Is Nigel’s Biggar’s What’s Wrong with Rights? sufficiently realistic?
Hans-Martien ten Napel
This article is part of our “What’s Wrong with Rights?” series.
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What’s Wrong with Rights is a superb book. If there is one subject that lends itself to interdisciplinary research, it is that of human rights. To the extent that lawyers have ever been able to claim a monopoly, those days are now well behind us. In this book, Nigel Biggar makes a fundamental contribution from a theological point of view, which lawyers are well-advised to take to heart.
In essence, the book pricks up the myth that people are naturally equipped with individual rights. Anyone who takes this idea too seriously will be inclined to make light-hearted appeals to these “rights.” If lawyers and judges go along with this, the consequences for society will be incalculable over time. In some respects, these consequences can already be observed, and the book presents examples of this.
Therefore, one does not have to long for a return to premodern times to advocate a more restrained use of rights. With a view to this, it helps to start from positive rights, as are found in law and treaties. In many cases, the exercise of such rights can also be limited, making it possible to let the outcome depend on each case’s specific circumstances, place, and time.
While reading, I asked myself how the above relates to my tendency to speak of natural rights increasingly. Thus, I have noted concerning religious freedom how this right is increasingly perceived as a positive right. As a result, the right runs the risk of becoming relatively powerless in the event of a clash with other fundamental rights, such as the principle of equality.
An agreement with What’s Wrong with Rights in any case lies in the fact that in my plea for considering religious freedom, among other things, as a natural right, I have in mind the tradition of natural law and natural rights, in their mutual connection. In this sense, for instance, I wrote earlier on this forum about the work of the U.S. Commission on Unalienable Rights.
In his book, Nigel Biggar uses the term “natural morality” or “natural (moral) right” rather than natural law, but he means the same thing with both terms. The natural law tradition originated in classical philosophy, especially Plato and Aristotle, and was later incorporated by Christianity with accents of its own. According to this tradition, it is possible to arrive at an objective knowledge of good and evil using reason.
In the gathering of knowledge of good and evil, perceived reality is the most important source of knowledge. That is why it is seen by adherents such as Biggar as an utterly realistic way of thinking. Christians and followers of other religions also use divine revelation as a source. A point of contention here is whether God himself defines good and evil or adopts existing knowledge about them.
It hardly needs repeating here that the natural law tradition was pushed into the background with the rise of modernity. This process did not happen overnight, but increasingly the 1960s seem to be regarded as the real watershed. Since then, our knowledge of good and evil has become highly subjective. Many experience this as liberation, and that is, to a certain extent, understandable.
However, there is also the feeling that, if we are not careful, democracy and even the rule of law will come to rest somewhat on quicksand. After all, if the only handhold we have is positive law, the law’s content and character can change from one day to the next. Some refer to Nazi Germany as the specter of where this can eventually lead. Nazism, in this sense, can be considered not so much an excess, but rather a consequence of modernity.
Of course, we hope and expect that it will not come to that again, and the recent references to the 1930s are indeed premature in many respects. Nevertheless, it is not far-fetched to consider the weight given to human rights in part in the light of this situation. Human rights serve as the mechanism that sets limits to democratic decision-making. The question, however, is on what human rights are based.
After all, with the disappearance of the idea that there is objective knowledge about good and evil, the content of human rights can quickly become subject to change. Human rights themselves become part of positive law, as it were, even though they are usually laid down in constitutions and treaties. Such documents can also be amended or terminated.
Moreover, in different parts of the world, different meanings can be assigned to them. As human rights practice teaches, such discrepancies are by no means fictitious. The ‘dynamic’ interpretation of human rights provisions, as well as their post-war proliferation, further demonstrate how widespread the idea of the variability of human rights has become. If I see it correctly, it is for this reason that the term ‘natural rights’ has reemerged lately.
A clear example is the already mentioned U.S. Commission on Unalienable Rights, which issued its final report last summer. This commission took a less radical position than was feared by some, insofar as it considers the rights laid down in the 1948 Universal Declaration of Human Rights to be compatible with the constitutional rights as formulated when the United States was founded at the end of the eighteenth century.
However, it adheres to the idea that there are unalienable or natural rights that people do not derive from legal provisions, but the positive law should recognize. Such natural rights may be a myth, but myths can play an essential role in the law. To a certain extent, the law as a whole can be considered a fiction. Nevertheless, we cannot do without the same “law” to maintain a peaceful society.
Paradoxically, the return of the concept of “natural rights” is often intended to embed these in the natural law tradition. In this way, the post-war proliferation of human rights can be critically examined. It can also be emphasized again that invoking these rights should not take place in a light-hearted manner, but within certain ethical limits. Finally, judges are reminded that they ought not to stretch the meaning of rights indefinitely. Because of this, the Commission’s establishment was already regarded as a conservative or even reactionary step.
Biggar supports such aims of the U.S. Commission on Unalienable Rights, yet contests the term “natural rights.” However, at the time of the U.S. founding, the term was already used in this limited sense. The Founders overwhelmingly thought within a natural law and natural rights framework. Therefore, the question is how realistic Biggar is in rejecting the term’s use even in that context.
I have the same hesitation regarding Biggar’s treatment of Roman Catholic thinking about natural rights. He regards the Roman Catholic Church as one of the driving forces behind the “rights talk,” certainly since the 1960s, but also long before that. For example, he refers to Catholicism’s influence on the Universal Declaration of Human Rights of the United Nations of 1948.
Biggar certainly has a point here, but as in the case of the American Founding, the recognition of inalienable or natural rights, as the author also acknowledges, happens explicitly within a natural law context. The notion of the common good, within which the exercise of rights must continue to occur, also plays a dampening role. As Pope Francis expresses this in his encyclical Fratelli Tutti, repeating remarks he made in an address to the European Parliament on 25 November 2014:
Today there is a tendency to claim ever broader individual – I am tempted to say individualistic – rights. Underlying this is a conception of the human person as detached from all social and anthropological contexts, as if the person were a “monad” (monás), increasingly unconcerned with others… Unless the rights of each individual are harmoniously ordered to the greater good, those rights will end up being considered limitless and consequently will become a source of conflicts and violence. (Par. 111)
Once again, this is an approach to rights that Biggar endorses and advocates in his book.
The question remains whether the transition from thinking in virtues, via duties, to rights has been a happy one. However, Biggar also indicates that he does not necessarily want to go back to premodern times if such a return would already be possible. Given the role that rights have come to play in modern times, he rightly emphasizes the continuing importance of “natural morality” as a framework for exercising these rights.
That is easier said than done, as the West has abandoned the natural law tradition, certainly since the 1960s. Given that situation, thinking in terms of “natural rights” is a fallback option to achieve somewhat the same result. A commission like the U.S. Commission on Unalienable Rights and an institution like the Roman Catholic Church probably carry more weight in this endeavor than a monograph, however brilliantly written.
According to Biggar,
we need to muster the courage to own and affirm duty and virtue in public, as the history of pre-modern ethics shows we used to. And, if the whole truth be told, those ethics are actually not just pre-modern, for they continue to live among us today, contending for a sustainable, morally realist form of modernity—one that recognises right before it asserts and multiplies rights. (p. 334)
Formulated this way, Biggar has more allies than he realizes. ♦
Hans-Martien ten Napel (@hmtennapel) is Associate Professor of Constitutional and Administrative Law at Leiden University in the Netherlands. He is the author of Constitutionalism, Democracy, and Religious Freedom: To Be Fully Human (Routledge 2017).
ten Napel, Hans-Martien. “Is Nigel’s Biggar’s What’s Wrong with Rights? sufficiently realistic?” Canopy Forum, February 2, 2021. https://canopyforum.org/2021/02/02/is-nigel-biggars-whats-wrong-with-rights-sufficiently-realistic/