Functional Natural Law and the Legality of Human Rights

Author’s Note

This entry is intended to be the final defense of a theory of public morality. It has been my practice in other analyses to summarize supporting arguments while giving links to their fuller development. That is not possible in this final argument that stands at the apex of all the others, for even to summarize the preliminary points would require many thousands of words. To advance this final argument for a complete theory of public morality, I will merely state rather than attempt to prove the many theoretical bases that it is built upon and ask the reader seeking warrant to access the links to other essays that more fully develop them. To read the entire defense of functional natural law in one place, I recommend the print or ebook version of The Deep Simple: The Terms of Public Morality.

 

Of the four justifications for law, three make no space for a defense of rights as determinative of positive law. Neither the premodern legal theory of divine command, the modern notion of social contract, nor the postmodern one of legal positivism views laws as necessarily responsive to natural or human rights that might override them (see “Foundations for the Law: An Appetizer). This requires a bit of unwrapping.

The original defenses of natural law were all argued from a theological foundation, first by Augustine and later by Thomas Aquinas. The grounding for all such claims is God’s will sanctifying the human soul. The existence of both will and soul was guaranteed by the authority of Roman Catholic doctrine that universalized its domain while mandating its precepts. The warrant for this breathtaking claim to power was always God’s authority exercised through the trust of adherents (see “Premodern Authority”). Aquinas made the relation of authority to reason quite explicit. When in conflict, reason must bow to the religious authority seeking a full surrender of rational agency by a submission of trust. This submission necessarily forbad persons from rendering their own judgment on legality. When Augustine famously declared, “an unjust law is no law at all,” he was raising the possibility for a critique that Aquinas’s deferral to doctrinal authority could not allow, for persons could certainly neither comprehend nor criticize God’s sense of justice, something explicitly forbidden in the Biblical stories of Adam, Abraham, Job, and Jesus (see “Divine Justice”). So the machinery for calculating what is due was suspended inside a cloud of unknowing (see “Religious Knowledge as Mobius Strip”). While the premodern vision of natural law did provide a universal basis for rights — God had granted each person a spark of the Uncaused Cause that elevated human dignity — the inscrutability of God’s will could only be interpreted by religious authority that prohibited persons from exercising their own understanding in favor of a hierarchical and communitarian structure to which they literally belonged. The natural law thus established was a profoundly conservative orientation structured to perpetuate institutional authority, which was expected to exert a formative influence upon persons through their submission to Church doctrine (see “Authority, Trust, and Knowledge”). Nothing in this construct allows for the existence of human rights that might challenge that authority or preserve a speck of moral agency. This position is still defended by reactionaries nostalgic for the emulsified and certain truth and goodness claims of divine command, but it is not likely to revived (see “Tao and the Myth of Religious Return”).

The power of institutional authority to shape public morality was shattered in the Protestant Reformation (1517-1688). When Martin Luther took it upon his own reason to dispute Catholic authority at the Diet of Worms in 1521, he exchanged his own rational agency for an unquestioning trust, presuming to judge Catholic interpretations of divine will as unjust. This, of course, had been done before, but objections had been framed as revisions to the interpretation of the divine order that underwrote the entire corporate structure of medieval life. Luther’s appeal to his own reasoned interpretation of Scripture introduced individual agency as the equal of institutional authority. His translation of the Vulgate Bible into German and its wide distribution in print was an invitation to every literate person in the Holy Roman Emperor’s domain to find his own truth backed by his own reason. But as Luther himself admitted in his later years, “reason is a whore” and God’s justice inscrutable. After Luther, the only thing natural about divine law was private belief seeking understanding, an intensely personal, numinous, and ineffable mix of revelation, intuition and in what came to be seen as belief’s signature, desire (see “Knowledge, Trust, and Belief). For eight generations, private belief laid siege to religious authority, producing endless contention, bloodshed, and realignments among Catholics, authoritarian Protestants, and short-lived cults. Of the estimated ten thousand variants of the Christian faith, many managed the nearly impossible transition from private revelation to public institutional authority, yet “the priesthood of all believers, “salvation by faith alone,” and being born again ensured that belief would always challenge authority, a contagion that spread to Roman Catholicism despite the efforts of the Council of Trent and later papal pronouncements. The force of belief upon reason proved discouraging, particularly when used to parse religious truth, as the miseries of the Reformation drove home for decades, but the conflicts among religious authorities ensured that trust would be continually endangered (see “The Fragility of Religious Authority). It took nearly two centuries to disentangle the religious knot. By the late seventeenth century, a new axiom came into focus. Universal reason applied to private experience became the modernist presumption, but that meant new warrants for all the commitments divine command had legitimized now had to be renegotiated on these new terms of moral commitment (see “Modernism’s Midwives).

Perhaps the most regrettable of the new efforts was a new grounding for law: the social contract, fully articulated by Thomas Hobbes in 1651 and revised repeatedly by modernist theoreticians thereafter. The social contractarians of the Enlightenment began 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). What could be more imaginative than the state of nature required by social contract’s premise of an initial agreement enabling positive law (see “Why Invent a Social Contract?”)? In this vision, natural rights retained by a fictitious compact might be maintained, provided they were written into the constitutions establishing state power, rendering all rights entirely civil in origin and effect. Advanced in tandem with a strict moral neutrality responding to the intractable nature of religious conflict, new democracies were steered by a strict majoritarianism that might rewrite laws as the majority wills in defiance of minority and individual rights. Contractarians so elevated the will of the majority as sacrosanct and so denigrated the possibility of clarifying their preeminence over civil law that they effectively attenuated the effect of all rights: natural, human, and civil. So the axioms of moral commitment that gave us democracy also bequeathed an entirely unsatisfactory foundation for supporting it.

The postmodern revolution of the twentieth century was pleased to point out this deficiency as well as the hypocrisies of jealous institutional authorities stubbornly staking their claim to the public’s trust while contractarian principles appealed to their active sanction, theoretically as individuals but practically as majorities. These grand narratives supported the postmodern view that reason must be as particular and idiosyncratic as experience itself, indeed that reason itself was a product of experience. Postmodern suspicion of institutions rejected the modernist effort to provisionally sanction authority through informative interactions, preferring to engage in performative acts of independence: autonomous individuals demonstrating their superiority to the institutions that sought both to disguise and perpetuate their own power (see “Postmodernism Is Its Discontents). This vision could no more defend the preeminence of rights than it could the legitimacy of law itself. Postmodernism saw legality as abusive and laws as purely positivist expressions of power or, at best, pragmatism (see “The Problem of Moral Pragmatism). Despite this theoretical hostility, postmodernists also demanded a strict equality of degree among all persons (see The Riddle of Equality”). This demand could only rely on the blatant abuses of institutional power that had privileged some over others. In their demands for a total equality, egalitarians appealed to a “human rights” built entirely upon grievance much as Marx had, but while Marx regarded the triumph of the proletariat as an historical inevitability, postmodernists founded their appeal on a moral stance they had provided no foundation for (see “Postmodernism’s Unsettling Disagreements”). Certainly, the twentieth century added very little to the campaign for human rights beyond an emotional plea for a justice its champions could never define and could not defend.

The premodern, modern, and postmodern versions of rights are invalid in theory and irreconcilable in practice. We see this incoherence tainting contemporary attempts to articulate rights, leading to the committee-driven efforts to enunciate a set of entitlements that all sides can accept even in light of their own axioms of commitment. That effort cannot succeed (see “The Axioms of Moral Systems”).

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 of civil order 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.

Consider the citizen of no particular state at no particular time. Her primary concerns are not political. Rather she spends her conscious hours choosing goods by her own lights, mining her own experiences for the options they present, ordering them by whatever schema of values she employs, and choosing those she thinks best or least bad. A thousand times each day, she exercise this natural freedom that is the functional bequest of her human nature. The option to recognize the truths of experience and to choose goods from it is every person’s birthright. It is both particular and universal in that the experience that shapes it must always be contextual and personalized, but her response must go through a process common to every person who has ever lived. Only be diminishing her ability to reason or restraining her experiences can this mining for potential goods be affected. By token of her status as a human person, she is entitled to this natural freedom and the natural rights that enable it (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. 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. It too is an inevitably human act, but unlike natural freedom, the exercise of this preferential freedom may be shaped by the actions of others and must be aided by the social environment: by education and prior experience, by family, friendships, community, and polity. Though also natural and universal, these factors are capable of intent, and so they differ from the natural presentation of options to consciousness that accompanies 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 that imparts an unimpeachable dignity to each person. Its functioning grants all persons inalienable human rights. None of this is defined or granted by government. Human rights direct preference toward the satisfaction of universal needs that are species-specific and definable (see “Where Do Rights Originate?“). ) By virtue of her own dignity, every person has the moral duty to identify these needs in experience and satisfy them.

You might ask how the inventors of modern democracy could have missed a process they undertook as often as you do. Consider that natural law grew out of premodern authority, the source of so much Reformation misery, and so was tainted to early modernist theorists. Then consider that the breakdown of religious authoritarianism had produced generations of rabid conflict as authority discovered challenges dissolving the only warrant it might rely upon: the trust of congregants. And also consider that whatever replacement axiom of commitment theorists might produce would not only face a dearth of trust but also must demand an active endorsement by citizens by their own rational agency, which as Luther reminds us was utterly unable to resolve the desperate disputes of generations of congregants and believers. It is little wonder that contractarians sought the most anodyne of predicates for the democracies they invented. They explicitly denied preexisting rights that might curtail positive law as levers that surviving authority might use to reclaim their timeless privileges. And they had an untested and in retrospect uncritical confidence in the power of citizens to create just polities. Certainly, their sanction of a purely majoritarian democracy — while defending it as somehow founded upon the autonomy of individual citizens who might be oppressed minorities — did as little to implement their vision as their hypocritical appeal to remnant authority for support of a political system erected in opposition to it. This is why a secular theory of public morality strikes us as a non sequitur while we freely acknowledge that law itself is democracy’s most powerful moral instrument.

Let us return to the person/citizen who seeks satisfaction of her needs. We bear 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 (see “Natural and Political Rights”)?

Clearly, our preferences in the social environment take place in an arena populated by strangers who cannot interact with all the concerns of love, but who instead engage in far more formal and formulaic interactions. These relationships among strangers are governed by reciprocal relationships based upon justice, a reciprocity in which each stranger seeks an equitable interaction of what each is due (see “The Moral Bullseye”). Their intentionality is explicit. Let us define these relationships among strangers as political ones, this definition partially provided by a contrast with the intimacy of love and otherwise composed of all the professional, social, and civic relationships peopled by largely interchangeable strangers whom we do not know and to whom we do not feel the same duty that we do to those we love. Obviously, these strangers can be transformed by our preferential freedom into acquaintances who occupy some middle ground and into friends who enter into our circle of intimacy, or they can remain at arm’s length. Since the core duty of a human person is the constructive exercise of preferential freedom, we must seek the means to maximize the satisfaction of our needs 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?

Despite the hollow imprecations of religious duty and empathy, we cannot treat these interchangeable strangers with the elastic generosity of love (see “Empathy: a Moral Hazard”). The basic principle of ought implies can governs moral duty: none can be imposed that cannot be fulfilled. And this limitation of our duty to strangers is integral to an understanding of political rights and the duties they impart.

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. For instance, duties to God derive from God’s claim-right to obedience.  This is a vital point for two reasons. First, the 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 to equality. 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 functional endowment replaces Aquinas’s dogmatic 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 by the nature of the human person. 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 or culture over the individual, rejecting the claim-right of majority will, they origin of rights in civil law, 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 own human dignity 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 mine my experience to gratify my duties to myself and to others in context as we pursue the satisfaction of our needs in an order dictated by our own experiences.

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 in principle 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 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 implied in the meaning of “stranger” is the notion that these are interchangeable persons operating outside one’s own circle of concern. Equity requires that what we do for one we are willing to do far all similarly situated, for neither the nature of the claim nor our 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 a 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 exercises a sort of corporate agency, that expresses a combined will, that involves voluntary associations whose entire purpose is to organize strangers to pursue the gratification of some common need? This can involve a bowling league whose members seek healthful recreation, a contemporary corporation which seeks to provide a needed good or service while developing skill and providing financial resources for its personnel. Or it could be the archetype of such formal expressions of combined will, the ultimate stranger-writ-large: government. Consider the claim-rights that citizens make on government and the exemption-rights they may demand from it.

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. Government exists to discourage violations of citizens’ exemption-rights by other citizens: theft, bodily harm, foreign invasion, environmental pollution, etc. Its active duty is to create a safe space for citizens to pursue the satisfaction of their own conception of the good. Obviously, as an institution, it ought to respect that space as well.

A second duty is to meet a unique claim-right that persons make upon government, that undoubtedly launched collaborative ventures among strangers at the dawn of time. Government’s second primary duty to facilitate the satisfaction of  contributive justice. 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 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 of such services and government’s competency to deliver them.

It is the third duty of government that gets sticky. It resolves the question of government’s duty to citizens who cannot meet the needs that other citizens can meet by their own efforts and with the aid of their intimates. It is distributive justice .Because it parallels the family’s role almost precisely, it is almost invariably confused with our instinctive duties to them. We cannot examine it without further relating it to the subsidiarity of love because that natural urge to assist radiates outward to strangers. Our reason in this effort tells us we cannot succeed in that effort. As instinctive altruism struggles with our individual duties to equity and justice to strangers, it stimulates two opposing responses: to reach out to assist a visible need and to hold back in service to our own needs and the needs of those we love. So it seems this urge is very easily inconsistently embraced or resisted. But neither response is the moral one.

Here is why. I have a relatively small set of primary duties to those I love. They are far more elastic than those I owe strangers, but if I don’t meet them, no one else will. Love is a natural human need that shares one quality of all needs: it is its own end. We do it for its own sake, though it also serves as means to other ends. No one can be forced to offer it. It is the willing gift to family and friends. Additionally, it serves a secondary purpose, this time as a means to fulfill other needs. My family feels free to 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 is too contextual to be defined. Too many variables 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 is that it is a real claim-right rooted in love and judged by prudential reasoning. Feminist moralists remind us as they reminded the twentieth century contractarian John Rawls that this elasticity only goes so far and when abused as it has been historically, the claim-right may be exerted as it is on strangers, and a strict reciprocity may be invoked. We can treat family as strangers. This effectively removes love from the equation, though always entitling persons to the dignity their preferential agency requires, obliging them to the duties and rights of strangers upon each other. It is painful to see these intentional distancing efforts such as can be observed daily in Family Courts, but it highlights the different duties of intimates and strangers. We cannot treat strangers as family. 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. So what claim-rights can strangers make upon other strangers? Government’s first duty in regard to citizens is to grant them the exemption-right to be left alone to gratify their own pursuits, excepting only its retributive and contributive duties. Libertarians think this passive restraint the sole role of government, assuming that citizens can meet all of their needs, excepting only the two mentioned above, through friendships and family, so the failures of strangers is not their concern. They deny the claim-right any individual stranger might make upon them and extend that rejection to their role as citizens in representative government. They correctly reason that an equitable effort to satisfy the unmet needs of individual strangers would render them incapable of satisfying the moral duties they have to themselves and those they love, and they broaden that refusal to government as stranger-writ-large. They think that their success proves that government ought not violate their own exemption-rights by taxing them to provide for other citizens what they do for themselves. They are right about that claim for individual strangers but doubly wrong about the claim-right made upon the stranger-writ-large that is government.

First, it confuses the contributive and distributive claim-rights that citizens may make upon their government. This confusion without a doubt traces to the regrettable moral neutrality of contractarianism wherein majorities choose to define such things for everyone, including what counts as reasonable in economic reward. When deprivation is the rule, this might help to distribute goods equitably, since majorities may easily be mustered in such situations, but what happens when the majority abuses justice in contributive economic rewards, when some hoard goods for themselves? This situation is the rule in advanced economies now wherein most have more than enough and a minority have far fewer of the contributive rewards all citizens need. I hope it is clear that these kinds of issues govern proper societal goods affecting all citizens rather than particular distributions to a few, so issues like taxation, minimum wage, and working conditions are of general concern and the proper subject of contributive justice. All citizens are entitled to benefit equitably from the proper working of law, economy, and society. The voice of strangers-writ-large, government, must be the arbiter.  And these must be metered by the universality of human needs. 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 carry out government’s sole function: the allocation of justice, what is due, in contributive justice. This gets intertwined with the separate issue of distributive allocations, and it is unlikely to be untangled without improving the metric we use to figure just deserts.

A sadly mistaken way to calculate that is to consider fairness of both contribution and distribution. The invisible hand may quantify societal rewards, but no mind can calculate their fairness (see “One-Armed Economics and Wealth Creationism“). Such efforts cannot succeed because the factors that affect them are beyond quantification, so fair contributions and rewards cannot be worked out (see “Income Inequality“). To be clear, we all agree the basis of fairness is comparative, meaning it weighs one thing against the other. The image that springs to mind is the scales of justice. Egalitarians literalize this image by favoring a wholesale equality of degree, which history proves to be possible to calculate but impossible to sustain (see “Economic Justice“).

But after we untangle the knot contractarian theory has tied between contributive and distributive needs, we only begin to face the issue of defining how contributions and distributions are to be defined if not by fairness. The nature of contributive justice lends itself to metering how societal goods are to be assessed and allocated to all citizens in a polity, so it is amenable to democratic processes, provided the baseline of human need is respected. But this is not the case for the allocations of distributive goods so often confused with contributive ones. These goods are inconsistently distributed to citizens by circumstance and vary, though the universal needs that are lacking are fairly easy to calculate since the baseline need is the same for all citizens. Libertarians, who are able to satisfy their distributive needs with the help of their intimates, deny any claim-right by the needy at all, echoing in this claim the exemption-rights they exert upon individual strangers, implicitly appealing to the tribalism of love to protect their intimates. They insist upon a wider exemption-right: they argue that government owes nothing to citizens who are unable to meet their purely distributive needs. Certainly, their objection appeals to the moral responsibility persons have to satisfy most needs by their own efforts as it seeks to protect the tribalism of love, but neither individual strangers nor a government of strangers-writ-large can calculate fairly the degree of just deserts in this duty except in the most obvious of cases. Egalitarians oppose this position on principle and by an altruistic instinct, championing an equality of degree whereby the haves are forced to equalize economic outcomes regardless of fault or failure, citing the unfairness of extant privilege and prejudice (see “Prejudice and Privilege“). Because of the impossibility of quantifying fairness in these issues, these opposing positions are both irreconcilable and immoral (see “The Riddle of Equality).

Both arguments are based on a fantasy: the notion that we can somehow calculate what persons fairly deserve. All such arguments are built upon a foundation of earned rewards. And these simply cannot be calculated to produce equitable outcomes because they are always comparative among persons. They attempt to judge how responsibly persons have used their preferential freedom. They try to compare one person to another or to measure the distance between their deserts so as to establish a reciprocal balance. They think this can be done because both persons have the same natural freedom, the same functional quality to recognize choice in experience. In this, all are created equal. Once that instinctual array of options is presented to individual consciousness, the comparisons begin to fall apart. For instance, the two sides are using a different metric. Fairness as a measure has two meanings. It might refer to a fundamental comparative equality. Every child at the birthday party gets the same sized piece of cake. Or it might refer to some earned distinction that properly unbalances the scales: the birthday boy gets a larger slice. Egalitarians use “fair” to reference the first meaning. They wish to equalize outcomes for all citizens. Libertarians reference the second definition: they think they deserve a larger slice of contributive goods, and they see no reason they and their families should be penalized to benefit strangers who have failed to achieve a similar degree of success in pursuit of distributive ones.

No wonder either side accuses the other of unfairness. But in either sense of the term, we must doubt their competence — and their government’s — to perform calculations of fairness except in two areas. The first is in broad estimates of large populations entirely suitable for contributive justice but highly suspect for the contextual nature of distributions. Government is no more capable of judging systemic, environmental, cultural, characterological, and cumulative impacts on preference than any other stranger, and without configuring responsibility, any claim of comparative deserts is an empty one.  Strangers are utterly incapable of assigning personal responsibility to person’s success and failure so as to apportion rewards, and government is no better, except in very rough, generic judgments and then only so long as it has volumes of population information. Consider Social Security, tax policy, and living assistance as examples. But these broad standards of fairness are axes, not scalpels.  And if government with all its resources can only provide the broadest categorical conclusions about fairness, surely individual strangers ought to restrain from such judgments altogether. Besides, it is likely that the libertarian who is so quick to condemn others’ failures would not want government to have access to her own worth and weakness. The second and more effective way that government can contextualize responsibility is through the court system, whereby the interplay between person and responsibility is managed by the carefully orchestrated investigations of police and legal experts. Criminal law gauges defendants against a standard of justice defined as “beyond a reasonable doubt” while civil law arbitrates relative fairness among persons to the lower standard “by a preponderance of the evidence.” Such efforts perforce must be highly individuated, and when done properly, can ascertain fairness even to prescribing appropriate punishment for failure and recompense for transgression. But think of the rational machinery necessary to make the effort: the canon of law, the professionalization of jurisprudence, the strict standards governing presentation of evidence and capacity for passing judgment. Many now question whether the judiciary even with these structures can be fair and unbiased. So even if done properly, we cannot see a template in our judicial system for wisdom in awarding fair contributions and distributions to citizens. Such is our suspicion of government and our distrust of institutional authority that many citizens will object to recognizing any dependence on government at all. But this is a blindness to their own reliance on their fellow citizens from cradle to grave.  It is an error of omission. Except in the courts, individual efforts to calculate fairness in distributions will fail and will be resented. They ought to be abandoned as impossible.

Fortunately, broad economic rewards can be allocated entirely by an appeal to what is due persons as a gratification of their universal needs. Everyone in a working economy has the human right to meet her needs for a baseline of wealth sufficient to flourish, and this should form the standard of contributive justice. Libertarians and egalitarians can argue endlessly over what is fair in terms of contributions, but since a baseline of sufficiency is non-negotiable, all citizens are entitled to that minimum as citizens’ claim-right on government’s contributive duty. The only exception is in cases of a generalized scarcity in which equitable distributions must suffice as inadequate substitute for the baseline.

So how can government hope to apportion distributive justice, defined as facilitating those needs that most persons satisfy on their own with the aid of their intimates? The effort can succeed if we see it as similar to government’s less contentious duties to justice: satisfying retributive and contributive needs. Its responsibility is the same for all three functions: to give persons what they are 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, an effective judiciary actively contributes to the goods they need to flourish. That advantage justifies the taxation required to support the legislatures and courts. 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. When your house is on fire, you need a fire fighter paid for by common consent. When it is broken into, you need a police officer. It is the need that justifies the claim-right, not some specious calculation of fair deserts. Thanks to contractarian principles of majoritarian neutrality, a pragmatist culture of materialism, and a postmodernist suspicion of moral prescription as infringements on individual freedom, many citizens are skeptical of the existence of universal needs and of government’s duties to assist in their satisfaction. But this reluctance cannot deny that positive law itself is undeniably a set of moral imperatives that sovereign law imposes on every citizen in what democracies acknowledge to be the pursuit of the common welfare (see “Two Senses of the Common Good). That is our claim-right upon government.

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. Human rights are earned by the dignity of all persons’ preferential freedom. 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 to procure them regardless of whether government or other persons do the depriving. This is the exemption-right element of human rights. A subset of these needs cannot be procured by the individual efforts of individuals and through families and friendships, and it is this small number that is the responsibility of the collaborative venture of strangers-in-pursuit-of-common-goods and the ultimate warrant for positive law as the mandate of contributive justice. Finally, since needs are non-negotiable, some citizens will find them lacking, and will suffer because of it. Except in cases of scarcity, they may place a claim-right for distributions upon other strangers-writ-large for facilitating the satisfaction of needs that otherwise would go wanting. All of the retributive, contributive, and distributive human rights that government alone can procure for citizens under its jurisdiction must therefore be recognized in positive law as civil rights.

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 private moral system called virtue ethics (see A Virtue Ethics Primer).  Enlarged to encompass duties to strangers, virtue ethics becomes the secular and functional formulation of natural law. 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. This act of perfecting is flourishing. Another name for that competence is virtue . 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 intimates, functional natural law brings to relations among strangers, individually and collectively as government. It is a public morality entirely founded upon human rights.

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 felt sense to choose. That is why government’s efforts to facilitate persons’ needs must be limited and must avoid paternalism, and also why it can never be universally successful. Persons will choose what they desire, and nothing ensures that they will act in their own true interest. If that admission seems to contradict my argument in favor of distributive justice, allow me to clarify what is a very common mistake. It stems from two confusions. The first is the hubris of one stranger attempting to calculate what is fair to another in deserts as has been said earlier. The second is the notion that facilitation of needs is tantamount to their satisfaction. Every government intervention in service to contributive and distributive justice only opens the door to the satisfaction of needs that persons must achieve by their own efforts. Public education makes access to skill available, but an education is only earned by the preferential agency of the student. A just minimum wage may be set, but the worker still has to do the job. A mother may receive assistance, but she still has to use it to meet her children’s needs. Preferential freedom is non-negotiable for adults, which is why its power confers dignity and human rights.

In our present axiomatic confusion, in the conflicting maxims of all the conflicting cultures we all navigate, we find many opportunities to misuse that responsibility (see Cultural Consensus“) 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 means 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. Needs are sacrosanct; desires are not. 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, can resolve conflict neither in personal interactions nor law, nor can it deliver a working public morality. The law is not a neutral and majoritarian referee, not a conventional artifice. It is a powerful moral inducement to the good (see “The Utility of Furthest Ends“).

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 contrast the universality of human needs against the infinite variety of supposed goods endorsed by social contract theories and ask which seem more just, which more positively 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 rational determinations of truth and goodness rather than the determinant of it (see “The Tyranny of Rationality”). 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 seek, recognize, and prefer our own flourishing.

 

 

 

 

 

Advertisements