How ‘Rights Talk’ Became Fake
Conservatives should remember that not all rights are created equal.
What’s Wrong with Rights?, by Nigel Biggar (Oxford University Press: 2020), 384 pages.
Conservatives today aren’t sure what to do with rights. On the one hand, “rights” have been increasingly deployed in the culture wars as the tip of the spear to drive us from moral and legal terrain that was uncontroversial until yesterday. Such is the newly discovered “right” to alter one’s gender and compel society to obsequiously honor this choice. Under the tutelage of the left, rights have proliferated into an insatiable list of wishes for an ever-growing government to attempt to grant (such as a “right” to free childcare) and have been wielded as bludgeons with which to beat a benighted right into shameful submission (such as in the recent furor over voting rights).
On the other hand, surely conservatives have a strong interest in the idea that our laws should reflect a bedrock foundation of unchanging moral norms—an intuition that underlies our language of a “right to life” in response to abortion and euthanasia. Additionally, in the face of recent attempts to stifle dissent, conservatives have doubled down on free-speech rights, and for centuries, conservatives have been known for a fierce defense of “sacred” private property rights. Moreover, as Americans, the language of rights is deep in our bones; how could we ever question the ringing assertions of the preamble to the Declaration, or the foundational commitments of the Bill of Rights?
Clearly, conservatives stand in urgent need of a guide through this confusing terrain, someone to help us understand why rights language has led us so far astray from our moral roots, and how to find our way back. Enter Nigel Biggar, one of the leading Christian ethicists of our generation and a worthy heir to the venerable tradition of British empiricism inspired by Edmund Burke.
Biggar stands with Burke in expressing profound misgivings about the proliferation of rights language, and particularly the modern tendency to blur the boundaries of legal rights and natural rights. With legal rights, Biggar has no quarrel; indeed, it is hard to imagine who could. Intrinsic in the idea of the rule of law is the specification of rights that individuals and communities may justly claim against one another, and for which they can seek redress from other private parties or from the state. Such rights may be essentially negative—immunities or protections from unwanted restraint or interference—or positive—claims that oblige another party to render us certain goods or services. Of course, there is more to life than rights, and Biggar observes with chagrin that moderns seem to become strangely “tongue-tied” when it comes to speaking the moral languages of “duty” or “virtue” that should accompany any language of rights, but a society without rights would be a society without law.
Problems arise, however, as soon as we seek to push the concept of rights before or beyond the reach of society. This is the idea of natural rights, which has been with us in the West since the late Middle Ages at least, expanded into general use in the 18th century, and then metastasized into the “human rights” discourse that has dominated post-WWII jurisprudence. Biggar spends no less than five chapters investigating the question, “Are there natural rights?” in the course of which he reveals the extent to which natural rights language represents an attempt to have our cake and eat it too. After all, in its paradigmatic legal sense, a right means something like: “a liberty or a benefit that is the property of an individual or a social body, which designated others are bound by law (broadly conceived) to respect or provide, and in failing to respect or provide it they become liable to some kind of legal penalty.” It has the qualities of stability—since it has been clearly specified as a fixed possession—and security—since it is protected and enforced by competent state authorities.
However, it has certain drawbacks, at least to the person who wishes to claim maximum autonomy. Inasmuch as it is specified, it tends to be subject to various conditions, either explicit in the legal right itself or implied by the larger web of the society’s laws. The right to liberty, for instance, does not apply to those who have committed a crime and may lawfully be incarcerated; the right to property does not mean you can do just anything that you might want to do with your property. And inasmuch as the right is guaranteed by a particular government, it seems to be limited in time and place: In 1791, you would not have had rights to “free speech” and “free exercise of religion” if you’d lived in most places outside America. The language of natural rights is an attempt to transcend these limits. It asserts rights that are unconditional and universal, binding always and everywhere. But it expects somehow at the same time that these boundless rights, granted by nobody to everyone, will nonetheless enjoy the stability and security that attach to legal rights. As Biggar shows with great patience and care, this is simply impossible.
This confusion is not merely of philosophical interest; it has dire practical political consequences, of particular concern to conservatives. I will highlight four here.
First, as already noted, the language of rights tends to crowd out the language of duty and virtue, encouraging a fractious, individualistic society in which each is focused on claiming everything they possibly can, and not on what might benefit the whole. Rights are treated as self-justifying, and we forget the larger purposes that they are meant to serve. Such solipsism has been particularly evident on the right during the COVID-19 pandemic, as many conservatives have imagined that the mere assertion of their “rights” should automatically trump public health mandates. (The point is not that these mandates were all unobjectionable, simply that the vacuous assertion of rights was too often used as a substitute for developing persuasive objections.) This danger is great enough when we are speaking only of legal rights, but is far worse when we invoke natural rights. For it is simply not the case that there can be a natural moral right to do something that is wrong. Legally, I may have a right to publish or say almost anything I like, in the sense that the law immunizes me from suit or prosecution in all but a very small number of cases. Morally, however, I cannot ordinarily claim a right to slander or deceive; my natural right to “freedom of speech” extends no further than my natural duty to speak virtuously. When conservatives lose sight of this, we allow society to degenerate into a mutual war of self-assertion, rather than an ordered common pursuit of the good.
Second, what Biggar calls “rights-fundamentalism” encourages naïve utopianism that wreaks havoc on the difficult business of patient, prudent political decision-making. It encourages us to forget that we live in a world of scarce resources, limited means, and finite willpower. This becomes obvious when we encounter such absurd human rights claims as the International Covenant on Economic, Social, and Cultural Rights’s 1966 assertion of a universal right to “periodic holidays with pay.” This may well be a desirable political and economic goal, but to assert it as a fundamental right is to imply that any society that fails to guarantee it has committed some moral dereliction of duty, regardless of their practical limitations. But this is even true of more basic rights, such as the right to a fair trial. If all we mean is that every society should do its best to administer justice as justly as possible, that is no doubt true, but only because it is a truism. If we mean that the accused must have a legal counsel, what do we make of societies or circumstances where that is simply not practically possible? “In circumstances where there is no responsible and capable agent to supply a ‘right’,” we are forced to conclude, “the ‘weak’ citizens have no right at all,” Biggar writes. He reminds us of the essential conservative insight that there is no doing away with tragedy: we live in a world where sometimes the weak or even the innocent suffer, but that is not always someone’s fault, contra the moralistic finger-wagging of human rights zealots.
Third, and perhaps of particular interest in our age of resurgent nationalism, rights language encourages a dangerous erosion of sovereignty: the sovereignty of nations and indeed of all human communities. Why? Well, as just noted, to assert a universal right is to insist that someone somewhere (or perhaps everyone everywhere?) is responsible to deliver the right in question. If all human beings have a right to adequate food and shelter, and their own government lacks the means to secure these goods, then some other nation must be morally bound to step in. This might make sense in the abstract, but exactly how much is Britain, for instance, bound to divert resources from its own people to build houses for Ugandans? And what if the Ugandans would rather not find themselves dependent on Britain’s largesse? The natural logic of universal rights is toward universal government—super-states that are prepared to override the decisions of sovereign states by telling them exactly the lengths they must go to secure human rights around the globe. Biggar dedicates chapter 10 of What’s Wrong with Rights? to analyzing the appalling track record of the European Court of Human Rights in blithely presuming to tell the British Army exactly what it must do to protect the rights of its soldiers and its enemies in the heat of combat.
Fourth and finally, rights-fundamentalism goes hand-in-hand with judicial tyranny. The more we imagine that all moral and political questions rest upon fundamental, inalienable human rights, the more we take all moral and political decision-making out of the public and place it in the hands of unelected judges. The task of politics is a deliberative one: a delicate balancing of various goods that we might achieve against various claims we must respect in the face of fragile and variable political will, striving for an all-things-considered way of securing the maximum good that limited means allows. When judges seek to short-circuit—or worse, override—such deliberation by grandly announcing that they have discovered a new fundamental right that the people’s representatives have failed to safeguard, they not only act beyond their competence, but strain the fragile fabric of society and undermine democratic legitimacy. Biggar highlights in this connection the Canadian Supreme Court’s 2015 discovery of a right to euthanasia, but our own American experience affords us ample examples of this deranged rights-activism in Roe, Obergefell, and Bostock.
Of course, with all of these cautions, we might still ask, “well, are there natural rights?” Biggar’s considered answer is careful but clear: “There is natural right or law or morality, that is, a set of moral principles that are given in and with the nature of reality, specifically 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.” For readers keen to understand the nuances of this argument, I can offer no shortcuts: You must take up and read, patiently following Biggar on the painful but rewarding journey of moral reasoning that this crucial question demands.
Indeed, Biggar’s book offers a fine exhibit of the hard moral work he calls conservatives to. The biggest problem with rights, he concludes, is their temptation to moral laziness, their false promise of a short-cut in moral reasoning. “A right,” he writes, “should be the conclusion of a process of moral deliberation that operates in terms of a coherent moral order, which involves a wider range of moral concepts—rather than a basic premise.” There is nothing wrong with speaking of rights as shorthand for all-things-considered conclusions about what goods ought to be secured wherever possible, but this is very different from invoking them as trump cards that excuse us from the effort of assessing what rights might actually be secured.
In this emphasis, Biggar puts his finger on a broader affliction of modern politics, including the modern conservative movement. Whether we are talking about free markets or free speech or religious freedom, we must renounce the temptation toward self-justifying sloganeering and re-dedicate ourselves to the hard work that once characterized Burkean conservatism: weighing the desirable against the possible, the universal against the particular, the individual against the community. In What’s Wrong with Rights?, Biggar provides today’s conservatives with a powerful diagnosis of the moral malaise that ails the modern West, and a clarion call to recover the intellectual disciplines and political practices of a common-good conservatism.
Brad Littlejohn is a senior fellow of the Edmund Burke Foundation, where he researches and writes on the intellectual lineage and contemporary renewal of Anglo-American conservatism.