Ethical Critiques of WWWR:
A Reply to Milbank & Harrison
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. 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 John Milbank’s “On the Division of Rights”
I fear that I will not be able to do John Milbank’s essay justice, since I have failed to achieve a firm grasp of what he is saying. It seems that I define “right” in “too modern and liberal a way,” contrasting natural and constitutional rights. This approximates me to a current of modern Anglo-Saxon “‘liberal conservative’ thought” that identifies legality with political custom — except that I “clearly [do] not take this view,” seeing civil legislation as subject to the dictates of morality. I infer from this that Milbank is anxious lest a distinction between natural and legal (what he calls constitutional) rights might become a complete separation. Yet, as he himself admits, I do not separate them. Indeed, I am unequivocal in making legal rights answerable to natural morality.
Milbank also thinks that I fail to see how what he calls “modern extended natural rights” and I call “civil ‘human rights’” can be integrated into an older natural law or “right order” perspective. Well, what I call “human rights” are either natural, moral rights or legal rights that command international recognition. I have no idea what a “modern extended natural right” is. But I certainly do recognize that a concept of natural rights can be integrated into a larger framework of natural law or morality: that is what modern Roman Catholic thinking does.
It seems that I am wrong about Hobbes, who “can indeed be regarded as the real father (though along with Grotius) of modern liberal thought, as Strauss considered.” This is because Locke is not so different from Hobbes as I suppose, since “to recommend re-founding the political upon nature is to recommend that it be reborn from nature.” I have stared at that last sentence several times and have not been able to coax meaning out of it. So let me restate why I do not think that Hobbes is the father of the “modern” concept of a right. First, the evidence shows that Hobbes’s thinking was not widely influential — indeed, that he was overwhelmingly regarded as a pariah for a long time after his death. Second, Hobbes’s concept of a natural right is quite different from that of Grotius and Locke. It is not a moral entity at all, but rather the mere, animal drive to preserve the self from pain and death. For him, morality and legal rights are the creatures of social contracts. This is simply not so with Grotius and Locke, for whom natural rights stem from natural morality and are qualified by it. So, insofar as the concept of “modern” rights is shaped by them, it is not shaped by Hobbes.
Milbank objects to my denial of natural rights for two reasons. First, I am wrong to suppose that natural rights pretend to be absolute, while in fact they are not. Equitable exceptions do not invalidate the general rule — with all due respect to “the modern paradigm of a law or right as a positive absolute.” I, however, “thinking in a modern way,” mistakenly suppose that murder is wrong because it is illegitimate killing, while killing in warfare is legitimate and so is not murder. But the medieval reservation about clerics fighting shows that killing in warfare was still regarded “as somewhat ‘wrong’ and only permissible as corrective … in a situation of the breakdown of normal order.” Similarly, a universal and natural right not to be tortured is not suspended by a case of the use of torture in extremis. Hmmm. First, my main objection to the concept of natural rights is not their claim to absoluteness, but their connotation of a degree of institutionally-generated force that they lack. Second, I accept that natural rights need not be unqualified, although natural rights-talk very often is. Third, to my mind, if something is “somewhat wrong,” it is “somewhat immoral” and should not be done. If, however, it should be done, it cannot be at the same time morally wrong. It can, however, be deeply regrettable as a tragic necessity, and it can carry perilously high moral risks. That applies both to morally justified war and intentional pain-infliction. I much prefer scholastic precision to Lutheran paradox in these matters. The medieval prohibition of clerical participation, even in a just war, was a salutary statement about the lamentable character of its dreadful necessity and its duty to serve the end of peace. It was not a judgement against its moral rightness — or, if it was, it should not have been.
Second, Milbank thinks me wrong to object to natural rights because they are not always enforceable. “The holistic international imperative,” he says, “remains to try to provide all peoples with some sort of just political order that will include a pattern of reciprocal duties and rights.” I agree. We have an imperfect duty to try to create an international system that makes clear which states owe what aid to whom. When we have that, those in need of aid will have more than only a moral claim to such help as others might feel able to give. They will have a human (legal) right against particular states to specific kinds of aid, which the international community will support and enforce. Until then, however, they have only a moral claim, not a natural right.
Responding to Joel Harrison’s “Radicalizing Biggar’s ‘What’s Wrong with Rights?’”
In the 2015 case of Carter v Canada (Attorney General), the Supreme Court of Canada judged that the federal Parliament violated the Canadian Charter of Rights and Freedoms in failing to legislate for physician-assisted suicide and voluntary euthanasia under certain conditions. In Chapter 11 of my book I analyzed the court’s judicial reasoning, concluded that its judgment was imprudent, and identified part of the problem as lying in the too-ample room for creativity afforded to courts by the Charter’s grant of an abstract “right to liberty.” Joel Harrison thinks that I have misidentified the problem. Courts frequently have to interpret abstract concepts, he writes. What is crucial is the “controlling narrative or … fundamental norms” that govern the interpretation. In his view this is often a Dworkinian concept of fundamental personal autonomy or authenticity. So while “right order” theologians such as Joan Lockwood O’Donovan may be mistaken in blaming Gerson or Hobbes for the problem, they are correct in lamenting the radical subjectivism of modern rights-talk.
Harrison’s discussion is nuanced, and I do not disagree with much of it. In my treatment of Carter I did complain, not only about the abstraction of the charter right, but also more specifically about the priority accorded unqualified liberty. From what Harrison says, however, it may be that I underestimated the extent of the influence of Dworkin’s concept of dignity-as-autonomy. Nonetheless, I still think that the abstract nature of (some) charter rights is a problem in that it gives judges license to interpret the law in such a way as to open up a gap between its own enlightened opinion and the settled will of the people’s elected representatives — a gap that jeopardizes the law’s legitimacy (i.e., social authority). While I appreciate that judicial interpretation of the law is bound to involve the specification of general concepts, legislated rights are more tightly defined, afford judges less capacious room for creative manoeuvre, and therefore limit divergence between courts and legislature.
Harrison’s second main criticism is that my reading of rights is informed by an ethic too much shaped by a sense of moral complication, the need for compromise, and the fact of tragedy, and by a political view too concerned with stability, too aligned with the status quo, and too “deferential.” Instead, he holds that “our [Christian] understanding of what is right action must be more hopeful … much more revolutionary.” The role of the Church is to “nag” civil authority in the name of the possibility of an exemplary society.
Thus, against my view that deliberate, non-sadistic, proportionate pain-infliction could be morally permissible, even obligatory, he urges that a Christian should eschew violent communication, which is “contrary to the nature of truth itself: a loving desire for fellowship,” and aim instead at persuasion, “the peaceful communication of the truth.”
He also finds my reading of Aquinas’ view of property too conservative. As he understands it, my position is that Aquinas affirmed a rich person’s legal right to property, albeit “coupled with a claim of morality to distribute where possible.” So when the rich person fails in charity, his legal right remains undisturbed. According to Harrison’s reading of Aquinas, however, the positive law cannot derogate from natural right, and so the legal right to property “must always be internally limited by the … duty to distribute to others.”
There is no doubt that I am generally very impressed by the moral complexity of certain matters, whether it be forgiveness, the use of force, or imperial dominance. My own personal experience, illuminated by Christian teaching on creaturely finitude and sin, amplified by my reading of history, and reinforced by observing how the most conscientious of intentions can backfire, has long made me sensitive to the tragic constraints under which human agency has to operate. And it has led me to a greater appreciation of the virtues of compromise. In 1998 I organized a conference under the title “Burying the Past: Making Peace and Doing Justice after Civil Conflict.” I opened it blithely assuming that it was appropriate to talk about such things in terms of forgiveness and reconciliation. But then up stood Ulrike Poppe, a dissident twice imprisoned by the communist authorities in East Germany. “What’s all this talk about ‘reconciliation’?” she exclaimed. “I now live on the same street as the man who informed on me. I didn’t know him then and I certainly don’t want to know him now! What do you mean by ‘reconciliation’?” From that point on I began to realize that sometimes, the most that is possible in human history is the co-existence of former enemies, but that sometimes, co-existence itself can be no mean achievement. While imperfect, it is a lot better than nothing. I became, not cynical, but more sober, more realistic.
As for talking up stability and deferring to those who govern, I do believe that those of us privileged to live in extraordinarily prosperous, peaceful, and free liberal democracies underestimate the importance of political stability precisely because we take so much of it for granted. And I do believe that Christians, just like most of their fellow citizens, too little appreciate the burdens that those they elect to govern have to bear, the constraints under which they have to operate, and the decisions they have to make in a fog of uncertainty and under the unforgiving pressure of the ticking clock. I am all in favor of prophetic “nagging,” but not by those who have not taken the pastoral care to appreciate the circumstances of those they nag. Besides, it seems to me that, within the Christian churches (certainly in Britain and Europe) most of the prophets are declaiming from the Left. Surely there is room for the occasional prophecy from the Right?
On Harrison’s preference for persuasion over coercion, all I can say is that, of course, where that can work, it should be preferred. The difficult question arises where persuasion is not working, and it poses a choice that has tragic features: either to accept the evil conspiracy from which the perpetrator will not be persuaded to detach himself, or to oppose it by trying to force him to do what he refuses by inflicting the evil of pain on him. I remain in need of persuasion that it makes sense to define “truth” as “a loving desire for fellowship.”
My view of Aquinas and property is that he affirmed that it could be morally justified for the indigent to take what they need from the surplus of the rich. However, he held back from saying that the indigent “have a natural moral right” to take what they need, lest the right be cut loose from its moral conditions and used to authorize anarchical license. My view is that if the rich fail in their duty to support the indigent and so tempt the latter to break the law, then they (the rich) are responsible for putting at risk the whole legal order. And if that were to collapse, everyone would suffer — except the fittest, whoever they might turn out to be. So, to avoid the calamity of general anarchy, the duty of charity needs to be built into the law — say, in the form of progressive taxation. If that is what Harrison means by saying that the legal right to property should be “internally limited” by the duty to distribute to others, I agree with him.
As a Christian I am bound to be hopeful. I am bound to hope for the coming of the Kingdom of God, where the divine rule of justice and peace is complete. I do hope for it and pray for it, precisely because I observe so much unremedied injustice and unrelieved misery in the world. What I pray for I am bound to act for. But I have to admit that many things cannot be put right in human history: the cause of the murdered dead will remain unvindicated until the End of time. Still, some things can be put right here and now, and fragments of the Kingdom can be made to appear. Sometimes, they can even be made to appear on a large scale. Thus, thanks to a sustained, fifty-year campaign, slavery was eventually abolished throughout the British Empire in 1833. So I do believe in revolution. But I expect the really substantial revolutions to come gradually — like the growth of a mustard seed or leaven. ♦
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 “Ethical Critiques of WWWR: A Reply to Milbank & Harrison.” Canopy Forum, April 15, 2021. https://canopyforum.org/2021/04/15/ethical-critiques-of-wwwr-a-reply-to-milbank-and-harrison/