To find the original justification for a concept of human rights as a basis for law, we have to return to the era before social contract changed the axioms of legality, 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 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. Consider the fates of Socrates in Greece and Cicero in Rome. That kind of independence would have to wait three hundred years after Aquinas and be inspired by the sixteenth century nightmares of the Reformation. Aquinas’s contemporary audience would have been entirely satisfied to find natural reasoning bolstered and corrected by the divine authority of tradition and revelation. That is fortunate, for his theory of law relied upon it in clear preference to human preferential agency (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 originally communicated by private revelation that were by the fourth century 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. But this grant of rational autonomy was circumscribed by the divine mystery that authorized it for reasons of its own beyond human comprehension. So the machinery of calculating what was due was suspended inside a cloud of unknowing (see ” Religious Knowledge as Mobius Strip”) 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 cultures with the force of divine judgment, placing every person within a hierarchical and communitarian structure that subordinated individuals to the political order to which they literally belonged. Nothing in this construct allows for the existence of human rights that might challenge legality upon some other valuation of the person. 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 something inherent to their nature, something beyond law, above custom, and immune to earthly translations of God’s will. Anything less tempts domination based upon these appeals. Traditionalists still see that quality as the soul and now base their theory of natural law and the human rights it delivers on its existence, with all the reactionary force that entails.
But their hope suffers from eight defects that must doom a contemporary revival. First, such a religiously derived vision of law did not survive the Reformation anarchy and the social contract inventions to follow, nor can it revive universal respect for religious authority as such today, for the epistemological failures exposed by the Reformation are unlikely to be forgotten in contemporary cultures. The eight generations of appalling religious warfare were fought on the battlefield of authority and belief; they revealed such fatal flaws in authority as a warrant of public authority that an entirely new source of government power had to be invented and publicly approved (see “The Fragility of Religious Authority“). Second, whatever its flaws, and there were many, the contractarian warrant necessarily elevates individual rational agency as its root source of power, rejecting the submission of will required for the trust that powers authority. . It is fair to say individual autonomy is the one sacrosanct principle of contemporary life. How could it possibly surrender to a submission of trust to a religious authoritarianism? A third impossible obstacle concerns the defense of the human soul as the source of the dignity that requires a set of rights transcending all positive law, and justifying a rejection of any majoritarian imposition in favor of protecting persons. 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 soul would provide the universalism that human rights relies upon and would justify human dignity and moral responsibility 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”). Fourth, divine intervention of any kind has been challenged by the dominance of empirical science. It 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 deterministic thesis, and that must prove difficult in the current culture when empirical science wields the power that religious authority once held. Ironically, science’s emphasis on naturalism has trivialized the internal operations of belief, characterizing it as determined by psychological or sociological forces sufficient to explain any revelation as mental aberration. This produces a fifth challenge traceable to the influence of a claimed rational autonomy reacting to empiricism’s scorn for revelation. This trivialization of belief interacting with the jealous claim to individual power produces externalized expressions of desire phrased as “rights” to opinions or beliefs (see “Knowledge, Trust, and Belief”). As the religious life of today’s religionists demonstrates, private belief considers itself fully capable of challenging public authority, yet it seems totally incapable of replacing it (see “Belief in the Public Square”). This creates the conditions for Reformation-style schisms always fatal to authority. Two additional and specifically Christian issues derive from seeking a spiritual source for rights and must be added to this already disqualifying list of objections. The first was most clearly represented in John Finnis’s effort to defend a religiously rooted natural rights morality, Natural Law and Natural Rights (1980). The Christian duty to universal love imposes a set of obligations to strangers that must be reflected in a positive law based upon a Christian belief in the soul as the source of all rights. 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 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 antinomian thesis in favor of the Catholic semi-pelagian 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 consistent defense of individual human rights has ever been made in the codex of any 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 problem, most clearly explained by David Hume, called into question morality’s claim to rationality (see “Truth and Goodness Do a Dance”). And as reason 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 which added the privacy of experience, the primacy of that experience to mold reason itself, and the opacity of language to their objections, culminating in the epistemological invention of the virtual circle (see “What Is the Virtual Circle?“) 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.
This brief review reinforces the conclusion that none of the currents of public morality in our own day provide more than a sentimental desire 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 (see “Authority, Trust, and Knowledge”). 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? Individuals can exercise no claim-rights on God. God demands what God wills. In a world in which institutional authority in general has lost its power to generate trust, one in which competing dogmas and adherents dispute divine commands with their religious rivals, where many citizens do not accept the existence of the soul, contemporary cultures will almost certainly refuse to base rights upon this spiritual source. 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 (see “Why Invent a Social Contract?“). No defensible source of human rights may be derived from that source even though it is consensually accepted nowadays as the foundation of secular theories of government. When contractarians think of rights, they must think them purely civil in origin, for their explanation for law begins with the enactment of the contract that must specify the rights being enacted. 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 makes postmodernism 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 consent. 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 Natural and Political Rights”“).
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 endorsed by congregants today, but it is rarely trusted. Like all contemporary institutional authority, it will be sanctioned only provisionally, subject to the rational inspection of the believer who retains the power to accept or reject, 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 may have 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 persons under other jurisdictions. How could any claim to universal human rights defeat 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 limitation 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 claims that some set of goods exists 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 this entitlement has ever been defined in a convincing manner, or (b) that some explicable justice underwrites such claims, or (c) that these goods have been codified into positive law anywhere. Detailing these failures also enumerates the requirements for success, for any articulation 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 that we enter the discussion from a position of mutual distrust and that our axiomatic confusions 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 having 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 irreconcilability 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. That fear was well grounded historically, but also well bounded by the unique circumstance of the Reformation collapse of authority. 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 own 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 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 contextual 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. Practically, only by diminishing or destroying it can natural freedom be affected. 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 recognize choice (see “Our Freedom Fetish“).
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 (see “Truth and Goodness Do a Dance”). 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 defined, granted, or properly limited by government. Human rights direct preference toward the satisfaction of universal needs. Their universality stems from each person’s moral duty to choose well so as to increase her own flourishing while respecting the identical rights of other persons. 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 individual strangers and to government as the collective will of strangers-writ-large in the same manner as they relate to family? 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 by instinct, and though we see many types of families, we all understand the common function they serve, and it is this functional quality that legitimizes and ought to legally protect families, regardless of their composition. 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: acquaintances 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, amend our weaknesses, or be expected to drop their own interests so as to pursue ours. They simply 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 while respecting the clear duty to equity that our universal preferential freedom implies. 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 a 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 to 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 self-fulfillment? The impulse to altruism is laudatory and real, and is admirably expressed in individuals’ transforming strangers to friends, with all the impulses to love that transformation requires. But if love forms the context in which we respond consistently to others’ needs, we are brought up against the nature of strangers. Meeting their needs is impossible to exercise consistently. If we did, they wouldn’t remain strangers. Also, a sporadic indulgence must blur our moral duty by making its measure equivalent to the uneven level of our attention. A persistent effort to engage a duty to strangers, on the other hand, must lead us to slight our primary responsibility to our own well-being and to those we love (see “Empathy: A Moral Hazard”). This is the ultimate exemplar of “ought implies can.” 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. 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 accepted 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. This endowment correlates to Aquinas’s conception of the soul as the source of all human dignity, both inalienable and universal. 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 human rights, that duty is laid upon myself as a primary responsibility with a more elastic duty imposed upon my loved ones to supply a few further primary goods and to assist me prudentially as a secondary source of satisfaction for others. 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. The rights derived from preferential freedom impose the duties of right moral choosing on each of us. Only my prudential reasoning can distinguish my duties to myself and to others in context as we 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 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 have 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 individual 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 difficult 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. This is the source of government’s duties to retributive justice. It must ensure that other individuals do not violate the exemption right I claim for my own pursuit of goods, and vice versa. That is one primary duty. A second is to meet a unique claim-right that persons make upon government: its primary duty to provide contributive justice to citizens. This involves cooperative endeavors too complex or large-scale for persons to complete on their own. It obviously is the source of government in the beginning, and it continues to be a claim-right citizens need to flourish that no other entity can satisfy. These two primary duties of government involve exemption-rights and claim-rights that are clearly consensual and widely appreciated, though, of course, not without controversy concerning extent and competency.
It is the third duty of government that gets sticky, and it parallels the family’s role almost precisely. I have a relatively small set of primary duties to those I love, but if I don’t meet them, no one else will. Love is a natural human end. Additionally, they may exert a secondary claim-right on me for assistance when they find themselves unable to fulfill their primary responsibility to themselves. The extent to which I respond to such a secondary claim-right is too contextual to be defined. Too many factors influence it, and we see a very wide range of views on how vigorously this secondary claim-right may be made and how conscientiously it may be met. The most that can be said of its extent is that it is a real claim-right rooted in love and judged by prudential reasoning. I hope it is clear that no equitable, individual response to strangers can be asserted as a claim-right, for their numbers alone preclude an equality of kind for all the strangers who cannot or will not satisfy the claim-rights their human dignity imposes upon their own preference. To assume the responsibility for other adults’ preference is to treat them with a paternalism more suitable to parents than to strangers. Even love must abjure any long-term behavior that 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, that distributive justice consists in a fair distribution of deserts. That conviction is wrong-headed in two different ways..
First, government must be the referee of just distributions of economic rewards. Obviously, neither the winners nor the losers in the economy can arbitrate what these must be, and so it falls to the collective voice of strangers-writ-large to find the proper level of distributive justice in matters of taxation, regulation, and the economic rewards that a healthy economy produces. History teaches that the invisible hand seems to reward the haves and slight the have-nots, and it falls to the people’s representatives to find the balance. This cannot be fairness of deserts for the simple reason that the invisible hand may quantify deserts but no mind can calculate fairness of economic distributions. The economic winners too quickly pounce on that difficulty to argue that all distributionist efforts must fail. That leads egalitarians quite correctly to reject fairness of deserts in favor of a wholesale equality of degree, which history proves to be possible to calculate but impossible to sustain (see “Economic Justice“). No fairness adjustments will succeed because systemic, personal, deterministic, and moral factors are beyond quantification, so fair rewards cannot be worked out. Fortunately, economic rewards can be allocated entirely by justice, what is due. Everyone in a working economy has the human right to meet her needs for a baseline of wealth sufficient to flourish. Libertarians and egalitarians can argue endlessly over what is fair in distributions, but since a baseline of sufficiency is non-negotiable, all citizens are entitled to that minimum as citizens’ claim-right on government’s duty to distributive justice. The only exception is in cases of a generalized scarcity in which equitable distributions must suffice as inadequate substitute for the baseline. This claim-right is the most complicated of government’s active duties because it must always be affected by prudential factors and has always been affected by erroneous attempts to impose an impossible fairness of earned rewards.
This argument is based on government’s duties to justice: to provide citizens what they are due. But the exemption- rights of other citizens need to also be considered as do other, non-distributionist needs. Our inability to calculate individual fairness must deny arguments based upon the wrongness taking from some to give to others because all such arguments are built upon a foundation of earned rewards. And these simply cannot be calculated to produce equitable outcomes, and they surely must produce ratios of cost/benefit rough enough to allow a baseline of distributions to be justified on the basis of need alone. That benefits the recipients, but it also potentially threatens their need for the goods of judgment and skill. To be human is to err, but it is also to learn the skill of erring less, and the skill of developing competence and self-sufficiency is every bit as necessary for flourishing as economic goods since one of the signs of a true human need is its incommensurability. Another is mutuality. Truly moral goods not only do not conflict with each other; they also reinforce the others and facilitate their satisfaction. This too is a requirement of distributive justice.
These are important if abstract theoretical boundaries. A more practical one is the competence of government to deliver distributive justice. Such is our suspicion of government and our distrust of institutional authority that many citizens will object to this definition of justice as sufficiency and to government as its guarantor on libertarian grounds. But this is a blindness to their own dependence on their fellow citizens from cradle to grave. It is an error of omission. It can be seen more clearly by framing the distributive duties of government in parallel to its less contentious functions: retributive and contributive justice. Government’s responsibility is the same for all three functions: to give persons what is due. Much of that bequest consists of exemption rights, the responsibility of the state to get out of its citizens way, just as libertarians assume. But the duty is also an active one, a claim-right requiring government’s active voice. In retributive justice, government ought to leave law-abiding citizens alone. But it has an active duty to define clearly what actions are illegal, discourage violations, and punish malefactors. Most citizens will never see the inside of a courtroom except possibly as jury members. But even if they never utilize it, a just judiciary actively contributes to the goods they need to flourish. That advantage justifies the taxation required to support the legislative and judicial systems. Similarly, many persons never visit a national park or use some part of the national highway system or call the fire brigade. But they rarely quibble about supporting the contributive goods that government provides for all citizens’ use. Why then do they not see the parallel to contributive justice?
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. We might appeal to this diluted friendship to justify economic distributions, but it seems too ephemeral and too conditional to justify a human right, particularly one that imposes a claim-right upon one’s fellow citizens. And in a material culture of endless expressions of desire, what gives us confidence that needs can be limited or for that matter that they can be defined at all?
What alternative is possible to this conclusion? Thanks to contractarian principles, we see one in many Western that act at perpetual cross purposes. For in helping citizens pursue their various desires, they also must 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 contributive 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 with 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 satisfy the preferential freedom that is the uniquely human responsibility.
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 legal recognition. 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 functionality 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 regarding treatment of 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 natural law. This profound respect for preferential freedom recognizes human dignity as the invariant right of every person. It replaces religious belief in dignity founded upon the theoretical existence of the soul with a frank recognition of reason’s role in guiding moral preference to proper human functioning. This naturalizes human dignity in a form entirely consistent with religious belief but not reliant upon it. It universalizes rights. 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. What virtue ethics gives to private morality focused on oneself and one’s relations centered upon love, functional natural law brings to relations among strangers, individually and collectively as government. It is a public morality entirely founded upon human rights.
The only means to accomplish it happens to require the pillars of modernism: universal reasoning about private 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 (see “The Limits of Empirical Science”). 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 skill or love 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 as well as means. They are valuable for their own sakes. When asked why we find them desirable, we can frame them as useful to other ends, but we also find they themselves are part of our flourishing. 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: economic security (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)
Political needs: 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. 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 creation. 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. Their subsidiarity provides the patient structural support to assist those they love in ways that no individual stranger can accomplish and that the collective will of strangers seeking justice cannot achieve even with the best of intentions. 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.