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 can make a consistent case for the legality of human rights as part of a universal system of public morality.
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 only negated 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. Should such a system 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 will, and 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, the Enlightenment thinkers faced an urgent need to warrant legal power by any means that might find consensual rational acceptance. They cobbled together 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 warrants, they figured out a means to find 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 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 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 human 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. 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. Since the power of government is, even in their 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, we face a gross confusion about the nature of rights. If they derive from law as both social contract and legal positivist theories claim, 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 government oversight must tempt it to what should not be done, a temptation called “government overreach” today. 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 called rights as well as a collection of specifically legal provisions. 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 legal positivist and social contract theories, government itself is seen as 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 Rights and History (1953), to conclude that the social contract theorists had failed to secure any defensible notion of rights at all. That defense would require both some inalienable and universal quality inherent in persons and some reason why this quality would conduce to definable rights. Legal positivism and social contract can offer neither support. Why is this seemingly empty notion still proposed by a culture that relies on them?
Critics of the hypocrisies of western governments bring that question up frequently, and its defenders find themselves stymied by their own history and the theoretical tangles it has produced. To champion a concept they intuitively admire, they think they must attack both of their core justifications for government power and favor one that liberal western democracies have struggled to put behind them for three centuries, a theory of natural law ordained by God. They richly deserve the cynicism that greets their foggy but imperious defense of human rights and their even murkier articulation of the theory of natural law that should justify them. But they are wrong to consider founding human rights upon that basis, for it could only support half of the formula that makes them defensible.
To find the original justification for a concept of human rights rooted in law, we have to return to the era before social contract was used to validate such things to the height of the power of religious authority and to Thomas Aquinas. This return puts us under the aegis of the most ancient justification for government, divine command. The thirteenth century theologian presented the first solid grounding for human rights in his enunciation of the natural law, which in his understanding was that subset of a larger divine law amenable to human reason and underwritten by the theological authority of the Roman Catholic faith. Aquinas made the relation of authority and reason quite explicit; in cases of ostensible conflict, reason must bow to the religious authority that governed it. That was appropriate both to the times and the topic. No challenge to authority could be bruited in the thirteenth century any more than it could have been in the third or the thirteenth B.C.E. Such an assault would have to wait three hundred years for the sixteenth century nightmares of the Reformation. Aquinas’s contemporary audience would have been entirely satisfied to find natural reasoning bolstered and corrected by divine authority of tradition and revelation. That is fortunate, for his theory of law relied upon it in clear preference to human reason (see “Divine Justice“).
Aquinas rooted the entirety of the law on human dignity sourced in persons’ resemblance to the Creator. The Uncaused Cause had instilled in each of us a piece of divinity, the soul, that grants us a freedom denied to all the rest of creation, a means of self-creation analogous to and derived from the free action of God. We might be spirit imprisoned by matter, but that spirit could act freely to choose good or evil, heaven or hell. The corporate and God-ordained structure of civil law allowed each person a small latitude to act within the scope of natural reason, which in Catholic doctrine allowed him the semi-pelagian freedom to earn a bit of his salvation. In this spiritual vision, the goods of this life were subordinate to the cardinal and supernatural virtues decreed by Christian tradition. These were communicated by private revelation long since transmuted into doctrinal authority. The “natural” part of his legal theory was amenable to reason and sanctioned by custom, a system designed by God and overseen by His stewards whose justice placed one foot in this world and one in the next. This bifocal view of justice necessarily subordinated natural reason to a divine authority that ultimately arbitrated each man’s fate. It was characteristic of such a view of natural law that it specified duties of persons rather than rights due them: duties to “natural” authority that is God’s voice on earth no less than to God Himself. It follows then that it defended a stasis of the social order with the force of divine judgment. Nothing in this construct allows for the existence of human rights. It is necessarily a profoundly conservative orientation, one still defended by reactionaries nostalgic for premodernism (see “Tao and the Myth of Religious Return”). They correctly identify the single prerequisite for universal human rights: personal prerogatives that must supersede positive law and social custom. That can only work if persons can claim some quality that not only elevates them above any one government’s decrees but above all, and only if that quality is universal and inextricably linked to their humanity. Anything less tempts majoritarian or positivist domination. Traditionalists see that quality as the soul and hope to base their theory of natural law and the human rights it delivers on its existence.
But their hope suffers from six defects that must doom its contemporary revival. First, such a religiously derived vision of law could not survive the Reformation anarchy and the social contract inventions to follow, regardless of their wobbly construction, nor could it revive universal respect for religious authority as such today. A second impossible obstacle would be a defense of the human soul as the source of the dignity that requires a set of rights transcending all positive law. St. Augustine’s famous dictum that an unjust law seems to be no law at all exemplifies the standards by which natural law presumes to render judgment on statutes and constitutions, but that standard cannot base such binding power upon what many citizens today regard as a phantom. It is true that the actual existence of the human soul would provide the universalism that human rights relies upon and would justify human freedom and dignity as well, but the axioms of current public morality would doom and indeed have doomed that kind of assertion (see “The Axioms of Moral Systems”). Third, the unique freedom derived from the action of the soul has been eroded and continually challenged by the findings of natural science, particularly in the last two centuries. That science is founded upon a contingent determinism that denies the very concept of human freedom that Aquinas stipulated as an echo of the divine command. Any defense of human dignity and responsibility must counter the determinist thesis, and that must prove difficult in the current culture when empirical science weilds the power that religious authority once held (see “The Limits of Empirical Science”). Two additional and specifically Christian issues derive from seeking a spiritual source for rights and must be added to this already impressive list of objections. The first was most clearly represented in John Finnis’s effort to defend just such an argument, Natural Law and Natural Rights (1980). The Christian duty to universal love imposes a set of obligations to strangers that must be reflected in positive law: the duty to love all others as one loves herself and her family is the central moral tenet of Christianity that somehow must be included in any Christian formulation of the natural law. Legality would have no way of either denying such obligations or fulfilling them, a problem manifested in theocracies from sixteenth century Geneva to the thousands of utopian experiments in nineteenth century America. Speaking of Geneva also recalls another crippling factor that was added by the new Protestantism thanks to the work of John Calvin: the hobbling of reason by a natural depravity caused by humanity’s sinfulness sufficient to challenge any rational construct of law and any subsequent enumeration of rights. To reject the Calvinist thesis in favor of the Catholic one would necessarily revive conflicts of authority that would throw the entire enterprise into irrevocable dispute yet again. Finally, nothing in a religious conception of the soul reinforces a theory of rights. Natural law in this view consists of duty to God rather than the rights of man. You will notice that no defense of human rights has ever been made from within the context of theocracy.
All of these objections took some time to recover from. The social contractarians of the Enlightenment began that recovery by imitating the new science that gradually freed the natural world from the supernatural grip of miracle and mystery. The “science of man” could make no room for the directive force of the soul, and so what was seen as natural in the human person shrank to what natural science could find there, or more to the point, what human science could imagine there (see “The Calamity of the Human Sciences”). The tenets of modernism, reason and closely examined experience, raised crippling objections to any formation of a secular morality. Reason objected to the derivation of any good from any truth. Even assuming that we could rationally comprehend reality with complete accuracy, how would that knowledge allow us to derive any directive good without adding a connection not present in reality itself? This is/ought divide, most clearly revealed by David Hume, called into question morality’s claim to rationality (see “Truth and Goodness Do a Dance”). And as rationality was brought to bear upon experience over the course of the nineteenth century, it was seen to be resistant to objective judgment because of the uniqueness of individual psychology, the formative influences of culture, or the powers of passion to divert reason. These positions were most fully developed by the postmodernist movement of the twentieth century. The core reason for each person’s preferences in that model is the formative power of environment upon persons who are determined by experience rather than directive of it.
The currents of public morality in our own day provide no support for rights (see “Toward a Public Morality”). The premodern view offers a common dignity built upon a spiritual foundation unlikely to ground a public morality in contemporary life. That same religion that finds the existence of the soul sufficient ground to consider life a sacred gift from the divine can make no space for inalienable rights, only duties built upon various interpretations of the divine law. On what grounds could today’s religionists possibly demand rights from the God who lends authority to government and by what source could they appropriate God’s right to themselves? The most famous modernist source of government, social contract, has only muddied the waters with its fictive state of nature and conventional view of the birth of law. No defensible source of rights may be derived from that source even though it is consensually accepted nowadays as the foundation of secular theories of government. We cannot say that postmodernism sanctions any source for government, viewing its very existence as exploitative and constructed upon fictitious narratives whose intent is both to perpetuate and disguise extant power structures. Considering the modernist view of social contract as one of those false narratives, postmodernism becomes a bit more understandable even though the conclusions it produces shreds social consensus. Its defense of positive law is strictly pragmatic and justifies human rights neither more nor less than any other source of power. This flaccid view explains the shape-shifting and muddle-headed efforts defenders of human rights make in the current environment.
Any theoretical grounding of human rights must overcome these positions and the axioms that make them tenable and advance a defense of legality congenial to public morality. Although that would seem to indicate a reworking of current theories justifying law, I contend that these are too compromised to support a workable theory of legal power itself, much less a defensible source of human rights (see ‘Foundations of the Law: An Appetizer)?
First, as law is the clearest and most potent body of public morality, we must seek its warrant through means amenable to public approval. Even considering granting or withholding this approval demolishes the contemporary argument that persons are merely the passive product of their environment, twigs carried upon the stream of determinism (see “The Determinism Problem”). That same felt freedom to choose truth and goodness disqualifies religious justifications that rely on divine command for the same reason they were abandoned in the miseries of the Reformation. Authority may be accepted by religionists today, but it will always be accepted only provisionally, subject to the rational inspection of the believer, for we do not live in a univocal age of faith. Secondly, any guidance we might receive from social contract justification regarding the rights of individuals and majorities should be rejected on sound historical grounds. As a metaphor for citizens’ relation to the state, it is a lie, for individuals have no ability to revoke a contract they dispute except by force, which Jacobins and Bolsheviks have proved has little to do with majorities. True, majorities may change laws, but then there may be no limit to the tyrannies inflicted upon minorities or the powerless as history has also shown, nor would it be necessary in such legislative largesse for government to either identify or codify actual rights. Even should some brilliant congress manage the task, its legislation might have no impact on other peoples under other jurisdictions. On what grounds could any such claim be advanced other than one based on cultural relativism? We see this problem in the foreign policy of western democracies today. Finally, the presumptions of social contract theory see the state as playing the role of neutral referee in arbitrating the manifold conflicts among private interests, but its neutrality must always be under suspicion as must the issue of the proper limitations of its involvements. In that orientation, government cannot argue for anything the majority has not approved without being accused of favoritism to some faction, but then that same orientation compels it to argue for whatever the majority approves regardless of the effect on the minority. Finally, the postmodern iteration of law as brute reality is the worst of all options since all of the suspicions that attend other justifications must leap into focus for those who can find nothing whatsoever to warrant any specific legality except the words on a page and the coercive power of authorities they cannot trust. None of this will produce justification for legality per se, much less for human rights defended by it.
Let us work backward from the vague contemporary view of human rights as the contention to be defended and seek its warrant. The most generic characterization of the term seems to claim that there exists some set of goods that all persons are somehow entitled to for some reason that, if enunciated, would prove utterly convincing to a disinterested judge. Even the most ardent defenders of human rights do not claim (a) that these goods have been codified by positive law anywhere or (b) that the entitlement of all person to these goods has been clarified or (c) that this entitlement has ever been warranted in an objectively compelling manner. Detailing these failures also enumerates the requirements for success, for any defense of human rights must accomplish these three goals in the face of those objections presented thus far. Here is how that can be done.
Our obligation to provide a warrant acceptable to a dispassionate judge must move us to an appeal based on reason alone since it is apparent to all both that we enter the discussion from a position of mutual distrust and that our varied experiences will only continue to nourish it (see “The Tyranny of Rationality”). So let us start from a clean slate to examine the question as those in the Reformation were forced to, only without the stresses of the need to extemporize some ad hoc justification in a moment of a total collapse both of order and hope.
Putting religious warfare aside, we find no savage state of nature, no war of each against all, and no irreconciliability of conflicting authority. Human history reveals no time when government did not exist, no time when families, clans, tribes, villages, towns, and cities did not function by a rule of law. It is true that for nearly all that time the power of tradition and of religious authority energized government and shaped its formation, so much so that the first contractarians were at a loss about how to shape it otherwise when religious authority splintered into sectarian stridency. Defenders of tradition still see it that way despite the impossibility of reviving unanimity about the nature of a divine command. But take away the downward flow of power and direct it as modernism does: upward from citizen to ruler. Ignore the contradictory commands of innumerable interpreters of divine will and consult what modernism has created a space for: your own moral autonomy. Ignore too for now the possibility that haunted those early modernist contractarians: that our varying visions of political goods must lead to a tyranny of the majority created from the blank slate of endless moral visions in contention. Instead of imagining some primal age of anarchy, consider those desires common to a family as directed by its parents, to a clan by its elders, to a village by its head as all go about the business of securing their separate goods. Forget those various things individuals variously want. What common things do they need and to which of those needs should government respond? Keep that thought in mind.
Now narrow your focus to the citizen of no particular time in no particular state governed by no particular theory of legal justification. As she goes about her business, she must first assess the reality each moment presents to her not because it is important for its own sake but because these passing moments prove useful for her to do something uniquely human. As she assembles and weighs the elements of her experience, she will a thousand times each day assemble from them options upon which she may act or refrain from acting. This depends not at all on her intelligence or education or environment: each contributes to but none can preclude her natural freedom to recognize choice in the welter of experience. This banquet of choice accompanies every moment of a human person’s consciousness. This option to recognize truth and to choose goodness is every person’s birthright. It is both particular and universal in that the experience that shapes it must always be particular and filtered through her understanding, but in responding to it, she must go through a process common to every person who has ever lived. Any interference in this constantly renewed process of recognizing choice diminishes or destroys her humanity. By token of being what she is, she is entitled to this natural freedom and the natural rights that deliver it: life and the liberty within it to pursue her own happiness.
Consider these the preconditions of rather than the means of choosing. When Hobbes and Jefferson said all men are created equally entitled to these things as goods, they were correct but were insufficiently attentive to the next steps in the natural pattern of human choosing. For a person must not only recognize choice. She must also choose one option over another with intentionality, saying that this is good, better, best or bad, worse, worst regardless of her criteria for choosing. This intentionality is also profoundly human, but it is not entirely natural. We may hope to get better at it through the self-education of thoughtful practice. We may joke about the courage of the first person to eat an oyster or drink milk from a goat, but we all must learn from experience what is healthful in food. We do not innately recognize that the oyster is good and the shell not. We learn that from exercising conscious intentionality in experience. This too is an inevitably human act, but unlike natural freedom, the exercise of this preferential freedom may be shaped or hindered by the actions of others and indeed must be aided by the works of a social environment: family, friendships, community, and polity. These are as natural to the human person as education and indeed they make it possible, for they direct each person’s experience. The lessons of experience are secured or lost by the exercise of preferential freedom in an environment that opens the widest range of options to their fulfillment. This is the universal human duty and its operation structures the meaning of human rights. None of this is either granted or defined by government. Human rights directs choices of preference. Their universality stems from the universal task of choosing well so as to increase our own flourishing. They begin with each of us. Government’s natural duty is to protect and in some areas fulfill these inherent rights to good preference.
Each of us bears primary responsibility for fulfilling these for ourselves. Families seek to assist us through education, in advanced countries through formal education, whose purpose is to open children’s eyes to preferential freedom so that they might exercise it to advantage, might in other words call “good” those preferences that truly are. In each category of choice, it is to be hoped that their preferential freedom is exercised constructively, so that their diet is truly good to conduce to health, their choice of occupation conduces to the independence of sufficient material wealth, and so on (see “Needs Anchor Morality”). In this view, persons literally construct themselves from the opportunities their natural freedom presents to them and the preferences they exercise endlessly. What families do for their children, governments do for their citizens, but with one crucial difference. Families are naturally motivated by a love that prompts sacrifice of self-interest, particularly in the care of children until they reach the age when they may care for themselves. Do we act from the same framework in political choosing? We are told to love our country and to feel a grateful attachment to it that can only be compared to familial love. Should we uncritically embrace this notion, so clearly implied in words like “fatherland” and “motherland”? After all, the very word “patriotism” evokes filial duty. But is this an accurate proportionality, a workable relationship? Can citizens relate to government as they relate to family and vice versa? If not, what term captures a proper relationship of government and citizen?
To answer that question, we should see government just as we saw family, as a natural entity involved with citizens’ acts of self-creation. Government exists whenever and wherever persons live in groups. It is like family in that regard, yet clearly its function is not the same. Natural it may be, but government is rooted in the interactions of strangers, and just as family and friends properly operate within the sphere of love, we may seek the proper sphere of our interactions with strangers. It may be equally natural, but it operates from a different principal. It has to. Persons in close contact cannot fail to reveal to each other their deficiencies and flaws, and these require patience and persistence to drive the constant preference for what families consider good. This is just another way of saying that families (and the friends they make) treat each other with love. This is possible because their numbers are small enough to fulfill the open-ended duties love imposes. No one has to spell all of this out. We learn it by experience, and though we see many types of families, we all understand the common function they serve. When we leave the home, we enter a different social context. Now we are in another world, equally natural, but composed mainly of far larger numbers of persons whom we do not love: aquaintances and strangers. Our preferences in this larger world must account for the impossibility of applying our familial standards of love. These persons do not know us, cannot engage our concerns, forgive our trespasses, reinforce our weaknesses, or have us do these things for them. They cannot love us. So how do strangers fit into this set of natural social relationships in regard to our rights, always assuming that the bonds of proper obligation and privilege vary with intimacy (see “The Moral Bullseye)? What characterizes our political relationships that distinguishes them from our familial ones? Since the core duty of a human person is the constructive exercise of preferential freedom, we must seek the means to maximize this effort in the public sphere. Do we owe this aggregation of strangers some form of assistance in their pursuits of the goods their preferential freedom identifies? Given the difference from our family duties, does any supposed obligation to this collective of strangers we call the state resemble the one we act upon when dealing with strangers individually?
A Christian version of rights theory cannot succeed because of the nature of rights and duties. Even if we wished to, we could not treat individual strangers as family. If equity demands that same behavior we show those we love, we would find ourselves overwhelmed by an obligation to assist them actively in pursuit of their own preferences and would have no time for our own. These duties to equity and to our own self-construction are our primary moral duty, though we seem to have also a sympathy that draws us to active assistance to struggling strangers that circumstance throws into our sight. So how can we make sense of these seemingly conflicting moral duties and the rights that we associate with them? If we accept moral responsibility for our behavior, every adult must acknowledge the primacy of her own moral duty to her own well-being. After all, who has the natural and preferential freedom to act on choice? Who can judge most clearly how choices succeed or fail to accrue to our satisfaction? The impulse to altruism is laudatory and real, but it is impossible to exercise consistently and its sporadic indulgence must blur our moral duty. But a persistent effort, on the other hand, must lead us to slight our primary duties to our own well-being and to those we love (see “Empathy: A Moral Hazard”). I realize that this idea grates against our generous impulses, particularly if influenced by a sense of Christian duty. But let me frame this not in terms of duty but in terms of rights. For the connection between duty and rights is a correlative one.
In terms of governing our preferences, a right may be considered a claim-right: the imposition of an active duty on one party to grant another’s right. To put it another way, the same active claim to a right imposes a duty upon some other party to grant it. So if I have a right to health care, a medical professional has the duty to provide it. This works both ways, for if I have a duty to assist you, you know that you have the right to expect my help. Duties and rights must function reciprocally. For instance, duties to God derive from God’s claim-right to obedience. This is a vital point for two reasons. First, the correlative duty derives from the existence of the right, not from a recognition by either party. Women deserved their equality of kind long before men — or they — articulated their claim-right. The relationship between right and duty differs from a contract in that it is not an explicit or conscious agreement between the parties. Natural and human rights are legitimate regardless of whether they are chosen or recognized; their existence derives from a state of being rather than any particular convention. Further, the relationship is not built upon any notion of compromise or mutual advantage. It is not based on immediate utility but rather on what is due. Were it based on positive law, it would resemble a tort rather than a contract in that the obligation of one party to another is independent of the duty-bound party’s desires, though it differs from torts because it does not derive from injury. This difference is important, for to validate human rights is to implicitly invalidate social contract as a distortion of the duty/rights correlation. That means invalidating the primacy of the state, the tyranny of the majority, the cultural relativism of constitutional enumerations of rights, and the legal positivism that must follow these assumptions. The second point of importance in a duty/rights pairing is that my claim-right to my human rights must imply a duty to someone for their satisfaction. For most of them, that duty is laid upon myself. This notion of duty, responsibility, and justice explains why my preferential freedom imposes a moral obligation on me that is inseparable from the rights that I claim for myself. Freedom and responsibility are two sides of the same coin as are rights derived from preferential freedom and the duties of moral choosing they impose on each of us. Only my prudential reasoning can distinguish my duties to myself and to others as we both pursue the satisfaction of our needs.
I hope it is clear that the claim-right of strangers must fundamentally differ from the love we show to family and friends, which is not based on any calculation of what is due. You may ask if one may go beyond what is due and make the attempt to love strangers as one encounters them or as a spontaneous and generous outpouring of sympathy to those whom, in St. Augustine’s words, we happen to come across in our own pursuits. We all feel the urge to respond generously to those whose struggling happens to enter our field of vision. But imagine your impulse to help as more than a casual but heartfelt outpouring. Instead, see it as the template for a moral duty that you impose on yourself. You are granting the stranger the claim-right to your assistance. And not only that single stranger. For the same duty that you grant to one must in fairness be granted to all, for neither the nature of the claim nor your duty to respond to it varies at all from one stranger to another. So if you feel the obligation to assist actively the efforts of strangers to fulfill their preferences, you are also assuming the duty as a claim- right to do so whenever strangers express the need for assistance regardless of your own interests. And if your understanding of active assistance involves only a bit wider sight or a touch more initiative, you impose upon yourself the duty to seek out their need even when they don’t express it. Consider the duty you assume by conferring that claim-right to strangers! Who wouldn’t feel both overwhelmed and resentful of such a responsibility? Probing even a hypothetical resentment would be instructive, for it would reveal that the time and attention demands of such a claim-right would destroy one’s ability to satisfy preferences conducive to the self-construction that is every person’s primary duty and would disallow the means to treat family members with the love that is itself a moral good.
I contend that our duty in regard to individual strangers involves another sense of right, called an exemption-right, one that frees us from precisely the duties a claim-right would impose. Rather than the duty to satisfy their preferences actively, we have the duty to refrain from interfering with them, a duty not to hinder rather than to help. If you accept that your duty is to maximize the options in which to exercise preferential freedom and then to exercise that freedom through the making of good choices, however you define “good,” then you have the claim-right to be allowed by strangers to do that. That imposes an claim-right on them to respect the exemption-right you exercise to act upon your preferences. They have to give you the freedom to do that. Strangers grant exemption-rights to each other: you have no duty to assist them in their pursuits any more than they do in assisting yours.
What about the aggregate of strangers-writ-large that is a polity? Consider the claim-rights that citizens make on government and the exemption-rights they may demand from it. This involves three considerations.
Let us take the easiest first. Just as citizens may claim exemption-rights from individual strangers, so may they demand them from the organic and natural aggregate of strangers-writ-large. Government must abstain from intruding upon citizens’ preferences and must use positive law to ensure that other citizens do the same, for to assume the responsibility for other adults’ preference is to treat them with a paternalism more suitable to parents than to strangers. Such treatment of those we love would demean adult family members by treating them as children whose preferences must be guided and who must be protected from consequences other family members object to. Such actions violate the moral autonomy that is every adult person’s greatest possession and source of dignity. That error is redoubled when it is committed by strangers as individuals or in the aggregate as government. So government’s first duty in regard to citizens is to grant them the exemption-right to be left alone to pursue their own preferences. Libertarians think this passive restraint the sole role of government, assuming that citizens can meet all of their common needs through friendships and family. But they are wrong in that assumption.
What duty do strangers or government owe to persons who suffer those misfortunes that could happen to anyone, even those who consistently choose well? For adults and even more for the aged and the very young, a claim-right may be filed against strangers-at-large, government, in those cases in which healthy preferences are met with bad luck. This stretches the duties of government, but it does provide a necessary safety net for the helpless as it satisfies the generous impulses of citizens observing others in need. It is possible to view this level of assistance as warranted in a tribalist fashion that regards other citizens as having at least some friendly relationships, or at least to see them as more than strangers, and this remnant of medieval social structures still exerts its traditional pull. Our fellow countrymen have suffered some natural misfortune that allows them to exert a claim-right through the mechanism of government as a diluted form of the claim-right we grant to friends. I submit this is the reason we see so many national flags erected over the wreckage wrought by natural disasters and also why we are moved to assist when our countrymen suffer foreign attack. This view also explains the familial associations of patriotic exhortation. Most of us will agree that we can indeed detect some sort of claim-right to assist our fellow countrymen through the mechanism of government when their misfortune is not of their own making, a stipulation that applies to individuals with the same force with which it applies to communities. This seems the most suitable outlet for the sympathetic impulses most feel upon observing strangers’ misfortune and also might explain the stone-hearted response most feel when they observe the undeserving bilking government systems established to assist those who have experienced what might be called an unearned hard luck. Those who earn their own troubles can exert no such claim-right on that assistance when they bring suffering on themselves by their own poor choices (see “Economic Justice”).
A second category of claim-right applies more universally. Citizens have the right to demand that government actively deliver some goods that they simply cannot procure on their own. A working economy allows me to achieve the modest level of wealth necessary for my own flourishing. A capable military protects me from foreign aggression by strangers intent on denying me the freedom I need to live a full life, and a functioning police force accomplishes the same goal domestically. A whole range of goods may justifiably be claimed by citizens of their government simply because they are both necessary for their well-being and unobtainable by their own good faith efforts. We have a claim-right to organize collectively for their acquisition. These common goods are a perfectly natural function for government-as-collective-0f–strangers-in-pursuit-of-universal-goods. Libertarians commit a serious error and an ungrateful one to imagine these claim-rights to be obtainable by any other means or to be imposed as individuals’ responsibility. Government exists to procure these few goods citizens cannot procure by their own efforts.
We must also consider the other party in the transaction. What claim-rights and exemption-rights can government make of citizens? First, a government that acts at perpetual cross purposes in helping citizens pursue their various desires must frustrate those by choosing winners and losers and neglect the preferences common to all. It seems clear that we must limit its duty to the pursuit of a truly common welfare (see “Two Senses of the Common Good”). That is our common claim-right on government. Of course, the mirror claim-right that government imposes upon each of us is that we obey just laws. I might add that this same principal requires us to disobey unjust ones.
At this point, we reach a rocky stretch. In a materialist and pragmatist culture of preference conditioned to think that experience identifies widely various goods arbitrated by a social contract justification for government that expects conflicting choices, is it really possible to think that we can truly identify “preferences common to all”? Allow me to return to the example of food for a moment. Despite the prodigious variation in cuisines, modes of preparation, customs of consumption, and options for purchase, the nutritional requirements of the human person are both relatively simple and species-specific. Adults require a narrow range of caloric intake divided among a narrow range of proteins, carbohydrates, and fats, supplemented by empirically-determined minerals and vitamins, and so on. To eat hay or lead or too much or too little of the food that is good for us must frustrate our need for health. Contrast this simple need with the superabundance of means cultures have adopted to meet it! I submit that our species-specific needs in every respect are not only universal but small in number, though I concede that they are obscured by a consumerist culture intent on conflating desires and needs and by the wide range of means by which persons in different cultures go about satisfying their preferences. We can identify those needs whose preference is a truly human good, ones we should choose from among all the options our natural freedom presents to us. Furthermore, this enumeration of proper preferences constitutes specific human rights that persons require as they seek to procure these goods by their own efforts as well as those in common through government. These universal human needs are the claim-rights that all persons make by virtue of their common humanity. The protection of these preferences involves the negative injunction that persons not be deprived of the opportunity of procuring them regardless of whether government or other persons do the depriving. This is the exemption-right element of human rights. Finally, a subset of these preferences cannot be procured by the individual efforts of those who need them working as individuals and through families and friendships, and it is this small number of preferences as a claim-right that is the responsibility of the collaborative venture of strangers-in-pursuit-of-common-goods. Another name for that hypenated term is government. Those human rights that government alone can procure for citizens under its jurisdiction must therefore be recognized in positive law as civil rights.
So human rights begin a single citizen using preferential freedom to recognize and choose goods. She is abetted by the love of family and friends in that effort as she accrues still more goods and then by government that adds yet more. I should add a collateral benefit of laws that by their very existence assist citizens in thinking through preference, in determining real goods. Law has a negative and a positive role in regard to the human rights that are the species-specific goods that citizens should prefer. As an exemption-right, it must restrain both itself and other citizens from hindering a proper pursuit of goods, and as a claim-right, it must actively procure those few goods that only government can deliver to citizens. That delivery allows citizens to complete the act of choosing that is the uniquely human responsibility as homo sapiens.
Acting on choice involves the last step of human freedom and the most visible. We exercise our natural freedom to identify goods, preferential freedom to discern the best from among them, and finally the circumstantial freedom to act upon those preferences. Put another way, we are due the satisfaction of those goods we need to live the most fully human life as a claim-right, though the duty for procuring most of them is our own. It is no accident that the very definition of justice is contained in this concept: it means to give each person what she is due. And this is just another way of saying that everyone has the duty in justice to pursue her needs and that duty grants rights: to the natural rights that are their precondition, the human rights consequent to their proper choosing, and the civil rights that are their instantiation in jurisdictions. The natural relationship of citizen to government is defined by justice just as the natural relationship of individual to family and friends is defined by a love.
One general and one specific issue remain. How can such a moral injunction as that just explained overcome the chasm between is and ought? Forgive me for laboring this point, but in the current cultural environment, I fear it needs to be. Allow me to explain the sense in which I use the word “natural” in this discussion. To say that families act naturally from a spirit of love is not to deny that many families act from lesser motives, nor to insist that everyone has a psychological proclivity to seek to satisfy any particular preference. I have been careful to focus on preference thus far rather than morality so as to evade any debate about the nature of morality as well as to honor the unique freedom persons have to recognize choice in experience. But while acknowledging this uniqueness, please also note that it is common to every person who has ever lived. It would be strange indeed if this buffet did not produce a very wide range of psychological preference, particularly given the further complication of the power of experience and culture to shape choice. The recognition of this variability is a pillar of postmodern culture, so it would be strange indeed if anyone alive today would object to the notion of preferential freedom. What is far less common would be an unapologetic defense of the desirability, the naturalness, of a common reasoning faculty to arbitrate preference and direct it to universal goods rooted in that same common humanity as the source of human rights. But even if this rational assessment of species-specific human proclivities can be shown to be true, how could it impose a universal moral obligation? How can our nature call us to a duty that our psychological preferences might fail to recognize? Why should our nature exercise a claim-right upon our freedom? You might as well ask why you choose to eat the oyster rather than the shell. Your reason tells you that you eat one rather than the other if and only if you wish to be nourished. You recognize the natural freedom to eat either, of course. You are as free to chow down on the shell as on the oyster. We live in a culture so resentful of external authority that we loudly proclaim our right to any preference whatsoever, to eat the oyster or the shell or the mud it grows in. But the natural right to recognize choice is different from the duty to make the best choice from that recognition. It is that duty exercised as a claim-right upon preference that makes choosing well a moral obligation. You naturally pose yourself this hypothetical as part and parcel of your preferential freedom: if you want to be healthy, you will eat the oyster, not the shell. This hypothetical imperative thus allows you to bridge the moral divide between is and ought not only in preferences directed to health but in all. If you wish to flourish, you ought to pursue these preferences rather than others. Preferential freedom properly exercised fulfills our moral duty without denying our natural freedom, a duty that exerts a claim-right on each person to be just to oneself and to strangers. That is our natural role as persons living in societies, just as our natural role as persons living in families is to treat them with the more-than-justice that is love. It is in our nature to do more for family, to give more than justice demands in part because family most actively assists us in pursuit of our needs and also because our loves and friendships allow us to flourish. We are free to ignore that, of course, but we ignore it in violation of what is best in our nature.
This hypothetical duty to act in a certain way if one wishes to flourish, to pursue certain natural goods rather than other desires, is the defining quality of a secular formulation of the natural law. What is natural for every human who has ever lived is to use practical reasoning in experience to recognize and prefer what she considers good and to act to acquire those goods, to do this over and over day by day and by the doing to gain competence in choosing and so to perfect it over a lifetime. That act of perfecting is flourishing. Another name for that competence is virtue (see “A Virtue Ethics Primer”). Exercising virtue consistently indicates a unity of purpose that is integrity. It is the individual’s moral duty and right to identify and choose the totality of true goods that make up that flourishing in private life. Natural law enlarges that same kind of action into public morality.
The only means to accomplish it happens to require the pillars of modernism: close reasoning about experience. We cannot escape the moral responsibility for that practical reasoning by any shortcut, by any appeal to pragmatic desires, intuitional drives, cultural values, or any other substitute that removes from our shoulders the aweful responsibility of this preferential freedom. Nothing in this formulation privileges tradition or authority, culture, nation, or religion to replace it. That makes it universal. Nor does it require that we assume a teleological purpose to human life, though it is oddly consonant with that older natural law tradition that does, provided the Thomistic formulation of natural law is willing to replace its claims to supernatural knowledge of human purpose with an honest confession of belief and in so doing suspend its reverence for authority (see “Can Belief Be Knowledge?). These natural needs require neither an imposed human purpose nor a creator to impose it. Rather, this is a functionalist formulation of human nature derived from a species-specific analysis of the human person consistent with contemporary biological and neurological research. I grant that the theory requires a freedom that natural science is forced to dispute by the nature of its methodology, but since the possibility of empirical hypothesis not only denies determinism in itself but also confirms the rationalism that lies at the heart of this theory of natural law, I will happily subject my argument to scientific scrutiny provided that natural science first specifies its inability to confront any issue of moral goodness whatsoever. This formulation of natural law does not find human dignity in the existence of the soul but in the rational exercise of human freedom pursuant to virtue. The natural, organic goods are human needs and therefore human rights. No majoritarian effort may overrule them by contract or positive law. They are inalienable because they cannot be separated from our nature. Their pursuit defines the commutative justice we owe individual strangers and the distributive justice governments owe citizens. So how do we recognize them?
We know them by three characteristics discovered through the ordinary exercise of practical reasoning about experience. Since they always have been an unvarying goal of human pursuit, we find them universal. In every age and culture, for all persons, they have been true goods worthy of pursuit. Secondly, they are incommensurable. It would be foolish to ask whether one needs love or food more in life, though perhaps not at all foolish to desire one more than another at any particular moment. Our reason arbitrates the pursuit, always aware that both are necessary. We recognize all goods as having that same inability to be ranked or neglected over a lifetime, though human folly has proved surprisingly resilient in this regard. Finally, these goods are all ends rather than means. We use our prudential reasoning to secure these goods for no other purpose than that they satisfy a need that no lesser pursuit can. We may seek some goods so that we may have others, but our species-specific needs satisfy us for their own sake because they are goods integral to the functioning of our full nature over the course of a lifetime.
Apply these characteristics to the following list of needs and consider both the variety of ways cultures have attempted to value them and the obligation we feel to pursue them.
Bodily needs: health (and all the ways it is maintained)
Economic needs: moderate wealth (and the means by which it is attained)
Sharing Needs: love for family and friends, awe (expressed both in religion and art)
Intellectual Needs: knowledge, skill, judgment (the goods of intellectual virtue)
Character Needs: temperance, courage, prudence (the goods of moral virtue), skill
Political needs: civil order, justice (the goods of public morality)
The intellectual and character goods listed above are the mechanisms by which we exercise our natural, preferential, and circumstantial freedom (see “Our Freedom Fetish”). We need these character traits to choose quickly and well in the maelstrom of choice that is our daily life. The political goods are those that only government, the collective will of citizens acting as strangers in common interest, can deliver as the claim-right of its citizens. They necessitate government as a natural component of flourishing, as necessary as friendship and family. In delivering justice, government must always balance liberty against the equality of citizens so as to maximize both despite their tendency to work against each other (see “The Riddle of Equality”). This balancing act motivates government to protect human rights. Simply put, the legality of human rights originates in the primary natural duty of government: to provide justice to each citizen.
This understanding of human rights faces a heavy lift in contemporary culture. Postmodernists argue in favor of cultural relativism while conservatives defend a national, cultural, or religious exceptionalism. Either position disputes the universalism that lies at the heart of any claim to human rights. Since this theory of natural law views government as a natural extension of personal, familial, and tribal interests, defenders of government as an expression of arbitrary divine will or of entrenched and arbitrary power will find multiple points of friction. That same magnification of scale from individual to all of humankind will provoke the most powerful counterargument of all: the subjectivist and pragmatic one claiming that we are all different, desire different goals, live different lives, and therefore should resist any endorsement of systems of broader value, especially in matters of law which claims an exclusivity of coercion. This is an argument with powerful historical and philosophic roots and is one I deeply respect and whose complexity I feel sympathy for (see “Modernism and Its Discontents”).
Persons who advance it operate out of two intentions, I think.
To persons who simply want what they want when they want it and resent any effort to think through their own long-term preferences, who hold to their values because they are a personal expression of their identity rather than because they think them universally true, I happily concede the right to exercise their preferential freedom as they wish. That is my entire point. Nothing compels us to choose well and our social fabric, including law, should protect the dignity of our preferential freedom. But only to a point. I will merely mention two consequences of persons valuing a private morality rooted in private constructions, a pragmatic and postmodernist conception I call the virtual circle (see “What Is the Virtual Circle?”). The first is that the law, the consensual recognition of common goods that justice decrees be secured for citizens, has no duty to secure their well-being in denial of their responsibility to procure it for themselves nor to act in excess of the means it uses to secure those few goods that necessitate government’s existence. Families may resolve the incompetence of their members by a tolerance born of love, but strangers have no such obligation any more than does the aggregate of strangers that is the state. The second point is that no private conception of morality can either publicly justify rights claimed for oneself nor critique rights claimed by others but must exercise as a condition of one’s own preferential freedom a complete toleration of that claimed by those motivated by different private preference as a matter of simple equity. That, of course, cannot resolve conflict either in personal interactions nor law, nor can it deliver justice.
To those who seek truth but wish to dispute the truth of natural law theory or its defense of human rights, I ask that you consider the enumeration of universal human goods listed above in contrast to the buffet of supposed goods espoused under social contract theories referenced earlier and ask which seem more worthy of legal protection, which seem most directive of moral choice, and which seem most likely to merit universal agreement. In the long modernist tradition that values reason and closely examined experience, many philosophers have defended a morality built upon sentiment rather than reason. This theory of human rights restores sentiment to its proper role as the response to truth and goodness rather than a determinant of it. If, as postmodernism asserts, some emotions are “appropriate,” then surely those evoked by a functional defense of human rights based on natural law must be. We not only think these preferences worthy of public protection, we feel them to be so. Both reason and sentiment respond to the dignity conferred by our common humanity, one rooted in the uniquely human capacity to recognize, prefer, and act upon our sense of freedom.