From Bentham to Biggar:
Skepticism about Rights Skepticism
John Witte, Jr.
The Development of Human Rights
Half a century ago, the world welcomed some of the most remarkable human rights documents it had ever seen. The United States Congress passed the Civil Rights Act of 1964 and the Voting Rights Act of 1965. These were America’s strongest statutory rebukes to its long and tragic history of racism, chauvinism, nativism, and religious and cultural bigotry. Born of the civil rights movement and inspired especially by African American churches, these two acts declared anathema on all manner of discrimination in the voting booth, public accommodations, schools, and the workplace. They called American courts and citizens to give full and faithful protection to the rights of everyone, regardless of race, color, religion, sex, or national origin. And they called America back not only to the high promise of the Reconstruction Amendments ratified in the aftermath of the Civil War, but also to the founding ideals set out in the nation’s ur-text, the Declaration of Independence: “that all men [now persons] are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”
Half a century ago, the Second Vatican Council, speaking to and for a billion plus Catholics worldwide at the time, opened up a new chapter in its mission and ministry with a series of sweeping new papal and conciliar declarations — Pacem in Terris, Dignitatis Humanae, Gaudium et Spes, and Lumen Gentium. Rejecting its anti-democratic and anti-rights posture of a century before, the Catholic Church now taught that every human being is created by God with “dignity, intelligence and free will . . . and has rights flowing directly and simultaneously from their very nature.”1Pacem in Terris, para. 9. Such rights include the right to life and adequate standards of living, to moral and cultural values, to religious activities, to assembly and association, to marriage and family life, and to various social, political, and economic benefits and opportunities. The church emphasized the religious rights of conscience, worship, assembly, and education, calling them the “first rights” of any civic order. It also stressed the need to balance individual and associational rights, particularly those involving the church, family, and school. It urged the abolition of discrimination on grounds of sex, race, color, social distinction, language, and religion. Finally, the church called on clergy and laity alike to be ambassadors and advocates for the rights of all persons, especially the “least” of God’s children, as the Bible called them — the poor, needy, sick, and handicapped; widows, orphans, and sojourners; the incarcerated and incapacitated; and children, born and unborn.
Half a century ago, too, in 1966, the United Nations, embracing almost all 186 nation-states around the world at the time, passed the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights. Only two decades before passage of these twin covenants, the world had stared in horror into the death camps of the Third Reich and the gulags of the Soviet Union, where all sense of humanity and dignity had been brutally sacrificed. It had witnessed the slaughter of sixty million people around the world in six years of unprecedented brutality. In response, the world had seized anew on the ancient concept of human dignity, claiming this as the “ur-principle” of a new world order.2The term “ur-principle” is from Louis Henkin et al., Human Rights (New York: Foundation, 1999), 80. The Universal Declaration of Human Rights of 1948 opened its preamble with the classic “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice, and peace in the world.” Two international covenants of 1966 sought to translate the general principles of the Universal Declaration into more specific precepts. The International Covenant on Economic, Social, and Cultural Rights, posed as essential to human dignity the rights to self-determination, subsistence, work, welfare, security, education, and cultural participation. The International Covenant on Civil and Political Rights set out a long catalogue of rights to life, to security of person and property, to freedom from slavery and cruelty, to basic civil and criminal procedural protections, to travel and pilgrimage, to freedoms of religion, expression, and assembly, to marriage and family life, and to freedom from discrimination on grounds of race, color, sex, language, and national origin.
These mid-twentieth century documents were expressions of sober optimism about the human condition and the pressing need to safeguard the world against further human suffering. These documents were also catalogues and confirmations of two millennia of rights developments in the Western legal tradition — among other traditions around the world. Western jurists have long talked about rights and liberties and applied them in their legal systems. Classical Roman jurists called them iura and libertates. Anglo-Saxon laws first translated these Roman law terms into the early English language of ryhtes and rita(e), freoles and freo-dom. Early modern jurists translated medieval canon law and civil law discussions of iura humana into the now familiar vernacular terms of human rights, droits de l’homme, Menschenrechte, derechos humanos, diritti umani, and others.
All these terms had wide and shifting definitions, interpretations, and applications over time and across cultures. At its core, however, this Western language of rights and liberties enabled jurists to map in ever greater detail the proper interactions between private parties in society and between private parties and the reigning authorities, whether political, religious, feudal, or economic. Rights defined the claims that one legal subject could legitimately make against another to protect their person, property, business, reputation, and interest, or to compel another to live up to their contracts, promises, and other obligations. Rights and liberties also defined limits to the actions, duties, or charges that authorities could legitimately impose upon their individual and corporate subjects. And rights and liberties language set out the procedures and principles that were to be followed in all of these legal interactions, sometimes casting them in terms of justice, equity, liberty, equality, due process, and other ideals.
Today, various classes of rights are commonly distinguished. The most typical distinctions are between:
- subjective rights (those claimed by individuals, groups, or parties subject to an authority) and objective right or rightness (conduct considered proper or orderly when measured against an objective standard);
- natural rights (based on nature, natural law, or human nature) and positive rights (based on the positive law of the state, church, or other legal authority);
- public or constitutional rights (those that operate vis-à-vis the state) and private or personal rights (those that operate vis-à-vis other private parties);
- rights of individuals and rights of associations or groups (whether private groups, such as businesses or churches, or public groups, such as municipalities or political parties);
- substantive rights (which create or confirm goods or entitlements) and procedural rights (which guarantee subjects certain types of treatment by government officials);
- human rights (which inhere in a person qua human) and civil rights (which inhere in citizens or civil subjects);
- unalienable or nonderogable rights (which cannot be given or taken away) and alienable or derogable rights (which can be voluntarily given away or taken away under specified legal conditions, such as due process of law);
- will theories of rights (which emphasize individual rational choices and desires) and interest theories of rights (which focus on individual needs and society’s duties to meet them); and
- first-generation civil and political rights, second-generation social, cultural, and economic rights, and third-generation rights to peace, environmental protection, and orderly development, as they are called in international human rights law.
These different types of rights often correlate with different jural relationships. Some scholars distinguish between:
- rights (something that triggers a correlative duty in others) and privileges (something that no one has a right to interfere with);
- active rights (the power or capacity to do or assert something oneself) and passive rights (the entitlement or claim to be given or allowed something by someone or something else);
- rights or privileges (claims or entitlements to something) and liberties or immunities (freedoms or protections from interference); and
- positive liberty or freedom (the right to do something) and negative liberty or freedom (the right to be left alone).
While Western jurists sometimes treated vaunted documents like Magna Carta (1215) or the Bill of Rights in the United States Constitution (1791) with reverence, they usually thought of rights in simple instrumental and utilitarian terms. After all, as Justice Oliver Wendell Holmes Jr. once put it, a right is “only the hypostasis of a prophecy,” a mere prediction of what might happen to “those who do things said to contravene it.”3Oliver Wendell Holmes Jr., “Natural Law,” Harvard Law Review 32 (1918): 40–44, at 42. That prediction depends very much on the ability of a legal subject to press a rights claim, the willingness of the authorities to vindicate those rights, and the capacity of the society to develop a human-rights culture. Human rights “declarations are not deeds,” Judge John T. Noonan Jr. reminds us; “a form of words by itself secures nothing.” Human rights language “pregnant with meaning in one cultural context may be entirely barren in another.”4John T. Noonan Jr., “The Tensions and the Ideals,” in Religious Human Rights in Global Perspective: Legal Perspectives, ed. Johan D. van der Vyver and John Witte Jr. (The Hague: Martinus Nijhoff, 1996), 593–605, at 594. That was true throughout Western history and can be seen in many places today marked by striking new forms of nativism, populism, tribalism, theocracy, and authoritarianism.
Nigel Biggar’s Rights Skepticism
Although rights and liberties have been part of the tradition since biblical and Roman days, a number of Christian theologians and philosophers today — Catholic, Orthodox, and Protestant alike — view rights with suspicion, if not derision. Yes, these critics acknowledge that Christians from the start embraced the freedom (eleuthería) of the Bible and called for protection against Roman persecution. Many Christians today lament the rising new persecutions of Christians and others around the world, and the growing tension between religious freedom and sexual freedom in late modern liberal democracies. But many Christians today question seriously whether their spiritual or political predecessors really had much to do with rights and liberties more generally, and whether modern human rights ideas faithfully express the moral norms and narratives of the Bible and the Christian tradition. Many Christian critics view rights as a dangerous invention of Enlightenment and post-Christian liberalism, predicated on a celebration of reason over revelation, of greed over charity, of nature over scripture, of the individual over the community, of the pretended sovereignty of humanity over the absolute sovereignty of God. These scholars call for better ideas and language to emphasize core virtues like faith, hope, and love and core goods like peace, order, and community.
These Christian rights skeptics are not just isolated and eccentric cranks. They include leading theologians like Stanley Hauerwas, Oliver O’Donovan,5See also O’Donovan’s broader political theology in Oliver O’Donovan, The Ways of Judgment (Grand Rapids, MI: Eerdmans, 2005); Oliver O’Donovan, The Desire of the Nations: Rediscovering the Roots of Political Theology (Cambridge: Cambridge University Press, 1996). John Milbank,6See also John Milbank, “The History of Natural Right,” Church Life Journal (January 18, 2019). Alasdair McIntyre,7See also Mark D. Retter, “The Road Not Taken: On MacIntyre’s Human Rights Skepticism,” The American Journal of Jurisprudence 63 (2018): 189–219. Orthodox Ecumenical Patriarch Bartholomew,8 See also the further Orthodox critique in Vigen Guroian, Rallying the Really Human Things (Wilmington, DE: ISI Press, 2005), 189–232. For a good summary of and response to Orthodox skepticism about rights, see John McGuckin, The Ascent of Christian Law: Patristic and Byzantine Formulations of a New Civilization (Yonkers, NY: St. Vladimir’s Seminary Press, 2012). and scores of mainline Protestant and Evangelical scholars influenced by Karl Barth’s early “Nein!” to natural law and natural rights talk.9See also the detailed sources in Stephen J. Grabill, Rediscovering the Natural Law in Reformed Theological Ethics (Grand Rapids, MI: Eerdmans, 2006), 21–53.
Oxford don Nigel Biggar has joined the ranks of these Christian rights skeptics, although he has severely criticized some of his fellow skeptics on other topics.10See, e.g. his attack on Hauweras in Nigel Biggar, In Defense of War (Oxford: Oxford University Press, 2013), 16-60. For the past thirty-five years, Biggar has made his mark as a Christian ethicist and Anglican priest, proud of the old-time religion and comfortable political traditions of the British Isles. Early on, Biggar was shaped by Karl Barth’s ethics and theology11See, e.g., Nigel Biggar, The Hastening that Waits: Kar Barth’s Ethics (Oxford: Clarendon Press, 2011); Nigel Biggar, ed., Reckoning with Barth: Essays in Commemoration of the Centenary of Karl Barth’s Birth (Oxford: Mowbray, 1989). Nigel Biggar, Moral Reason and Responsiveness to God: A Critical Analysis and Reconstruction of Karl Barth’s Concept of Hearing God’s Command (Ph.D. Thesis, Chicago, 1986). and drawn to Protestant attacks on Catholic natural law theory.12See, e.g., Rufus Black and Nigel Biggar, eds., The Revival of Natural Law: Philosophical, Theological, and Ethical Responses to the Finnis-Grisez School, repr. ed. (London: Routledge, 2017 ). He has criticized liberal reforms in the Anglican communion,13See, e.g., Nigel Biggar, Theological politics: A Critique of ‘Faith in the City’, The Report of the Archbishop of Canterbury’s Commission on Urban Priority Areas (1985) (Oxford: Latimer House, 1988). Nigel Biggar, “Between Development and Doubt: The Recent Career of Just War Doctrine in British Churches,” in Price of Peace: Just war in the Twenty-First Century, ed. Charles Reed and David Ryall (Cambridge: Cambridge University Press, 2007), 55-75. praised Margaret Thatcher’s “moral reformation” of the United Kingdom,14 Nigel Biggar, Mrs. Thatcher’s Moral Reformation: The Diagnosis, the Remedy, and the Role of the Church (London: Latimer Trust, 1990). and remained a longtime skeptic of British subjection to European integration — and even worse to the jurisdiction of the European Court of Human Rights. Biggar has called for an “untamed Gospel”15 Martyn Percy; Nigel Biggar; Jim Cotter; Jamie Coats; Sarah Foot; Carol Harrison; Graham Ward; Sylvia Sands, Untamed Gospel: Protests, Poems, and Prose for the Christian Year (London: Canterbury Press Norwich, 2017). and candid and critical Christian reflection16 Nigel Biggar and Linda Hogan, Religious Voices in Public Places (Oxford: Oxford University Press, 2012); Nigel Biggar, Behaving in Public: How to do Christian Ethics (Grand Rapids, MI: Eerdmans, 2011). on such vexed issues as euthanasia,17Nigel Biggar, Euthanasia (Oxford: Farmington Institute for Christian Studies, 1988); Nigel Biggar, Aiming to Kill: The Ethics of Suicide and Euthanasia (London: Darton, Longman, and Todd, 2004). social welfare and urban reform,18Nigel Biggar, Not Just for the Poor: Christian Perspectives on the Welfare State (London: Latimer Trust, 1987); Christian citizenship and persecution in the Middle East,19 Nigel Biggar, et al., City of Gods: Faith, Politics, and Pluralism in Judaism, Christianity and Islam (New York: Greenwood Press, 1986); Nigel Biggar, et al., Divided Allegiance Essays on Christian Vision of Citizenship with Especial Focus on the Middle East (London : Jessica Kingsley Publishers, 2017). genocide and the war in Kosovo,20Biggar, In Defense of War, chap. 6. 9/11 and the wars in Iraq and Afghanistan,21Nigel Biggar, Burying the Past: Making Peace and Doing Justice After Civil Conflict (Washington, DC: Georgetown University Press, 2003). and more. Especially since his appointment in 2007 as Regius Professor of Moral and Pastoral Theology at Oxford, Biggar has gained increased notoriety for his strong defense of British nationalism, imperialism, colonialism, and war efforts22 See esp. Nigel Biggar, Between Kin and Cosmopolis: An Ethic of the Nation (Farnham: Ashgate, 2014). See further Nigel Biggar, “Britain’s Slave Trade and the Problem of ‘Decolonization’,” The Spectator (November 29, 2020) and Biggar, In Defense of War. as well as his defense of the Anglican establishment and the various political, cultural, and legal privileges that come with it — including to himself as a member of the establishment, he candidly acknowledges.23Nigel Biggar, “Why the Establishment of the Church of England is Good for Liberal Society,” in The Established Church: Past, Present, and Future, ed. Mark D. Chapman, et al. (London: T & T Clark, 2011), 1-25. These recent efforts, while praised in some circles, have made Biggar something of a scholarly pariah to the point that his Oxford colleagues have urged his termination.24See “Ethics and Empire: An Open Letter From Oxford Scholars,” The Conversation (December 19, 2017). But he takes on his critics gamely, often hitting back with an impressive right haymaker.
Biggar’s most recent title What’s Wrong with Rights is of the same genre. This is a cleverly titled and crisply written study of the history, concept, and limits of rights and rights talk in the Western tradition and beyond. Biggar brings a powerful analytical mind and elegant pen to the task — and has added a pair of brass knuckles, too, which he uses to pummel several historical and modern rights theorists and jurists, including Christian worthies like John Finnis, Nicholas Wolterstorff, and Oliver and Joan O’Donovan. He takes a few swings at me, too. Along the way, Biggar again defends violence and warfare in contexts that many others have denounced on the basis of rights. He again condemns euthanasia and various dignity and welfare rights, disdains judicial activism, pillories several lawyers and judges, and bangs on several international human rights instruments, tribunals, and cases with such jarring philosophical criticisms and rhetorical broadsides that his book has already raised hackles with leading lawyers, not least Baroness Hale, former President of the Supreme Court of the United Kingdom.25See also Mark Hill, “Review of Nigel Biggar, What’s Wrong with Rights?” Canopy Forum (February 9, 2021).
The central thesis of Biggar’s big new book is largely drawn from the well-worn playbooks of two centuries plus of rights skeptics. Like Jeremy Bentham and Karl Barth, Biggar rejects “natural” rights, arguing that only positive legal rights are real. Natural rights are “nonsense upon stilts,” as Bentham put it. And unredeemed nature, as Barth made clear, is too shifting and sandy a foundation on which to build any kind of normative or political order. “There are no natural rights,” Biggar says repeatedly.26Nigal Biggar, What’s Wrong with Rights? (Oxford University Press, 2020), 17, 131 Like Leo Strauss and Ernest Fortin, Biggar insists that “moral right” or “right order” is objectively real, while “moral rights” are not effective unless translated into positive law terms. What is objectively right does not translate into a “subjective right” unless the legislature says so. A “moral right” is not a legal right, even if moral claims — say, against torture or slavery — sometimes deserve legal recognition. Like Onora O’Neill and others, Biggar argues that even legal rights are not real unless there is a legislatively-created body with the duty to vindicate those rights. Rights without duties are idle rhetoric, and judge-made rights are anathema. And like Edmund Burke and David Ritchie, Biggar is dismayed by abstract and universal rights declarations — like the French Declaration of the Rights of Man and Citizens (1789), the United States Bill of Rights (1791), or the Universal Declaration of Rights (1948) and their many progeny. Such instruments, often cast in the “high flying rhetoric” of natural law and natural rights, have created a pernicious “rights fundamentalism” whose “lack of definition” allows rights to become “whimsical creatures of human desire and choice,” subject to “ludicrous or recklessly licentious construals.”27Nigal Biggar, What’s Wrong with Rights? (Oxford University Press, 2020), 4, 124 In particular, these grand rights documents have encouraged citizens and authorities, lawyers and judges alike to invent all manner of untethered rights claims, upsetting long cultural traditions in so doing — sometimes violently, as Burke already lamented in his reflections on the French Revolution. With this critique of (natural) rights in hand, Biggar marches through a series of historical and contemporary jurists, philosophers, and judges from the Middle Ages until today to see how they measure up. Almost all of these writers fail on his skeptical reading. They conflate natural rights and positive rights. They fail to distinguish moral right and subjective rights. Particularly the pernicious nominalism of Ockham and vulgar voluntarism of Hobbes have unmoored rights from their essential moral anchors, leading to the oft absolute subjectivism and greedy individualism of the later Enlightenment and our post-Christian liberal culture.
Even the expanded rights talk offered by scores of early modern Catholic and Protestant writings — deeply rooted in biblical and theological soils and generative of so much of the Western tradition’s later constitutional and legal rights regime — gets shorter shrift in Biggar’s analysis than seems warranted. These are, after all, serious and legally influential Christian theological, ethical, jurisprudential, and political sources and discussions of rights that a modern Christian ethicist should appreciate and applaud. Biggar’s own conservatism about rights talk, however, and his appetite for the rights criticisms of Burke, Bentham, Ritchie, and others have him emphasizing the limits of these early modern Christian rights thinkers and limiting the library of earlier Christian sources he offers for analysis, and then reading them only selectively. Had Biggar worked in detail through all the early modern Calvinist revolutionary pamphleteers, and through Vitoria, las Casas, Suarez, Vázquez,28See the Canopy Forum literature highlight on the book to which these Spanish jurists are cited, Great Christian Jurists in Spanish History, ed. Rafael Domingo and Javier Martínez-Torrón (New York: Cambridge University Press, 2018). Grotius, Pufendorf, Burlamaqui, Wolff,29See the Canopy Forum literature highlight on the book to which several of these German and European journalists are cited, Great Christian Jurists in German History, ed. Mathias Schmoeckel and John Witte, Jr. (Tübingen: Mohr Siebeck, 2020). Coke, Milton, Selden, Hale, Lilburne, Ward, Williams, Blackstone,30See the Canopy Forum literature highlight on the book to which these English jurists are cited, Great Christian Jurists in English History, ed. Mark Hill and R.H. Helmholz (New York: Cambridge University Press, 2017). Backus, Adams, Witherspoon, Wilson, Madison, Sherman, Story,31See the Canopy Forum literature highlight on the book to which these American jurists are cited, Great Christian Jurists in American History, ed. Daniel L. Dreisbach and Mark David Hall (New York: Cambridge University Press, 2019). and many scores of other self-identified Christian jurists, he would have had a much harder time coming to the conservative and cautionary conclusions about early modern Christian rights talk and its constitutional and legal influence than he offers.
It’s not clear to me why universal declarations and statements of rights and liberties — from Magna Carta (1215) to the Universal Declaration of Human Rights (1948) — are so pernicious in Biggar’s view. Historically, these declarations distilled the many legal rights of prior generations that deserved new confirmation and vindication. They defined the grounds on which a community legitimately rebelled against a prior tyrannical regime. They gave priority to some rights and liberties that needed new or more nuanced protection given their recent abridgement. They indicated procedures and/or institutions for the vindication, enforcement, and amendment of rights. And these declarations often set out general preambular principles to guide the community’s development of more precise precepts, practices, and procedures in pursuit of peace, order, and justice. As such, declarations of rights have functioned in the state much as declarations of duties like the Decalogue have functioned in the church. They provide normative totems and ideals for each generation to makes ever more real and concrete. And they are regular reminders to all community members of the minimum duties that we owe to each other, including to those who are in authority or those whom authorities are called to serve.
Biggar objects that such declarations of rights “are burdensome to uphold,” set “absolute” and “impossible standards” for individuals and governments to attain, encourage “nagging overuse” by restive citizens, and comprise an “ever fruitful source of thoughtless frustration” for “weary governments” now forced to expend “finite resources” better spent on other “public purposes.”32Nigal Biggar, What’s Wrong with Rights? (Oxford University Press, 2020), 331-332. Similar arguments were raised by King John against those restive barons and bishops clamoring for Magna Carta; by King George III against those rebellious American colonists pressing for independence after repeated violations of their long chartered rights and liberties; and by the American white establishment against the African-America leaders of the civil rights movement who were demanding liberty, equality, and rights after centuries of oppression. These arguments are not persuasive.
Of course, rights claimants pressing legitimate claims rankle the status quo, demand attention, and often force governments to redirect their fiscal and political priorities. Of course, the demands for “due process of law” and “equal protection under the law” often create work. But sometimes that’s what it takes to correct fundamental wrongs and to safeguard against future injustice if not tyranny. Of course, some rights claimants can overplay their hands, and some courts get some cases wrong. But almost all rights claims are not absolute; they are and must always be balanced against each other and limited by many other fundamental goods and needs of societies. Biggar is surely right that a “liberal society cannot live on rights alone.”33Nigal Biggar, What’s Wrong with Rights? (Oxford University Press, 2020),164. But a liberal society cannot long live without them. Rights declarations are useful instruments to achieve just and right order, and guarantees of rights and liberties can and do provide citizens with the means to discharge the duties and practice the virtues that Biggar praises.
It’s also not clear to me what rights ultimately concern Biggar. His criticisms of “universal,” “natural,” and “absolute” rights claims sometimes spills over into criticisms of public, private, penal, and procedural rights altogether. That is clear already from his choice of book title: “What’s wrong with rights” the cover announces, without the qualifier “natural” rights, and without the familiar question mark that other books with similar titles have used to create a double entendre. While Biggar works hard to distinguish objective moral right from subjective legal rights, he provides far less guidance to judge the value and validity of various “legal rights.” In this book and other writings, he takes intermittent swipes at civil liberties and human rights, individual rights and personal rights, sexual freedom and women’s rights, welfare and poor rights, children’s rights, freedoms of speech and expression, rights and freedoms of personal autonomy and self-determination, and more. It’s not clear what in the many long catalogues of modern legal rights on offer today, and illustrated earlier, ultimately pass muster. Biggar does allow that rights can provide a useful means to provide security and protect human flourishing so long as they are protected by a treaty or statute. He also allows that international rights statements can now provide “a powerful way of holding states to account — although the way of invoking them can be more or less prudent.”34Nigal Biggar, What’s Wrong with Rights? (Oxford University Press, 2020), 324-325. But one cheer for rights and liberties is about all we get.
Biggar’s book is decidedly philosophical, not legal or juridical, in orientation, terminology, and method. This is not to dismiss his approach but to point out its limits. While the last chapters on torture, suicide, euthanasia, and war get into some nitty-gritty legal questions, a good deal of the volume hovers well above the quotidian daily questions of rights, liberties, privileges, immunities, franchises, capacities, powers, procedures, remedies, and more that jurists have been dealing with since the early days of Jewish law and Roman law. The irony is that this is the realm of real, clear, specific enumerated legal or positive rights that Biggar says he favors over lofty declarations on rights. But rather little of the quotidian occupies him in the book.
Following the modern skeptics about rights whom he engages, Biggar focuses largely on scattered “individual” rights — not the sundry institutional rights and liberties of churches, families, associations, corporations, unions, schools, banks, publishers, hospitals, charities, and so on that jurists and judges have also long had to wrestle with. He offers philosophical critiques of early modern and modern bills and declarations of individual rights, not acknowledging that many of these are distillations and affirmations of positive legal rights of earlier generations, and not addressing the complex concerns of due process and procedural remedies that bring these rights to real life.
Biggar sometimes equates legal discussions of “subjective rights” with modern “subjectivist” defiance of objective right order, and claims of “individual rights” with forms of greedy and grasping individualism. But since biblical times, lawyers defined “subjective” rights and liberties as the claims that could be made by parties who are “subject” to political authorities. St. Paul was not being a subjective relativist for insisting on his right as a Roman citizen to appear before the emperor (Acts 25:10-12). A spouse who lovingly calls in her conjugal rights (1 Corinthians 7:3) is not being greedy but affirming the right order of marriage. A plaintiff who sues to vindicate their rights to life, property, and reputation, or to the integrity of their marriage, family, and household is giving their neighbor the chance to honor their basic moral duties to not murder, steal, or bear false witness; to not dishonor parents or breach marital vows; to not covet, threaten, or violate “anything that is your neighbor’s” (Exodus 20:12-17).
Biggar wants the legislature to decide about legal rights and their limits, and to cast these rights into specific statutes and treaties. But rather than being guided by natural law or by declarations of natural rights, he wants legislation rooted in and “justified by natural morality.” This he defines rather vaguely as “a set of moral principles that are given in and with the nature of reality, specifically the nature of human flourishing.”35Nigal Biggar, What’s Wrong with Rights? (Oxford University Press, 2020), 131. I suspect that many legislators would find more inspiration and better instruction in the ringing endorsement in the American Declaration of Independence of the “laws of nature and nature’s God,” that decree “that all men [now persons] are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”
Moreover, Biggar’s peculiar positivist dependence on legislated rights raises large questions about legislative competence, separation of powers, the role of constitutions (with or without bills of rights), and judicial review. And it also begs deep questions about the role of precedent in a rule of law state, and the place of democratic ventilation and deliberation in determining legal fundamentals. Should fundamental rights and wrongs be decided by simple majority votes of whatever party happens to be in power, or by referenda or plebiscites? Today, when slender popular and legislative majorities in democratic lands are making substantial nationalist and xenophobic moves that impose significant costs on the rights of many, this faith in the legislative process needs much more discussion. Even the vaunted British Parliamentary system has shown ample signs of trouble of late, to say nothing of the hopeless dysfunction of recent United States Congresses.
Finally, Biggar’s history of rights talk is not about the legal history of rights but largely about historical philosophical texts discussing rights, or modern philosophers’ accounts of these historical texts. Thus, we hear a bit about Ulpian and Cicero and their modern echoes, but not about the evolving concept and legal protection (with limits) of rights in all their diversity. We hear again about Aquinas and Ockham, and about the Franciscan poverty debates in the Middle Ages — that Michel Villey and Brian Tierney engaged two generations ago — but not much about the massive and complex apparatus of rights in the medieval ius commune or even about the many, often elaborate medieval rights charters — of which the Magna Carta of 1215 is only the most famous.36 Robin Griffith-Jones and Mark Hill QC, eds. Magna Carta, Religion and the Rule of Law (Cambridge: Cambridge University Press, 2015). We hear about Burke and Bentham and their worries about rights, but rather little about the rather full development of rights in England from the Petition of Right in 1628 to the Bill of Rights sixty years later, or the comparable rights discussions and legal developments on the Continent and in the Americas in early modern times. Where are the hundreds of canon lawyers, civil lawyers, and common lawyers who worked seriously on rights before and after Burke and Bentham with much broader and more enduring legal and political influence than these rights skeptics? Where are the massive constitutional documents and thousands of constitutional cases that have been so central to the Western and broader global protection of rights in early modern and modern times?
This is not to throw legal stones at a philosopher’s elegant glass house. But it is to say that the rights and the histories of rights that occupy Biggar in his quest to determine “what’s wrong with rights” are often limited and abstract. His analysis shifts back and forth from what’s wrong with rights in general to what’s wrong with claims of natural, absolute, subjective, universal, or human rights. Testing out his understanding and critique of rights in a few extreme modern cases of torture, suicide, euthanasia, and war helps to determine and define the value, validity, utility, limits, and distortions of certain kinds of rights talk. But Professor Biggar would do well to bring this lofty discussion to the ground, especially as he sorts out more charitably and completely what’s right with rights for individuals and groups, for states and churches, and for societies and cultures throughout the world. ♦
John Witte, Jr. is Woodruff University Professor, McDonald Distinguished Professor, and Director of the Center for the Study of Law and Religion, Emory University. This review essay is drawn in part from his two titles currently in press: The Blessings of Liberty: Human Rights and Religious Freedom in the Western Tradition (Cambridge: Cambridge University Press, 2021) and Faith, Freedom, and Family: New Essays on Law and Religion, ed. Norman Doe and Gary S. Hauk (Tübingen: Mohr Siebeck, 2021).
Witte, Jr., John. “From Bentham to Biggar: Skepticism about Rights Skepticism.” Canopy Forum, June 11, 2021. https://canopyforum.org/2021/06/11/from-bentham-to-biggar-skepticism-about-rights-skepticism/