Nigel Biggar’s answer to the title question of What’s Wrong with Rights? repeated numerous times throughout this book, is that “abstract” rights, especially when considered absolute, pose a moral hazard to society. Edmund Burke and Jeremy Bentham do the heavy lifting in making this case. Shocked by the excesses of the French Revolution, Burke declared that “the asserted absoluteness of natural rights is a recipe for the dissolution of society.” Abstract rights “obscure the importance of prudent implementation” and “challenge moral, legal, and constitutional traditions.” They “give the mantle of moral authority to a reckless, utopian political idealism, which licenses anarchy and thereby creates the conditions for tyranny.” According to Biggar, “The danger of natural rights-talk… is that it inclines us to overlook the contingencies, and to think of the relevant moral rightness as a fixed, stable, and even absolute property of the holder.” The principle of natural rights has stiffened into a dogma, he worries. But there is no unconditional right to liberty, according to moral philosopher David Ritchie, whom Biggar reanimated in this volume. Ritchie rejected the abstract nature of natural rights; he ridiculed American state constitutions for asserting “the right, not merely of pursuing happiness but of obtaining happiness.” They did no such thing, although the progressive tradition has, and Biggar points himself in this direction in his utilitarian and positivist approach that holds that the moral utility of rights depends on social utility. Rights presuppose political society and law; they depend on the existence of duty-holders who can deliver the goods they promise. The idea of natural rights being pre-political is a fantasy, like any “state of nature” itself.
Today any serious book searching for the meaning of rights, natural rights, and human rights is welcome, but Biggar seems preoccupied with a straw man—the claim that rights are absolute. The bigger problem today is something else, viz the erosion of the understanding that liberty and the freedom of moral choice are sacrosanct, based on our innate, common human nature. In international human rights and national jurisprudence, fundamental freedoms are being relentlessly subordinated to other goods; in societies where social and material progress has been based on individual freedom, speech is being limited in order to protect “feelings” in ways akin to Medieval Islamic teachings. Our choices are being “balanced” against an ever-broadening array of social goals that supposedly trump individual freedoms. Human rights curricula today hardly mention the notion of natural rights, and invocation of natural law and natural rights as foundations of human rights by the Trump administration’s Commission on Unalienable Rights set off a firestorm of misguided indignation. Under the influence of a desiccated methodological positivism, as well as transnational welfarism, human rights are considered no deeper than treaties that have come into force by the necessary number of state signatories, and the utopianism of soft law claiming all manner of social benefits are human rights. Today we need to dial up, not back, the view that basic rights like the freedom of religion, speech, and association are in principle unconditional.
The view that human rights are a competitor and a threat to morals is a common refrain among many who are concerned about moral relativism and the decay of traditions, and who proceed to blame rights advocates and libertarians for setting up a slippery slope toward a world without fixed points of reference. The critique often comes from within religious communities, in other words, from the putative custodians of sacred and moral principles themselves—like Professor of Moral and Pastoral Theology Biggar—who seem to blame moral profligacy on standards and compliance campaigns aimed at protecting liberty, indeed, on the struggle to keep their moral choices out of the reach of state control.
Biggar shares his conclusion that natural rights do not, in fact, exist, and the process by which he reached it. Yet he examined but one thread of the natural rights tradition, the controversy about private property under Pope John XXII around 1321, parsing the work of Brian Tierney (the “Franciscan Controversy”). He then concludes that “talk of a natural right to private property that implies an absolute imperviousness to any overriding moral claims should be rejected by anyone who believes (as I do) in an objective and natural morality.” Wait, isn’t this the very basis for natural rights?
In fact, the principle of natural rights has roots coming from different parts of the Western tradition that roughly converge to form a broad moral pillar. Human rights stand firmly on both the moral traditions of the Torah and Christianity, and on those of Greek and Roman classical philosophy, as well as the Enlightenment and British common law. Stoicism, where the principle of local laws being accountable to an overarching, universal moral standard based in nature was first articulated, does not rate even a mention in this volume. Nor is there reference to foundations of natural rights in Mosaic law. On the other hand, the book overflows with references to a selection of (mainly British) contemporary philosophers of law. The kangaroo-court wherein a narrow defense of natural rights is weighed against a selection of skeptics does not yield a convincing verdict.
Biggar’s skepticism of economic and social rights, informed by the trenchant analyses of Onora O’Neill, is fully rational and justified. Those rights do indeed originate in political discourse and depend on the political and economic capacity of governments for their realization. But natural rights—those that protect moral freedom—are different. They are negative liberties that depend not on positive state actions, but on restraint, something that is within the power of any government, if the requisite political will exists. Without making a distinction between natural and social rights, Biggar finds himself suggesting that citizens of a weak state, which cannot guarantee rights, have no rights because they do not exist there.
“There is natural right or law of morality based in nature. There are also positive legal rights that are, or would be, justified by natural morality. But there are no natural rights.” What then can be the basis for solidarity with and assistance to oppressed brothers and sisters? Biggar’s skepticism of international human rights, international courts, and human rights lawyers actually undermines human rights in a positive way, in showing how, in the process of rationalization, human rights have been hollowed out of their moral content. While his narrow and brittle analysis led to the denial of natural rights, Biggar’s Christian moral realism tells him moral rights exist. Indeed, while international human rights are increasingly compromised as ideas and principles, and their failure marked by the global retreat from liberty and democracy, a recognition of human or natural rights as moral rights, discernable by reason, could provide a needed prophetic simplification, and rejuvenation, of the core of liberalism.