Radicalizing Biggar’s What’s Wrong with Rights?
In his book What’s Wrong with Rights?, Nigel Biggar argues that “the task is actually not to jettison talk about subjective rights, but rather to save it by re-setting it in a larger framework of objective right” (142). In Biggar’s view, advocates, activists, scholars, and, most problematically, judges claim that rights are natural, meaning they belong to persons as entitlements on account of their equal status as persons, independent of any legal arrangements. In this way, Biggar argues, rights take on what he labels an absolutist or fundamentalist tinge: they are appealed to in order to determine the argument, to trump any countervailing social claims or concerns typically reflected in the law. In contrast, he contends that a right should be afforded to a person as a legal entitlement or claim once a careful and complete deliberation has been undertaken as to what the right action is in a particular case. Such a right is subjective, in the sense that it is a property now belonging to the person. Nevertheless, rights remain simply (and only) the law’s way of reflecting, on specific occasions, right – the demands of natural morality.
Broadly, I agree with Biggar’s main objective: to recover a wider conversation of right action, natural law, or human flourishing within which rights may be situated. However, I want to radicalize Biggar’s arguments in two directions. First, I will suggest that his criticism of rights discourse would be strengthened by a deeper discussion of the perhaps dominant controlling narrative or conceptual underpinning for subjective rights (largely, a concern for personal autonomy). Second, I will argue that his account of objective right is too easily aligned with moral ambiguity, tragedy, and mere stability. Instead, I suggest that objective right points to hopeful communion, and even radical change.
What’s really wrong with rights?
Biggar finds rights-talk problematic for a number of reasons. It is “absolutist;” it fails to account for wider social claims; it curtails the fullness of moral discourse. Within these claims, Biggar develops an institutional criticism. He discusses the Supreme Court of Canada’s decision in Carter v Canada (Attorney-General) that physician-assisted suicide or euthanasia, within certain boundaries, is required by the Canadian Charter’s right to liberty. Biggar criticizes how this decision usurped ethical debate. Legislatures, he argues, are sites for democratic deliberation, reciprocity and compromise between opposing parties, and principled argument; they offer a broader capacity for participation and debate than the straitened lens of adjudication.
These are illuminating reflections. They fit within a wider trend towards abandoning juristocracy or juridified rights-talk as antidemocratic and (pace Biggar) aligned with conservative interests, or else fostering indifference, alienation, or resentment in citizens. Biggar goes further, however. He argues that the problem is not simply that important matters are left to the court to decide, but that the court takes the license afforded by an abstraction (“right to liberty”) to create novel rights (for example, to physician-assisted suicide). In doing so, the court “strays … from the territory of law into that of moral principle and social policy” (303). This is consistent with Biggar’s claim regarding the psychology of at least some judges: they enjoy being perceived as the fount of principle.
I am not entirely convinced by the claim here — that abstraction precipitates the judiciary’s illegitimate move to moral principle and social policy. At the very least, it needs further development. Courts are often tasked with interpreting “majestic generalities” or simply the ambiguities that arise in various areas of law – public and private, constitutional, statute, or common law. While good arguments can be made for judicial restraint — grounded in an understanding of the judicial role vis-à-vis democratically elected institutions — you would be hard-pressed to find a legal scholar who thinks such interpretation does not involve moral principle, or even social policy, in some way or at some point. Given this, we must ask what should shape this interpretation. What constitutes the controlling narrative or the fundamental norms that determine, in this case, what is meant when a right is invoked? Such a question is not limited to courts (and Biggar does discuss rights advocates more generally). Even in jurisdictions like Australia where no fundamental rights Charter or Human Rights Act exists (at least federally), advocates will still appeal to “the human rights perspective” in political debate as determinative, drawing on the same normative account.
Very broadly, this account can be characterized as an emphasis on personal autonomy. For example, Ronald Dworkin argues that political legitimacy rests on an abstract — and therefore, in his view, fundamental — political right to dignity. Dignity for Dworkin means that political authority must respect a person’s self-respect and authenticity – the attempt to perform a life successfully and develop a way of life that “grips you as right for you.”1 Ronald Dworkin, Justice for Hedgehogs (Belknap Press, 2011) 203–9. For Dworkin, this fundamental autonomy shapes all derivative rights. Notably, he transforms religious liberty into a general right of ethical freedom (although on his account, the actual scope of religious freedom does not consequently expand – quite the opposite). While not taking the full Dworkinian path, courts have similarly stated that religious freedom concerns “the notion of personal choice and individual autonomy and freedom.”
So reduced to a claim of personal autonomy, religious liberty now competes with (and, more often than not, is outweighed by) other claims to autonomy or authenticity. Thus, a religious school must not discriminate against the identity claims of students and teachers, or what Lord Mance once called the “individuality or interests” of a person; a church potentially must take into account an individual employee’s right to self-determination, against its own ethos. In this stream of argument, the Supreme Court of the United States’ decisions in Casey and Obergefell are high-water marks for articulating the purpose of rights-claims. Casey pointed to the right to “define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Obergefell again emphasized that a person’s dignity consists in the “liberty … to define and express … identity.”
More attention to this consistent emphasis on claims of autonomy, ethical individualism, or authenticity within rights discourse would add nuance to Biggar’s criticism of rights absolutism. A legal scholar may object to Biggar’s claim of absolutism or fundamentalism. Lawyers are very fond of arguing about balancing rights and proportional limits on rights as integral to any adjudication or advocacy. But Biggar’s “absolutism” claim is often different. As noted, he suggests that rights can be invoked in a conclusory manner: appealed to as determinative, rights-talk closes-off further argument as to what the right is and whether it should be applied in a particular context. We can add to this. If rights are fundamentally directed towards an understanding of personal autonomy, then adjudication can become a question of “balancing” clashing singularities, each asserting a claim to self-determination. Claims of religious liberty and sexual orientation non-discrimination simply and necessarily clash because they are both, on this account, assertions to have personal autonomy recognized. Indeed, some have suggested that nothing conceptually would be lost if rather than talking about different rights in such scenarios, we admitted that the legal analysis concerns simply competing claims of autonomy to be resolved in some manner. What then mediates between these “absolute” claims is not clear. Such an account contributes to what Steven Smith calls a “jurisprudence of denigration.” When having one’s autonomy recognized (as authenticity or identity, for example) is legally paramount, any opposition to this can easily be characterized as the absence of equal concern and respect — or, simply, hate.
In his discussion of euthanasia, Biggar does allude to the Supreme Court of Canada privileging autonomy, and he does, on occasion, point to “licentious construals,” but these points are not central to his criticism of rights-talk. I suspect this is because he rejects the claim that subjective rights are a vehicle for what C.B. Macpherson called “possessive individualism.”2 CB Macpherson, The Political Theory of Possessive Individualism: Hobbes to Locke (Clarendon Press, 1962). In this vein, Biggar criticizes theologians like Oliver O’Donovan, Joan Lockwood O’Donovan, and John Milbank. For these “right order” theorists, natural rights are what arise in modernity when the discourse of natural law – which entails discerning the right relationship between persons and exercising duties to achieve this end – is lost, or else becomes a deracinated claim of mere self-preservation. A person could have a claim-right on the right order account – for example, to have a marriage recognized – but this would arise arguably as an incident of a more fundamental “right” to exercise one’s duty to pursue or act consistent with right relationship or natural morality. However, right order theorists argue that rights are now subjective, belonging to individuals as a property or power to be exercised independent of any conception of the common good. In contrast, Biggar argues that there remains in modernity an understanding that subjective rights are subject to the claims of natural morality (Locke is the hero of Christian liberalism) and that the proprietary understanding consequently does not result in possessive individualism.
To my mind, although there may be debate as to the when and how, the right order theorists are nevertheless correct to point to a fundamental shift in our understanding of rights. They note the priority of the will over reason or moral order, in which a changed understanding of God’s sovereignty is paralleled by the sovereign state now protecting and negotiating a series of sovereign individual wills. Our shared life is no longer “social” in the sense of a shared claim of justice, or the obligations of a communal life pursuing a common end, but only as the mutual recognition of one another’s rights or the maximization of each other’s freedom. This is consistent with an emphasis on self-determination, the person having a “property in his own person,” as Locke argued.3 John Locke, Two Treatises of Government (Everyman, 1993) Book II, ch. 5.27, p. 128. And each instance of self-determination can now potentially conflict with another, giving rise to adjudication in the apparent absence of any shared moral horizon. For Biggar, this does not reflect the sum of rights discourse – and he is correct on that point. However, it is precisely this emphasis on self-determination that many (perhaps most) rights scholars would point to as a positive development. Christopher McCrudden notes that much recent equality discourse has adopted a “strongly individualistic, autonomy-based, anti-essentialist, and constructivist rhetoric.”4 Christopher McCrudden, Litigating Religions: An Essay on Human Rights, Courts and Beliefs (Oxford University Press, 2018) 28. Rights, in other words, are often seen as the means of rejecting right-order-type claims, to deny the pursuit of the social ends – a right way to live together – that Christian thought generally took as constitutive of a political community. This, it seems to me, remains a central fault-line in rights discourse.
Right Order or Mere Stability?
Biggar’s main contention is that rights discourse should not consume all the oxygen in the political and moral room. Rather, rights must be discussed alongside duty, virtue, and arguments concerning the common good. Indeed, arguably more than this, a right as a legal determination should only arise after concluding it is required by, is a specification of, or is at least consistent with, the demands of natural morality. In this, I agree. However, what does Biggar mean by right order or the demands of natural morality? He does not fully elaborate on this, but his writing tends to link natural morality with a concern for mere stability, compromise, or even tragedy.
Biggar discusses the case of Vénuste Hakizamungu. A Tutsi, Vénuste was ordered by the Hutu Interahamwe to kill his brother Théoneste, with the promise (or bare opportunity) that the rest of the family would be spared. Théoneste subsequently took his own life. However, Biggar explores whether it would have been licit for Vénuste to kill him. For Biggar, there may be a moral obligation to take Théoneste’s life, even without his consent: “his unfortunate situation conspired to make it right that he should die.” And this is in part because “it is better that some should survive than none” (224). For Biggar, the matter is morally complicated and concerns competing considerations rendering the action tragic — but not morally wrong.
I do not want to discount how persons and civil authorities may face tragedy; we see through a glass darkly. However, the tragedy here arises because a tyrant has established a conflict of values: the life of your brother or your entire family. Why should this be met with participation? It is difficult not to hear in Biggar’s words an echo of Caiaphas: “It is better for you to have one man die for the people than to have the whole nation destroyed” (John 11:50). The response should surely be that of Christ – a refusal that ushers in, upon his very body, a new kingdom, a truth beyond the tyrant’s calculations.
But Biggar, I suggest, almost seems to ontologize moral ambivalence or the tragic. Discerning what natural morality demands – the demands of objective right – is suffused with moral complication, or a sense of balancing competing and tragic considerations. Thus, similarly, Biggar argues that torturing a person (or, rather, using “extreme forms of coercion,” at least of certain kinds, like sleep deprivation, white noise, and severe limitations on food and water) is potentially licit. He qualifies the claim: we would need a careful torturer rather than a sadistic one, and the practice could not be politically counter-productive. Because these conditions are unlikely to exist, Biggar concludes that such extreme forms of coercion should be outlawed. Even so, for Biggar, torture remains a moral possibility – even potentially a requirement of natural morality – when exceptional reasons demand it and its use could be efficacious. This is so even though such action “conduces to mere compliance rather than repentance and genuine reconciliation with society” (178). That objection would surely be part of a Christian’s response to the claim that he should coerce through pain someone now wholly detained and within his control. Persuasion entails a peaceful communication of the truth, because a violent communication is contrary to the nature of truth itself: a loving desire for fellowship.
These examples fall within a wider line of argument in Biggar’s book. Often Biggar is simply pleading for complexity to be considered. He argues that we should think about what resources are available when invoking rights, what the demands on the public purse might be, and whether there exists a body or institution capable of responding to rights-claims. These deliberations are fundamentally the role of legislatures, and in this, I think Biggar again rightly emphasizes the dignity and importance of such institutions. He offers a welcome criticism of those who denigrate such institutions when characterizing them as merely aggregating preferences or else when rejecting participating in them as a concomitant of activism. But Biggar’s emphasis combines with his naturalizing of complexity, or even tragedy, to produce what I think can be described as a generally deferential attitude. He “accept[s] that “inevitably imperfect compromise” sometimes really is inevitable” (323); he rejects “reckless, utopian political idealism” (31); he states that no one should “presume to know better than” those who “bear responsibility for making hard decisions about government priorities” (100); he labels at least some critics – the rights fundamentalists – “naggers” (332). This gives the impression that Biggar’s understanding of right order is closely aligned with the present order of things – a conservatism that is, in its deference, concerned with maintaining stability in a context of moral ambiguity or tragic compromise.
This conservatism, deference, and emphasis on the tragic is not necessary to a criticism of rights-talk. To my mind, in affirming a created order (as Biggar obviously does), our understanding of what is right action must be more hopeful. Human flourishing, which a legal order should be led by, entails true sociality or peace. This is not simply stability, nor is it the supposed “social nexus” of mutually respecting subjective rights (324). Rather, it is the reconciliation of persons, what Augustine called the “whole-hearted and harmonious obedience of mutual affection.”5 Augustine, Concerning the City of God against the Pagans, Henry Battenson (trans) (Penguin, 2003) Book 15.3, p. 599. Peace means encouraging solidarity – sharing burdens and a right distribution of resources – and fraternity, the virtue of contributing our unique and irreplaceable talents to a shared end. It means building a communion.
While we should have due regard for the difficult role that those in authority must play, claims of right action, human flourishing, or natural morality may, if we long for communion, be much more revolutionary. To take one example, I think it means a very different approach to property than what Biggar arguably promotes.
Aquinas considered that the positive law could permissibly provide for private possession of property. This was consistent with the natural law. Doing so allows for proper management of things and ensures contentment across the community. But Aquinas went further and considered that private property is held, consistent with the natural law, so that a person “is ready to communicate [it] to others in need.” He then affirmed the Apostle Paul in 1 Timothy: “Charge the rich of this world … to give easily, to communicate to others.” Biggar arguably reads this in a liberal, modern manner. He contends that Aquinas must have meant there was a legal right to property, coupled then with a claim of morality to distribute where possible. Thus, on Biggar’s argument, Aquinas’s contention that it is permissible for the indigent to take property from another when in urgent need is rendered an illegal, but morally permissible, action. This could easily be translated into an analysis of the rich man’s actions: his legal right remains undisturbed, but he has failed to be charitable in a modern sense, which is to say benevolent. (Biggar often adopts a similar analysis with respect to speech: it should be a broad liberty right at law, constrained at times by the individual’s moral responsibility to exercise it in favor of a social good. A different analysis would ask, “What is speech for?” as a matter of right action and then proceed to consider how far the law of free expression should encourage virtue. I am reminded of Munby J. suggesting that a racist “religious” organization, being contrary to human dignity, would fail to raise a claim of religious liberty at all.) Biggar does discuss equity overriding legal rights to property, but he says that this is a dangerous and exceptional doctrine; he raises the spectre of totalitarian governments claiming to act for the common good. However, for Aquinas, the positive law cannot derogate from natural right or divine right. For that reason, it is possible to argue (more radically) that the legal right to property must always be internally limited by the demands of natural law, which here point to the needs of others, or the duty to distribute to others. The much more live danger in our western democracies is not a totalitarian government appealing to the common good, but rather the untrammeled appeal to legal property rights (even when coupled with moral obligations) in the name of stability — a stability that looks more like increasing inequality against a backdrop of what Pope Francis calls the “deified market.”
Perhaps this alternative is, for Biggar, too much in the vein of “utopian political idealism.” It seems to me to be precisely the role of that other great “nagger” of civil authority – the Church – to claim that an exemplary society is possible. Biggar is right in arguing for a conception of rights framed by an understanding of right order or human flourishing; he is right to emphasize the role of legislatures against any juristocracy; and he is right to raise questions of rights absolutism or rights fundamentalism. In this, What’s Wrong with Rights? is an important contribution. But these are arguments that can and should be taken in more radical directions. ♦
Joel Harrison is a Senior Lecturer at Sydney Law School, University of Sydney. He is the author of the recently published Post-Liberal Religious Liberty: Forming Communities of Charity (Cambridge University Press, 2020). His research focuses on constitutionalism, religious liberty, and human rights norms, with a particular emphasis on the relationship of these to theological ideas, questions, and history.
Harrison, Joel. “Radicalizing Biggar’s What’s Wrong with Rights?” Canopy Forum, January 21, 2021, https://canopyforum.org/2021/01/21/radicalizing-biggars-whats-wrong-with-rights/.