On the Division of Rights
This article is part of our “What’s Wrong with Rights?” series.
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Contemporary discussions of rights tend to be about where to place a caesura between acceptable and unacceptable kinds of rights. This caesura is primarily a matter of valuation, but it can also be one of historical narration: at a certain point in past time, a barrier between the acceptable and the unacceptable was crossed. For this reason, debates about the philosophy and the history of rights-talk have become complexly interwoven.
The caesura is variously placed between natural and human (or political); natural and civil/constitutional; national and international; or between moral and political rights. Likewise, between non-interference and active intervention, and between minimalist and maximalist approaches. Also, between individual versus collective rights, and between judicial and legislative processes for recognizing and enforcing rights. Finally, rights can either be seen as a matter between the individual and the state, or as additionally a matter pertaining between individual people. Just one — or more usually a combination — of these linked divisions can be claimed as theoretically and genealogically crucial.
But in every case, for the most part, contemporary, mainly liberal theorists of rights claim that their favored caesurae displace a different break once favored by anti-liberal political philosophers on both the right and left. The former includes the likes of Leo Strauss and Michel Villey while the latter includes, for instance, C.B. MacPherson. This was the break between objective and subjectively founded right, closely allied to a fundamental shift in the meaning of natural law. This dual transformation was both condemned by such thinkers and dated either to the seventeenth Century (Strauss and MacPherson) or to the thirteenth into the fourteenth Centuries (Villey).
In the following essay, I shall argue that the claimed modern alternatives are merely oscillations within a shared liberal paradigm. And that the critics of liberalism, if one avoids the usual misrepresentations of their arguments, were right to place the caesura where they did, in both theoretical and historical terms, and regardless of whether one is opposed to the modern liberal account of rights or not. In addition, however, I shall constantly suggest why the liberal account is philosophically unsatisfactory.
In terms of these debates, I shall argue that Nigel Biggar in his impressive and interesting book, What’s Wrong with Rights?, is ambiguously positioned: He appears at once to favor traditional natural law over modern right and yet at the same time to define “right” in general in all too modern and liberal a way. At the same time, he ironically fails to see the degree to which, after the example of Burke, one can to a degree integrate modern extended natural rights (for which Biggar substitutes civil “human rights”) into an older natural law-based “right order” perspective. He is at once too soft and too hard on subjective rights.
The most crucial claimed modern contrast is between natural and human or political rights. In the seventeenth and eighteenth century, the talk was mainly of “natural rights.” During the American and French Revolutions, this discourse was supplemented by advocacy of the “Rights of Man.” In our own epoch, both usages have been displaced by the normative phrase “Human Rights.” Do these changed usages suggest large conceptual shifts?
Some authors argue that already with the French Revolution natural law foundations were abandoned and that a purely political context came to the fore. Thus, the claimed rights were significantly those of “Man and Citizen.” Somewhat equivalently, the American claimed rights were typically a blend of natural and universal rights with common law-derived constitutional rights, largely protecting the individual in judicial procedures. More recently, according to some writers, the focus on the “human” has come adrift from any political context whatsoever, while its relationship to “nature” is contested and uncertain. The supporting attitude is roughly “humanitarian” and international, even in contrast to the 1946 declaration, which still assumed a nation-state context for the implementation of rights, especially those to welfare, hoping especially to enforce these in former colonies, thereby benignly (or not) re-routing the imperial impulse.
In this way, the modern history of rights talk can be viewed suspiciously, as by Samuel Moyn: in different synchronic frameworks, the inflections of terminology indicate sharp ruptures in meaning. Other theorists, however, notably Dan Edelstein, stress more of a diachronic continuity and development, though not one necessarily betokening progress. On the whole, these theorists are nearer the truth, although the moments of relative alteration remain highly significant, as we shall shortly see.
Most decisively, the “rights of man” were not a substitute for “natural rights.” The new mention of “man” insisted upon revolutionary agency, democratic imperative and a new shared sentiment. But the sentiment was overwhelmingly held to be one of sympathy with nature, including human nature. Edelstein has plausibly shown how, in fact, the revolutionary moment was linked to a sudden increased insistence on the sheer naturalness of rights belonging to men. Thus, both the French and the Americans attached rights to the universal circumstance of human birth. And they both insisted that the rights with which we are born are fully preserved after we have entered into the political condition, such that the individual can continue within the rule of the state to claim such rights on his (or her, some voices soon added) own behalf. This can be contrasted with predominant earlier modern views for which natural right is transferred to the sovereign state, which then exercises it on our behalf, though with various degrees of alienation to its own now monopolized power, which can go so far as total abridgement and usurpation of the rights of individuals.
Again, this was true, though in different ways, of both the American and the French revolutions. The Puritan political thinker Roger Williams had already intensified, beyond Locke, the sense that the individual retains his own natural property rights and does not require the state to render them legitimate. Like the original individual American State declarations of revolt, the French revolutionary constitution made such sheerly natural rights the very foundation of its entire political order, and their preservation its sole purpose, according to the Abbé Sieyès.
It is true that the new French arrangements only yielded certain rights, such as freedom of expression, when they were hedged about with more legal reservations than the American ones, and that they but gradually incorporated juridical rights, including trial by jury. Yet this does not truly betoken any weakening of the natural bias. To the contrary, politically centralized legality was itself supposed to follow a natural order. Such a regime was variously conceived under the Jansenist and Physiocrat legacy in terms of a political economy providentially coordinating our amour propre, and under a secularized Malebranchian legacy in terms which considered that the human “general will” could emerge from an again providential but now more outright political coordination of our various individual preferences.
Given these ideological trajectories, it follows that, for the French, Man as Citizen remained very much natural man, or became even more so. This was reinforced by a powerful traditional sense, philosophically reinforced, of “the nation” as a pre-political natural reality, much ascribed to by the regional parlements.
If tensions between the natural and the political did ensue, then this was usually around the issue of governmental legitimacy. The Jansenist and associated parlementaire currents tended, because of their noblesse de robe judicial bias, to favor unanimity rather than majorities, and this sometimes evolved towards concepts of direct democracy and mandation. In the case of Rousseau, the Malebranchian current had encouraged a thought of the general will as similarly something that must be directly expressed, albeit via a collective act of transfer requiring interpretation by “the legislator.” But in the case of Sieyès, the National Assembly had, in effect, displaced the role of the Church as mediator of God’s enacted general purpose for Malebranche. It is, for the Abbé, the representative function that almost automatically expresses the genuine will of the national people, although with a more powerful sense of mystical identity than for the modern Anglo-Saxon understanding of this function’s operation.
Yet despite these tensions as to how far the pre-given natural or national situation is altered through political contract, the resulting political settlement is always thought of (and more strongly than with the American paradigm) as manifesting the natural at a higher, predominantly legal-administrative level. Moreover, the collective purpose remains one primarily of securing the self-possessed liberty of the natural individual, besides the collective self-possessed liberty of the natural nation.
In terms of the Anglo-Saxon legacy, a relative stress on either the natural or the political with respect to rights is frequently linked to a contrast between Locke and Hobbes, a trope repeated by Nigel Biggar. Yet this can be to overlook the shared aporia of all modern natural rights theorists: to recommend re-founding the political upon nature is to recommend that it be reborn from nature. The birth is supposed to be sheerly natural, natal, and yet deliberate artifice is involved in this very foundation. Is original pre-political nature here retained, or is it somehow transfigured through contractual alienation?
Different scholars have shown that in fact Hobbes allowed more retention of property and other rights within the absolute sovereign state than usually allowed (though admittedly less so after the Civil War), while Locke inversely made them much more dependent on degrees of state permission than the overstated contrast would suggest. As Giorgio Agamben has shown, the natural war of all with all remains for Hobbes, even after its suspension by Leviathan, as a latent state of civil war, just because the state is for him bizarrely founded upon a preceding indefinite natural right which is the source of order, even though it is always endemic disorder. All this implies that Hobbes, with his much sharper awareness of the paradoxes involved, can indeed be regarded as the real father (though along with Grotius) of modern liberal thought, as Strauss considered, but Biggar along with many others denies.
Biggar also espouses a typical modern contrast between natural and constitutional rights and tends to think that most rights should remain within the purview of the latter. Thus, he sees rights as paradigmatically legal and so civil and political in character. Such a position tends to line him up with a typical current of modern Anglo-Saxon “liberal conservative” thought, bent upon blending Burke with Hayek — in other words, combining cultural traditionalism with free-market liberalism — in a way which insists that most law is a matter of unfolding procedures, in keeping with national traditions, supplemented by occasional required innovative political legislation. Sometimes this view is taken to preclude any reference to natural law and philosophy altogether, as by Noel Malcolm, in a misreading of both Magna Carta and Burke as being only concerned with English customary law that appears nihilistically to hand all legality over from ethics to mere political custom: government by All Souls and your West End club. Biggar clearly does not take this view, since he rightly (and with Burke) sees civil legislation as subject to the dictates of morality which he identifies with natural law. This subjection does not require a specifically modern deduction of all ethics from a few theoretical principles, of which Malcolm is rightly suspicious.
Nevertheless, Biggar denies that any rights can be natural, on the double ground that none of them are without exception and that they are not always enforceable.
The first objection overlooks the point that equitable exceptions to a general rule do not invalidate it. Medieval theologians tended to note that in the Bible God authorizes at times the breaking of every one of the Ten Commandments, even though they remain of course entirely normative. It is only the modern paradigm of a law or a right as a positive absolute that prevents us from understanding this perspective, and instead imagining, with Carl Schmitt, that exception is at variance with equity. Thus, for Biggar, thinking in a modern way, murder is wrong because it is illegitimate killing, whereas killing in warfare is legitimate and so is not murder. Yet traditional reserve about clerics, women, and children fighting in wars reveals to us that the killing involved in warfare was still regarded as somewhat “wrong” and only permissible as corrective and policing violence in a situation of the breakdown of normal order. Biggar here underrates also the degree to which even modern warfare is only possible as an emergency rules-governed system, rather than as outright continuous exceptionality. Similar considerations would apply to the case of use of some sort of torture in extremis: a universal and natural right not to be tortured (admittedly dependent on a more primary duty not to torture) is not thereby suspended, as Biggar claims. This is exactly why even the exercise of justified exception place extreme limits upon acceptable “torturing.”
Therefore, one can question his view that modern “human rights,” because they admit of exceptions, should not be thought of as also natural rights. In fact, the genesis of these rights owes much to both a modern iusnaturalist tradition, both secular and religious (Edelstein) and to a certain limited Christian recovery of more traditional natural law (Moyn). Even if one rightly objects to the modern founding of right in subjective possession, it remains possible, like Burke, to see correlative rights as always implied by more prior duties, linked to preferred virtues with substantive moral goals, as Biggar clearly favors. Such rights, as with Burke, need not be precisely defined, or isolated, or removed from the larger context of distributive justice, but it can still be important to name them for the sake of people’s free exercise of their liberty or claim as to what is their due. Burke includes here rights not only to security and property, but also to succor, education, opportunity to work and political participation — in a passage that Biggar himself cites. It is just for this reason that Michel Villey was able to see Burke as bringing the more valid modern (and even liberal in the best sense) considerations within the inherited classical and medieval natural law purview.
As to Biggar’s second reason for the refusal to speak of natural rights, their possible inapplicability without political enforcement, this also seems invalid. Even if one agrees with him and with Onora O’Neill that rights cannot be enforced without corresponding duties and that this is impossible in a state of anarchy, the holistic international imperative remains to try to provide all peoples with some sort of just political order that will include a pattern of reciprocal duties and rights. This is what Hannah Arendt referred to as “the right to have rights,” thinking especially of the plight of refugees, even if her own chariness about any reference to nature should be questioned.
However, behind Biggar’s refusal of “natural rights” lurks a larger confusion. He thinks, in a quasi-Hobbesian fashion, that the senselessness of rights in an apolitical situation of anarchy shows that rights do not belong to this supposed state of nature. But this means that at times he accepts modern biopolitical and neo-Stoic duality which thinks of nature as something over-against political art. Yet he himself quotes a phrase of Burke which refuses this distinction and returns to the Aristotelian and Leibnizian sense that we are “artists” by nature and therefore are uniquely “political animals.” And surely Biggar’s overall commitment to an ethics and politics of virtue implies that he must really agree. Therefore, his embrace of a pre-political nature at the points where he over-agrees with the liberal conservatives and their penchant for contrasting the customary with the natural (in a misreading of Burke) appears to be inconsistent.
The other usually noted divisions over rights are all related to the most crucial biopolitical one between nature and political culture. International rights appear primary, as for Grotius, when the space between sovereign states is seen as akin to a state of nature. National rights seem primary, as for Hobbes, when the contractual transfer of supposedly original natural rights is emphasized. What is lacking is the pre-modern sense of the ius gentium, in keeping with primordial customs of hospitality as a more primary shared human sense of an initial cross-border mediation of the natural law. This includes of course the norms of just warfare.
A similar oscillation is bound to take place within modern understanding between the individual and the collective. Just what body of people is the bearer of rights? It is correct to say with Justine LaCroix and Jean-Yves Pranchère that most modern thinkers turn out to be liberals after all: that even Bentham and Marx and Comte smuggle in an unexplained “count as one” in terms of all individuals’ equally legitimate and required access to recommended benefits and goals, however conceived. But “count as one” within what overall setting? The “natural” birth of the political subject requires also the birth of the shared artificial body of the state: Leviathan, which Hobbes (extraordinarily) knew to be one of the types of Antichrist. Therefore, the sovereign self-possessed individual is only recognized and guaranteed by the sovereign and self-possessed state, while the traditional corporate rights of lesser bodies under natural law (as favored by Burke) tend to be squeezed between these two poles. And which of them is prior is inherently aporetic.
It is again only in terms of this suspension, obliterating the social middle, that one conceives rights as a matter merely between the State and the individual. This seems just “obvious” to Noel Malcolm and Jonathan Sumption, yet it is not the case for Burke, nor even for Locke and for the American and French Revolutions. It is rather a development further down the line, much linked to neoliberalism. Nor is Sumption’s fantasy Whig vision of a once simple and minimal law regarding mainly property and contract correct: the Code Napoleon, for example, vastly simplified a myriad number of national and local laws regarding multiple corporations and their ancestral privileges. It is not so much that law has increasingly displaced rule by custom, as he claims, as that law itself in the past was less distinguished from the customary and the guiding, rather than being itself always an outright commanding and enforcing.
This relates to the common liberal conservative view, endorsed by Biggar, that rights should be few and basic and minimum. This is linked by him, as by others, to an objection to vastly increased quasi-legislation by the courts in the name of human rights, threatening to displace democratic decision, with many dubious instances in both Europe and the United States regarding huge judicial overextensions of the applicability of rights, respectively to privacy and non-deprivation of liberty. With this anxiety, as especially well articulated by Sumption, I wholly concur. However, Pierre Manent is more perceptive in realizing that it is the very minimality of modern rights, as both absolute and foundational, that of itself generates their ever-increased maximal incursion. Just because they are vague and yet non-negotiable, their remit endlessly expands, and with that remit the impossibility of mediating between competing rights.
What is more, there is intrinsically no possibility within the biopolitical sundering of nature from culture of deciding which has priority: the legal “constituting” founding of the state supposedly by “everyone” and the political continuous executive effecting of that constitution without which it is null and void. Which comes first, the rule of law or democracy, given that both legitimate each other in a concealed vicious circle? The only way to escape this trap of immanence is to allow a conjoined and organic search for the practical common good at once through wise legal discernment and through discerning popular and political consent, such that the judicial and the legislative functions are not ultimately separate. This was always implicit in the British constitution, focused in a long gothic lineage on “the High Court of Parliament,” whose logic was utterly unsettled by Tony Blair’s creation of an alien Supreme Court.
From all this it follows that the point is not to confine rights to a minimum, whether human or natural, nor simply to oppose the juridical to the political. As for Burke, embedded and relational rights can be co-extensive with the whole of justice, while judges also rule and legislators also judge. The problem is rather with modern liberal rights as such. Yet Biggar endorses this notion, albeit as civil and not as natural. For he sees a right as something with you “own,” which is “yours,” on the model of possessive individualism. Yet traditionally a premodern right was more like something “owed” to you whether as share or as exercise of role, than something outright “owned.” The absence of one letter signals a more primary relational context, not to be divorced from distributive justice.
On this basis, one can argue that there should be no courts of rights distinguished from courts of justice, any more than we should see courts of law as utterly different from legislating bodies, after the American version of the division of powers. The upshot of the latter is always ironically, as we know, to turn the judiciary into a quasi-legislature, whereas this has been prevented in British history precisely by regarding the common law courts as active interpreters and thereby co-makers of enacted law, just as inversely our legislators have not ignored common law precedent.
These proposals are not reactionary. Re-merging courts of justice with tribunals of right would, on the one hand, more allow competing rights to be discursively mediated, but on the other hand suffuse all matters of justice with the still culturally prevailing democratic and liberal (in the sense of generous and compassionate) spirit of rights, understood in a less absolutist and more general way, which nonetheless would allow them to be interpreted more definitely, equitably and concretely in real specific contexts. It is not even so clear, as Biggar thinks, that a sense of “right” as due entitlement does not always hover, just as Nicholas Wolterstorff claims (for all his liberal misconstruals) over all of the culturally and non-legally enforceable ethical as such. Have we not always said things like “I had a right to expect better treatment from you, my affianced lover” and so forth…
Equally, the blurring of the line between the legal and the political would encourage at once more detached judicial wisdom from legislators and more democratic awareness within the judiciary. Such blurring of course requires much decentralization of the governing function itself.
My revised perspective on rights as inherently relational also allows one to see that positive claim rights to welfare, work, and education are just as fundamental as negative non-interference rights, as indeed they often have been seen even from the time of the French Revolution (and sometimes, indeed, under a somewhat traditional natural law distributive purview). As Henry Shue argued, in reality just as much active intervention is required to secure the former as the latter. One can add that in either case right is the reverse face of a more primary duty and that this must be construed in terms of the goals of virtuous solidarity as to what sort of society and people we want.
This would seem to be ultimately Biggar’s perspective. Yet it is vitiated by his endorsement of a modern liberal understanding of that in which a right consists. The problem here is indeed not subjective versus objective right. The ancient and (canonically increasing) medieval existence of both was admitted by Villey and his successors, like Michel Bastit and Franco Todescan, despite their critics, who never seem to have read them. His point was rather that (mainly) in the Franciscan tradition to begin with, all kinds of right started to be subjectively grounded in the capacity (facultas) for self-ownership (dominium). This was indeed the real historical and conceptual rupture.
The same new subjective grounding helped to alter the character of natural law by opening up the modern biopolitical. Law had once been analogical as between self-rule, family, manor, city, monastery, guild, church, kingdom, international order, Mosaic law and the new law of the Gospel, all participating through practical discernment in God’s eternal law. With the Franciscans, it begins to be seen as univocal: as any old structure of command and obedience without further normative reference. In consequence, norm starts to derive from merely factual or formal situation, theoretically apprehended, and this becomes the new “nature,” preceding the decisions of political art which strive to express the eternally good. This nature is alternatively (and undecidably) the material forces which constitute you, or your own willed appropriation of these forces. The gulf between a sheerly given and increasingly non-teleological nature and human endeavors was much reinforced first by early modern theological denials that human “pure nature” of itself seeks the supernatural end of charity proclaimed by the gospel, and second by the seventeenth century drift towards a sheerly mechanical physics. No modern liberalism, or rights theory, really escapes these hidden metaphysical presuppositions — which is the reason why theology haunted even the French Revolution, as we have seen.
One can express the associated and always accompanying aporia more precisely. Law understood univocally as only command and obedience tends always towards modern absolutism. Command and obedience is, indeed, as Manent argues, the structure of any possible action, but if it is only self-referring, then it lacks normative value. When such a debased structure of action is challenged in the name of emancipation from oppression, then the only recourse against this authority, based (as with Hobbes) on a natural alienation of nature as power in motion, is to appeal back to non-alienated nature, to the individual as self-willed and self-governed, as supposedly “autonomous.” Yet self-rule cannot be coherently tautologous: if it is not the rule of virtue over the passions, the tempering of heart by head and law itself by love and so forth, then it is really no rule at all. It is anarchy: mere self-assertion that can only be the unleashing of forces not really within one’s own control.
But this is what modern natural rights asserts, and the more it makes natural rights foundational for all our politics, the more it obliterates the political. As Burke claimed and Nigel Biggar surely agrees, to assert a politics founded in subjective right is to claim a self-rule which means that one claims to judge in one’s own case, which no legal paradigm (civil or natural) can possibly endorse. It is to refuse not just the government of God, but also that of one’s fellow human beings, whether by democracy or aristocratic representation, legislation or judicial procedure, the authoritative guidance of the Church or the outright coercive power of the secular arm. These aspects of a mixed constitutional regime can only be re-integrated if we abandon the carapace of human rights, as so far understood, and return to the sense of an analogical continuity of various modes of custom and legality as all prudentially striving to reflect through relational justice the eternal order. ♦
John Milbank is Professor Emeritus of Religion, Politics and Ethics at the University of Nottingham. He is the author of many books, including (with Adrian Pabst) The Politics of Virtue.
Milbank, John. “On the Division of Rights.” Canopy Forum, February 23, 2021. https://canopyforum.org/2021/02/23/on-the-division-of-rights/.