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Introduction:
Rights and Worship
Derek Poole
Comment:
Religious Rights in Vietnam
Joanne Miosz
Comment2:
Drumcree
Mervyn Gibson
From
the Director
David Porter
Human
Rights - A Critical Appropriation
Julian Rivers
Human
Rights - Why Churches need to be involved
Brice Dickson
Parting
Thoughts on Life and Leaving
Tucker Ball
A
Bill of Rights for Northern Ireland
David Stevens
Does
God always forgive his children?
Alan Wilson
Faith
and Practice - Ruth Lavery
Ruth Hutchinson
The
Concept of Rights
Joan Lockwood O'Donovan
THE
CONCEPT OF RIGHTS IN CHRISTIAN MORAL DISCOURSE
The entrenchment of rights language in contemporary discourse is beyond
dispute. No less significantly there are indications that the concept
of rights is itself passing beyond dispute.
A close analysis of the history of the concept of subjective rights reveals a progressive antagonism between the older Christian tradition of political right and the newer voluntarist, individualist and subjectivist orientation. Whereas in the older tradition, God’s right established a matrix of divine, natural and human laws or objective obligations that constituted the ordering justice of political community, in the newer tradition God’s right established discrete rights, possessed by individuals originally and by communities derivatively, that determined civil order and justice. In the older traditions, the central moral-political act on the part of ruler and ruled alike was to consent to the demands of justice, to the obligations inhering in communal life according to divine intention and rationally conceived as laws. In the newer orientation to political right that began to emerge in the fourteenth and fifteenth centuries, the active individual will occupied a central position. So, on the one hand, the Roman civil lawyers stressed the source of positive law in the commanding will of the ruler, and on the other hand, certain theologians attributed to individuals pre-political ‘natural’ rights or powers that placed moral-legal constraints on the operation of political authority. Not until the seventeenth and eighteenth centuries did the subjective rights of individuals supersede the objective right of divinely revealed and natural laws as the primary or exclusive basis of political authority, justice and law. These centuries dominated the transformation of the Western Christian tradition of natural law and natural right into a tradition of natural rights. The theoretical elaborations of the concept of rights from the fifteenth to the eighteenth centuries have invested it with lasting intellectual content. For contemporary moral and political theorising this content is in varying degrees inescapable, being woven into the fabric of politics in this century - the fabric of democratic, pluralistic, technological liberalism. Christian political thought that is not wholly satisfied with this fabric recognises the need to divest the concept of rights of its offensive theoretical material. But when it attempts to separate some conceptual threads from the fabric, the result inevitably falls short: either too much of the fabric adheres to the threads, or the threads lose their coherence. To substantiate this judgement would require prior completion of two tasks: first, to delineate the inherited theoretical content of the Western ‘rights’ tradition, and second, to demonstrate the incompatibility of this content with the biblical theological doctrines that Christians regularly invoke to ground the concept of rights. I propose to undertake the first of these prior tasks, with the hope of helping readers judge for themselves the historical and theological plausibility of contemporary Christian appropriations of the language of rights. I will consider the central historical content of rights theories that is theologically problematic in three categories: the roles played by property rights, contract, and freedom of choice. The Role Of Property Rights
In the 1320s Pope John XXII attacked the Franciscan Order’s vow of poverty, which entailed the renunciation of all legal rights of ownership of the material goods used by members of the order. The pope contended that all lawful consumption of material goods was inseparable from property right in them or dominion (dominium) over them. He reinforced his case with the assertion that dominium, in the legal sense of full property right over earthly goods, belonged to Adam in his created state and reflected the divine dominium over the earth. This argument anchored property right in an original created human power of disposal or control over temporal things. In the fourteenth and fifteenth centuries, the idea of right (ius) as a power belonging to a subject was carried forward by Jean Gerson (1363-1429). Gerson extensively explicated the concept of ius as ‘a dispositional facultas or power, appropriate to someone and in accordance with the dictates of right reason,’ and he conceived ‘natural dominium’ as the divinely bestowed ius of ‘every creature’ to ‘take inferior things into its own use for its own preservation.’ (Richard Tuck) Furthermore, Gerson joined to man’s ‘natural dominium’ the dominium or facultas of liberty. He thus paralleled man’s original property right - his power of using exterior things - with his original freedom - his power of using himself, his body and his actions. Hobbes and Locke
The seventeenth-century proprietary concept of subjective right arrived at its zenith with the political writings of Hobbes and Locke. Its essence was an understanding of the individual as ‘free inasmuch as he is the proprietor of his person and capacities,’ his freedom being conceived as both independence of ‘the wills of others’ and ‘a function of possession.’ (CB Macpherson) Hobbes’s chief contribution was his conception of ‘right of nature’ as the individual’s unrestrained liberty ‘to use his own power’ and to act for his self-preservation. Against the earlier rights theory Hobbes asserted the radical priority of natural right to natural law and the radical separation of natural right from social obligation. In their natural condition, Hobbes’s individuals have unlimited right to use everything, including one another’s bodies, unbounded by obligations of natural justice. Only the intolerable insecurity of right in this condition necessitates the prudential stratagems for peace known as ‘laws of nature,’ which include the ‘mutual [contractual] transferring of right’ by individuals to a civil power recognised by them for the purpose of securing to them a sphere of limited rights. The one portion of individual right that is, however, inalienable is the right to one’s life and to the means of ending it, and the citizen may by right forcibly resist violent assaults on these fundamental possessions by the civil power itself. If Hobbes’s emphasis gave rise to a model of social relationships as acquisitive, atomistic and competitive, the Levellers’ and Locke’s concentration on property right gave rise to a proto-liberal economic or market model of social relationships. Locke, building on the Levellers’ assimilation of subjective right to property, elaborated certain internal relationships among subjective rights as forms of property. The most important of these was the relationship between the individual’s ownership of his capacity to labour and his ownership of the produce of his labour. On analogy with God’s exclusive proprietary right over his creation, Locke’s individual has exclusive proprietary right over the objects created by his work within the broad rational constraints of natural law. The individual’s control of his labour is merely one aspect of his autonomous freedom - his right of unrestrained disposal of his actions apart from the obligations belonging to the natural law: hence, his acquisition of material property presumes a sphere of moral autonomy. Exchanging Natural Right for Civil Right
The centrality of property in labour for Locke’s theory of private property focused attention on the consequences of alienating one’s labour by a wage contract, and so on the quality of labour as a transferable commodity. These considerations threw into sharp relief the question of what portion of natural right was alienable and what was inalienable. A century later this question would occupy the forefront of American Revolutionary thought, and the answer proposed by Thomas Paine revealed the outer limit of libertarian individualism. According to Paine, each individual on entering into society retains those natural rights ‘in which the power to execute is as perfect in the individual as the right itself’ and ‘deposits . . . in the common stock of society’ those in which, ‘though the right is perfect in the individual, the power to execute them is defective’. In conceiving the exchange of natural right for civil right, Paine draws on the analogy of a joint stock company: ‘Every man is proprietor in society, and draws on the capital as a matter of right.’ The continuing predominance of property right within the negative libertarian tradition is hardly surprising. It sustains the concept of a right or freedom as a power of acting possessed by a subject that entails the obligation of non-interference on the part of all other subjects, and especially of government. The influence of property right on the more recent tradition of positive or welfare rights is less obvious. But if welfare rights constitute obligation-imposing demands on others made by subjects on the basis of their powers of action, then they remain within the ambit of property rights. The logic of the connection is that individuals are impeded in fully using their personal property (their freedoms, powers, or capacities) because the necessary means are unavailable to them. Their property in these capacities implies their claim-right to these means. That claim-right is held against the government, which has, therefore, the duty to provide the relevant means. To understand why the claim-right is held against the government is to understand something of the evolving role of contract in Western political rights theory. The Role Of Contract
In all Western theories of individual natural rights, the idea of contract has proved indispensable to the theoretical transition from original right to civil and social rights. In the sixteenth and seventeenth centuries, both Protestant and Catholic theories of political covenant integrated individualist and naturalist ideas. For the most part, however, these ideas were set within a solid matrix of more traditional theo-political premises. The Exchange of Rights
The crucially novel element introduced into social and political contract conceptions by the more radical English Puritans and Whigs in the mid-seventeenth century onward was the idea of an exchange of rights - of natural for civil rights. This idea resonated with commercial overtones. The basis of political society and rule was thereby brought into the sphere of economic transaction. The effect was to accentuate the superior bargaining position and adjudicating power of contracting individuals, or associations of individuals, and the dominant role of calculative rationality in setting the terms of the contract. Another effect was to deprive the sphere of public welfare and public law of a moral basis independent from that of private welfare and private law. As the transcendent guidance of revealed and natural law, recognised by most seventeenth-century rights theories, has gone further into eclipse, it has become clearer that such independence of the public realm requires a basis beyond the mutual limiting of individual wills and a logic beyond prudential strategies for enhancing personal property. In contemporary contractarian liberalism, all communal obligations are derived from contract, and the only residual social right is the creation of free-market forces. It is hardly surprising in this theoretical climate that political authority and action should themselves succumb to the logic and principles of market economics. Politicians, as Ian Shapiro points out, ‘sell a commodity as entrepreneurs, employ agencies to ‘package’ their products for advertising, and gear those products to what they believe the market demands.’ Correspondingly, citizens in their dealings with the state are increasingly consumer-conscious: they seek the most advantageous political exchange, the best possible protection and provision for their indefinitely expanding range of personal rights in return for surrender of some freedom and material property. On the basis of their ever more explicit contractual relations with the state, as formalised in bills and charters of rights, citizens have growing incentives and opportunities to demand legal redress of the failures of governmental and public agencies to furnish the expected goods and services. Such political contractualism spells the most extreme reduction of public law and the common good it enforces to private law and private good. Freedom of Choice - The Universal Right
In a society whose only coherent public moral language is that of subjective rights the only universally respected right is that of freedom, understood as the sovereignty of the subject over his physical and moral world - that is, his emancipation from all externally imposed material and spiritual constraints on his freedom of choice and self-determination. A common thread throughout rights theories is the idea of the bearer of rights as a self-transcending will who uses the world around as well as his own body and capacities to achieve certain self-referential ends. Even if these ends and the means of realising them are given in divine and natural law, the rights-bearer is still regarded as the primary source of political meaning, social worth and positive law; if they are not so given, then the rights-bearer is regarded as the exclusive source. The secularisation of liberalism in the eighteenth and nineteenth centuries has meant that the self-positing, personal creative will acknowledges fewer and fewer external obligations and objective goods. It is precisely on account of the supposed sovereignty of the rights-bearing subject that the concept of rights is not simply coordinate with the concept of obligations. As Shapiro had demonstrated, the classical rights theories continue to confer ‘asymmetrical rights on the agent or maker’ that impose obligations on others. The resulting situation is a competition among sovereign subjects to maximise their freedom, that is, to maximise protection of and provision for their rights. General belief in the equality of subjects in respect of rights entails rights-bearers in honouring the claims of others, but only insofar as their legitimate prudential calculations allow. Conflicts among right-claims, therefore, can be resolved only by pragmatic compromises. Resolving such conflicts within the contractarian tradition has been rendered even more difficult by the absorption of utilitarian interest theory which presents individual judgements about utility as highly subjective, and as such incommensurable. The outcome of stressing incommensurability of ‘interest’ or ‘utility’ judgements is to focus public consensus on freedom of choice as the pivotal right. Concluding Observations
Our task has been to examine the three dominant conceptual elements of the Western tradition of rights theory: property right, contract and freedom of choice. Within this tradition the rights-bearing subject has been conceived as the exclusive proprietor both of his spiritual and physical being and capacities and of those external objects necessary to their preservation and development. His orientation to his environment has been portrayed as controlling, acquisitive, and competitive: he disposes, uses, exchanges, commands and demands. His freedom as self-possession consists in independence from, or non-subjection to, other wills, externally imposed obligations and natural limitations. The self-possessing subject forms social and political relationships through the formal mechanism of the contract, whose terms typically mirror those of an economic transaction undertaken from calculations of self-interest. It may appear facile to argue the incompatibility of unadulterated secular liberalism with the Christian doctrines that are regularly invoked to support the generic concept of human rights. At a certain level this incompatibility is obvious to all current Christian apologists for rights. But the question that has yet to be satisfactorily answered is why Christian thinkers have been and are willing to adopt a child of such questionable parentage as the concept of human rights. The answer, I suggest, lies in the affinities between some modern theological interpretations of these biblical doctrines and the classical liberal anthropological premises. The theological exercise I am recommending would at least indirectly clarify these affinities. It would present theological alternatives to, for instance, interpreting the imago Dei as human participation in God’s rational, self-positing freedom, and interpreting the covenant as human partnership in God’s sovereign, creative ordering of the world. Both of these interpretations, combined in the popular concept of ‘responsibility,’ are more open to the political-ethical language of subjective rights than to that of objective rights and obligations. Amidst the universal political enthusiasm for rights in the civilised world, theologians with reservations about the concept are in an unenviable position. In attacking what has become a virtually unassailable datum of the Christian social conscience, we run the risk of being mistaken for complacent pietists or atavistic romantics. At the least we expose ourselves to the accusation of being unconcerned with the apologetic equipment of Christian evangelism. However, there are enough signs about of social anomie, moral confusion and ideological fatigue to suggest that the risk is worth taking. We may, after all, be witnessing the bitter historical irony that the revitalised striving in contemporary society for the substance of community, reciprocity, equity and public trust is being undermined by its most trusted theoretical support. Joan Lockwood 0’Donovan lectures, tutors and writes in Oxford, England. She is the author of ‘Theology of Law and Authority in the English Reformation, George Grant and the Twilight of Justice’ and is co-editor, with Oliver O’Donovan, of 'From Irenaeus to Grotius: A Sourcebook in Christian Political Thought’.
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