Western Creed, Western Identity: Essays in Legal and Social Philosophy

10. On the Justification of Rights Claims

    ON THE JUSTIFICATION OF RIGHTS CLAIMS  There are times when the large brush stroke is appropriate, when a Chagall-like impression serves better than the detail of a Vermeer. In an effort to gain insight into the nature of “right,” I have chosen to sketch rights theories in a general way and to focus upon the notion of entitlement. If a librarian were to catalogue the flood of literature that the past decade has produced on the subject of “human rights,”a number of broad categories would suggest themselves. There is the theological or religiously inspired literature that assumes the dignity of the human person and proceeds to draw its conclusions in the light of that premise. There is the philosophical literature that cannot assume the dignity of the human person and hence must variously defend that premise, although many philosophers effectively presume it through inattention to fundamental principles. Both types of inquiry are to be distinguished from political tracts which, although they may appeal to principle, are frequently long on rhetoric and amount to nothing more than assertions or declarations of political programs. It is not the political use of the concept of “rights” that is the focus of this essay. The “rights” that ought to be enjoyed by the people of the Philippines, of El Salvador, of Spain, or of Nigeria cannot be decided in the abstract but only contextually, for reasons that will be evident as this text progresses. Justification of political rights presup-        poses principles; it is those universal principles and their justification that are the focus of this inquiry. In discussing rights, the theologian does not seem to be in a privileged position. Although he knows that man is made in the image and likeness of God and that man’s eternal destiny is personal union with God, the truths that follow from that knowledge are not selfevident but have to be ascertained with the aid of relevant observation and philosophical reasoning. Furthermore, the theologian or the religious mind usually seeks to convince the person of no belief and thus resorts to philosophical argument, if not in the first round, then in the second. Thus it is appropriate to concentrate on the philosophical literature. Ecclesiastical pronouncements themselves can be measured against natural reasoning. Assuming accord, they acquire greater strength when their supervenient character is made manifest. Philosophical approaches to the topic are multifarious. One can immediately recognize theistic and nontheistic strains. In North America and Europe the later occupies center stage. Anglo-American philosophy tends to be nonmetaphysical, assuming fundamental principles and pragmatically justifying this or that specific right. Rarely does the analyst attempt to ground rights in considerations of human nature or in theories of the state. Phenomenologists and existential philosophers tend to be more metaphysically aware than ordinary-language philosophers. Thomists and other natural law theorists are perhaps the most inclined to ontologically ground the concept of rights. That said, it is better not to generalize but to concentrate on the work of specific philosophers. I choose to characterize two approaches which, although they do not represent the entire spectrum, nevertheless represent important strains. They are the classical natural law tradition and the contemporary analytic, largely utilitarian, approach.  Within the classical natural law tradition, one finds few discussions of “rights” as such. There is, instead, considerable discussion of the common good, of justice, of the ends of government, of obligation, and of beneficence. For Aristotle, those rights we are today calling “human rights” are a part of the generic category “political rights.”All rights presuppose society and are dependent on the presence of established social structures . Rights cannot be discussed in the abstract, nor can they be presumed to be unchangeable. The same doctrine is found in the Stoics. Stoic natural law teaching is based on a doctrine of divine providence and on an anthropocentric teleology. It admits that there is a universally valid hierarchy of ends, even though there are no universally valid rules of action. Knowing the proper ends of government, one does not know anything of how and to what extent those ends can be realized here and now under these circumstances. For both Aristotle and the Stoics, normally valid rules may be justly challenged in extreme situations. Political freedoms may be a blessing or a curse. If the very existence of a society is at stake, there may be a conflict between the requirements of...