Nigel Biggar, What’s Wrong with Rights?
This article is part of our “What’s Wrong with Rights?” series.
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Despite the title, Nigel Biggar’s main objective, in this stimulating but debatable book, is not to discredit rights language entirely. He is perfectly content to support the value of a subjective legal right, which depends on the existence of the institutions of government. It is “the property of a human subject or individual,” and is something “granted by a particular legal system, which acquires its security through the actual authority of law and the prospect of enforcement by the police and the courts.” He is emphatic about this: “My view is that…a subjective right is paradigmatically ‘a legal right’” (8).
What he does object to with considerable ardor, and seeks for the most part to discredit, is the idea of a subjective natural right, including the idea of a human right understood in the same way. Such a notion supposes that every human person possesses a moral right independently of the institutions of government, something Biggar opposes strongly. So defined, he declares repeatedly, “there are no natural rights” (131). The belief there are leads regularly to “rights fundamentalism,” which is a form of moral absolutism and dogmatism that does nothing but confuse and distort proper moral, political, and legal reasoning.
Biggar attempts to demonstrate this proposition throughout twelve chapters and a conclusion. The first half of the book takes up the tradition of “rights scepticism,” beginning with the thought of Edmund Burke, eighteenth-century, Irish-born political essayist and member of the English Parliament, who turns out to exert a dominant influence on the principal arguments of the book. Burke’s position is supplemented by the ideas of Jeremy Bentham, David Ritchie, and Onora O’Neill, several contemporary Roman Catholic thinkers, and other contemporary rights critics. All of them have strong objections especially to subjective natural rights, and, in the case of O’Neill and one or two other figures, to human rights understood as a version of natural rights.
The second half of the book does several things in regard to natural and human rights thinking. Chapters 7 through 12 challenge the belief in absolute and universal subjective natural or human rights, like the prohibition of torture; oppose the suggestion that the ethics of war rest on a certain version of the right of self-defense; and criticize judicial rulings by various legal bodies, namely, decisions of the European Court of Human Rights that apply human rights law to British military activity in war zones outside Europe, and a decision by the Canadian Supreme Court concerning physician-assisted suicide and voluntary euthanasia. Finally, there is strong objection to the practices of certain English human rights lawyers the author considers overzealous and dogmatic. With several notable exceptions, the chapters give evidence of considerable research, conscientious attention to complexity and detail, and clarity and consistency of expression.
One glaring exception—right out of the starting gate, as it were—is that Biggar’s basic attack on natural and human rights, understood in a subjective, non-legal sense, is not entirely consistent, a problem possibly related to a similar ambivalence in Burke’s thought hinted at in the first chapter. The problem is that the inconsistency, in Biggar’s case, is generally muted and not acknowledged and resolved.
On the one hand, Biggar’s predominant argument throughout the book is that there simply are no natural rights in a “state of nature” (conditions outside the institutions of government)—a position also found at least in part in Burke’s writings. That does not mean, in a Hobbesian sense, that no moral considerations whatsoever obtain in the state of nature. Biggar is a self-declared moral objectivist and is at great pains to support the universal relevance of such considerations, making it possible for him to speak of acts or states of affairs outside the institutions of government as morally right or wrong or good or bad. It is just that there is no such thing as a nonlegal moral right in the state of nature. To believe there is causes endless political and philosophical trouble.
On the other hand, Biggar summarizes in the introduction a somewhat less clear-cut conclusion on the subject. “A ‘right’, being paradigmatically legal,” he says, “is stricter, more stable, and more secure than [a] ‘moral right’” (8). By “stricter” and “more stable,” he means the stipulated rights and duties are, in his words, “more tightly drawn” and “more precisely defined so as to be justiciable” than in the case of moral rights. By “more secure,” he means “backed by the [enforcement] authority of social institutions [as compared to less reliable forms of enforcement taken to exist outside social institutions].” On this thesis, rights existing, respectively, in the state of nature and under the jurisdiction of a legal system are different only relatively or comparatively; they are not opposites, as in the first thesis.
Though the first thesis clearly predominates throughout the book, the second thesis, attributing some value, at least, to a notion of nonlegal subjective rights, makes a shy appearance here and there. In Chapters 2 and 6, Biggar discusses with laudable care and insight the sharply contrasting interpretations of rights as between Thomas Hobbes and John Locke (and his medieval forebears), showing sympathy for Locke and disagreement with Hobbes. He also properly rebukes a number of scholars for confusing these two traditions, and therefore for misunderstanding the significance of the different strands of rights language in Western history. He is certainly not the first scholar to do that; he stands in the shadow, particularly, of Brian Tierney and John Witte. Nevertheless, his analysis is an important contribution.
Moreover, while Biggar’s positive attitude toward Locke, as well as Ockham, Gerson, Suarez, and other predecessors in the same tradition, is hardly undivided, his mild, if still eloquent, reproach of a myriad of contemporary theological critics for their wholesale opposition to rights language is welcome and very much worth noting. Without ever explicitly admitting the key assumption of the Lockean tradition that the idea of subjective natural rights constitutes the moral foundation of law and government, Biggar comes close to admitting it when he says:
[the idea of subjective rights in the Lockean tradition] was specifically designed to give individuals—and civil associations—legal protection from abuse by other persons, social bodies, and political authorities, not least papal ones. As such the development of subjective rights was a natural expression of the high Christian esteem of the human individual as a subject of God’s calling. It is most doubtful that any of the theological critics object to this, and yet it hardly tempers their deep and abiding suspicion of the very concept (164; italics added).
The unmistakable implication of this passage is that the idea of subjective rights is the “natural expression” of the sacred importance of using legal means to regulate force in defense of all persons against what may be taken to be unjustified threats to life and welfare. That is certainly one reputable way of representing the basic tenets of the approach to natural rights found in Locke and his forebears.
Biggar’s predominant argument against natural rights, in line with the first thesis, can be simply summarized, drawing, as it does, on a set of claims well-developed in Burke’s Reflections on the Revolution in France. Natural rights wrongly express absolute, abstract moral claims that are, for the most part, irrelevant to real-world moral deliberation. Properly understood, such deliberation proceeds, inescapably, in the face of shifting circumstances and recurring dilemmas that pose agonizing conflicts among moral values, often calling for judicious compromise. That is particularly true in the context of law and government, where sharply opposing goods and interests must regularly be accommodated in some equitable way, a situation requiring, above all, an abundance of prudence. What is most offensive to prudence is insisting dogmatically on one or another absolute claim to the exclusion of competing and qualifying considerations. Accordingly, whatever moral impulses expressed imprecisely and impractically in natural rights language can be made relevant only by being translated into the language of law and government, thereby surrendering any claims to moral priority and accepting a more modest place in the normal push and pull of public deliberation.
Biggar attempts to substantiate this case by demonstrating in one setting after another that natural rights language is, by definition, sealed off from the unavoidable qualifications and modifications of moral conviction required by the realities of public deliberation. As an example of his extended effort to cast doubt on the existence of natural rights, this time in Chapter 6, by means of a critique of certain contemporary Roman Catholic thinkers, Biggar offers an arresting opinion on whether, under some circumstances, there might, after all, be “an absolute natural right [to life]” (87).
My view it is always wrong to want or desire the death of anybody for its own sake or as an ulterior end in itself, since that would involve at least subjective malicious hatred, and probably also objective disproportion. (If I am unjustly threatening an innocent person with lethal injury, justice might permit or even oblige you, ceteris paribus, to use such force against me as is necessary to stop my assault. But if you hate me, and want me dead, you will be inclined to use more force than is necessary to do justice. That is, your use of force will probably be disproportionate.)…So: I consider it always and everywhere morally wrong to intend someone’s death in the sense of wanting it for its own sake—that is, out of a motive of sheer hatred—and to commit oneself to realizing such a desire (87, 88; original italics).
Although Biggar suggests parenthetically that it would likely be wrong to assault an innocent person or to use “disproportionate” force, he passes over these considerations and concentrates only on what he calls intention (desiring to kill for its own sake) and motive (malicious hatred). For him, the conditions of absolutely wrongful killing—killing for its own sake out of “sheer hatred”—are very narrow, indeed. On his account, there are certainly good moral reasons for adopting a stringent legal prohibition against such acts. But that prohibition hardly takes us very far in deciding what does and does not constitute wrongful killing in general.
In fact, when that broader subject is taken up, there are, according to Biggar, many qualifications and modifications that must be considered, and these are far too complex to be encompassed in any general moral formulation characteristic of natural rights language, such as the existence of a universal right to life. He goes on to exemplify these complexities in the rest of the section and in other parts of the book. Some uses of lethal force by the military, the police and others are justifiable as necessary to protect the innocent, so long as they are duly proportional and undertaken with beneficent intentions. These examples are supposed to demonstrate that working out the meaning of a right to life in realistic terms is a very complicated affair. Because natural rights language is so abstract and pristine, and, as such, so incapable of adjusting to practical contingencies and variations of circumstance in the real world, it is essentially useless for determining what it means in practice to enforce something like the right to life. In effect, therefore, there are no natural rights because, for practical purposes, rights language becomes intelligible only when it is made to accommodate to the intricate world of law and government.
But suppose we recast the discussion of natural rights language in general, and the right to life in particular, in keeping with the Lockean tradition? That would be consistent with the second thesis Biggar occasionally hints at, if only sotto voce. Accordingly, we would gravitate to a reconsideration of the right of self-defense as a way of addressing the right to life, a subject Biggar alludes to in several places, but only cursorily and inadequately. In contrast to him, we would propose a much more elaborate understanding of that right, one with considerably more complexity and practical relevance, than Biggar’s interpretation allows for. In so doing, we would try to show that natural (and human) rights language is not as “naturally” incapacitated as Biggar claims.
In my series of essays on “The Right of Self-Defense and the Organic Unity of Human Rights,” published earlier by Canopy Forum, I put forward the following definition of the right of self-defense: “the right to use reasonable or defensive force to protect oneself or others against arbitrary force.” This formulation, I believe, correctly captures not only the basic elements of that right present in Western (and nonWestern) thinking, but also, as I tried to demonstrate, constitutive characteristics of modern human rights language, as well.
Three crucial features of the definition may be elucidated as follows: 1) the right of self-defense is an example of natural subjective rights, according to which all persons equally possess enforceable entitlements; the right is so understood because the exercise of arbitrary force constitutes a universal violation; by implication, everyone everywhere has a duty to refrain from exercising arbitrary force against anyone; 2) reasonable or defensive force authorizes the lethal use of force, along with nonlethal coercion and nonviolent means of averting a threat of arbitrary force, under four strict conditions: necessity, imminence, proportionality, and right intention; 3) arbitrary force means deliberately inflicting death, serious injury, or severe pain, or forcibly depriving of or neglecting basic survival needs, primarily for self-serving or manifestly unfounded reasons.
As compared to Biggar’s position regarding the right to life, the definition significantly expands the conditions under which absolute protection of life is justified. Any deliberate act shown to inflict death or serious disablement or deprivation, for arbitrary or manifestly unfounded reasons, is regarded as wrong in itself and rightfully liable to a response of defensive force. Not only would “killing for its own sake out of sheer hatred” be absolutely prohibited, as Biggar argues. Killing to satisfy any “extravagance of will,” in Locke’s words, such as promoting financial advantage or preserving political power, would also be included. Moreover, the absolute protection of life rules out not only death, but also the arbitrary infliction of serious injury, severe pain, or suffering, as well as of forcible deprivation or neglect of basic survival needs. Killing, disabling, or depriving because of religion, ethnicity, race, gender, or national origin would also be absolutely prohibited as examples of action based on “manifestly unfounded reasons,” such as were notoriously advocated by the Nazis and other fascists before and during World War II.
In another contrast to Biggar’s view, the natural right of self-defense is forthrightly a moral right, equally available to every person everywhere. Unlike arbitrary force, which is morally incomprehensible, defensive force constitutes the paradigmatic formula, as we might put it, of the moral use of force. An exercise of force that measures up successfully to all four of the conditions is optimally morally justified; force that does not, is not. Far from being discrete, free-floating standards brought to bear on the morality of killing as happens to be deemed prudent—in line with Biggar’s predominant contention, the four conditions are interdependently built into the very concept of self-defense. While it is true there can and will be differences of opinion over what constitutes a violation of the conditions of necessity, imminence, proportionality, and right intention, there are, by now, enough historical examples of self-evidently wanton behavior—prominently including the behavior of German and other fascists before and during World War II—as to substantiate indubitable points of reference.
Of course, acting in self-defense in a state of nature is a precarious practice because defenders, in face of a mortal threat, take the law into their own hands. They become their own judges, juries, and law enforcement officers, and are therefore required all on their own to apply the four conditions under debilitating circumstances typically dominated by fear and passion. As a result, defensive force can readily metastasize into its opposite. That is why, on a natural (and human) rights understanding, judges, juries, law enforcement officers, along with other government officials, are necessary, and why the moral right of self-defense needs to be translated into a legal right. The institutions of law and government regularize the right by making it “stricter, more stable, and more secure,” as Biggar correctly says. Properly designed in accord with the rule of law, those institutions deliver definitions, standards and procedures according to which the conditions of defensive force are more likely to be applied with the clarity, dispassion, deliberative care, and predictability they deserve. At the same time, it should be remembered that both rule-of-law governments and human rights jurisprudence permit the discretionary exercise of the moral right of self-defense where police are unavailable, on the understanding, of course, that such acts are held accountable to the standards of defensive force. In that way, the law defers to the prior moral status of the right of self-defense.
We must also hasten to stress that the difference between natural and legal subjective rights is, on this account, only relative or comparative, in keeping with Biggar’s second thesis; they are not opposites, and thus irrelevant to each other, as claimed by his first thesis. That means, most importantly, that a legal right of self-defense is definitively shaped by the conditions and purposes of a natural moral right, and that that influence has far-reaching effects on the whole understanding of law and government in relation to the regulation of force. A well-ordered government, on a natural (and human) rights understanding, is comprehensively structured around the natural moral right of self-defense, mandating the equal protection of every citizen against the exercise of arbitrary force. Far from being irrelevant to it, natural (and human) rights are the rightful foundation of government. ♦
David Little is at present a research fellow at the Berkley Center for Religion, Peace, and World Affairs at Georgetown University, having served before that as Professor of the Practice in Religion and International Affairs at Harvard Divinity School, and as Senior Fellow in Religion, Ethics, and Human Rights at the United States Institute of Peace. In 2015, Cambridge University Press published Essays onReligion and Human Rights: Ground To Stand On, and a book of responses to his work by colleagues and former students: Religion and Public Policy: Human Rights, Conflict, and Ethics, ed. by Sumner B. Twiss, Marian Gh. Simion, and Rodney L. Petersen.
Little, David. “Nigel Biggar, What’s Wrong with Rights?” Canopy Forum, January 20, 2021. https://canopyforum.org/2021/01/20/nigel-biggar-whats-wrong-with-rights/