When viewed through the lens of justification, we find the notion of rights warranted by different arguments in the pre-modern, modern, and postmodern eras. Pre-modern positions—meaning those in place before the Reformation—made no mention of rights other than those anchored in custom, sometimes enshrined in written or unwritten constitutions. Besides the authority of tradition, these rights find their warrant in an originally pragmatic balance of interests. They legitimized “rights” we might find repugnant, such as the absolute power of the paterfamilias over his relatives in ancient Rome or the seigniorial laws authorizing noble privileges in feudal Europe. Like all warrants based on authority, these relied on the obeisance of the parties involved. In challenging traditional authoritarian justifications, the Reformation upset ancient notions of rights and required a modernist reiteration of their source. The result was the social contract justification rooted in reason, but as the theory began in an effort to justify existing governmental structures in the work of Thomas Hobbes, it was forced to defend traditional notions, at least initially. So Hobbes in Leviathan imagined an irrevocable contract granting the king absolute power. Like all modernist efforts, this one rapidly cannibalized itself, subjecting the contractarian position to repeated revisions through the efforts of Locke, Rousseau, and more recently, Rawls, resulting in new versions of the contract at odds with earlier notions. These modernist efforts based on reason (see “Modernism and Its Discontents“) were subject to attacks in the twentieth century thought revolution called postmodernism. Social contract theory was ripe for such attacks, but postmodernists found less support for rights theory in their own schema than modernists found in theirs because postmodernists justified law by cultural consensus at best. Also, they were deeply suspicious of aggregation of power. The resultant postmodern version of the social contract envisioned a purely conventional arrangement without moral content. This sanctioned whatever arrangement served cultural interests, yet postmodernists also expressed deep concern about the tyranny of the majority and the powerful, particularly when coupled with institutions they despised: capitalism, imperialism, and modernism itself (see “Postmodernism Is Its Discontents“). The result was an incoherence regarding the origin of rights coupled with dissension about their nature and number.
The current confusion about what constitutes rights and what warrants our claims to their existence is understandable. Originally seen as the product of social custom and pragmatic accommodation, their nature was transformed by modernist thinkers into individual possessions either retained or traded away to political institutions through some prehistoric social contract. Foremost among this incarnation of rights was total liberty, regarded by social contract theorists as the birthright of each individual in the state of nature. This prized personal possession is not, however, inalienable, as Jefferson maintained, for it is traded for security by the enactment of the contract. Indeed, it enables the contract. Forfeiture of the right of absolute freedom is the fuel that powers government in the social contract schema. No wonder contract theorists view liberty and freedom with such totemic admiration and regard government power versus liberty as a zero sum game.
Their view is hogwash. Social contract theory is a convenient fiction that legitimates government as deriving its just powers from the people, but nothing in the theory guarantees that the contract will produce justice. It simply enshrines the will of the majority, whatever that will mandates. Its fairy tale picture of autonomous man running wild and free through the jungle evoked horrors of rapine in Hobbes and nostalgia for the noble savage in Rousseau, but only sighs from the historian who knows such libertarian freedom could never have existed in a world of families, clans, villages, and elders. I will concede that Locke may have used the state of nature metaphorically. I have discussed the dangers of metaphor in another context (see “The Problem of Metaphor in Religion“), but even granting every benefit of every doubt, a metaphorical reading of social contract must fail. Locke says every person accepts the contract the moment he accepts legal authority. He trades some autonomy for security by accepting law. But this argument changes the game. We do not enter society from a state of freedom. We are born into it and our individual will has nothing to do with its perpetuation. We are not free to reject whatever political arrangements we are born into. We face the complex of law as brute fact. Where can we hide from positive law? Where is even a metaphorical state of nature for us to find refuge? Let us stipulate that the original social contract did not imagine individuals entering the contract but rather the majority, but even if others also choose to reject the present political arrangements, how can the theory claim that we are giving up anything by revolting against the present system? We are not born in a state of freedom, so what do we give up to endorse a new arrangement? This is not a contract but a revolution, and in such cases, we are forced to define rights in whatever terms the majority chooses. Regardless of whether we regard the state of nature as historical or hypothetical, social contract theory rejected the customary nature of rights and replaced it with the vox populari. Contracts could be altered or abolished by the will of the people. Rights derive from contracts dictated by the general will. From the Reign of Terror to the Great Cultural Revolution, modernism produced only the conviction that rights, like laws and governments, are ephemera, arbitrary and the product rather than the determinant of laws.
So which is it? Are rights derived from pragmatic arrangements sanctified by ancient custom or from constitutions and legal compact? Are they cultural artifacts? Do they reside in the individual or in the social group to which she belongs? Do they come into being with the social contract? If not, when and where do they originate? In all of this confusion, where can we find anything whatsoever inalienable about our rights?
I think it makes no sense to discuss rights from a contractarian or postmodernist perspective because neither the social contract nor the legal positivist warrant for laws underpinning these positions can enumerate or legitimate rights. Nor can they arbitrate whether rights should take precedence over law or custom. So we see the ludicrous confusion over champions of human rights like Mandela, Walesa, and Gandhi being charged as criminals for breaking positive law in their cultures or condemned as radicals for challenging custom. We see postmodernists torn by their wish to respect cultural values—preeminent in their schema—attempting to respond to female genital mutilation in Somalia or honor killings in Egypt. Despite this confusion, we also hear loud proclamations demanding civil and human rights. On what grounds and by what warrant are these demands made? The Constitution has been altered twenty-seven times. The first ten revisions are The Bill of Rights. Its purpose is to protect citizens from the abuse of power by the state. But how can we determine what is or is not abuse? Why specify these rights and not others? Are these enumerated civil rights the sum total of human rights? Can rights evolve over time and if they do, who decides that? From what fount of knowledge does the majority determine that women were not entitled to the vote in 1918 but were entitled in 1920? It is tempting to say that we as a nation grew wiser over the years, but by what standard do we judge that increase? After all, we thought it wise to remove the right to drink alcohol in 1919 but then to restore it in 1933. If rights come and go so capriciously, how can we know at any moment the proper nature and limitations of rights? How can we defend them if we cannot answer these foundational questions? Pre-modern versions of rights rooted in custom and sanctioned by authority seem as antiquated as chain mail and tonsures today. Modernist versions rooted in the myth of the state of nature and some storied prehistoric compact can only find rights in popular will and the constitutions that follow, subject to revisions and revocations based on majority rule. Postmodernists can find no support in their schema for rights beyond convention and culture. Their attachment to subjectivist morality and experiential rationality forbids any universalist pronouncements about rights.
It seems none of the justifications for law can lay a firm foundation for the concept of rights. Perhaps we will have better luck if we begin with ethical rather than political systems and search for the basis of rights in one of the correspondentist systems of ethics I have discussed in previous analyses (see “Three Moral Systems“). Duty ethics makes no distinction between obligations to those we love and those who are strangers and so requires we treat all by the same standard of justice. Christianity reverses that equation, requiring that we treat all with equal love, never mind what they are due. Both systems require that we extend our private moral stances into the public sphere. Though they may be combined without damage, both suffer from what might be called a surfeit of duties. These systems do not specifically enumerate rights nor do they embed any essential element of their ethics in rights. Neither is compatible with the pragmatic outlook of utilitarianism, which elevates individual desire as summum bonum. Utilitarianism imagines that our subjective preferences somehow average out to real goods when aggregated, though why that should happen is never explained any more than Adam Smith could explain why the invisible hand aggregates to the common good. While utilitarianism certainly allows for a polity to enshrine rights in its constitution, it does not require it, nor does it root the notion of rights in any soil deeper than the popular will of the present moment. A culture that attempts to accommodate Christian, duty, and utilitarian ethics would certainly find no grounds to enshrine rights, but then it would also find no consensus for positive law either (see “The Axioms of Moral Systems“).
A very powerful argument in favor of virtue ethics is its seamless progression of scale from the individual to her immediate social environment to her larger civic community that distinguishes clearly our duties to those we love from our public responsibilities, thus allowing a working distinction between public and private morality (see “Toward a Public Morality”). If one is searching for an ethical system that works, she could do little better than to find one that integrates all relationships and justifies moral obligation with the same warrant. Also, only virtue ethics recognizes the preeminence of rights.
I summarized the essentials of the moral theory earlier (see “A Virtue Ethics Primer“), so I will only focus on the political implications now. The system is based on our moral duty to flourish as persons, to fulfill our nature, to meet our needs. Though an ancient moral system, it accommodates modernist emphasis on universal reason and closely examined experience very well. The development of moral and intellectual virtue is central to that effort and constitutes virtue ethics’ core. Our primary moral duty is to satisfy our own needs. It would be immoral for us to rely on others to satisfy these needs for us, provided we can act so as to meet them on our own. But some kinds of needs simply require the cooperation of others, and these common needs involve seeking economic, social, and political goods in associations. Unlike social contract theory’s specious state of nature, virtue ethics sees humankind as political by nature. We have always lived in association with others. Simply looking after children and cooperating to fulfill our needs are inherent human activities requiring families, clans, villages, and societies. As rational beings, humans deserve a say in how these common needs may best be met, and in that right to participate in meeting needs, we find the common source of political rights. No contract is needed to produce or protect this right. As it has always characterized a human need, its existence is fundamentally inalienable. Just as robbing me of food does not eliminate my hunger, so robbing me of political participation fails to stymie my need for it. I need it to flourish. Therefore, it is my right. We use the term human rights for a good reason. Everything humans need to flourish constitutes a human right, for without these things, we cannot be fully human. Our civil rights are a means to satisfy human rights that individuals cannot satisfy for themselves or in association with those they love. They protect our means to participate in political decisions relevant to our own flourishing. No constitution can grant or remove any rights. It can only recognize them, for they supersede laws and constitutions, existing morally prior to any formal recognition in law and remaining whether recognized or not. This is the nature and source of political rights.
All sorts of misunderstandings and exaggerations can follow from this single, self-evident truth. Fundamentally, each human need is also a human right, that is, we have a right to accrue the things we need. But as mentioned, most of our needs are entirely our own obligation to satisfy. We have a need for friendship and love, but no one can be compelled to meet that need even though we cannot entirely satisfy it by our own efforts. On the other hand, no state or person can block our efforts to satisfy it, say by means of false imprisonment or total isolation. We have a need for meaningful work, but in cases of widespread economic deprivation, that need might not be met for many persons. Such was the case during the Great Depression, wherein failures in the economic system of the industrialized nations led to a generalized frustration of this need. In cases of famine, many will suffer from a failure to meet their nutritional needs (for more on distributive justice, see “Economic Justice“). In plagues, they will suffer a deprivation of their health needs, and so on. In each case, a need exists that cannot be met. Rights are violated, but unless a few hoard the means to satisfy the general needs of the citizenry, no blame can be assigned. Still, such widespread deprivation indicates a failure of the social, political, or economic order to do its job. These institutions were created and exist to satisfy these needs or at least to facilitate their satisfaction. Endemic failure indicates need for systematic reform. It is also possible to see other desires as needs, or to confuse the means of satisfying real needs for the needs themselves. Rich countries encourage this confusion as a means of promoting materialist excess. We may desire a luxury automobile. No one needs it. An automobile is a means to an end. Mass transit may be equally effective in some areas. We need sanitation to facilitate health. No one needs a spa bath. Just as a superfluity of food frustrates the need it should satisfy, so a superfluity of desires obscures the real needs that arise from our final cause as human beings. These needs have always been the same, everywhere and always. Their constancy is, in fact, one means of identifying them. We know them by their presence in every culture and every age. That they were so long frustrated is one reason we celebrate the heroes and heroines of human and civil rights who help procure them. We see Anthony and King engaging in civil disobedience, Mandela destroying public property, Walesa stalling the Polish economy, and we recognize their adherence to a higher law than the positive laws of their nations. We recognize in the Thirteenth and Nineteenth Amendments the recognition of something basic and true, a bending of the arc of history toward justice, defined as giving to each what she is due. We are due the satisfaction of our needs. That is our right.
I should mention one human need that still goes wanting even in the rich democracy that is the United States. It is illegal to turn anyone away from an emergency room. Why is that? Shouldn’t people pay for the services they purchase? And shouldn’t that service be priced in accordance with free market principles? If you have followed my argument, I think you will agree that the answer is “no.” Our need for health is as self-evident as for other physical goods. For that reason, health care, not merely treatment of injuries or emergency illnesses, is a human right. Because it is a non-negotiable need, persons cannot simply walk away from its satisfaction if the price is too high. Health care cannot operate according to the laws of supply and demand because the demand cannot be ignored or minimized. Therefore, there must be an adequate supply. Like most of our economic needs, we should satisfy this one to the degree we are able, but hoarding health care is as immoral as hoarding food in a famine or water in a drought. I suppose it is only the vested interests in the vast machinery of profit-seeking health care that blind us to this truth, one that the rest of the world seems to understand with little effort.
Virtue ethics places primary responsibility on the individual, so we can have no delusions that political institutions can substitute for what individuals and families should do on their own. The principle of subsidiarity recognizes that the most efficient source for satisfying human needs is the human attempting the task. Still, through poor choosing, mischance, accident, age, or infirmity, many people do not or cannot meet their needs. We are faced with difficult decisions as a community when confronted with this common situation. First, are we as individuals obligated to act to meet the needs of strangers in justice? Virtue ethics says no. Our personal obligation to strangers is to avoid hindering their efforts to satisfy their own needs (except in regard to common economic, political, and social needs mentioned above). Of course, our duty to those whom we love is different, for here we go beyond what is just. And I need not add that Christianity and Islam do regard our individual obligation toward strangers as active in charity. But these absolutist correspondence moral systems say nothing about rights. Virtue ethics sees our active obligation to be through the community we participate in. So I am not obligated to give money to the homeless man on the street but should vote to fund homeless shelters in my community. It requires the wisdom of Solomon and a peculiar blindness to one’s own fallibility to apportion responsibility to those who fail to meet their needs because of their own errors. Again, the community applies thresholds of eligibility for assistance that allow its members to satisfy their needs. The economic threshold in America is called the poverty line (see “Economic Inequality“).
This is obviously a huge topic and deserves a deeper analysis (see “Natural and Political Rights“). My central argument is that only virtue ethics provides a clear understanding of the origin and nature of rights. By extension, only virtue ethics regards the minority, even a minority of one, as having inalienable rights that no power of the majority can ever supersede. As opposed to the fetishistic worship of liberty and resentment of the power of government that marks social contract theory—I would be a libertarian too if I subscribed to the theory—and in contrast to the thoughtless defense of cultural values embraced by postmodernist adherence to positivist law, virtue ethics finds in social institutions the means of satisfying those needs that individuals cannot satisfy for themselves. Those efforts in that context define our civil rights. The project of government is to deliver justice: to each her due. Our civil rights are also our civil and political needs. In satisfying our other needs, we exercise our rights, products of our human nature and not of custom, constitutions, or positive law. These are human rights.