This post is a preview of a forthcoming online Davenant Hall class, “Natural Law and Natural Rights: 1600-1800″, running in the Winter 2022 Term (January – March), and convened by Dr. Bradford Littlejohn.
What’s wrong with rights? So asked the title of a powerful recent book by Christian ethicist Nigel Biggar. But he is hardly alone. Clearly something has gone wrong with rights. On the one hand, “rights” have been increasingly deployed in the culture wars as the tip of the spear to drive conservatives from moral and legal terrain that was uncontroversial until yesterday—such as 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 also proliferated into an insatiable wish list of demands for an ever-growing government to meet (such as the “right” to free childcare), and been wielded as bludgeons with which to beat the benighted Right into shameful submission (such as the recent furor over voting rights).
On the other hand, most of us feel a strong investment in the idea that our laws should reflect a bedrock foundation of unchanging moral norms—an intuition that underlies the Right’s adoption of the language of a “right to life” in response to a culture of abortion and euthanasia. 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 go back on the ringing assertions of the Preamble to the Declaration, or the foundational commitments of the Bill of Rights?
Is it possible to disentangle the good uses of rights—as securing human dignity and limiting the power of the state—from the anarchic, revolutionary logic of so many modern rights claims? This is a question which many thoughtful political and moral philosophers have begun asking in recent decades.
For some, the whole tradition of rights-language is suspect from the beginning, reflecting a turn from objective moral right order to subjective individual rights claims. Does not the language of rights immediately and irretrievably distort our moral vision, by focusing our attention squarely where as Christians we should not focus it: on ourselves, and what we like to think belongs to us? Wouldn’t we do better to frame our moral and political imaginary in terms of duties?
On the other hand, if we believe in justice, and we are committed to the irreducible worth of every individual—as Christians should be—how can we not speak in terms of individuals possessing rights, which it is the task of justice to recognize and respect? Many scholars have pointed to the deep medieval and Christian roots of modern rights language, and its coherence with biblical ways of thinking about the moral demands that personhood places upon us.
Of course, even if we agree that there is an important place for rights language, there may still be plenty of devils in the details. After all, where on earth do our rights come from and how are they defined? A failure to answer these questions by contemporary advocates of human rights have allowed an originally limited list of basic rights to metastasize into a seemingly limitless laundry list of toddler-like demands for recognition.
Whatever else you might say about it, the older language of “natural rights” had an advantage over the newer language of “human rights” (and certainly over the intolerably vague appeal to just “rights” in the abstract that seems most common nowadays). In this older way of thinking, our rights were ascertained and limited by our nature, and by the relationship of human nature to the natural order generally. Rights were not just whatever we might want them to be, but tethered to a certain conception of the human telos and the order of the cosmos in which we find ourselves.
Was this older conception of natural rights the same as the even older classical and Christian vision of natural law, then? Well, it depends who you ask. According to some intellectual histories, a Rubicon was crossed when philosophers and jurists stopped thinking of natural law as foundational and rights as derivative from that law, and began thinking of natural rights as themselves foundational—the building blocks of moral and political order. An example may be helpful. Consider private property. On one way of thinking, the natural law declares that the material resources of creation should be administered in such a way as to minimize conflict and maximize the use of resources—and this natural law thus generates the necessity for rights of private property, which political regimes should create and secure. On another way of thinking, however, private property is itself a foundational natural right, inherent in human nature, which political regimes should merely accept and protect.
On other accounts, however, natural law and natural rights are merely different ways of talking about the same thing, different perspectives through which to view the same matrix of interconnected rights and duties.
What should be clear, however, is that there is a fundamental difference between viewing rights as being moral or pre-moral. Can there ever be a right to do wrong? According to an older tradition, obviously not; the very idea is nonsensical. Individuals can only possess rights to fulfill—or demand the fulfillment of—concrete moral duties. Freedom of speech is only a right if speech is being used to speak truth; a right to speak falsehood should be unintelligible, right? Well, not for many moderns, and perhaps indeed this is the essence of modernity: to begin with a consideration of human powers and capacities and to insist that we must have the right to do whatever we have the capacity to do. That doesn’t mean that there can’t be laws to regulate the anarchic exercise of individual rights, but these laws always function as limitations of more fundamental pre-moral rights. This was the revolutionary theory of Baruch Spinoza, with earth-shaking consequences we are still only beginning to grapple with today.
In the older way of thinking, laws secure rights, understood as the capacities to carry out certain moral duties. In the newer way of thinking, laws constrain rights, understood as capacities for the individual ego to express itself. Clearly, something profound has changed since the 16th century, but where and when and who’s to blame?
Truth be told, I’m not sure myself. I’ve heard many a “whodunnit” narrative of modernity criticism, but many of them seem to play fast and loose with the sources, choosing a single thinker or two (Duns Scotus or Luther or Grotius or Hobbes or Locke) as their boogeyman, claiming that he was up to something more sinister than he let on, and pegging him as the transitional thinker who gave us everything that’s wrong with modernity. I’m a bit skeptical, I must say. The old natural law tradition, it seems clear to me, died a much slower death than is usually recognized. And yet, where there’s smoke, there’s fire. Clearly, something significant did change in the early modern period, and laid the groundwork for the moral mania we see around us today.
The only way to find out what it is, though, is to go to the sources—immerse ourselves in the key writers on natural law and natural rights who spanned the crucial two centuries between the Reformation and the American Founding, and find out what actually mattered to them. The answers are liable to surprise, bewilder, and stimulate ever-deeper thought about what we actually mean by “rights”—and how to make effective use of the concept today in the twenty-first century.
Join me, then, for a deep dive into the sourcebooks in next term’s Davenant Hall class “Natural Law and Natural Rights: 1600-1800”! Can’t wait to start reading with you.
This “Philosophy course will be taught by Dr. Bradford Littlejohn This course will run from January 10th through March 19th. The syllabus will be available soon. The syllabus is available here. Register here.
Dr. Bradford Littlejohn (Ph.D, University of Edinburgh) is a scholar and writer in the fields of political theology, Christian ethics, and Reformation history. He is the author of several books, including The Peril and Promise of Christian Liberty: Richard Hooker, the Puritans, and Protestant Political Theology (Eerdmans, 2017).