Appeared in Winter 1975, Vol. I, No. 3
There can be no question that many atrocities have been committed in the name of rights — abortions and terrorist attacks to name just two. Such abuse rightly occasions a new examination of the claim to rights and the effects of that claim. In his own second thoughts on the subject, Fr. James V. Schall, S.J. raises a number of fascinating questions which stimulate the reader to probe more deeply still. Moreover, in answering some of these questions, the author suggests that those who claim an absolute, gratuitous “right to rights” not only have lost their sense of personal creative achievement, but also have looked to the political order to fulfill dreams which are not meant to come true in this life.
The apparently uncontainable growth of French universities (the student population rose from 247,000 in 1960 to 700,000 in 1971) stems not so much from the effects of the postwar baby boom as from the modern tendency to demand higher education as a natural right and from the reluctance of successive governments to hedge that right around with academic conditions. — (Robert Moss, France: A Divided Nation, in The Economist, London, 23 February 1974, Survey, p. 23).
The most worrisome development in social thought in recent years has been the unexpectedly pernicious effect of what might be called “the right to rights.” We are being killed, often quite literally, by what are called natural or human rights. At first sight, this will seem improbable, even outlandish, for it is objected that it is the abuse of rights and not the rights themselves that cause the difficulties. Indeed, it may be admitted that the concept of rights can be a useful and justified one if it is carefully defined and analyzed in a broad philosophy which clearly spells out the dangers inherent in a pure rights approach. But this is very seldom done and the fact that rights are subject to such conflicting or contradictory interpretations cannot be ignored in practice. (1)
Human rights, of course, seem such obvious and unmitigated goods that we no longer concern ourselves with what they are about. They are so traditional that we have failed to analyze what is happening to them. They are things we are told men have. Men are constantly discovering, however, that they have none of them fully and quite a few not at all. They envy others who apparently have rights they do not possess. They begin to feel that they have been cheated, misused so that the world suddenly seems like one vast conspiracy to deprive them of what is justly theirs. Rights, then, are considered to be things that simply belong to mankind, due under no other title than a common humanity, which itself is given from out of nowhere.
In one sense, the legal profession itself is one of the great causes of this distortion of the meaning of rights. No one has really ever paid enough attention to the mechanisms of the legal profession and its mode of operation. It has a vested interest, as it were, in civil controversy and turmoil. No doubt every society needs to have a special profession to deal with very real controversies and abuses. But currently there seems to be something deeper at work here, something which in practice sees rights as conflicting so that the common good of the legal profession as such — that is, its ideal — is seen in terms of pure conflict. This is why one must always remember that politics is and must be broader than legality and those who deal with it.
As a result of this curious effect of rights theory, our contemporary society is full of disruptive anomalies. Workers demand huge salary increases to which they claim they have a right, while the products manufactured remain unsalable because of excessively high prices. Public officials begin to look upon their jobs not so much as having to do with performing a function but as a vested right to increasing income and job security whether the assigned work is performed well or not. The classic problem of the railroad fireman on the diesel engine is becoming universalized in all sections of public society.
Again, it may be asked whether one has a right to be a teacher if there is no one to teach or if there is no criterion for learning. Daniel Moynihan noted:
In all of the 1970’s we will not ‘need’ a single additional school teacher, if we maintain our present ratio of teachers to pupils. We have reached suddenly and now gone below, a ‘replacement’ birth rate. I cannot but note that there are a number of young persons around the Graduate School of Education at Harvard who are finding it hard to get jobs these days, and are themselves noticing that, while they were out attending Zero Population Growth rallies in the late 1960’s, the birth rate had already dropped to the point where we no longer ‘need’ new school teachers. I can state even more ominously that in the 1980’s we won’t need any more professors. Think about that. (2)
Yet, many existing teachers feel they have a title to a job no matter what. The right to unionize has more and more resulted in the feudalization of society with the result that its net effect today is largely to play off one social group’s interest against another. The example of the unions in Britain, to go no farther, is a disturbing example of the fact that the strong are more and more capable in democratic countries of imposing their wills on the rest of society. (3) It is with no little irony that the totalitarian states are proclaiming their superiority precisely on the basis of a broader civil peace.
THE RIGHT TO BE DISRUPTIVE
Perhaps no other right has caused more turmoil recently than the right to equality. Indeed, it is probably the ambiguity of this right that has done more to emphasize the whole problem with rights than anything else, except perhaps such things as rights to die or to abortion. Irving Kristol has written of this problem with much perception:
It is interesting to note that, from the very beginning of modern bourgeois civilization, the class of people we call intellectuals — poets, novelists, painters, men of letters — has never accepted the bourgeois notion of the common good. This notion defines the common good as consisting mainly of personal security under the law, personal liberty under the law, and a steadily increasing prosperity for those who apply themselves to that end. It is, by the standards of previous civilizations, a “vulgar” conception of the common good — there is no high nobility of purpose, no selfless devotion to transcendental ends, no awe-inspiring heroism. . . . The original contempt of intellectuals for bourgeois civilization was quite explicitly ‘elitist’. . . . It was the spiritual egalitarianism of bourgeois civilization that offended them, not any material inequalities. (4)
Kristol goes on to suggest that the common people have remained loyal to the older bourgeois notion of a common and achievable but ordinary life for most men. This explains the hostility of the workers and middle classes to the western intelligentsia which espouses a notion of equality directly opposed to the achievable equality of bourgeois practice.
What is at issue, then, is something quite a bit more significant:
. . . the trouble is not sociological or economic at all. It is that the ‘middling’ nature of a bourgeois society falls short of corresponding adequately to the full range of man’s spiritual nature, which makes more than middling demands upon the universe, and demands more than middling answers. This weakness of the bourgeois society has been highlighted by its intellectual critics from the very beginning. And it is this weakness that generates continual dissatisfaction, especially among those for whom material problems are no longer urgent. They may speak about ‘equality’; they may even be obsessed with statistics and pseudo-statistics about equality; but it is a religious vacuum — a lack of meaning in their own lives, and the absence of a sense of larger purpose in their society — that terrifies them and provokes them to ‘alienation’ and unappeasable indignation. It is not too much to say that it is the ‘death of God,’ not the emergence of any new social or economic trends, that haunts bourgeois society. And this problem is far beyond the competence of politics to cope with. (5)
Thus, the kind of proximate equality that might conceivably be achieved in this world has become a subtle abstract right by which the possibilities of this world are not accepted at all. Politics becomes corrupted by expecting from it something that politics is not designed to give.
As Aristotle noted, all revolutions arise when a sense of equality is felt to be violated — either when people who are equal in some things feel they should be equal in all things or when people who contribute more are not properly recognized and rewarded. (6) We no longer speak of greed and pride as political realities as the Greeks freely did. Yet, it at least must be wondered if these profoundly spiritual problems are not turning up today under the guise of “the right to rights.” Common men are pushing their causes as if they were owed elite privileges. Elites, on the other hand, are using common causes as if they were judgments upon any possible worldly society at all: they will not be content with anything less than the perfect.
The argument advanced in this paper is that human rights, in practice, are profoundly disruptive. There seems to be something tainted about them that wrenches rather than heals. This raises the question of whether the very basis of human rights does not somehow contain a subtle cancer that cannot be cured until it is understood why advocacy of our natural rights so frequently ends up in hurt for others and agonizing disruption of the public good.
On the one hand, disruptive is what rights were meant to be. They were designed to be tools or ideals which forbid contentment with anything less than their complete fulfillment, almost like Platonic forms floating about in space just waiting to descend upon some existential situation in order to manifest its profound deficiencies. In Paris, for example, there is an International Committee for the Defence of Human Rights, which seeks to pursue, document and hopefully prosecute all blatant violations of human rights, especially those perpetrated by governments. The case of Alexander Solzhenitsyn revealed the potential power of natural rights philosophy when, by contrasting ideal and reality, it was able to point out vast degradations of the human spirit. The “right to be disruptive” makes considerable sense in the context of human corruption.
We are, by now, quite used to revolutionary movements of any vintage: kidnapping, stealing, ransoming, and killing at random innocent persons in the name of someone else’s so-called rights — rights of the poor, rights of freedom, rights of property, rights of nationalism or independence. Rights conceived in this fashion evidently require victims, usually spotless victims. Indeed, it can almost be argued that we have a revival of the ancient doctrine of tyrannicide in a much more questionable form. Tyrannicide was meant to be an addendum to the question of murder in a dire political context. Who could take a tyrant’s life? A political grouping? Anyone? In any case, the tyrant was by common opinion judged guilty of violation of public and private good in an intolerable fashion. Today, tyrannicide is applied not to the guilty tyrant (which is often a class or a movement or a nation or an economic condition) but to any member or members of a class or a nation or just anybody who happens to be about — random victims of hijacking for example — with no personal guilt at all implied. These are killed in order to change the form of oppression the killer sees as justifying his cause. Personal responsibility no longer counts as a justification for the killing. Indeed, it is an impediment. The cause is more graphic when the victims are innocent.
Thus, what was once perhaps the most sacred right — the right of the personally innocent to life — has become a mere means to blackmail other more important victims for other supposedly more important rights. The right to life is in shambles. The new ‘right to abortion’ makes of it a mockery, for these two rights cannot exist together. We hardly have begun to come to grips with the theoretical consequences of this practical contradiction. The ‘right to abortion’ already represents the greatest carnage of human kind in man’s turbulent history.
Our penal and legal systems, moreover, practically guarantee that the life of the killer cannot be exchanged for the life of the killed. Sociology has, supposedly, proved that there is no relation between the two. We have made the rights of the killer more important than and independent of the rights of the killed — which is fairly close to saying that we can no longer distinguish the one from the other. A protracted case in Zurich concerning a bar fight ending in the killing of an Italian worker who had been in the country but a few days resulted finally in a sentence of eighteen months in prison. The comment of the victim’s sister is revealing: “It is an absurd sentence, not only for the memory of my brother, but also for other co-nationals there. By continuing in this matter, we will end by condemning more severely someone who kills an animal than someone who kills a man.” (7) The civil contract by which we seek safety and security in society is yielding to a kind of unadmitted war of all against all, and this precisely in the name of rights.
The right to life itself, furthermore, has become replaced by some vague notion of a right to a good or perfect life. The right to pursue happiness is replaced by the more doubtful right to happiness itself — the most ambiguous of all the worldly concepts. True, the concept of happiness in its ultimate depth is probably not a worldly concept at all, but a spiritual conception that cannot be made worldly without the destruction of the human order itself. Still, the risk of such abstract rights is the other side of their usefulness — they can be tools to improve distorted situations, but they can also be tools to make any livable human order impossible.
RIGHTS AND THE NATION STATE
It goes without saying that most of our modern ethical and political philosophy is based upon what are called natural rights. Therefore, no one familiar with the history of Western thought is unfamiliar with the historical turnings of this foundation. Thus, we can suggest that the whole direction taken in discovering and defining and establishing these rights — so subtly different from the natural law theories which they replaced — was from an initial grounding in the autonomous individual, usually as against the state, toward a final transfer of rights to the state either as their creator, protector, or theoretical foundation. The so-called bills of rights — English, American, French, and United Nations — are merely the most well-known efforts to base human worth on rights in practice and law.
The contemporary crisis of human rights is very largely the direct result of the failure of the nation state as an institution in the recent past along with the absence of any higher (or lower) institution to replace it. “What blocks everything,” Denis de Rougemont has perceptively written,
is the pretension to absolute national sovereignty which would be incapable of manifesting itself in any other way than a periodic refusal of proposed communal measures. . . . The napoleonic nation-state, resulting from the imposing of a state apparatus on national realities in view of the war (the sole excuse for centralization, in all other aspects almost mad), is an anachronistic formula for the 20th Century. Not only is it out-of-date, but positively damaging. It is the principle cause of the crisis in the West and the main obstacle to its solution. (8)
In other words, the whole institutional theory of the origin and protection of human rights is founded in a theory that has failed us.
The argument about the dichotomy of rights and duties is, of course, an effort to prevent the destructive tendencies of a rights-oriented system from reaching their logical consequences. To every right corresponds a duty or a reciprocal obligation. This perspective already defines the world from the point of view of what is owed to the self, the owner of the rights, and not from the external judgment about what needs to be done. Thus, my right to life involves everyone else’s duty to respect it. Human rights, further, have come to be seen in broader terms. Not only are there individual rights, but social, economic, even artistic, educational, and cultural rights. The entity which bears these latter sort of rights is much more metaphysically ambiguous than is the entity of the person in the case of personal rights. Indeed, it is but a short step, often taken, to posit some sort of corporate social entity for which the individual exists.
The meaning behind all this rather elaborate endeavor to define and codify the various aspects of our rights has been simultaneously the effort to identify and project what man in his human fullness is. Since man can and must achieve this full development with the aid of political and economic organization (the heritage of Aristotle thus abides), a consideration of human rights must necessarily include the effort to define what the state or international society must provide or guarantee for its members. The difficulty is that human and natural rights have become divorced not only from duties but more fundamentally from generosity and creativity. The framework of the nation-state, moreover, in which they are lodged for legal definition and achievement, with its overtones of sovereignty and absoluteness, militates against any restructuring of the rights themselves to account either for human growth in moral sensitivity or different institutions in which this growth might be manifest.
In this light, the case of Solzhenitsyn is revealing on two accounts. First, he himself pleaded for a rejection of the Marxian state precisely in the name of an older concept of Russia as merely a nation before it was an empire. Second, the Soviet government expelled him for being disloyal to the entity of the nation-state. That is, it objected to the criticism of failures regarding Soviet human rights because the state is to be the ultimate loyalty. (9) What is significant is the inability of rights-oriented theory to account for any newer or more far-reaching institution that must replace its national or statist expression.
RIGHTS IN A VACUUM
Rights are not merely claims we have against someone else whose selfishness prevents us from having our due, though that is often the way we first encounter them. They are also signs of our own self-control and our recognition that what we do not have is largely the result of our own personal and societal deficiencies. Rights are not best conceived as definitions of the failures of others to give us something but as self-failures to accomplish something for others. The profound ethical level of Greek political thought, which was based on a realistic recognition of man’s tendencies to evil, is something we have neglected at our peril. As a result, we have a pervading social atmosphere today which indicates that the reason the poor are poor or the simple suppressed is because someone is forever exploiting and abusing someone else. The control, talent, work, time, and generosity it takes to establish a more complete human order are no longer considered constitutive elements in rights, as they must be in any human society after the Fall. The result of this is that the search for human rights has become the search for some scapegoat (capitalism, some nation, some class, some religion, some person) who is responsible for the exploitation. Once this outside source is discovered and destroyed, all will be well, except that it is constantly discovered that the same old vices and tendencies seem to crop up under any political system, or if not exactly the same ones, different ones with which, in their own way, it is equally agonizing to cope.
In a reflective essay, Michele Sciacca has, I think, pinpointed the way rights are too often understood:
Today, we are living in a social context in which all rights are claimed, even the most absurd, without ever pronouncing the word duty as if perhaps it would be a blasphemy against society and an intolerable violence for personal liberty. Thus, we lessen, we even trample on not only every sort of moral obligation and principle of justice but also legality and even a tolerable social custom with a minimum of formal correctness. It cannot be otherwise.
It is just that the law codify the right to work as a property of every citizen, but if a position is demanded without preparing oneself for the type of work chosen or desired or if, once prepared, one does not work or works badly with consequent damage to the society which expected the performance for having recognized such a right and its exercise, then the duties of work, citizenship, and humanity are lessened. Likewise, if we speak of a right to study, once that right is exercised, it demands the duty of study on the part of the one demanding the right. . . . [We are coming to have] a series of rights in a vacuum, which break up society in a fatal shifting. In fact, having acquired the right to study without wishing to study, one lays claim to the right not to study — the excuses are thousands — and denies to others, in order not to be surpassed by the ‘faggish slaves of the system,’ the right-duty to do so. On this basis follows the right to a degree or title and therefore to mass promotion; once having obtained a piece of paper, one berates unemployment and demands, ever excusing oneself from serious obligation, the ‘right to a position’ with the further right to advancement. On such a scale of rights in a vacuum, society is on the way to ruin. (10)
Thus, the ‘right to rights’ or the ‘rights in a vacuum’ comes to be a claim against society or humanity with absolutely no sense of service or contribution connected with them. And yet, all of this is, I think, within the logic of the manner in which rights are presented and justified.
Is there any alternative? My own second thoughts on natural or human rights are based largely upon the belief that rights theory and practice have come to foster a kind of selfish egoism and individualism, demanding their protection and accomplishment from someone else, from the more generous, or from the nation-state. The practice of rights enforcement, furthermore, has tended to become legal formalism since ethical content is removed from the law. (11) Thus there comes a suspicion that the pursuit of rights is currently so complicated and costly only because the rights are really intended for a few, even, perhaps, for no one at all.
“That the mechanism of justice does not function,” Lucio Toth has remarked:
is a well-known and much repeated fact. . . . But what the citizen of today is able to suspect, collecting news from here and there with a thread of good sense . . . is that there are some among those who have access to the seats of power who conduct themselves deliberately so that the justice system does not function. . . .
The accusations against judicial techniques which are often translated into a formalism which was characteristic of the great schools of the last century in which the legal codes of the nations of continental Europe were inspired, have their foundations. Excluding every relation between morals and right and retaining morals as merely a socio-historical factor, by then identifying morals and custom, the modern science of right has ended by considering the internal mechanism of legal procedures as of absolute value. . . .
Sociology and psychology have furnished invaluable instruments for the understanding of man and of the psychological mechanisms which contribute to criminal conduct. . . . But both lose every significance when there is no order of ethical values, if also there is lacking the personal responsibility of man before himself and other men.
Rather than helping the person to liberate himself from the material conditions of his heredity and environment, this lack leads to a level of permissiveness which refuses responsibility and distinction between good and evil. . . . The true, perhaps the only force in democracy is not in the perfection of the institutions but in the civil virtue of the citizens. (12)
Our pursuit of rights in the way they are conceived, then, constantly paralyzes and fractures. Any sort of well-being or any sort of progress accomplished in the world is immediately looked upon as the result of the deprivation of someone else’s rights, whether this be the case or not.
Ultimately, the difficulty with rights is rooted in the very limits of justice itself. The word rights had its origin in the effort to clarify what is objective about justice. Justice, furthermore, was seen as contrasted to liberality or magnanimity among the Greeks and charity among the Christians. Both these notions, interestingly enough, have become rather pejorative ones in most rights theories (“We want justice, not charity!”). Classical thought on the subject of receiving and giving what is due always recognized a distinction between justice based on equality and justice based on proportion. Both were justice, but both were not the same.
The root of this difference was found, significantly, in the fact that people do vary widely in talent and generosity, and that any refusal to recognize this would create a revolutionary situation because the consequent injustice would not be tolerated. (13) The Christian notion of the virtue of suffering injustice was, indeed, precisely a recognition of this result and an attempt to ward off its most dire consequences in the worldly order. (14) Thus, there were areas where the rule of inequality was just, others where the rule of equality was just. All of this, further, was seen in the context of a natural and expected tendency in man, rooted in sin and finiteness, to exaggerate his claims so that there was likely to be forever an unsettling and disruptive element in any rights or justice theory. In fact, it might be said that justice theory of itself is intrinsically incapable of resolving the conflicts in human society no matter how effective it may be in identifying them. Aquinas’ theory of law, indeed, comes pretty close to basing itself on the inadequacy of justice to resolve human conflicts and desires. (15)
The experience with modern rights theory and practice not only repeats this glaring deficiency in justice itself but goes further in cutting justice, and therefore rights, off from any relation to objective ethical criteria either as to what a right might be or what its correlative accomplishment might demand. Consequently, our rights in a vacuum leave us with a bitter resentment because they are conceived and justified on no other basis than their statement and their felt lack, in comparison with others or with some abstract ideal. We evaporate from our demand for rights the control, effort, and intelligence that goes into their real existence, but we continue to feel justified in insisting on them none the less. Thus, we have implicitly espoused a view of our right to rights which renders any gradual and attainable human order quite improbable. We have divorced rights from criteria outside the individual and made the individual in turn a mass of seething ambitions and desires for ideals whose achievement does not at all depend on himself or on what he might profitably do for others. Rights become a parody of grace — things given to us unmerited and undue from outside ourselves. The difference is that we no longer demand them from a god but from others or society: we are owed, owing nothing. In this atmosphere, we cannot be in the least surprised if the absolute state appears to grant and define just what rights we might obtain.
It is well to note that currently there is a remarkable demand for a kind of legal and ethical perfection in the public and economic orders which is presented under the form of rights owed to us. What is of importance is that this insistence that our political leaders be absolutely just and our economic order absolutely productive and distributive for everyone has no correlative connection to the individuals within society — either that they be themselves also virtuous or that they themselves work efficiently and diligently to be sure the abundance appears. What we have done, in a sense, is to project our unfulfilled desires and demands outside of ourselves. This is the spiritual form of a search for a good capable of giving all things, seen not as a religious but as a political and economic problem. Under the form of rights due to us, there is a demand for ‘others’ to grant us as gifts what is lacking because of our own weakness or laziness or lack of abilities.
In this manner, then, we have managed to separate perfectly individual ethics from public morality so that the subject bearing the latter is some kind of impersonal yet all powerful entity which must display an absolutely perfect competence in goodness, power, and generosity. This, it goes without saying, is exactly the kind of justice and abundance that is not possible to us as men. Rights theory, paradoxically, has ended up by inventing its own god who, unlike the classical god, is obliged to fulfill our demands, our rights, on no other title than that we are owed them. What in classical theology was a gift of God — that is, the understanding and surpassing of the limits of justice — reappears in modern politics as the obligation of the state or politics to be good and holy and all powerful, precisely in order that we may receive all things as individuals without ever having to do anything ourselves to merit or accomplish or even choose them. Further, we are exempt from the obligation of suffering injustice because we are led to believe injustice should have no existence, and therefore we should have no relation to it.
Consequently, it is not too much to say that rights theory is ending up by making freedom unnecessary. With this as the result, I think, the right to rights reveals itself to be a complete vacuum, for the being who does not need to choose is, by definition, non-human. Politics, which was seen by Aristotle to be that life most proper to man as man, comes near to eliminating the need for man at all. Surely this is the one right we do not want — the right to cease to be men.
A resolution of the problem of rights in our time might be found in the Christian religion’s recognition that the kind of man who presently exists is, in spite of his Original Sin, good — a being to be accepted and, indeed, rejoiced in. Man does not have to be perfect to be good. This is the great mystery to, as well as the great weakness in, all contrary ideology. Not all rights in this world shall be vindicated even though we should try to improve the public order. We shall have, after all, sinners and saints, good regimes and bad ones.
But that the human person in his evil as in his virtue transcends all social order should not be forgotten. Even the greatest happiness we can expect in this life is not enough. Yet, there is civic virtue and a temporal good that we ought not to neglect. The great paradox is that if we insist on obtaining all our rights we shall destroy both ourselves and any tolerable public order we might hope for. Happiness, ultimately, transcends politics. No quest for rights will change that fundamental truth.
- With evident irony, Professor Hanna Klaus has written: “When the Supreme Court rendered its landmark decision on Jan 22, 1973, it stated that it was not allowing abortion on demand. Abortion on demand is what we have. Abortion is, in the words of Frank Susman, an expert on abortion law, the only operation guaranteed by the Constitution! We have no constitutional guarantee for necessary appendectomy, Caesarean section, removal of a foreign body blocking the windpipe or any other life-saving measure. . . .” A Medical Cop-Out? in America, 16 August 1975, p. 68.
- Peace — Some Thoughts on the 1960’s and 1970’s in The Public Interest, Summer, 1973.
- Cf. These Islands Now in The Economist, London, 9 March 1974, pp. 15-17.
- On Equality in Dialogue, no. 1, Vol. 6, 1973, p. 76.
- Ibid., p. 81.
- Aristotle, Politics, Book V.
- La Stampa, Torino, 22 March 1974, p. 20.
- L’Etat-Nation contre l’Europe in Le Mande Diplomatique, March, 1974, p. 30.
- Cf. Herald-Tribune, Paris, 4 March 1974.
- Dritti e Privilegi in Il Tempo, Rome, 17 February 1974.
- Cf. the author’s The Limits of Law in Communio, Summer 1975, pp. 126-47.
- Criminalita e Democrazia in L’Europa, Rome, 15 February 1974, pp. 28, 32, 34.
- Undoubtedly one of the main reactions to this over-emphasis on equality is the rise of political and social thought based precisely on genetic differences. In this sense, exaggeration invariably produces its own exaggerated reaction.
- Cf. A. Richardson, The Political Christ, Philadelphia, Westminster, 1973. Cf. also the author’s Political Theory and Political Theology in Laval Theologique et Philosophique, February, 1975, pp. 23-48.
- Summa Theologiae, I-II, 91, 4. Cf. the author’s The Urgency And the Waiting in World Justice, Louvain, no. 4, 1969-70, pp. 435-59.