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Rights Gone Wrong

Our obsession with rights has distracted us from our duties and the common good.

What’s Wrong with Rights? by Nigel Biggar (Oxford University Press: 2020), 384 pages.

Challenging the sacred dogmas of secular modernity is nothing new for Nigel Biggar. The Regius Professor of Moral and Pastoral Theology at Oxford earned the scorn of the left in 2017 when he defended the work of embattled political scientist Bruce Gilley and called for a “balanced” assessment of the British Empire’s legacy. He also wrote a book defending what is considered by many to be indefensible—war—and now one questioning the unquestionable: the idea of fundamental rights.

What’s Wrong with Rights is a sweeping, instructive criticism of the idea that fundamental human rights should or can serve as the basic building blocks of political and moral discourse. Biggar is no relativist. As an Anglican priest and theologian, he does not criticize such concepts because they make moral claims, but because they do not make them well. Talk of fundamental or natural rights that serve as trump cards against laws, traditions, and social practices, he believes, are simplifications that cheapen moral discourse which must always be circumstantial and contextual.

As the title suggests, Biggar’s thesis is mostly negative. Marshalling the arguments of four rights critics—Edmund Burke, Jeremy Bentham, David Ritchie, and Onora O’Neill—he assesses and finds wanting theories of natural rights or fundamental human rights stretching from the fourteenth century to today.

He finds that these various theories tend to share several flaws. They are generally presented in vague and absolute terms. Indeed, this is what gives them their unique, sweeping rhetorical power. But such rights are utterly impractical in social life, for moral action in society always requires attention to context—to intent, to likely outcomes, to the duties incumbent upon certain relationships. They also usually come without any means to secure them or any particular person who has an absolute corresponding duty to provide for them, such as a right to an adequate standard of living.

 

The vagueness of fundamental rights, in turn, provides “room for creativity” in which judges have contributed to a proliferation of specific rights thought to emanate from rights to “liberty,” “autonomy,” or “dignity.” (Think of any Anthony Kennedy opinion.) Biggar devotes a lengthy chapter to showing how these general rights helped Canadian judges avoid any serious moral discussion in establishing a right to physician-assisted suicide.

To try to maintain rights’ fundamental character, we often make them tautological, like a right to a “fair trial” or against “unjust killing.” We attach certain built-in moral conditions, such as “the right to x insofar as x is compatible with the general welfare.” Such conditions inadvertently demonstrate that rights are not inherent but operate within a broader ethical framework and are dependent upon social context. If that is the case, Biggar insists, then why not talk about political and social ethics in this more fulsome language to begin with? Ask not “What inherent right do I have?” but “What is inherently right?”

Biggar does not reject all rights talk, however. Indeed, he spends a chapter rejecting the arguments of Alasdair McIntyre, Joan Lockwood O’Donovan, and others who hold that the language of personal rights necessarily undermines duty, virtue, or community. American conservative critics of “the liberal tradition,” broadly understood, will therefore have to pause before appropriating Biggar’s thesis. The danger arises, he argues, not when we start to speak of personal rights, but when “we wrongly suppose that such rights are morally justified always and everywhere, or at least that their content remains the same in all circumstances.”

Rights that are acceptable to Biggar are those positive, legal rights that emerge as the conclusion of political and moral discourse. Expansive legal rights of expression, for instance, often “permit all manner of immoral behavior,” but law “is not the same as natural morality.” Legal rights emerge from a contextualized, all-things-considered approach and are often based on prudential considerations: the costs of prosecuting immoral but petty insults and the danger that a government empowered to police speech would often err. As he shows, talk of abstract moral rights often causes us to elide such essential considerations.

At times, Biggar suggests that the alternative to fundamental rights-dominated discourse is uninhibited consideration of the common good by politicians, in whom he seems to have high confidence. They “have consciences, possess moral reasons, [are] susceptible to rational persuasion.” A bold hypothesis, but there is conflicting evidence.

So why should we continue to use the language of rights if they are not moral absolutes and politicians are capable of undertaking contextualized moral discourse with or without them? Should we not always be rethinking and reformulating the positive rights enshrined in our political charters in light of changed context? Biggar does not, perhaps, delve into this question as much as he could have. We can speculate, however.

One of Biggar’s themes is intellectual hubris. The idea that political and social ethics can be boiled down to certain essential rights is to believe that we are able to fully understand and systematize the irreducibly complex fabric of morality. When discussing the complicated relationship between personal freedom and obligation to others, he quotes 1 Corinthians on the matter of eating traditionally impure foods: “Knowledge puffs up while love builds up. Those who think they know something do not yet know as they ought to know.” Any simple “right” to eat previously forbidden foods was complicated by other, circumstantial obligations, often difficult to perceive.

But epistemological humility might lead us both ways. We shouldn’t assume we have a simple interpretive key to moral rectitude in a set of rights, but neither should we assume that robust discussion of the common good is immune from our hubris either. Rights that emerged as the conclusion of political discourse (and perhaps as a resolution of political crisis, as most great charters have) might serve as reliable guideposts—fallible, but proven to have usefully met the needs of the political community.

This would point to something utterly lacking in today’s political climate: respect for tradition. We know that legal rights may only roughly approximate what morality demands in any given situation. But, cognizant of our own limitations, we should be hesitant to question and rethink the rights that have served us well. If we are to reject “the rights of man,” we may need a renewed appreciation of “our antient liberties.” Biggar explicitly seeks to walk in the footsteps of Burke.

Biggar’s study is unlikely to change the mind of a convinced believer in fundamental rights. He treats the phenomenon broadly, and though he addresses the proliferating varieties of rights talk, this is a subject susceptible to seemingly endless parsing—there is always another fine distinction that can be made in objection. But for those who sense that talk of fundamental rights is unable to capture the entirety of political and social morality, his book moderately and constructively identifies its limits and suggests a better alternative.

John G. Grove is associate editor of Law & Liberty.

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