Are rights really so wrong? A response to Nigel Biggar’s What’s Wrong with Rights

Throughout What’s Wrong with Rights?, Nigel Biggar warns his readers of the dangers posed to a functioning legal system and a healthy body politic from infection by an epidemic of “rights-fundamentalism.” Biggar defines “rights-fundamentalism” as an approach to public discourse and judicial decision-making which views the assertion of an individual right as a trump card, guaranteed to automatically win any debate regarding morality and public policy by “pre-empt[ing] and shut[ting] down ethical deliberation.” ¹ He analyzes how the articulations of the rights claimed in this trump-card situation are usually abstract, ahistorical, and highly individualized to the point of being divorced from any concept of the common good and articulated without awareness of the need for a corresponding virtue to permit rights-holders to exercise their rights well. In short, he argues that the concept of a right has been divorced from the corollary of a duty which historically accompanied it, resulting in assertions of rights that can too easily degenerate into claims of self-serving autonomy and the prioritization of the unfettered exercises of the individual’s will. In the last year, politicized debates around mask-wearing to limit the spread of COVID-19 have provided a paradigmatic example of Biggar’s critique. Rather than donning a mask as COVID-19 spread, many people across the United States made repeated claims based on vague and abstract “rights” to justify their own refusal to accept this relatively minor limitation. In this example, Biggar’s concern regarding the dangers of abstract and individualized rights claims divorced from a corresponding duty to care for the common good and protect the weak is well-justified.

Biggar identifies two solutions to this dilemma of rights-fundamentalism.

First (and to this I say an enthusiastic amen), he calls upon citizens to realize that rights are not enough and to seek to “get behind what is tying our tongues over duty and virtue.” ² He urges us to cultivate public and legal discourses which look beyond the simple adjudication of competing rights claims to develop a common morality oriented to some shared perception of the common good. This project presents multiple challenges. However, only this approach can move us beyond the current breakdown in our communal dialogue and conception of the good, caused in part by our continual temptation to rights-fundamentalism.

Biggar continues beyond this first step of broadening our discourse to include virtues and duties to propose an additional, corollary solution. Along with resituating rights, he argues that rights-fundamentalism can only be overcome when “rights advocates . . . grasp the conditionality of rights and the need for principled compromise.” ³ This relativization of our concepts of rights would require the recognition that

While the good to be protected is universal, and while the means of protecting it by establishing a right is very probably universal, the specific form of the protective right will not be universal. Circumstances might dictate (through the virtue of prudence) that certain rights should not be granted at all, or that they should be suspended; and circumstances always dictate what level of security it is prudent to accord any right. ⁴

Is this type of surrender of the fundamental meaning of a right necessary to achieve the other goods which Biggar urges us to retrieve? I worry that rejecting any absoluteness of rights would actually defeat much of the good achieved by Biggar’s first goal of situating rights within their proper context of human flourishing, linking them to the development of virtue and the adherence to duty. Such an extreme modification of the basic meaning of rights seems to create a zero-sum game between rights, on one side, and duties, virtues, and the common good, on the other. Without rights, our entire moral discourse would be impoverished, in the equal but opposite way from which it is impoverished now. Encountering the rights of the other—no matter how distant and strange—makes a demand upon us that reconceptualizes and broadens our idea of duty, advancing our moral discourse and growth in virtue, rather than hindering it.

Instead of Biggar’s second solution, I propose a different solution which I believe makes achieving the first even more likely. Rather than giving up the idea of rights as unconditional, the proper answer to rights-fundamentalism is a greater cultivation of epistemic humility about the connection between rights, duties, and the common good, rather than the rejection of any statement of absolute morality articulated in rights tout court. To rewrite Biggar’s solution, my proposal is for “rights advocates to grasp the conditionality of our knowledge of rights and the need for principled compromise due to the limitations of that knowledge.” ⁵ This approach, defined by virtue, would actually contribute better to understanding rights as part of a complex system of moral discernment oriented to the common good, without giving up important concepts of human agency, the possibility of understanding the good beyond the demands national legal systems, and, most importantly for Christians, acknowledging the full demands placed upon each of us when we encounter the imago Dei in humans very different than ourselves. To demonstrate this point, I will examine in more depth two examples which Biggar provides in his book to demonstrate that greater emphasis on epistemic humility can achieve each goal Biggar commends to us without surrendering the important contributions to moral discourse which rights-talk can bring.

In critiquing rights language in the legal sphere, Biggar analyzes the failures of the Canadian Supreme Court’s decision in the Carter v Canada case, in which the court legalized physician-assisted suicide. ⁶ He argues that that the court’s decision was lacking in the virtue of prudence. For example, it engaged in problematic analysis of the evidence related to the social impact of physician-assisted suicide. In addition, the court lacked the virtue of fortitude to resist the pressure to subscribe to a certain type of progressive agenda. While the Court was hearing this case, the Canadian Parliament was carrying out much broader ongoing analysis regarding the impact of the establishment of this right on the Canadian community and how it would function within the existing structure of the Canadian medical community. Biggar demonstrates that this rush to judgment by the Court shows at best an ignorance and at worst a cavalier disregard for considerations of the common good in favor of upholding a novel universal rights claim based on the single instance before the Court. In short, this decision provides a compelling example of sloppy, even negligent, legislation from the bench grounded on an improperly formulated rights claim without regard for the democratic process.

I agree with Biggar that this case presents an example of all the problematic uses of rights language which he has identified. However, I am not convinced that this example actually demonstrates inherent theoretical problems with rights language in judicial decision-making. Perhaps the true issue here is sloppy jurisprudence using rights language as a warrant to legislate from the bench in a departure from statutory language or legislative intent. To show that rights language does not necessarily entail this type of problematic judicial license, I will turn to two cases by the U.S. Supreme Court regarding the right of free speech in schools. I believe that in these cases, the Court demonstrates exactly how judicial use of rights language can illuminate concepts of duties, virtues, and the common good. Also, I believe that consideration of how the court has developed the doctrine over two incidents demonstrates how it is possible to deploy rights language while successfully holding in tension a concern for context, the common good, and even a conception that the proper exercise of rights requires training and growth in virtue.

In these cases, the court sought to uphold the right of free speech while taking into proper consideration of the special issues arising in an educational setting. In Tinker v. Des Moines (1969), the Supreme Court upheld the existence of a right of free speech even in the school setting, supporting students wearing black armbands to protest the Vietnam War. In Justice Fortas’ famous phrase, “it can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” ⁷ However, rather than claiming that the free speech rights trump the demands of the educational setting, the court considers the rights of the students and the duties owed by the school as corollaries rather than as oppositional: “Students . . . are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State.” ⁸ The proper exercise of rights and duties contributes to formation in virtue, rather than undermining it: “Educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual.” ⁹ While arguing that free speech rights are universal (even applied to students) and not subject to compromise, the court also displays humility by noting that the parameters of the right cannot be defined in a single instance because of the challenges of weighing both the universality of the right and the duties owed to the other children attending the school. In a later case, Bethel School District No. 403 v. Fraser (1986), Justice Brennan delineates the right to free speech to extend only to political speech, not to sexually lewd and offensive speech. Rather than being obliged to respect the rights of students in this regard, school districts instead have a duty to limit this type of public speech to protect those in their charge. Brennan also considers the relationship between virtue and rights here, and seeks to distinguish the line in which an unfettered claim of rights actually disrupts formation in virtue, both for the one exercising the right and for those who are affected by its exercise. However, it is only by encountering the right and determining how far it extends that the duty can be truly understood. Taken together, Tinker and Bethel demonstrate exactly the opposite type of judicial discernment from Carson and are a compelling example of the good which a properly chastened rights regime can instantiate.

Turning from the secular to the theological, I will also argue that the concept of rights in the work of the Salamancan Thomist Francisco de Vitoria should also be interpreted as crucial to a project of moral discernment for the sake of the common good and accompanied by the requisite degree of epistemic humility for which I argued above.

I agree with Biggar’s presentation of the work of Vitoria as representing a paradigmatic example of medieval and early modern Christian human rights discourse. This views of rights, according to Biggar, defines rights as “responsible to the natural law . . . and so obliged by the basic requirements of the social.” It is preferable to the more modern view according to which rights are oriented to “absolute liberty, secure against any moral constraints.” ¹⁰ The modern view of rights assumes a “Hobbesian drive for self-preservation” as the core of human existence rather than a theological anthropology grounded on the imago Dei present in each individual. ¹¹ However, while acknowledging the benefits of the medieval theory of rights over the modern view, Biggar still finds aspects of it concerning. First, he argues that like all arguments related to moral rights existing separate from civil society, it separates rights from their true identity as artifacts of a legal system, divorcing them from their proper context, and creating a tendency to abstraction and an accompanying loss of stability and security. ¹² This separation occludes the fact that rights can only properly be understood as legal rights held by those on the inside, not the outside, of a culture. ¹³ Second, Biggar argues specifically that Vitoria’s theory of rights depends on an overly sanguine view of human nature, “that strangers, traders, and immigrants are normally benevolent and trustworthy, and that their numbers normally pose no threat of harm to the social cohesion and political stability of the receiving society.” ¹⁴ As the native Americans experienced at the cost of their life, any presumption that the stranger is always trustworthy is flawed. Biggar also claims that Vitoria inadvertently creates a system of irreconcilably competing rights:

There cannot be both a presumption in favor of the freedom to travel and settle and a presumption in favor of a settled people’s political freedom from foreign interference. There cannot be natural rights to both at the same time. ¹⁵

As opposed to Vitoria’s approach, Biggar calls here for an abandonment of rights language and a focus only on duties instead, which Biggar believes are more sensitive and less likely to fall into this type of irresolvable tension.

I believe that a different reading of Vitoria’s theory of rights is possible. This reading addresses Biggar’s concerns without relying on the substitution of duty language alone. Surrendering all rights language would require Vitoria to surrender an essential component of his theological argument. For Vitoria, rights language explains the moral demands placed on those in power as they encounter each person made in the imago Dei regardless of contingent circumstances and cultural, political, and legal divides. Without establishing the demands which rights impose under God’s law, Vitoria’s argument would lose its power to condemn and restrain the Spanish depredation in the new world.

First, Vitoria’s view of rights satisfied Biggar’s concerns regarding the dangers of abstraction and loss of stability in the transfer from the “positive legal sphere” to the “natural moral one” while still addressing the reality that moral claims must be made across the gap between the legal systems of Europe and of the Native Americans. ¹⁶ Vitoria begins by arguing for the reality of this gap: the authority of the Emperor and even the Pope fails to extend to the government of the Native Americans. ¹⁷ Instead, the Native Americans have “true dominion both in public and personal affairs” which was not surrendered to the Europeans nor gained by right of discovery. ¹⁸ This true dominion in public affairs extends to the establishment of their own legal systems and forms of government, which, while looking very different than Europe’s, are equally valid. ¹⁹ Given this gap, the Spaniards cannot claim pre-existing authority over the Native Americans. Vitoria does not view the existence of this gap between civil systems as requiring the postulation of moral rights in some vague Hobbesian state of nature (a concept of special concern to Biggar). Rather, Vitoria continues to view rights as paradigmatically legal. While delineating the legal spheres, he also brings together the rights and duties owed between these spheres under the overarching system of God’s law, both positive and natural. Thus, when he speaks of rights, he does view them as paradigmatically legal, but possessing a legality which transcends any of the claims of earthly power and dominion.

Because rights are grounded ultimately in God’s law, they are stable, universal, and not subject to compromise. This absolute and universal nature of rights is crucial for Vitoria’s arguments against the claims of the Spaniards that rights cannot be held by sinners or unbelievers. ²⁰ In addition, even differences in culture or religion or civic order are not enough to overcome the Native American’s rights to their own dominion. Their different cultural conditions do not nullify these natural rights of ownership. ²¹ All who bear the imago Dei, both Spaniards and Native Americans, hold unconditioned natural rights and must respond with corresponding duties.

Vitoria gestures toward the role of rights in a process of moral discernment in his discussion in another work regarding the obligations placed on Christians who do possess just title to rule over pagans. In seeking to discern how to make laws which are suitable for their very different subjects, rulers cannot rely on their own discernment alone, but must also learn to be guided by the interest “of that particular commonwealth” in making laws which are “tolerable” and “reasonable” for that culture and people. ²² The king must look beyond his own conceptions to discern the good for each occasion, even though it may look different than he might have expected, while still respecting natural rights such as dominion over property.

Rather than having too sanguine a view of human nature, I believe that Vitoria displays a morally realistic view based on our propensity to epistemic failure due to the narrowness of our own horizons and the power of our sinful desire to limit our duties because we refuse to acknowledge the rights of others. For example, Vitoria describes how all the rights of trade and travel which the Spanish might claim are dependent on their demonstrating “diligently both in word and deed that for their own part they have every intention of letting the barbarians carry on in peaceful and undisturbed enjoyment of their property.” ²³

For Vitoria, rights cannot be in competition if they are understood in their proper relationship to the natural law. However, like the various levels of precepts of the natural law, they must be discerned along with their corresponding duty over time and through careful observation which carries us beyond our own context and experience. The Spaniards have manifestly failed to recognize their duties toward others made in the image of God. Vitoria ends his lecture with a demand that the Spaniards should not act simply upon the rights which they might possess, but must engage first with the claims of the Native Americans, taking full consideration of the different interpretations and understandings of rights which they have encountered rather than using their own prior concept of duty as the conclusion of the argument. ²⁴ Acknowledging that the Native Americans possess rights equal to their own requires them to change their understanding of the duties they owe others who also bear the imago Dei. Seeking to resolve these apparently competing claims of rights between them, therefore, becomes part of the process of moral discernment and growth in virtue, not simply the end in itself.

In conclusion, Vitoria demonstrates that rights, when placed in their proper theological context, can serve as tools to challenge oppression rather than being tools of oppression themselves. Because he has not conceded fundamental rights, Vitoria demonstrates how rights discourse can itself challenge rights-fundamentalism, a goal with which Biggar would fully agree.