John Witte, Jr.’s Critique of WWWR:
First of all, let me express my gratitude to Professor Witte for having taken the trouble to comment at some length on my book. What he has written has stimulated thought, even where it has not elicited repentance.
He and I are old friends, who share in common much that is important. Since I hope that we shall become yet older friends after he has finished reading my response, I am going to refer to him by his first name. I have learned that tone matters, and while it seems that alienating people is an unavoidable effect of stating unpopular truths (as I perceive them) and making pointed criticisms, I ought not to — and do not want to — make enemies needlessly.
Responding to John Witte, Jr.’s “From Bentham to Biggar: Skepticism about Rights Skepticism”
John spends the first forty percent (or thereabouts) of his critique recounting the story of the worldwide ascendancy of rights after 1945, their effectiveness in securing justice (not least in 1960s America), and the power of their proliferation in enabling “jurists to map in ever greater detail the proper interactions between private parties in society and between private parties and the reigning authorities”. His purpose here is not explained, but its effect is to overshadow and diminish any doubts that sceptics, like me, might harbour. Judging by this statement in his penultimate paragraph, this effect was intended:
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…. 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 seems to me either very complacent or very defensive. For surely, notwithstanding all that is laudable about rights-talk and the post-war spread of its empire the world over, might there still not be serious problems that need careful attention, rather than brusque dismissal? And surely, given rights-talk’s cultural dominance — certainly in the West — can it really not afford to let doubt or criticism stimulate critical self-reflection? John’s response, together with Brenda Hale’s book review and Mark Hill’s Canopy commentary, have left me with the impression that, at least for some its lawyerly advocates, the grand rights-edifice feels a lot less secure than it looks. I think I catch a whiff of anxiety in the air.
While it is true that I have doubts — some very strong — about certain concepts and ways of thinking and talking about rights, John overeggs my skepticism, perhaps in order to create a straw man that he can hit. One obvious symptom of this appears when he writes that Biggar’s
criticisms of ‘universal’, ‘natural’, and ‘absolute’ rights claims sometimes spill 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.
Well, if John were to look again at the book cover, he would see that the familiar question-mark is indeed there. That is because the book aims to assess critiques of rights, not merely restate them. And the assessment is not limited to “natural rights”, because some of the critiques assessed do not clearly confine their scope to those.
Moreover, John writes that I have “joined the ranks of … Christian rights skeptics” such as Stanley Hauerwas, John Milbank, Alasdair MacIntyre, and Oliver O’Donovan. (He should have added Joan Lockwood O’Donovan, who is significantly more skeptical than her husband). Yet, in important respects I have explicitly declined to join this merry band. Out of my critical analysis of what they have to say, I conclude that these theologians are wrong to conflate natural rights with legal rights, wrong to identify the “modern concept” of rights with radical Hobbesian individualism, and wrong to regard contemporary rights-talk as consequently irredeemable. And the very first thing I say in the Conclusion of my book is this:
There is much that is right with rights. Paradigmatically, a right is a social institution designed to secure an important element of human flourishing — that is, a good. It achieves this through a combination of the assertion of authority and the threat of punishment. The authority is that of ‘law’, which comes in the form either of a treaty, a statute, a custom, or a social norm. Punishment ranges from the deprivation of life or liberty to social opprobrium. A right gives an individual or a social body the power to appeal through law to international, national, or social authorities, in order to defend their possession of a good against a threat.
You will not find any of the “Christian rights skeptics” saying anything so unequivocally affirmative about rights.1 There are two other respects in which I feel that John has somewhat mischaracterised me. First, he writes that I am a “longtime skeptic of British subjection to European integration—and even worse to the jurisdiction of the European Court of Human Rights”. While it is true that I have my doubts about both, it is also true that, in the 2016 referendum, I voted (narrowly) in favour of the United Kingdom remaining part of the European Union, and that I would support the UK’s withdrawal from the European Convention of Human Rights and the jurisdiction of the Strasbourg Court, only when it becomes clear that that court is incapable of respecting the ‘margin of appreciation’ — that is, ‘room for local discretion’ — of national courts.
Second, in saying that I have “gained increased notoriety for [my] strong defense of British nationalism, imperialism, colonialism, and war efforts”, he makes me sound more of an ideological fascist than, I believe, I am. I prefer to say that I defend Christian (and therefore critical) patriotic loyalty, the possibility that empire is sometimes a legitimate form of polity, the historical record of the British Empire, and some British wars. Not only does that make me sound less deserving of notoriety; it also has the advantage of being accurate.
At the risk of appearing too thin-skinned, let me also say that I do not feel fairly represented when described as wielding “a pair of brass knuckles”, which I use to “pummel” several rights theorists, taking “a few swings” at John himself, “pillor[ying] several lawyers and judges”, and “raising hackles with leading lawyers, not least Baroness Hale, former President of the Supreme Court of the United Kingdom”. While I suspect that John is joshing me, I am not entirely happy at being likened to an intellectual thug brandishing a verbal knuckleduster. I would rather think of myself as launching surgical argumentative strikes. Which picture does me the greater justice readers of my book must judge for themselves.
As for pillorying judges and lawyers, I would be very loathe indeed to think that I have caricatured anyone. What I believe I have done is to lay out what some rights-advocates have written, and then to subject it to unsparing criticism. No doubt my critical candour has sometimes expressed irritation and approximated ridicule. But is ridicule never warranted? Is nothing ever ridiculous? And is it always impolite to point it out?
It is true that Brenda Hale was not pleased with my book. On the other hand, two of her colleagues on the UK’s Supreme Court — Jonathan Sumption and Simon Brown — saw fit to write pre-publication plaudits for it. And in her review, Baroness Hale contradicted not one of my main theses.2 Brenda Hale, “My rights, your wrongs: Nigel Biggar’s flawed attack on ‘human rights fundamentalism’”, in Prospect, March 2021: In the subsequent issue of Prospect, I was given 350 words with which to respond. This I did as follows:
“In her review of What’s Wrong with Rights? (March 2021), Brenda Hale represented me accurately. Maybe we should expect such scrupulousness from a former President of the Supreme Court, but it is too rare to be taken for granted nowadays, and I am grateful for it. I am also pleased to observe that she does not contradict any of my main claims. Nor does she quarrel much with my analysis of the legal reasoning of courts, whether in London, Strasbourg or Ottawa.
She does think the title a misnomer, since I admitted during the Policy Exchange launch that there is a lot right about legal rights. (It is also the first thing I say in the Conclusion.) But she wishes I had been more affirmative. Surely, however, given the plethora of affirmative writing about human rights, there is room for a book that tries to understand and test the scepticism of many moral philosophers and theologians (and not just Conservative MPs)? Besides, the title does end with a question-mark.
She also attributes the overreach of some decisions by the Strasbourg court to its simply “getting things wrong”, rather than to what I call zealous ‘rights-fundamentalism’. But that overlooks the question of why Strasbourg got it wrong. I gave an explanation based on the court’s explicit reasoning; she gives no explanation at all.
Alluding to my treatment of the Supreme Court of Canada’s recent reasoning about assisted suicide, she wishes that I had appreciated better that, if the law presents judges with charters of abstract rights, they must use their discretion in interpreting them. True, but they can choose to exercise that discretion more or less conservatively.
Finally, she rebukes my lack of charity toward certain rights lawyers. I believe I represented what they have written justly — and charity begins with justice. Further, I sought, charitably, to appreciate their role as advocates for vulnerable individuals. I did then express irritation in some sharp criticism. But whether charity excludes disciplined irritation I rather doubt. Still, I shall take Lady Hale’s rebuke on the chin and ponder it.”
One of John’s main complaints is that I underappreciate the extent to which natural rights-talk was present in early modern Christian thinking, and that I have given too short shrift to “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”, which “a modern Christian ethicist should appreciate and applaud”. I have read these, he says, “only selectively”, and had I worked through them all in detail, I “would have had a much harder time coming to … conservative and cautionary conclusions about early modern Christian rights talk”.
I simply disagree. It is true that John has done the comprehensive work on these early modern Christian authors that I have not. Indeed, in my book I express my indebtedness to him for guiding me through the territory. However, while I have no doubt at all that biblical and Christian thought from the beginning operated in terms of natural, created, God-given morality, and that it has no quarrel at all with legal rights, I do not think that the concept of natural rights appears before the medieval period. And I know for a fact that neither natural nor legal rights feature at all in Christian “just war” thinking from Augustine in the fifth century AD to the present day. Indeed, not even the contemporary International Law of Armed Conflict — otherwise known as International Humanitarian Law (not to be confused with International Human Rights Law) — employs the concept of rights. I accept that natural-rights talk does appear in both Catholic and Protestant thought from the late medieval period onward, but even then not as much as John claims. Although my coverage of the material was much more selective than his, I did dive deeply into the writing of Theodore Beza and what I discovered was this:
The logic of Beza’s thinking is that divine and natural right or law prescribe certain negative and positive duties, imply the rightful need of freedom to perform them, and so ground the natural duty to resist rulers who would restrict that freedom unjustly. We could say that, by implication, he justifies the natural right to resist — since the performance of a duty requires the freedom to perform it, and a freedom that is challenged must be asserted as a right. Nevertheless, before we do that, we should pause and reflect upon the fact that Beza does not actually say that — and, indeed, that he does not often talk explicitly about rights (in the plural) at all. This is somewhat obscured by the only English translation (of the 1595 Latin edition), which renders the title, ‘De Iure Magistratum’, as ‘The Rights of Rulers’ rather than ‘The Right of Rulers’. John Witte has the effect of confirming the misleading appearance by tending to read more explicit rights-talk into Beza’s political thought than is actually there. So, for example, he reports that Beza affirms a private person’s “rights to free speech and political petition” (129), whereas what the text actually says is that the offended subject “can have recourse to his sovereign, as the laws entitle him3 Théodore de Bèze, Du droit des Magistrats, ed. and intro. Robert M. Kingdon. Les Classiques de la Pensée Politique (Geneva: Librairie Droz, 1971), IV, p. 7: “peut avoir recours à son souverain, comme les loix le portent”; Theodore Beza, De Iure Magistratum (1580), ed. Klaus Sturm, Texte zur Geschichte der Evangelischen Theologie (Neukirchen-Vluyn: Neukirchener Verlag des Erziehungsvereins, 1965), IV, p. 32: “licebit per leges iniuriam passo ad supremam magistratum recurrere”. — which, at best, is an oblique endorsement of a positive, legal right. What is more, Beza immediately goes on to warn that private subjects should consider, not only what is permissible, but “what is expedient”,4 Bèze, Du droit des Magistrats, IV, p. 7: “à ce qui est expedient”. observing that St Paul chose not to assert his legal right (son droit) against the magistrate at Philippi, who had had him flogged “in violation of the laws [les loix] of Roman citizenship”.5 Bèze, Du droit des Magistrats, IV, p. 7: “contre les loix de la bourgeoisie de Rome”; De Iure Magistratum, IV, p. 32: “contra ius civium Romanorum”.
Beza’s choice of words is significant in three respects. First, his concept of the ‘right’ of rulers is first and foremost about duties, and only secondarily about liberties and their assertion as rights. Indeed, strictly speaking, he does not affirm a right to resist at all. What he says is that, faced with a tyrannical sovereign, lesser magistrates have a duty to resist in defence of the people’s legal liberties — that is, they have a duty to assert the people’s legal rights. What this signifies, at least, is that, for Beza, ‘rights-talk’ is not the only moral talk in town, nor even the most important. Second, Beza’s affirmation of the duty to disobey or resist (in defence of legal rights) is cautious and heavily qualified, lest it be mistaken to license the kind of anarchy that revolutionary Anabaptists had wrought at Münster — whom he called “these rabid [enragez] Anabaptists … or other rebels and mutineers”.6 Bèze, Du droit des Magistrats, IV, p. 8: “ces enragez Anabaptistes ou … autres seditieux et mutins”. Therefore, before he concedes the duties to disobey and resist, he takes care to laud, out of all the other virtues, Christian patience.7 Bèze, Du droit des Magistrats, V, p. 11: “Je louë doncques la patience chrestienne comme tres-recommendable entre toutes autres vertus”. What this suggests is that the doctrine of Christian patience in the face of oppression, together with sensitivity to the evils of anarchy, militates against rights-talk. Third, to have a right is not yet to have moral permission to assert it: the requirements of the social good might make it expedient (and so prudent) not to assert it. All that said, it is true that there are occasions when Beza engages in rights-talk — that is, talk about rights as liberties that are the rightful property of subjects — as, for example, when he speaks of the sovereign abusing his superior authority “against all divine and human rights [droits, iura]”.8 Bèze, Du droit des Magistrats, IV, p. 8: “abusant de sa domination contre touts droits divins et humains”; De Iure Magistratum, IV, p. 32: “contra omnia iura tum divina tum humana”. Yet the contrast between divine and human indicates that he is referring here to positive, legal rights, not natural ones (48-50).
This was the main “swing” I took at John. Then I commented in a footnote: “It has not been my intention in this section to contradict John Witte’s claim, in The Reformation of Rights, that explicit rights-talk, and even natural rights-talk, was widespread among early modern Calvinists. I do think, however, that he sometimes sees rights-talk where it does not quite exist; that it was somewhat less widespread than he thinks; and that the reasons why the likes of Beza chose other terms to express their meaning are worth reflecting on”. I still think that. John, however, seems uninterested.
He is also puzzled by my doubts about universal declarations of rights. It is not clear to him why I find “universal declarations and statements of rights and liberties — from Magna Carta (1215) to the Universal Declaration of Human Rights (1948)” so “pernicious”, since all they do is distil the legal rights of previous generations, confirming and vindicating them afresh.
In response, first of all, Magna Carta and the Universal Declaration are very different kinds of beast. The first may have universal validity in its affirmation of the principle that the power of the (monarchical) executive should be limited (somehow), but the particular legal ways in which it sought to achieve that were deeply rooted in the social and political circumstances of medieval England and cannot readily be transplanted elsewhere. The Universal Declaration, on the other hand, claims a universal authority and deserves it, insofar as it has attracted the subscription of a global majority of states — a claim that Magna Carta never presumed to make.
Second, I make perfectly plain the reasons for my doubts about charters of rights. Insofar as they merely compile, systematise, and reaffirm existing, well-drafted, carefully-specified legal rights — as John says they do — I have no objection at all. But insofar as they affirm abstract rights that raise impossible expectations, or licence imprudent freedoms, or promise unavailable security, I do object.
In particular, third, I object to lists of abstract rights that give licence to judicial oligarchies to make law, not in the modest sense of filling in gaps or resolving tensions created by statute, but in the hubristic sense of creating quite novel rights. I discuss one such case in chapter-length detail, namely, the Supreme Court of Canada’s 2015 decision to create a right to assisted suicide and voluntary euthanasia, overriding a consistent and recent parliamentary refusal to do so. At this point John raises a counter-question: “Should fundamental rights and wrongs be decided by simple majority votes of whatever party happens to be in power, or by referenda or plebiscites?”. This is an important question, whose force I entirely acknowledge and which needs an answer that I did not provide. Nevertheless, I wish that John had acknowledged the force of the question that pushes in the opposite direction: Should a judicial oligarchy have the authority to proliferate rights according their best, “progressive” lights, in a fashion that democratically elected legislators (or state parties) never originally intended and now resent, with the consequence that confidence in the law is eroded and the will to suffer its rule weakened? My question is not pushed off the table simply by John putting his on it.9 The opposing truths embodied in the two questions could be reconciled by entrenching ‘fundamental rights’ in a constitution, but confining those rights to those that are truly fundamental. This would give judges the authority to override legislation made by democratically elected legislators, but only on a very narrow front.
He thinks that I complain too much about the burdens that rights may place on states:
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.’
Such arguments have always been used by determined tyrants and complacent political elites, John writes, and they are “not persuasive”. Again, I appreciate the force of his point, namely, that the cost of maintaining rights can be used by a state as an excuse for not doing what it should do and, in fact, can do. But, again, the force of his point does nothing to reduce the force of mine, namely, that the power of a state to uphold legal rights is finite, because all of its resources are finite, and that sometimes a state either simply or prudently lacks the resources to uphold certain rights.
In my book I discuss at some length the case of post-genocide Rwanda, where murder and flight had caused a dearth of lawyers and there was no short-term means of supplying the lack. In such circumstances, it seems clear to me that berating the Rwandese government for not upholding the standard (Western) right to legal counsel in the case of alleged génocidaires was not only futile but calculated to diminish the authority of rights-talk in the ears of government officials weary of being nagged by rights-advocates in New York to achieve the manifestly impossible. Whether or not a state should grant and uphold certain rights often depends on the circumstance of its power, and sometimes that power is lacking.
Those of us privileged to live in the liberal democratic West — and perhaps especially in the United States with its founding story of liberation from tyranny — are highly sensitive to the problem of a state that is too powerful and, accordingly, strongly attracted to the solution of legal rights that protect individual citizens. But there are some parts of the world (and indeed many parts of our own past) where the problem is (or was) a too-weak state, and whose purported obligation to uphold certain rights (say, against “arbitrary” detention) could cause its collapse — and with it the maintenance of any right at all.
Rights-advocates need to reckon with this fact. I can see no evidence that John has begun to.
Here at the end, I return to the beginning. John acknowledges that I “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” and “that international rights statements can now provide ‘a powerful way of holding states to account’”. “But”, he complains, “one cheer for rights and liberties is about all we get”. It seems to me, however, that, for John, nothing less than three cheers is acceptable. For, like Brenda Hale and Mark Hill, he refuses to let a single doubt about the concept of natural rights or of rights-talk rest on the table long enough to provoke critical reflection. The doubts are swiftly (anxiously?) brushed away. But they are not allayed. On the contrary, speaking for myself, they are made to grow.
The danger is that if current rights-talk proves impervious to criticism, it will prove incapable of self-correction. Then its currency will devalue and its authority wane. For example, if the UK were to withdraw from the European Convention of Human Rights, and so from the jurisdiction of the Strasbourg court, the power of the convention and the court to command the compliance of states where the rule of law is weak — such as Russia — would be severely weakened. However, if the Strasbourg judiciary does not learn to restrain its exploitation of the doctrine of the Convention as a “living instrument”, so as to develop old rights and proliferate new ones in ways that the original state parties never imagined, and if it does not learn to respect the “margin of appreciation” (or room for discretion) of national courts, then it may well provoke the UK’s exit, which, however justified, would still be tragic.
I really do think that the cause of rights is better served by critical friends than by uncritical ones. ♦
Biggar, Nigel. “John Witte, Jr.’s Critique of WWWR: A Reply.” Canopy Forum, October 11, 2021. https://canopyforum.org/2021/10/11/john-witte-jr-critique-of-wwwr-a-reply/.