Theological Critiques of WWWR:
A Reply to Little & Herdt
This article is part of our “What’s Wrong with Rights?” series.
If you’d like to check out other articles in this series, click here.
First of all, let me thank David Little, Jennifer Herdt, John Milbank, Joel Harrison, Hans-Martien ten Napel, and Mark Hill for taking the time and trouble to comment on my book What’s Wrong with Rights? (Oxford University Press, 2020). The process of responding to what they have written has helped me understand my own thinking better, even when it has not led me to change it. I will respond to each commentator in turn, in no particular order, except that I have bunched the theologians and ethicists together, followed by the lawyers.
Responding to David Little’s “Nigel Biggar, What’s Wrong with Rights?”
Before I attend to David Little’s main challenge, let me nuance one statement he makes, to avoid any misunderstanding about a highly combustible issue. He writes that I dissent from “the belief in absolute and universal subjective natural or human rights, like the prohibition of torture.” This is not incorrect, but it could mislead. I admit that torture, defined as the sadistic and disproportionate infliction of pain, is always and everywhere morally wrong, and that therefore we could intelligibly say that there is a natural, moral right against it — in the same way that we could say that there are natural, moral rights against anything unjust by definition. We could say this, but I think that we should not. The reasons I gave in What’s Wrong with Rights? were two. The first comprised doubt about the practical usefulness of a right that is true by definition. On reflection, however, I now doubt that doubt and set that objection aside. My second objection, however, I stand by. A right is a special kind of moral claim. What makes it special is its unusual strength. What gives it unusual strength is its ability to invoke the authority not merely of fickle conscience but of more reliable law, police, and courts. A right, therefore, is a positive legal phenomenon. Outside the context of social institutions, in an anarchical state of nature, therefore, there are moral claims but no natural, moral rights. To talk of natural rights is to imply an authority and security that does not exist. In that sense, I do not believe in a natural right against torture, though I do believe in a moral claim against it. Moreover, I do argue that, on the moral grounds of prudence, there should always be a legal right against torture, so defined as to include any intentional infliction of pain — even where the non-sadistic and proportionate infliction is morally justified.
David Little’s main criticism is that my argument against natural rights and human rights (where these lack any legal status) suffers from an inconsistency. On the one hand, I hold that there are no natural rights in a state of nature. On the other hand, I say that a legal right is stricter, more stable, and more secure than a natural right — implying that natural rights do exist, but differently from legal ones. It is possible that what I wrote in the course of surveying natural rights-talk from the middle ages to the present is sometimes ambiguous, since I was in the middle of making up my own mind on the matter. But equally, the latter view may have been an observation about the natural rights-talk that others have engaged in. In the end, however, I state my own settled mind unequivocally: “In a nutshell, … my answer to the question, ‘Are there natural rights?’, is this. There is natural right or morality, that is, a set of moral principles that are given in the nature of reality, specifically in the nature of human flourishing. There are also positively legal rights that are, or would be, justified by natural morality. But there are no natural rights.”1Nigel Biggar, What’s Wrong with Rights? (Oxford: Oxford University Press, 2020), p. 131.
Little proceeds to build on what he perceives to be my second, more reasonable thesis, arguing that natural rights language need not be as abstract, unqualified, and inflexible in the face of practical contingencies as my first thesis holds. Thus, instead of an abstract “right to life,” he elaborates a “right to self-defence” as “the right to use reasonable or defensive force to protect oneself or others against arbitrary force.” “Arbitrary” force here is specified to comprise the infliction of death, serious injury, or severe pain, or the deprivation or neglect of basic survival needs, “primarily for self-serving or manifestly unfounded reasons.” Since this is always wrong, there is a universal natural right against it, “to which all persons equally possess enforceable entitlements.” The use of defensive force, however, is subject to four strict conditions: necessity, imminence, proportionality, and right intention. Such a natural right elaborates the conditions under which “absolute protection of life is justified.”
I agree that there is no reason in principle why a natural right may not be specified as tightly as a legal right. It need not be abstract, sanctioning license. However, in practice, natural rights-talk is often not so circumspect. This was a recurrent complaint in the late 18th and 19th centuries from Edmund Burke, Jeremy Bentham, and David Ritchie — that its abstraction tends to warrant impossible expectations and authorize reckless demands. The same concern is discernible in the earlier thought of Theodore Beza in the sixteenth century and Thomas Aquinas in the thirteenth. While moral philosophers and theologians may be careful enough to hedge about natural rights with all the appropriate conditions, we cannot be sure that political leaders will be. And in fact, even philosophers are often not so careful: Joel Feinberg’s moral “right to rebel” against tyranny and David Rodin’s moral “right to life,” for example, are almost unconditional. Nevertheless, that gives us a reason to be skeptical of certain natural rights-talk, not of the concept of a natural right as such.
What does tell against the concept as such is its misleading connotation of a degree of security that does not exist. As I explained above, I consider a right to be a moral claim made unusually strong by the support of social institutions. In a “state of nature” this institutional support is absent. The “state of nature” is not a philosophical myth, but rather a situation where relations between two peoples are not governed by any international law or where national law is made ineffective by general anarchy or by a regional rejection of its jurisdiction. In such a situation a moral claim’s only prospect of effective appeal is to the authority of conscience. The problem with talk of a “natural right” is that it misleadingly connotes a degree of backing that is absent. David Little’s own discussion confirms the stubbornness of this connotation, when he writes that natural rights imply that “all persons equally possess enforceable entitlements.” In a state of nature, however, where there is neither effective law nor police nor courts, natural moral claims are only as enforceable as the might of the claimant. While the entitlement might be equal, the power to claim it in the face of opposition is not.
Responding to Jennifer Herdt’s “Biggar and the Kind of Human Dignity that Remains”
“Nigel Biggar is essentially right about rights…,” judges Jennifer Herdt. “Biggar has made his case well.” Therefore she turns her attention to an important concept that only receives passing reference in What’s Wrong with Rights?, that of human dignity. She writes that it is not clear whether the concept I deploy is the pre-Kantian, Christian one of an intrinsic value belonging to any specimen of the creaturely human species made in the image of God, or the Kantian one of an “unconditional” and “absolute inner” worth attaching to humans as rational beings that transcend the natural world through their ability to legislate and conform to the moral law. I do not think that I am quite content with either option. I am shy of talk about “unconditional” and “absolute” worth, since it implies an untouchability that I do not believe in. I do believe that it may be morally right to cause harm to other human beings, whereas talk of their “absolute” worth suggests that such harm would be a kind of sacrilege. Besides, I am a Christian: only God is of absolute worth. However, the alternative of supposing that the worth of any human derives simply from their membership of the human species I also find unacceptable. It has always seemed to me that we need to be able to give an account of why the human being has a special dignity. The initial answer, of course, is that she is made in God’s image. But what does that mean? The last time I tried to explain this — in Aiming to Kill (2004) — I did so in terms of God’s vocation of the individual. But then, I argued, for there to be a vocation, it is not enough for God to call; the human creature also has to be capable of hearing in a way that stones and slugs are not capable. So in the end, I identified the specifically human capability as “rationality,” but broadly conceived as an ability to appreciate and respond to human goods. I do not now think that that is adequate, but I have made no further progress since.
Herdt’s second main focus is on my view of the alienability of human dignity. Since I reject unconditional rights, she wonders if I also reject inviolable dignity. I comment on this issue in the chapter (7) that treats the question of absolute rights through a close discussion of the ethics of torture and a putative right against it. In the course of considering Jean Porter’s argument that the image of God in every person, understood as “rational freedom,” should never be violated, I consider whether such a thing could ever be lost or forfeited. I observe that Aquinas equivocates on the matter. And then I say, “it is not clear to me exactly what kind of rational freedom remains in the likes of a Hitler or Pol Pot or fanatical agent of ‘Islamic State’, which ought not to be compelled.” I said this, because I think that we ought not to be naïve about the radicality of evil, and we ought to honor the witness of the indignant outrage that it naturally provokes. I challenge anyone to watch the film Katyń to its jaw-droppingly shocking end and not emerge praying to God that there is a Hell for Stalin and his god-forsaken, assembly-line murderers. Looking at some people, I do find it hard to imagine how their souls could ever be recovered from the abysmal depths to which they have become habituated. Nonetheless, I do say — albeit in a footnote — that, however much we might be tempted to suppose that someone’s sin has annihilated their dignity, “it would nevertheless be morally dangerous for us to presume to know so.” In other, Barthian words, while it might not be at all obvious to us that God’s Yes will finally overcome everyone’s No, we had best have faith that it will and treat others accordingly. So, all things considered, I do think that respect for human dignity should always constrain our treatment of other human beings. I do not, however, think that such respect need always rule out the deliberate infliction of pain. (Herdt agrees, commenting, “[t]his is clearly correct.”) In the end, then, I step back from the brink that rightly alarms her, and I almost assume the position she thinks I should, namely, that “we must nevertheless respect the dignity of the evildoer as a member of the creaturely kind of human beings, loved into existence by God despite its sinful character.” I say “almost,” because what pulls me back is not exactly the conviction that the human species has an intrinsic dignity or that this dignity is a fait accompli by God’s constant love (pace Nicholas Wolterstorff). Both those convictions seem to me presumptuous. Rather, what pulls me back is the weaker acknowledgement that I do not know God’s love well and that it might be capable of working miracles with the depraved human will that I cannot imagine; that to assume that it cannot do so would also be presumptuous and morally dangerous; and that therefore I should give God’s love the benefit of doubt. ♦
Nigel Biggar is Regius Professor of Moral and Pastoral Theology at the University of Oxford and author of What’s Wrong with Rights? (Oxford University Press, 2020).
Biggar, Nigel. “Theological Critiques of WWWR: A Reply to Little & Herdt” Canopy Forum, April 13, 2021. https://canopyforum.org/2021/04/13/theological-critiques-of-wwwr-a-reply-to-little-and-herdt