Rethinking Rights: Historical, Political, and Philosophical Perspectives. Bruce P. Frohnen and Kenneth L. Grasso, eds. Columbia, MO: University of Missouri Press, 2009.
Human rights are a central category of modern politics, often taken as a signature feature of political modernity. They are a way of limiting and understanding the limitation of political power and a way of bringing about a workable recognition of the dignity of human persons. On the other hand, when rights become the main or only counter in political discourse the results can be destructive: an individualism dominated by assertions and counter-assertions that eat away the substance of community and yield a shrill and agonistic zero-sum politics.
While some have concluded that this is the inevitable result of the adoption of rights language, the authors of this impressive collection opt for something more serious and constructive. The papers edited by Frohnen and Grasso in Rethinking Rights remind us of the varying contexts and histories of rights talk. The theoretical and historical contexts discipline the consideration of rights in ways that resist the reductive tendencies of most contemporary formalistic accounts. They show that rights are not simply a Trojan horse for liberal individualism, but have arisen out of the central traditions informing Western political thought.
Reassessing John Locke
Brian Tierney’s “Historical Roots of Modern Rights: Before Locke and After,” takes aim at the casual view that the modern individualist view of rights sprang fully formed from the mind of John Locke. In fact, Tierney argues, Locke’s views were a development of ideas long in the bloodstream of Western thought and practice. Tierney examines three relevant topics here: individual consent to government, self-ownership and self-mastery, and a context of natural rights in the notion of a “permissive” natural law. All of these “Lockean” notions are developments of lengthy medieval discussions. The essay thus constitutes a review of Tierney’s previous ground-breaking work on this topic and is an accessible starting-point for entering that body of research as well as a helpful starting point for the book.
Natural Law in the Declaration of Independence
The next two chapters, Gary Glenn’s “Natural Rights and Social Contract in Burke and Bellarmine” and George Carey’s “Natural Law, Natural Rights, and the Declaration of Independence,” follow a similar spirit. Glenn discusses Burke’s notion of a social contract, which is rather different from Locke’s and indebted in certain respects to Bellarmine’s scholastic view: it is a developing intergenerational “contract” that does not share the individualist implications of the Lockean view.
Carey’s essay aims at a recovery of the original understanding of the Declaration’s view of natural rights as grounded in and limited by natural law, an understanding informed by many non-Lockean sources. This is very far indeed from the expansive lifestyle individualism often justified by appeals to the Declaration. Carey shows that the rights outlined in the Declaration were always seen as consistent with the common good of society and closely interrelated to the rest of morality. Among the implications of his argument are the fundamental consistency of the Declaration with the Constitution, sometimes seen as in tension with the Declaration.
The Flourishing and Curtailment of Group Rights
Bruce P. Frohnen’s paper, “Individual and Group Rights: Self-Government and Claims of Right in Historical Practice,” also aims to recover the social context in which rights are exercised and claimed, in this case the context of groups vested with their own rights. Frohnen traces the legal status of groups from its origins in the very real institutional and social pluralism of Medieval Europe to the chartered rights of boroughs and corporations in England and their crossing over to the United States in the form of municipal and business corporation rights.
The details of Medieval practice and of English law helpfully point out the relationship between the defense of individual rights and the rights of a variety of social groups, a relationship that provided protection for individual persons without encouraging destructive individualism and the social tensions and waste of resources that such conflict often entails. The latter parts of the story show how the rights of local governments were increasingly curtailed by the centralizing ambitions of both the states and the federal government in ways that have left individuals without the resources of a rich institutional life and flattened social relations more generally.
The Relational Character of Rights
Kenneth Schmitz’s “The Ontology of Rights,” is perhaps the most philosophically rich of the essays, entering as it does into the metaphysics of personhood in the Thomistic and Personalist traditions. Schmitz argues for an account of rights not as individual possessions, but as aspects of the essentially relational character of the human person: this is rooted in the very “texture” of being and Schmitz explains it by reference to Aquinas’s theory of natural law itself grounded in the levels of being in which human beings participate. He also draws on Jacques Maritain’s distinction between the personal and individual aspects of human beings in their relationship to the common good of society. For Maritain it is personality that draws one into relationships not based primarily on need, but on a spiritual generosity that stems from a superabundance of being and self-transcendence.
A Reflection on the European Union
Paul Gottfried’s “The Historical and Communal Roots of Legal Rights and the Erosion of the State” is the strangest piece in the volume. It isn’t about rights in any focal sense, but comprises a somewhat meandering set of reflections on Savigny’s historical jurisprudence and Carl Schmitt’s invocation of Savigny as related to his own criticisms of the administrative state, all of this evidently in the service of a more generalized criticism of contemporary European legal practice and the EU project, which has abandoned historical national consciousness in favor of multiculturalism and intrusive public administration. There are also dicta on natural law, American neoconservatism, and assorted other topics, with a fair bit of self-reference (“my work,” “my book,” etc.). It is hard to see how this paper fits in with the overall ambitions of the volume other than that it is sympathetic to other criticisms of abstract individualist accounts of human rights, but not in a way that adds much to what is argued in the other more coherent papers.
Groups Other than Government Protects Rights
Kenneth L. Grasso’s “Reintegrating Rights: Catholicism, Social Ontology, and Contemporary Rights Discourse” provides an admirable survey of the treatment of human rights in Catholic social thought as articulated both in ecclesiastical statements and by select Catholic thinkers. While the embrace of rights language by the Roman Catholic magisterium, especially since the pontificate of John XXIII, has been greeted with skepticism both by liberals used to the nineteenth-century counter-revolutionary aversion to rights, and by some Catholic writers who see it as necessarily connected to the errors of liberal individualism, Grasso draws on a large number of Catholic thinkers to argue that the Catholic view constitutes a coherent approach to human rights that avoids the often quite destructive consequences of the liberal view. The most important aspect of this is the Catholic rooting of human rights in a larger account of human nature as social and a social theory that sees that very sociality realized in a variety of types of society distinct from both the state and the market.
Paradoxically Liberalism Constricts Rights
This yields a thick notion of community at the service of the full flourishing of human persons and also provides a superior account of the limited nature of state authority. Liberal individualism, paradoxically on Grasso’s view, pursues individual rights in such a way as to increase the power of the state at the expense of civil society, leaving individuals isolated and vulnerable to the predations of both state power and the market. Grasso’s paper is theoretically one of the richest in the volume. The very range of the thinkers he draws upon, however, stretches the unity of the account he presents since his main sources include Jacques Maritain, Heinrich Rommen, and Johannes Messner.
To take just one issue, Messner holds the political common good to be essentially instrumental, not instrumental in the way a liberal individualist might, given his views about the human person, but importantly different from the views of Rommen and Maritain for whom it is a bonum honestum (moral good) and, in the case of Rommen, perhaps more still. These are tensions more than contradictions and the need to work through them is one implication of Grasso’s very helpful and stimulating chapter.
Questioning Gierke’s View of Institutions
Jonathan Chaplin’s chapter, “Toward a Social Pluralist Theory of Institutional Rights,” is informed to some degree by the Calvinist social thought of Herman Dooyeweerd and is quite complementary to Grasso’s as it aims to give a fuller account of institutions as rights-holders, an important notion for any serious form of social pluralism, which includes that articulated by Catholic social thought. Chaplin argues that institutions possess agency and, therefore, not only “legal personality” but “legal subjectivity” which reflects a wider notion of agency.
His essay is mainly a critical and constructive engagement with Otto von Gierke’s historical work on German associational law and Rommen’s theory of social teleology. Gierke drew on the German legal tradition (differently than Savigny, who was more influenced by the Roman categories) for his notion of “social law,” which concerned the ordering of social groups, which possessed a legal character not simply reducible to individual legal relations. This, however, pushed rather far towards a problematic reification into group personality, perhaps a consequence of the German idealism at the core of Gierke’s thinking.
At the same time, Gierke’s view is vulnerable as a kind of psychological reductionism, since the group is a fusion of wills, and it also seems to embody a kind of historicism. Chaplin seems in some respects to prefer Rommen’s view of social pluralism, which is grounded in Thomistic natural law. Rommen’s theory tracks closely with the Catholic social doctrine emerging from the pontificates of Leo XIII and Pius XI includes a close relationship between individual and associational freedom, giving the latter an autonomous ground of intelligibility and legitimacy. The state exists as guardian of a common good that includes the flourishing of non-political social bodies. Both Gierke’s historical recovery and Rommen’s more philosophical account contribute to an agenda of legal questions concerning the rights of associations that Chaplin suggests at the end of his essay. It is a rich and helpful discussion.
“Subsidiarity” in Modern Catholic Thought
In the case of Rommen, I think there are conceptual limitations that could be mitigated by going behind both his account and the social teaching of Leo XIII and Pius XI to the thinker who really began the philosophical recovery of Thomistic social thought, Luigi Taparelli D’Azeglio, S.J. He was also the originator of the notion that came to be called “subsidiarity” in his influential Saggio teoretico di diritto natural appoggiato sul fatto (1840-43). Another quite relevant thinker in this respect was Thomas Gilbey, O.P., the English Dominican whose 1953 book, Between Community and Society: A Philosophy and Theology of the State, can be seen as a fundamentally Thomistic synthesis of the systematic elements one finds in Rommen and the historical insights of Gierke.
A Noted Absence: John Finnis
Thinking of these last two essays, it seems a lacuna that the volume contains no mention of the work of John Finnis. Finnis’s 1980 book, Natural Law and Natural Rights, contains an important treatment of rights that is informed by the clarifying insights of Hohfeld’s classification of types of rights claims (mentioned in Chaplin’s essay) and by Catholic social thought and Aquinas. It contains an excellent critical and constructive engagement with the contemporary philosophical jurisprudence of rights. This is continued in his 1998 book on Aquinas and in a series of papers now together in volume III of his Collected Essays. Rethinking Rights is, on the whole, an excellent contribution to the ongoing discussion of rights, especially now that the limitations of strictly liberal political philosophy are increasingly well-understood.
The Inevitable Question: “Why Rights?”
One difficulty remains that of practically what one does once one has recognized the need for the sort of context and depth that most of the contributors to this volume call for. It was Jacques Maritain who famously remarked in the context of his involvement of the famous 1949 UNESCO conference on human rights that “We agree about the rights, but on condition that no one asks us why.” Beyond a certain point “why?” does become an unavoidable issue. I see no easy way around this problem, only the necessity of doing the hard work of thinking through the best account of the ground and character of rights and then making the best case for it through disciplined and sustained argument, both in the academy and in the public square.
Looming Conflict in the United States
The one thing to be expected is conflict. With respect to such conflicts, the most (and it isn’t nothing) one can say is that the battle isn’t over, at least in some contexts. On January 11 of this year the Supreme Court of the United States decided the case of Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission (565 U.S. ___ (2012)), vindicating the so-called “ministerial exception” that protects the autonomy of religious groups to appoint and dismiss their own personnel in accord with the tenets of their creeds.The decision could have far-ranging positive consequences with respect to the relationship of federal administrative agencies and state and local governments towards religious congregations, associations, and institutions.
Only a couple of weeks after this, however, the Obama administration’s Department of Health and Human Services promulgated regulations that would force many religious institutions to violate their consciences by paying for contraceptive services. The decision is not only an assault on religious freedom, but strikes a blow at social pluralism generally, marking another stage in the liberal state’s imposition of life-style individualism on civil society. Doubtless there will be a legal challenge, but the decision illustrates once again the political realities that the authors of Rethinking Rights have analyzed, and shows just how much work remains to be done.