract?”). Those religious wars had witnessed civil crises caused by conflicting visions of divine command, which had been the oldest and most stable foundation for law until Martin Luther attempted to elevate his own beliefs on Biblical inerrancy above traditional authority. That opened the floodgates to endless contention among various beliefs whose very nature signals an attachment resistant to refutation and between private belief and traditional institutions. Because authority could not find a means to resolve these disputes, it found itself unable to govern at all. Generations of disputatious claims to divine truth eventually eroded trust in authority as a means of warranting any truths whatsoever, in part due to its unique inability to resolve conflicts within its own sphere of justification (see “The Fragility of Religious Authority”). Given their experience of the sectarian horrors of religious authority in crisis, Enlightenment thinkers faced an urgent need to warrant legal power by any means that might find consensual rational acceptance. They forged an entirely new view of the relationship between government and the governed using what became the hammer and anvil of modernism itself: reason and closely examined experience. Using these tools, they found the source of government not in God’s will but in each citizen’s moral autonomy. The trick then was to find a defensible means to transfer that sliver of power to some common source commonly accepted under the assumption, amply demonstrated in religious war, that persons seek to fulfill different values and need a referee to resolve their inevitable disputes. Thomas Hobbes managed that by hypothesizing a moment of unity at some unspecified past point when persons came to their senses and abandoned a generalized chaos and agreed en masse to transfer their individual power over themselves to a ruler, in theory to form a state. Thus the state of nature, strangely similar to the crisis of authority in the Reformation, would end, and persons by common consent choose to originate civil government. As was typical of modernist efforts in all fields, this rational construction would undergo repeated revision and reinvention, by Locke, Jefferson, and Rousseau, whose versions differed as much from Hobbes’s as they did from each other’s. As recently as 1971, the philosopher John Rawls offered his own version of the contract.
The various iterations of social contract did justify natural rights, defined as specifically those that persons carried with them from the state of nature into civil life. Hobbes saw only one: self-preservation. Locke, to the degree that he could be called consistent on the issue, saw two: self-preservation and property. In his Declaration of Independence, Jefferson proposed three: life, liberty, and pursuit of happiness. It is perhaps in the way of such things that the number continued to grow. The Declaration of the Rights of Man and Citizen of 1789 inspired by Rousseau and Jefferson contained seventeen rights, among them food and sunlight. Rawls reduced the number to four, including wealth and self-respect. The scholar Thomas Davitt investigated contemporary “basic values in law” and found a buffet of options. He noted that some find only one basic value, such as sex or economics or a will to power. Others see only two: feeding and breeding. Some find three: self-preservation, reproduction, and friendship. Others defend four: hunger, thirst, sex, and health. Or perhaps religion or aesthetic or emotional health. And let us not forget Maslow’s hierarchy elevating esteem and self-actualization, and on and on. The moral philosopher James Rachels sees two universal values in all cultures: truth-telling and protecting the young. The most famous current articulation of rights is contained in the thirty articles of the United Nations’ Universal Declaration of Human Rights of 1948. It includes the right to form unions, take vacations, and participate in cultural life among the usual, more common rights to equality and liberty. The problem with all such committee-driven enunciations, indeed with this entire list, is that they offer no reason to prefer these defined rights over others and provide no warrant beyond their own authority. Anthropological, sociological, psychological, religious, and other simplistic theories of individual motivation contend with technical and arcane civil claims derived from fixed political or economic theories of social development. With such a bewildering choice from the highly specific to the most general, from fundamental apolitical drives to idealistic—meaning unrealistic—dreams, we find ourselves forced back to the root justifications of social contract theory to find solid ground for natural rights.
That search will be in vain for two reasons, one historical and the other practical. It is a simple judgment of history that no state of nature has ever existed. Humanity has never lived without some political organization. From clan to tribe to village to state, we have always lived in community and therefore within the scope of law. It is unclear whether any of the social contract theorists embraced the literal existence of a state of nature — they phased in and out on that question —but it is quite clear in retrospect that the civil discord from which they desperately wished to escape was the nightmare of the Reformation, which was a unique assault on the only means of correspondence truth wherein disagreement demolishes the trust that is authority’s only guarantee (see “Premodern Authority”). That made the moment of the inception of social contract like none other in history and consequently based government on a uniquely inventive and perverse bit of nonsense. No primal contract means no surrender of freedom and no retention of “natural” rights, either. Contractarians who endorse natural rights see them as carried over from the apolitical state that the social contract ended, so what happens to this starting point for rights when contract theorists are forced to admit that no such event ever transpired? The practical result of this fiction has played out in the inchoate variety of “rights” that actual contracts, constitutions, have sought to invent by the power of the pen. Fictional natural rights are thus transformed into actual civil rights. Since government is in the contractarian ideal grounded only in the will of the majority, “rights” either retained or surrendered are defined strictly as the majority sees fit. That sad reality explains why the U.S. government, for instance, found it proper to discover “new rights” through the fourteenth, nineteenth, and twenty-sixth amendments. The mechanisms for invention merely required that a supermajority of voters approved. We must also think that should they change their minds, as voters did regarding the “right” to consume alcohol, they could revoke rights with equal ease, as German voters did in the Nuremberg Decrees and many states did in the U.S. South during the Jim Crow era. If states bestow rights, it also follows that they may limit them in any way they see fit, as the Soviet Constitutions did in subjecting them to the interests of the state and the Communist Party. In practice, then, the social contract treats rights as positive law does: benefits to be granted or revoked by law rather than those determinative of law. With this pedigree, the concept of rights deserves the ridicule it has endured.
Further, social contract extends this gross confusion to the nature of human rights, which to my mind ought to be the controlling term in the discussion. If these also derive from law, we might expect and indeed we do find that all human rights are fundamentally civil rights, granted by government. But most human pursuits are unconcerned with government and to subject them all to its oversight must tempt it to what cannot be done. If “pursuit of happiness” is a right overseen by law, what possibly limits government’s reach to procure it for citizens? Of course, it is not a constitutionally-bestowed right to U.S. citizens, though that raises the issue of why it is the first example of rights most Americans can name. Why is it not legally protected if it is a right and why should it be specified as one if it is not? And how could it be enforced if it were? A bewildering array of instincts, drives, ambitions, and platitudes are defended as human rights as well as a collection of specifically legal provisions. So far, we can see that none is warranted by anything more permanent than the will of the majority founded upon a fictional contract. Further, by its nature this contract makes rights relative to culture rather than universal. This leads to the patent absurdity of having two polities champion conflicting “human rights” underwritten by nothing more substantial than the will of their majorities. Finally, while in practice nothing but that will can define or limit the specification of rights, in theory government itself is an artificial and conventional invention, an empty vessel into which majorities may pour whatever they like, thereby compelling them to do too little while allowing them to do too much.
These failures prompted Leo Strauss in his landmark analysis, Natural Right and History (1953), to conclude that the social contract theorists had failed to secure any defensible notion of rights at all. Why is this seemingly empty notion still proposed?
Let us abandon the futile search for rights in social contract theory and seek support in the other justifications for law. The first task must seek clarity about how the legal theory we adopt changes the meanings of terms. Legal positivism regards all rights as civil rights. Divine command at least in theory might specify human rights because all dictates from above must by their nature apply to all persons. The problem is that no person may demand her rights from a divinity as a claim-right, a duty imposed upon another. Gods impose the duties on us, not the other way around. And other problems emerge once one tries to impose a human rights frame around denominational religious authority. Should any human rights be defended in dogma or traditions, how could they be defined or defended except by authority that today is but a shadow of its former power in any but theocratic states? How could universal rights emerge from sectarian religious command? Given how riven religious authority is in contemporary climates and how confused their justifications, I must add that religious beliefs about human rights are entirely unable to carry force today, given their private origin and postmodern confusions (Can Religious Belief Be Knowledge?) .
To clarify the nature of rights, we should seek their fundamental source. One can begin with Thomistic apologetics defending natural rights constructed upon the existence of the soul, but doing so rests all that follows upon an inverted pyramid sourced in belief. In terms of a correspondentist theory that must produce broad consensus, it has been a non-starter since 1517. So we seek true correspondence justification for rights just as the early modernists did, but must avoid the dead end of contractarian theory to do so (see “What Counts as Justification?“) No empirical foundation for rights can be found for two reasons. First, rights are conceptual abstractions not subject to the methodology of scientific investigation. Secondly, their existence is more associated with goodness than with truth and that must also disqualify empirical investigations into their nature (see “The Limits of Empirical Science”). If that seems too restrictive, it is only because the human sciences have tried to bridge the qualitative and moral gap between what science can do and what we all want it to do, but those efforts, so promising for so long and so deeply flawed, have failed utterly (see “The Calamity of the Human Sciences”). I have discussed the impossibility of finding expert justification for rights per se in treating legal positivism above. One can be an expert in history and theory of rights, just as one can be an expert theologian or ethicist, and that ability is clearly applicable to these discussions, but like all questions of moral goodness, no one can claim expertise sufficient to warrant prescription by that means alone. Competence is about all that can be reliably sought in such discussions, so I will attempt to apply it below, subject as always to conclusions based upon a preponderance of the evidence subject to revision by better reasoning or evidence. I welcome challenge to the conclusions that follow in the hopes of improving my knowledge.
We cannot appeal to the existence of the soul, but we can find a universal human possession everyone can consent to as a basis for universal rights. It is our felt human freedom (I say “felt” because its ontological existence is questionable, though its reality is confirmed in every moment of conscious experience [see “The Determinism Problem“]). Its existence is as obvious as your decision to read the next sentence. It derives from the universal human propensity to see options in determinations of truth as an expression of an inviolable natural freedom and to choose from among those options by whatever means it values. That choosing is an exercise of preferential freedom (see “Our Freedom Fetish”). To speak plainly, I wish to replace the unverifiable existence of the soul as the source of human rights with the undeniable existence of universal preferential freedom as a consensual basis for human rights. I also wish to argue that it is the existence of these rights that has always justified law.
Natural rights properly concern the exercise of natural freedom. These are the preconditions of preference, those relative to determinations of truth by the properly functioning human mind. Jefferson saw them as life and liberty. These allow options to consciousness and are as inalienable a human condition as our own reason. No functioning person can forego the presentation of choice to consciousness. The natural freedom to comprehend the truths of experience only sets the table for the banquet of goodness options these truths present to each of us in every moment of our awareness (see “Truth and Goodness Do a Dance“). Natural rights open us to preference, and preferential freedom, which is ultimately a moral pursuit, then takes charge to chase down whatever we consider good. The pursuit of happiness is a felicitious term for what preferential freedom is designed to secure once natural freedom presents its options to preference. It is not a natural right because it describes what happens after we exercise natural freedom to comprehend an experience. It relies on a rank ordering of contextual goods, a means of choosing this over that by what ultimately traces to our moral sense (see “What Do We Mean by ‘Morality’?”).. What Jefferson could not articulate was a consensual and public means to accomplish that, for the moral neutrality of contractarianism filtered through the lens of John Locke’s theory was one of Jefferson’s core assumptions. Blame the Reformation for that distortive conclusion, along with its corollary that the state must assume a strict moral neutrality. But since law is sovereign, some consensual preference must be articulated and defended. Whatever it might be constitutes that polity’s understanding of civil rights. But that is what is missing, for defending the “pursuit of happiness” must lead to endless contention unless polities can define their own legal duty in that pursuit. Contractarianism intentionally shirked that task, submitting it to simple majority will. Jefferson’s three “natural rights” could not resolve the issue and so fails to link his natural rights to civil rights, and even if it could, the document that contains them is not binding on law.
Natural rights are the conditions of human freedom prior to preference. Human rights concern the act of preference. Civil rights exist to protect the exercise of preference by our circumstantial freedoms, but because law is sovereign and binding within its jurisdictions, all human preferences cannot be equally protected. The great task of government is to resolve that problem. Contractarians, though lacking in clarity about the origin and nature of rights and differing on their relation to government, begin with such a poor understanding that their default position is to allow majority will to determine and positive law to specify rights, constituting a timid moral neutrality while allowing majoritarian tyranny over minorities and individuals (See “Two Senses of the Common Good”). It hardly helps that the other axioms of moral thinking touching on legality also influence our thinking on this problem in western democracies (see “The Axioms of Moral Systems”).
If we return to the universality of preferential freedom and the natural rights that allow it, we can make progress toward consensus. Human needs are universal, transcultural, and timeless. Identifying them requires that we pierce the veil of culture and personality to seek the teleological grounding that directs our choices to whatever we think good. I have previously written on some topics foundational to the issue of political rights. These include a review of their origins (“Where Do Rights Originate?”) and nature (“Needs and Rights”). I have also examined some of the confusions attending these foundational questions introduced by the acceptance of a social contract orientation (“Preliminary Thoughts on Civil Disobedience: Natural Rights Issues”) that produce distorted views of government’s relationship to its citizens (“Alienation of Civic Affection”). My goal in this essay is to examine the intersection of natural rights and the political rights they justify or fail to justify, employing the argument that true human needs form the foundation for any claim to rights (see “Needs Anchor Morality“).
The catalogue of human needs below may seem impossibly truncated because we mistake their instantiation in cultures for the rights themselves. Our need for health drives us to the satisfaction of our hunger. Though human nutritional requirements are identical from Basil to Bali (allowing for very slight variations based on age or illness), we see a banquet of means to their satisfaction among the world’s cultures. It is not the cuisine that meets the need, but the satisfaction of nutritional requirements of the human body. If you investigate the stark catalogue of needs below, you can see the multifarious and inventive ways cultures and individuals go about satisfying them.
Briefly put, functional human needs may be stated as follows:
Bodily Goods: health
Economic Goods: economic security
Goods of “the Soul”: love (of others), awe
Intellectual Goods: knowledge, skill, judgment
Political Goods: justice
Character Goods: temperance, courage, prudence
It is a peculiarity of true needs that they exist for their own sake as well as the means to more immediate ends. When asked why health is a non-negotiable good, why it is necessary to flourishing, we must scratch our heads. Of course, it allows us to pursue our preferences, it opens possibilities that its absence must close. But it is more than a simple means to other ends. We see it as a good-in-itself, a desideratum of a satisfying life. Each of the listed needs functions in that way: good in itself as well as the means to other goods. And unpacking this simple list opens up entire subcategories of pursuits that are the means to these broader ends. Just as our need for health drives us to satisfy our nutritional needs in ways dictated by culture and environment, so too do other components of our health needs force us into shelter, medical care, and the rest. These specifications for our need for health each carries its cultural imprint, and persons may be forgiven for thinking their means of satisfaction must be “natural” and others’ means somehow disjunctive. Forgivable such errors may be, but they are parochial obsessions comparable to the tribalism that tells us our own intimates are somehow superior to strangers in that universal pursuit. Reasoning about equity informs us of our errors and, I hope, of the universality of our needs and the commonality implicit in our efforts to satisfy them. What is true of health is also true of our other needs. Unwrapping them yields insights into the components of the need and stimulates us to see in our own culture our unique means of meeting them while moving us to accept other cultures’ efforts as variations of our own. While this acceptance stimulates tolerance for some practices, it should also provide a means of limiting toleration when we see practices that frustrate satisfaction of true needs. Cultural relativism or a sterile legal positivism provides no means to judge the efficacy of cultural practices in communities large and small. A needs-oriented analysis resolves that difficulty to favor human needs over cultural or political traditions that challenge them (see “Foundations of the Law: an Appetizer“).
The discussion at this point can reasonably fork into two directions. The first would track individuals’ pursuit of their needs and seek a morality that would facilitate their efforts relative to their own personal interests. That would produce a private moral system designed to satisfy needs (see “A Virtue Ethics Primer”). A strong case can be made that foremost among the many advantages of a successful private morality must be its consistency with a working public one, and virtue ethics accomplishes that harmony perfectly. But the assumptions of postmodernism and the failures of modernism have scrambled private moral choice sufficiently to cast doubt upon even the possibility of prescription beyond personal belief (see “Belief in the Public Square”). The sanctity of our own freedom of choice is so deeply engrained in popular consciousness that even the most admirable moral prescription for persons will be resented and rejected. Fortunately, our private and public lives can be disentangled sufficiently to prescribe a purely public moral posture, one made necessary by the sovereignty of law and the influence of social custom (see “The Moral Bullseye”). Thus is virtue ethics separated from functional natural law, the former a private moral prescription and the latter a public one.
Notice that this catalogue intersects with political life in two distinct ways. The first is relatively passive: the duty of the state is to provide justice so that persons may actively pursue the satisfaction of their needs. We properly call polities unable to provide that order “failed states.” They do not allow citizens to exercise their preferential freedom to pursue whatever they think good. In examining the nature of moral goodness in The Nicomachean Ethics, Aristotle devoted a fair amount of attention to the golden mean as the median between deficiency and excess that individuals should pursue in the satisfaction of their own needs. The same is true of government in regard to civil order. Too much produces tyranny and repression while too little makes for anarchy. Should states seek their root in a social contract, they are likely to distort the median, for they would be forced to discover the origin of rights in a moment of existential crisis rather than in invariant human nature.
You will note that I have used a basket of judgmental terms in the preceding paragraph, and you would have every right to challenge those judgments’ truth. Why is a dollop of social order preferable to a scoop or a truckload? In this as in any declaration of truth or goodness, we face the problem of warrant. Social contract theory would view the proper role of civil order to be an outcome of the arrangements made among free persons in the state of nature and therefore open to any level of order that arrangement accepts. And this is a problem, for it is based on a fiction derived from miserable historical circumstances that prompted thinkers to distort their understanding of what they needed so as to ameliorate their intolerable conditions. The earliest theorists of social contract theory fell victim to that mistake, for which we still suffer the consequences.
So what theoretical foundation marks the correct place on the line between tyranny and anarchy and how can such a determination be justified? That spot is determined by applying the sole active duty of government: to provide justice.
How is justice to be determined? What makes the U.S. Constitution preferable to the Russian Constitution of 1918 promulgated by Lenin? Put in more general terms, if you view justice through the lens of culture and contracts, wouldn’t any expression of the general will prove just, provided it secures the approval of its citizens? If a contract transfers power to a government, doesn’t it become the very definition and standard of justice? This is, indeed, precisely the argument proffered by postmodernists, who are forced by their theoretical foundations to defend a radical cultural relativism. If the Reichstag approved the Nuremberg Laws, on what grounds may anyone but contemporary Germans challenge them? If Nelson Mandela was convicted of sabotage in South Africa, on what grounds was he to be defended? Americans think democracy the finest of political arrangements. Why shouldn’t the people define “rights” in whatever way they see fit and enshrine that position in their constitution as we see in Saudi Arabia or North Korea?
Who really thinks that way? The justice that good governments must actively pursue cannot be grounded in contracts or laws regardless of their apparent support by the majority. It should be clear that the metric by which we evaluate that progress or regress is the welfare of its citizens. And welfare is a suitable shorthand for the satisfaction of those needs that government exists to satisfy, not only for the majority, but for each and every citizen. These needs are few, but only government can satisfy them. And all of them are arbitrated by justice.
The implications of this charge are profound. First, that government is subordinate to the individuals who turn to it for justice. Their needs justify its existence. Since the same human needs have demanded attention from the dawn of time, we must also claim that government has existed to satisfy them for just as long. Accept that claim and you are forced to reject the entire social contract justification and with it the distorted view of the relationship of citizens to their government. For instance, in establishing social order, government has the duty to plow the ground, so to speak, for the flourishing of each citizen under its power while also respecting their need to participate in decisions affecting their welfare. Since citizens hold some needs in common, their satisfaction entails collaboration rather than competition, and though legislators by design must satisfy the majority, they commit an injustice when they act to thwart the pursuit of true goods of even a single citizen and also when they fail to act to secure those goods that only government may satisfy for their citizens. The reverse is also true, of course, for government should not prematurely attempt to act from a distance to fulfill needs that only individuals should satisfy for themselves. The only exception to this rule should be invoked when the individual cannot meet that duty to self through no fault of her own. The success or failure in these efforts must always be set upon the scales of justice. But defining the term used in this sense leads us to a definition that no constitution or contract could possibly amend or nullify. Seen in this light, civil order is but one means to a larger end. It provides the setting in which government must act out its role: the pursuit of justice, defined as to each her due.
If we examine that role more closely, we can find useful tools to weigh government’s success in that primary duty to justice. It discharges it in three ways.
The first is so obvious that even social contract theorists see it: to protect individuals’ rights from abuse by other individuals operating alone or in concert. This effort focuses on the threat or application of retributive justice. A criminal or a rogue nation with nuclear weapons both threaten the flourishing that every person has the right to pursue, and government has always existed to safeguard that right. It goes without saying that government has not always accepted all of its obligations to justice or that it has been entirely competent in its administration, but it is this duty that legitimizes the monopoly of power, termed sovereignty, that government exercises. It is literally the court of last resort wherein persons suffering or threatened by abuse seek out justice (literally “what is due,” meaning the satisfaction of their needs/rights). The view of social contract theorists is in this regard is closer to truth than in regard to others, though these powers of government were not granted through their surrender by individuals in some Edenic myth time nor could their exercise properly be viewed as a zero-sum power game of individuals versus government. Used justly, its retributive power is a win-win for individuals and whole societies who have always used it to restrain and punish abuse.
Second, government satisfies those needs that citizens cannot meet as individuals. The term for this category of effort is contributive justice, enterprises too complex or large for citizens to undertake, that benefit all by their scale or by the application of expertise not available to the acerage citizen. The “common good” is frequently used in this context, but its meaning has been confused. We can find no justice when the term is used by legislators to satisfy desires in the interests of the majority based on the erroneous assumption that varied desires can never be reconciled. While individuals differ about what they want, they share common needs, which makes their satisfaction far easier than it might seem to those of a utilitarian or pragmatist bent. Should the supposed common good enshrine the wishes of a majority over the needs of a minority, even a minority of one, justice would have been denied. Rather, the measure of justice should be a truly common good: meaning efforts that meet common and universal needs that individuals simply cannot satisfy by their own efforts either because that satisfaction is beyond their capacity– think infrastructure–or because its satisfaction would deprive them of the time to pursue the needs that only they can satisfy– consider environmental monitoring. In cases of scarcity, equity demands that all persons are due the satisfaction of their needs to a similar degree (see “The Riddle of Equality”). One might use food distribution in a famine or large-scale efforts to fight plague as examples. Justice does not demand an equality of allocation each compared to each but rather that each receives her due as fully human persons (this distinction characterizes the difference between fair and just). It is both unjust and immoral for some to lack the fulfillment of their needs while others enjoy sufficient benefits to fulfill innocuous desires. Government fails when it fosters that kind of abuse. The standard must always be the rights of citizens to have government meet those needs that government exists to fulfill. Whether it goes further and fulfills innocuous desires involves exactly the same issues faced by individuals as they satisfy their needs. Needs demand priority. Other pursuits are fine if they do not interfere with the satisfaction of needs (see “A Virtue Ethics Primer”). We see rich governments sharing their excess income with their citizens or building pleasure palaces for their amusement. This indulgence is neither just nor unjust so long as every citizen’s need for government is satisfied. It goes without saying that it constitutes a gross injustice for any to luxuriate while others lack sufficiency (see “Economic Justice”).
And that introduces its final obligation. The third duty of government in regard to needs-rights is and should be more controversial. What constitutes its duties to distributive justice? How does it arbitrate claims that are neither clearly abuses like violent crime or foreign attack nor clearly for the general welfare like building infrastructure? When claims to rights are in conflict, how does a just government respond? This issue has been obscured by utilitarian and pragmatist arguments espousing the finality of desires as moral goods. Under these systems no one may interrogate the desires I form from my unique experience. These theories hold that I have every right to demand what I desire so long as it causes no one else harm. But this libertarian position is nonsensical for two reasons. First, a culture that views all desires as equally valid forces government into majoritarian bind that misallocates resources and potentially violates the rights of minorities. But government’s bind is no worse than that of the individuals who try to apply this rule to their own behavior. No one can spin out the long-term consequences of her choices sufficient to apply such a limitation. I just don’t know and can’t predict all the results of the choices I make, both immediate and long-term, as possible outcomes stimulate later ones ad nauseam. Should we ask government to make such a determination for us? That would require both more wisdom and more power than we might possibly expect or be willing to grant it. So in practice, the utilitarian in government service as the pragmatist in private life simply does the best she can as government attempts the impossible balancing act of juggling all the various wants of all the various constituents it serves, with positive law in theory rewarding majoritarian interests at the expense of the minority. And let us not forget that money in politics skews even healthy political arrangements in practice. Even without that corruptive influence, a utilitarian view of government will never satisfy the demands of distributive justice because even in its ideal application, it treats all citizens’ desires as equally worthy of acceptance by the majority. If they agree to deprive minorities of some rights (American women before 1920),of total citizenship (clergy in France in 1793), or of humanity itself (Soviet era gulags) who is to object? It is an exceedingly poor moral system both for individuals and the government whose charge is to deliver them the justice they are due (see “The Problem of Moral Pragmatism”), but its deficiencies are masked by the ease with which it can be applied to any situation as a compromise version of public morality.
The operative distinction in distributive justice must be that of kind and degree (see “Income Inequality”).. Simply put, all individuals will be haves in the just state. They will share an equality of kind that gives meaning to another Jeffersonian phrase: all persons are truly created equal in kind, as human beings pursuing the satisfaction of their needs. With that equality established, differences of degree are to be celebrated as desirable outcomes rewarding variability in persons’ talents and efforts. So long as all have a sufficiency of their needs, so long as they share that fundamental equality, justice is served. Since an equality of degree in the communist model is both unjust and unattainable, polities should strive for a just equality of kind. Such a baseline is not entirely a moving target for two reasons. First, needs remain constant regardless of culture or epoch. Second, most needs are the moral responsibility of the individual who pursues them, not of the state. For the government to procure those kinds of needs for its citizens would be tantamount to treating adults as children to be provided for, the very definition of a “nanny state.” We see in this application that theory and pragmatic reality coincide, for who can better satisfy my needs in the maelstrom of circumstance than I? That being said, we must also remember that distributive justice is a continuing responsibility of the government as the collective voice of its citizens. Unless it resets the generational starting line, inequalities of degree would accumulate to produce eventual inequalities of kind as the haves accumulate far more than their due because of maldistribution of the goods that all need in the polity. Justice and equity then demand some redistribution of resources to level the generational starting line, to open opportunity. The progressive income tax and estate taxes exemplify this practice. Demanding a “flat tax” or eliminating a “death tax” will produce gross inequalities of degree that over time lead inevitably to injustice and inequalities of kind that violate human rights. But seeking a healthy equity is not easy. This kind of balancing act must use justice as its fulcrum, for all sides will find the continuous effort to redress inequalities of kind both frustrating and exhausting, possibly leading to an undeserved loss of trust in the government that must constantly struggle to balance the real and vital needs of its citizens, their natural rights and to limit its efforts to those that justice identifies as political duty. If government exists as a mechanism for justice, its most difficult function must always be the just distributions of goods to persons whose failures are the product of their own preferences. Now two conflicting moral precepts operate upon this situation. The first says that most needs are the responsibility of the moral agent. The second that persons’ needs are non-negotiable and must be satisfied if they are to flourish. So what is government’s duty to justice in such a setting? I would argue that the preemption of needs should dominate government’s determination of moral responsibility. Because needs are universal, they can be easily specified as the baseline below which flourishing becomes impossible. Responsibility is not as easy to apportion, and so the influences on preference inevitably become obscured by considerations of fairness and the impact of genetics, psychology, sociology, and morality. These factors are not calculable and so cannot be put upon the scales of justice. In a just state, distributions will exceed the strict standards of fairness because those standards cannot be adequately factored, and the surpluses of “haves” allow some latitude in government’s determinations of just distributions. In times of scarcity, a more stringent calculation of relative fairness of distributions is likely to predominate. In all cases, the goal of justice ought to be that all are “haves” of those goods that persons need to flourish, though all citizens must recognize that the procuring of those goods must always remain their primary moral duty.
Government’s duty to justice mandates that it operate successfully in each of these three spheres: retributive, contributive, and distributive. In its pursuit of justice, government faces the same challenges that individuals do: how to arbitrate competing desires so as to maximize the identification and achievement of true goods, always bearing in mind that true needs, and the rights that derive from them, are non-negotiable. But an examination of the U.S. system reveals a shocking lack of specific referents to these duties coupled with a sustained suspicion of government as an entity and a consequent desire to limit its power to retributive justice, a function it discharges with some competence. Its contractarian roots confuse government’s efforts to pursue the general welfare, an understandable diffusion of effort prompted by a majoritarian conception of “the common good.” In this effort, as in so many others, the fundamental misunderstanding of government’s duty to justice leads to a competitive arbitration of competing interests, all in the name of — and all a clear contradiction of– the common good. As for government’s third duty, there seems almost no consensus on issues of distributive justice at all, reflecting a general ignorance of the nature and extent of rights. In truth, references to rights in the foundational documents of the U.S. are either hopelessly generic or purely political. In either case, they fail to establish either a foundation for political rights in natural rights or a delineation of government’s duty to meet them. Where they are spelled out, in the Bill of Rights for example, they build a bulwark against government overreach rather than a foundation for the just pursuit of natural rights.
We can see some small intersection of natural and civil rights in the U.S. Constitution’s first ten amendments, added to the document after much dispute two years after it was submitted for ratification. Each item of the Bill of Rights provides a civil right. Taken together, they illuminate the relatively poor understanding of natural rights that the Founding Fathers inherited from the early social contract thinkers who were desperate to find alternative warrants for government power after the collapse of authority in the preceding three centuries (see “Modernism’s Midwives”). Because a social contract orientation falsely imagines rights as being rooted in such documents rather than in the unvarying ground of natural needs, these particular civil rights have achieved a near-sanctity far beyond their desserts. And because the Founding Fathers viewed government itself as a conventional arrangement legitimized by consensual sacrifice of freedom, they established an oppositional relationship between individuals and government they regarded as a necessary evil. This was an unfortunate distortion of both the history and legitimate basis of government that has reverberated through the centuries. It certainly warped the Bill of Rights. Yet for all their imperfections, these purely political rights manage to keep alive in political theory at least some sense of the means by which positive law might frame the necessary respect for the needs that prompt them. As cultural artifacts of their era, they further illustrate the manifold ways that governments may find to recognize and protect the human rights that give them purpose. As The Federalist Papers illustrate, the Bill of Rights might have been quite different yet equally effective.
The First Amendment, perhaps the most powerful, appeals to core natural rights and to intermediate means to protect them. The Establishment Clause recognizes the human need for awe, the recognition of a deeper reality than the material world, the source of all religious faith that is incidentally an impetus to an appreciation of beauty. To protect individuals’ right to interpret that impulse freely is a civic necessity, something no nation had recognized prior to the founding of the United States. Every empire and nation in existence had mandated belief in official state religions, and most saw such affiliation as inseparable from civil order (see “Theocracy and the Commandments”). To accept the moral autonomy of persons in this regard was a truly revolutionary moment in history, a realization no doubt prompted by the Reformation horrors of recent memory.
The rest of the First Amendment is less foundational. It enshrines the intermediate needs of persons to pursue the political goods of civil order and justice by developing their own knowledge and judgment of its proper role in maintaining order and delivering justice. Since all such judgments rely on a proper understanding both of their own needs and their own responsibility in justice to satisfy them, citizens seek freedom of speech and assembly to negotiate their own responsibilities and their government’s. The Fourth through the Eighth Amendments are powerful reminders of the primary duty of government to safeguard citizens’ right to pursue retributive justice in criminal and civil law (and more recently in international law). They also demonstrate the deep distrust of government that has uniquely alienated Americans from their own government ever since.
That suspicion attends others of the first ten amendments as well. We see in the First Amendment’s civil right of petition the distrust of government as a threat to liberty. That point of view, so corrosive in our own era, continues to manifest itself in the Second, Third, and Ninth Amendments, as well as the section of the Eighth Amendment prohibiting cruel and unusual punishment. But there is something incoherent about these particular protections of liberty, isn’t there? Why are these civil rights specifically protected and not so many others? The Ninth Amendment protects unenumerated rights, but how can it protect what the Constitution does not specify and how can it distinguish such phantom rights from whatever the majority decrees? Such phlegm is hardly worth expectorating and justifies Robert Bork’s characterization of the Ninth Amendment as “an inkblot.” On the other hand, if the enumerated powers clause of the Tenth Amendment actually does restrain the federal government from doing anything not specified in the Constitution, why are these particular rights additionally protected? Does the Constitution otherwise explicitly sanction cruel and unusual punishment or imply such a sanction to require a specific protection in the Bill of Rights? If the Ninth and Tenth Amendments are violated by positive law– and the explicitness of the rest of the Bill of Rights seems to indicate the expectation of the Founders that they would be– why would they expect any rights to be respected? I am convinced that the apparent contradiction only illuminates the real one: social contract orientation could provide no justification for civil rights more fundamental than the positive law that the Constitution supposedly regulated. If the founders could disentangle natural rights from social contract justifications, they chose not to, and since no contract theorist had attempted the feat to ease the effort, they understandably had little motivation to blaze the trail. What they did have was Hobbes’s clear rejection of virtue theory and natural law coupled with an explicit rejection of rights in his initial formulation of the social contract. The historical conditions Hobbes took to be natural dictated not only a contract but one that regarded all legality as artificial and positivist, and that orientation precluded any appreciation of the naturalness and inherency that a rights theory requires (see “Why Invent a Social Contract?”). The effort to graft rights theory to a contract document was not only a failure but a repudiation of the root axioms of both.
And what about the natural rights that are not recognized in the Constitution? Nowhere does it acknowledge, must less protect, the rights of individuals to an education as an intermediate means to develop skill and judgment, not to mention the civic responsibility to pursue justice. These lapses are foundational. A closer adherence to its original intent will do nothing to correct these deficiencies.
Other iterations of civil rights have been more explicit in their recognition of human rights while also tailoring positive law to specific cultural conditions. The French Declaration of Rights of Man and Citizen is an interesting document to compare to the U.S. Constitution, since it was promulgated at about the same time to regulate a vastly different polity. Thomas Jefferson participated in its construction. It seems he learned something while posted to France, for the document is far more clearly rooted in natural law than the Declaration of Independence written thirteen years earlier, wherein rights were rooted, according to Jefferson, in traditional social structures rather than universal human nature. The French document’s seventeen articles contain a recognition of the primacy of justice, both retributive and distributive. Examining it in comparison to its American counterpart demonstrates clearly how varied cultures appeal to a common set of human needs to construct their own version of civil rights. The most famous modern example is the United Nations’ Universal Declaration of Human Rights shaped by Eleanor Roosevelt and adopted in 1948. Its thirty articles are perhaps the clearest articulation of the intersection between human and civil rights. As an aspirational document, the Universal Declaration is an excellent summation of recent thinking. Even so, we have all learned a thing or two about human rights in the intervening half-century. Though rights themselves do not evolve, thinking of their articulation in polities clearly does.
These documents, written over nearly two centuries, demonstrate an emerging understanding of the positive function of government as neither the source nor the arbiter of rights. They certainly challenge the erroneous assumption that government is a threat. Rather, its monopoly of power makes it the guarantor of last resort. To quell threats of aggression, satisfy foundational or intermediate needs that citizens cannot accomplish individually, and arbitrate the satisfaction of individuals’ needs when they are unable to accomplish this moral duty themselves: these are the duties of the state to its citizens. It has always existed to satisfy these needs for civil order and justice from its earliest days when clan elders wielded their power over extended families. Human needs have not changed since those primitive days, and government still exists to carry its share of the load for individuals under its protection. Their moral duty is to satisfy their own needs according to their own traditions and to the degree that justice demands. Government, their collective will and intelligence, does the same. No government has succeeded very well in delivering the satisfaction of those human needs that only it can secure, but then it’s done no worse than the citizens whose moral duty is to secure the rest of them for themselves.