Nicholas Wolterstorff -- 2009 -- \'Justice as Inherent Rights - A Response to My ...\'

JUSTICE AS INHERENT RIGHTS: A RESPONSE TO MY COMMENTATORS Nicholas Wolterstorff ABSTRACT The critical comments by my fellow symposiasts on my book, Justice: Rights and Wrongs, have provided me with the opportunity to clarify parts of my argument and to correct some misunderstandings; they have also helped me see more clearly than I did before the import of some parts of my argument. In his comments, Paul Weithman points out features of the right order conception of justice that I had not noticed. They have also prodded me to clarify in what way rights are trumps; and both his comments and Bernstein’s have prodded me to clarify certain aspects of the theistic account of human rights that I offered. Attridge’s comments lead me to see that I was perhaps over-zealous in emphasizing the objective aspects of the semantic range of dikaiosunê as used in the New Testament and downplaying the subjective aspects. And O’Donovan’s comments have provided me with the opportunity to make clear that my account of rights is not an immunities account that presupposes nominalism, and to emphasize the ways in which it is not an asocial individualistic account. KEY WORDS: dikaiosune, human rights, human worth, individualism, inherent rights conception of justice, natural rights, right order conception of justice, rights LET ME BEGIN BY thanking my distinguished commentators for the care with which they have read and reflected on my book and for the complimentary comments they make about it. I am honored. My interlocutors are all friends of mine; I am on a first-name basis with all of them. But I will follow academic protocol and refer to them by their family names. Let me also give special thanks to Paul Weithman for organizing the symposium that led to the inclusion of the essays in this Focus Issue of the Journal of Religious Ethics. In his Introduction to this Focus Issue, Weithman correctly points out that one of my aims in Justice: Rights and Wrongs was to bring the philosophical and theological traditions into dialogue with each other on the matters at hand. Not only does he do a superb job of commu- nicating a sense of the overall structure of my argument, he also makes an important contribution to the discussion by highlighting an JRE 37.2:261–279. © 2009 Journal of Religious Ethics, Inc. implication of my line of thought that I allowed to remain in the background. Before I take note of that contribution, however, let me call attention to a point of misinterpretation in what is otherwise a very accurate and perceptive summary. Fundamental to my way of thinking about rights is distinguishing between the rights that human beings have and human rights. Human rights, as I understand them, are rights that beings have just by virtue of being human beings; all human beings have them, no animals have them. I hold that such rights are but a small subset of the rights that human beings have; indeed, I argue that, strictly speaking, there are not very many rights that are truly human rights. My aim in the book was not just to give an account of human rights, not even just of the rights that human beings have, but of rights in general. I hold that social institutions have rights, as do animals. I made the judgment that if first I gave a general account of rights, and only then, way at the end, discussed human rights, readers would see that my account of human rights was only a special application of the general account. From responses that I have received to the book, I am forced to conclude that I was an abject failure in this regard. Some readers interpret me as holding that the only rights human beings have are human rights. Some interpret me as aiming only to give an account of human rights. Others assume that I intend my account of human rights to hold for the rights of human beings in general. Even so astute a reader as Weithman blurs the distinction between the rights of human beings and human rights, and thus, also blurs the difference between my account of rights in general and the specificities of my account of human rights. Three paragraphs into his Introduction, he says that in order to appraise my theory, “we will have to see what kind of worth human beings have, how they come to have it, whether all and only human beings have worth of that kind, and how that worth grounds rights” (2009b, 180). Then, two sentences later, he says that on my account, “Human beings have worth because they are loved by the God of the Hebrew and Christian Scriptures” (180). But I hold that human beings have worth not just because they are one and all loved equally by God but on account of a wide variety of differential accom- plishments, characteristics, relationships, and so forth—it is that diversity of worth that grounds a diversity of rights. The student who wrote an A-grade paper for me has a particular worth and thus has rights that the student who wrote a D-grade paper does not have. A few pages later, Weithman says that, on my view, “rights are founded on a value that is conferred by God” (184). I hold that that is true for human rights but not for the rights that human beings have in general. Now for Weithman’s very helpful highlighting of an implication of my account that I myself did not explicitly draw. For many years, I had 262 Journal of Religious Ethics been reflecting on certain puzzling and intractable disputes about justice before it dawned on me that, in the Western tradition, there are two fundamentally different ways of thinking about justice; it took me several more years to locate the fundamental point of dispute between these two ways of thinking. Eventually, I concluded that, on what I called the right order conception, all rights have been conferred on those who have them by agreements, standards, or laws—be those laws divine or human. On what I called the inherent rights conception, though some of the rights that entities possess have obviously been conferred on them, some are possessed by those entities just because those entities have a certain worth. The right is inherent in the worth. The right order conception holds that no matter what the worth of an entity, the entity has no rights just on account of that worth. There has to be some agreement, standard, or law conferring the rights, and, in good measure, the conferral will take no account of worth. Now suppose it is natural rights that we are talking about; and suppose it is the view of the right order theorist that what does the conferring is what Joan Lockwood O’Donovan calls a “matrix of objec- tive obligation.” That is not how Plato thought of what did the confer- ring; his realm of Forms is not a matrix of obligation. However, since the entrance of Judaism and Christianity into the Western intellectual tradition, this has probably been the dominant way of thinking of it. A matrix of objective obligation determines the right order for society. On this way of thinking of the determinant of right order, natural rights accrue to people in the following way. There is a matrix of objective obligation that holds for the members of a certain society; perhaps some elements of the matrix hold for the members of all societies. This matrix of objective obligation specifies the right or obligatory thing for a person of a certain sort to do in a situation of a certain sort: a person of sort P ought to perform an instance of act-type A when in circumstances of sort C. So if I am a member of a society for which the matrix of objective obligation holds, and if I am of sort P in a circumstance of sort C, I am then obligated to perform an instance of act-type A. I have that obligation. It is attached to me; it is one of my “subjective” obligations. Suppose it is the obligation to treat you in a certain way. Then you have the correlative right against me to my treating you that way. You possess that right, it is attached to you; it is one of your “subjective” rights. This is how we get from a matrix of objective natural right or obligation to natural subjective rights, the rights that people possess. The feature of this picture that I emphasized is the conferral, the feature of the picture that Weithman highlights, is that if a right is to be conferred on me, then I must be a member of the society for which the matrix of obligation holds. Only if I am a member of that society Response to Commentators 263 does any conferral of rights to me actually take place. On this view, the natural rights of members of society are, as Weithman helpfully puts it, membership-derivative. On my theory, they are not membership- derivative; if this individual has such-and-such a worth, then he has such-and-such rights. Weithman speculates that it is this feature of all versions of the justice as inherent rights conception that leads those who embrace the opposite conception to view the justice as inherent rights conception as individualistic. In my book, I describe rights as normative social relationships. The charge is that I can say all I want about the sociality of rights; nonetheless, it remains the case that membership in some society to which the norm for right order applies simply does not have the fundamental significance that it does for the justice as right order view. Weithman goes on to observe that a common version of the justice as inherent rights conception—not my version—is that rights are, at bottom, immunities against infringements on licit forms of self- determination. Rights exist to confer such immunities. Now suppose a right order theorist thinks of persons as, in Weithman’s words, “natu- rally oriented toward the common good of the groups to which they naturally belong” (2009b, 185). What will strike such a theorist about the immunity theorists is that they are “conceiving of human beings as if they have no telos, but have instead a fundamental interest in fixing their ends for themselves” (185). They will see this as either an illegitimate abstraction from our human condition of sharing a telos for the common good or, worse yet, as an implicit denial of that condition. In short, one can see why right order theorists accuse their oppo- nents of treating human beings as asocial entities. In my book, I protest this way of characterizing the justice as right order conception; nowhere in my account of rights do I treat human beings as asocial beings. Fair enough, says Weithman. But if the right order theorist has her eye not on my version of the justice as inherent rights conception, but on a rights-as-immunities version of the conception, then one cannot dismiss the a-sociality criticism as entirely misguided. It is not precisely formulated, and it may be mistaken. It remains to be dis- cussed whether there is in fact a shared human telos toward the common good, but the criticism is not entirely misguided. These are excellent points. Weithman here does a better job than I managed to do of illuminating why the right order theorist charges that the justice as inherent rights conception is individualistic. As Weithman notes in his Introduction, my discussion has both a narrative component and a systematic component. Attridge focuses exclusively on one aspect of the narrative component; so let me begin with some comments on his paper. O’Donovan speaks to both the 264 Journal of Religious Ethics narrative and the systematic components; let me consider his com- ments next. Then, I will move on to the papers of Bernstein and Weithman, both of whom focus mostly on the systematic component. My discussion of the New Testament was a component of my counter-narrative to the common narrative, this latter being the nar- rative which says that the idea of natural rights was born of fourteenth-century nominalism or of eighteenth-century individualism. I think of natural rights along traditional lines, namely, as rights not conferred by human social practices, laws, or speech. I also hold that the recognition of natural rights, more specifically, of inherent natural rights, is implicit in the Old Testament/Hebrew Bible and in the New Testament. Let me make a parenthetical comment, here. In a long footnote, Bernstein objects to my definition of “natural rights” on the ground that, on this definition, a lot more thinkers turn out to be committed to natural rights than one would have thought, including some who explicitly rail against natural rights. Bernstein does not take the next step of offering what he regards as a better definition of the term “natural rights.” But to his point about the implications of my defini- tion, I say, “So be it.” I find that a close reading of the texts in political theory reveals that a good many writers who profess to believe that there are no natural rights nonetheless tacitly commit themselves to such rights. Now, let me get back to the point. I found that before I could even get to uncovering the implicit understanding of justice in the New Testament, I had to deal with the claim that justice has been sup- planted in the New Testament by love or perhaps by love and righ- teousness in combination. Hence, one of my aims in my discussion of the New Testament was to defend the view that justice has not been supplanted. I am gratified to have Attridge say that “the New Testa- ment is, without a doubt, concerned for justice,” and that “the concern for what might loosely be called ‘social justice’ in John [the Baptist’s] preaching runs through the Gospel” of Luke (210). The issue as to whether justice has been supplanted in the New Testament is, in part, based on how we translate the dik-stem words that occur so frequently there: dikaios, dikaiosunê, and so forth. Attridge discusses this issue in his characteristically balanced, informed, and nuanced way, concluding that my pushing “the Gospel materials away from a consideration of ‘virtue’ toward a concern for objective ‘rights and wrongs’ ” may be pushing too hard, playing down “an important dimension of the Gospel witness” (211). In a footnote, he concedes, however, that I may have put my “finger on a larger issue of translation,” namely, the “tendency in many translations of the New Testament from the Reformation onward to favor renderings of Greek Response to Commentators 265 that highlight the interior and affective dimensions of the possible semantic range of a word and ignore the objective, behavioral dimen- sions” (211, n. 4). Attridge further agrees with my point that context, not word-studies, will have to settle the issue of how to translate a specific passage. I concede that I may have pushed too hard in the direction Attridge identifies—though let me say that it is by no means my view that all occurrences of dik-stem words in the New Testament should be trans- lated with “justice” or grammatical variants thereon; nor is it my view that acting justly exhausts what it is to be dikaios. Attridge says that “like the famous call to be ‘holy’ in Leviticus 19, the Gospel of Luke presents a vision of justice rooted first and foremost in a relationship to God. To be dikaios, formally defined, is to respond to the divine will” (217). I think that the first of these sentences is definitely true, and that the second may well be true. However, as I argue in my book, to understand what Scripture says about justice one cannot understand “acting justly” as synonymous with “doing what God wills.” With a prior concept of justice in mind, the writers hold that God enjoins us to pursue that, to pursue justice. So though it may be true that, in general, the dikaios person is the one who does what God wills, there are passages in which what is quite clearly meant is that the dikaios person is the one who, quite specifically, struggles for dikaiosunê, that is, for justice. I take Attridge to agree with this. In his conclusion, Attridge says that “To observe and defend human rights is certainly compatible with the program that Luke sketches, but that program has a decidedly different focus and a different way of organizing the moral universe” (218). These are, indeed, distinctly different, albeit compatible, programs. I wanted to argue for more than mere compatibility, however. I wanted to argue that rendering to each his due is part of what the divine will calls for, and that, sometimes at least, this rendering to each of what is due him is what the term “dikaiosunê” is used to refer to. Rendering to God what is due God is part of what the divine will calls for. The other thing I wanted to garner from my discussion of the New Testament is that there is, in these writings, an implicit recognition of inherent natural rights and of those rights as grounded in worth. That has to be the case for God’s right to our worship and obedience. Naturally, I was pleased to find Attridge agreeing with me on these points as well. Let me comment first on what O’Donovan sees as the systematic point dividing us and then move on to some comments about our competing narratives. Before I do either of these, however, let me note that rather often O’Donovan speaks of my view as if it were an immunities theory of a certain sort, using “immunities theory” here to 266 Journal of Religious Ethics refer to the sort of view that Weithman called attention to. In one place, O’Donovan speaks of me as holding “that individuals are right- bearers prior to their communal existence” (198); in another place he talks as if I hold that there are “personal and pre-social rights which the traveller, the widow, the servant, [have] attached to them in the womb” (200); and in yet another passage he speaks of my view of justice as having a “proprietary focus” (202). My theory is not an immunities theory of any sort. I do not believe that individuals are right-bearers prior to their communal existence. Not only are there no individuals prior to their communal existence, I cannot even imagine such an individual. Though I hold that human beings still in the womb have rights, I do not identify the rights of widows, travelers, or servants with those rights. Moreover, I do not believe that rights are confined either to rights of property or to rights of self-determination. If the use of rights-language has what O’Donovan in one place calls “propriety overtones,” then I will do all I can to eliminate those overtones. At several places in his discussion, O’Donovan describes the contrast between his view and mine with the terms “unitary right” and “mul- tiple rights.” He believes in unitary right; I believe in multiple rights. That is to suggest that O’Donovan does not believe that there are multiple rights. Not only is that an exceedingly implausible view for the right order theorist to hold—one who believes that there is a matrix of objective obligation—but from other writings of O’Donovan’s, I know that it is not in fact his view. O’Donovan remarks about his contrast between unitary right and multiple rights that “in bringing the point down to the use of the singular and the plural like this, we do not, of course, mean that the advocates of one conception use only the plural noun, their opponents only the singular noun. The question is simply which is ontologically basic” (195). Exactly. What does O’Donovan take to be the ontological issue that divides the right order theorist from the inherent rights theorist? He says that “radically multiple rights arise from, and reflect, the radical ontological distinctness and multiplicity of human persons” (195). In another passage he says, somewhat more expansively, that multiple rights express a plural ontology of difference, the difference between each right-bearer and every other, instead of a unitary ontology of human likeness. . . . On the ground floor of multiple rights is the ontological assertion that each human being is first and foremost an irreducible One, not interchangeable with any other. We come into the world not as sons and daughters of Adam and Eve, brothers and siste