Note: This post is the first in a multi-part series on how postliberal conservatives should think about rights. This post discusses how the idea of “rights” inhibits healthy politics and argues that we should adopt the language of goods instead.
Political discourse in the United States is permeated with “rights talk.” Everywhere one hears a person or group asserting a “right” to do something or to be given something, while other persons or groups believe they have a “right” to the opposite. While Americans disagree on the content of rights, all seem to agree that political claims consist in claims to have certain rights. Indeed, liberal political philosophy asserts that the political community exists solely to protect people’s individual rights. Yet the invocation of rights produces several problems that harm political discussion. The obsessive focus on rights, this post argues, should be abandoned in favor of a discourse, derived from natural law theory, focused more on goods—especially common goods—than on rights.
Natural Law and Basic Human Goods
Natural law theory is grounded on a conception of basic goods. They can be defined as “objectives that humans are characteristically inclined to pursue and value for their own sake” (Crowe 2019, 35). Law is “understood in terms of its role in enabling the members of the community to lead flourishing lives’ (Crowe 2019, 2). Basic goods promote human flourishing by “completing” or “perfecting” human beings—enabling them to reach the best possible state according to their nature. Most natural lawyers, like John Finnis, hold that it is always wrong to perform an act which does nothing but impede an instance of a basic good (Finnis 1980, 118-125). The basic goods are incommensurable, meaning they cannot be traded or weighed against each other. You cannot kill someone (which destroys the good of life) even if you think doing so will produce a larger number of other goods. Natural law theory is not utilitarian or “consequentialist.”
What are the basic goods? Finnis (1980, 81-90) lists life, knowledge, play, aesthetic experience, sociability/friendship, practical reasonableness (similar to prudence combined with self-control), and religion. Aquinas lists life, reproduction, education of the young, social life together, and knowledge (i.e. knowledge of God). Nested within “sociability” and “social life,” Aquinas (2002, 118) argues that one of the primary precepts of the natural law is “to avoid giving offense to those among whom one has to live,” which includes prohibitions on theft, adultery, etc. All of these goods are related to natural human inclinations and are perceived by reason to be good.
The Groundlessness of Rights Talk
There are several problems with rights talk. First, there are many rights, but they are disconnected from one another philosophically. No one grounds rights in anything or shows how they are all connected. They just exist. They appear as disjointed moral requirements unconnected to a systematic whole.
The lack of secure grounding for rights can be seen in the fact that philosophers support rights by appealing to intuitions. Moral argumentation proceeds by telling a contrived story that implicates popular moral rules and then discerning what the typical person would do in such a situation. A famous example is the “trolley car dilemma,” in which a person who sees a runaway train poised to run over several men on its current track is able to pull a lever which will divert the train onto another track where it will kill only one man. Is it more moral to passively allow three people to die or to actively cause one person’s death?
But ungrounded human intuitions are a poor foundation on which to base a moral philosophy. Such reasoning presupposes that human intuitions are capable of reliably providing access to objective moral truths that exist apart from subjective human desires. Philosophers ignore the fact that human inclinations may be conflicting, changing, or harmful. Some humans don’t have altruistic intuitions. Philosophers hope that continued dialogue will produce a “reflective equilibrium” in which human intuitions cohere with one another and provide stable guidance for moral decision-making. But no such equilibrium seems to be forthcoming. No wonder that Alasdair MacIntyre (1984) refers to contemporary moral discourse as “interminable,” meaning that it cannot reach a “terminus” or ending, because different positions ground themselves on mutually incompatible intuitions. Moreover, intuitions may be socially constructed or malleable over time or under pressure. It is odd that most scholars in the social sciences and humanities believe that human nature doesn’t exist, and that human behavior is radically subject to social constriction—yet still maintain that Darth Vader’s advice to “search your feelings” is a good way to discover transcendent moral principles.
Natural law theory, by contrast, provides a more objective grounding for rights by linking them to goods, inclinations, and duties. Rights exist within an intellectual architecture that traces back to the eternal law governing the universe. They exist to help humans perfect their natures. We have a “right” to own something, for instance, because the legal regime regarding property is deemed by the state to promote basic human goods.
It is true that natural law theory also must wrestle with the fact that people don’t always agree on morality. Human evil—which on the Christian view derives from a deep-seated “fallenness” within human nature—renders it difficult for many to see the principles of the natural law. As Aquinas argues, “the natural law can be blotted out from the human heart either by evil persuasions … or by vicious customs and corrupt habits” (2002, 126). But on this view human reason, at least in theory, serves as a standard by which to judge between human inclinations: nature and human nature. Human goods can be discerned by observing human nature and noticing similarities across cultures. We have a standpoint from which to evaluate specific human cultural practices.
Rights Talk is Contradictory
A second major problem with rights talk is that rights often conflict with one another. Behavior permitted by one right is forbidden by another right. I’ll give two examples.
The first is gun rights. Proponents of fairly broad gun rights often appeal to a right of self-defense, arguing that certain guns should be legal because they are the most effective means of self-defense for individuals. Proponents of restrictive gun rights invoke a “right to safety” or a “right to a save environment,” which, they claim, overrides the right to have an effective means of self-defense. (For this discussion, see DeGrazia and Hunt 2016). The problem is that most people believe in both rights; they just don’t know how to secure them both. There is no undisputed, neutral way to adjudicate this debate.
The second example is religious liberty versus non-discrimination. Many people are religiously scrupulous of providing cakes or flowers for gay weddings, placing adopted children with gay couples, etc. They assert that people have a right to associate (or refuse to associate) with whomever they want. Most gay and transgender people assert the opposite right: that people ought to be forced to associate with people from certain groups called “protected classes” (which includes LGBT people). They argue that organizations cannot discriminate against persons in “protected classes” when it comes to hiring, firing, serving, building access, etc. Obviously, these rights are simply incompatible. Gay and transgender people often deny that the right of free association exists, and religiously scrupulous people often deny that the right to non-discrimination exists.
When such conflicts arise, moreover, there is no “neutral” arbiter outside of rights to determine which view is correct. Philosophers are left to argue either (1) that one of the conflicting rights does not exist, or (2) that one right “overrides” another right. But in both cases, the reason why is murky. Given that philosophers ground rights in intuitions, it is unclear how to resolve conflicts between widely shared intuitions. In both of the above examples, both sides make analogies between their position and other widely shared intuitions. For instance, Hunt argues that if we can ban guns to law-abiding people because some people abuse guns, then we can ban cell phone use among law-abiding people because some people kill others while driving distracted. But nobody thinks banning cell phones would be just, so we shouldn’t ban guns either (DeGrazia and Hunt 2016, 79). DeGrazia, of course, has his own examples, and so the debate goes back and forth. Yet it seems circular to defends one set of intuitions by appealing to a different set of intuitions.
These examples could be multiplied a hundredfold. In every significant area of political debate, both sides appeal to rights. Arguably, the failure of rights talk to reach consensus undermines its utility in public discourse. Rights are supposed to be inviolable—that’s why people love to appeal to them. If rights regularly conflict such that some rights are regularly ignored or overridden, then the point of appealing to rights vanishes. When statesmen must make tradeoffs between rights or determine when and how rights may be overridden, the real discussion is taking place not about rights but about higher-order principles of justice or the good.
Rights Talk Distorts Public Reasoning
A third problem with rights talk is that it distorts political discussion. Rights are seen as overridingly important and asserting a right to something implies that it is imperative to satisfy the right. In addition to the problem of conflicting rights, the satisfaction of rights generally involves government action that intrudes on the promotion of public goods. Either the government itself must provide the right or it must compel private entities to supply the right. And it must do so immediately, or else “someone’s rights are being violated.” This way of thinking tends to make political tradeoffs and compromises impossible, and it generally introduces stridency and narrow-mindedness into political discussion.
Natural law thinking, by contrast, views all basic human goods as worthy and incommensurable (i.e. impossible to compare). Each individual and community cannot pursue all of the basic goods at once or to the utmost. A person who chooses to be a musician pursues the good of aesthetics but cannot pursue the good of saving life by being a doctor. This way of thinking accepts the reality of trade-offs and compromises even as it insists that the state may never hinder or destroy basic human goods. (Unlike in some versions of utilitarianism, natural law does not bid us to “maximize” the number of total goods, which might permit the state to act unjustly towards some people in order to produce more goods elsewhere.) Sometimes the best the state can do is to protect the preconditions that enable the growth of certain goods without directly producing the goods themselves. As I hope to argue in future posts, postliberal republicanism ought to embrace some sort of “subsidiarity” or “sphere sovereignty,” according to which sub-governmental associations—families, churches, schools, businesses, and so forth—are key elements in the production of human goods. Politics consists in the art of nourishing these sub-governmental associations so that they achieve as much perfection as possible. Right talk, by contrast, demands the fulfillment of a right by someone else and so tends to foster dependency on government.
Locke vs Aquinas on Property
How does the natural law republican approach differ from the right-based approach? The following example of Locke and Aquinas on property rights helps to illustrate the difference.
In the “Second Treatise of Government,” Locke grounds the right of property on the right of self-ownership. Consistent with liberalism’s focus on autonomy, Locke assumes that humans have complete freedom with regard to their own body, including our labor. When we labor, he argues, we “mix” our labor with the natural products of the earth, thereby making them almost part of ourselves. “That labour put a Distinction between them and common: That added something to them more than nature” (Second Treatise, §28). Those products become a composite thing that is partly natural and partly one’s own creation. Locke accepts that, in a pure state of nature, we ought not appropriate more than we can use, and we may only appropriate property if we leave “enough, and as good left in common for others” (Second Treatise, §27). Yet after the introduction of money, we are allowed to accumulate as much money as possible, since money does not spoil, it allows for greater production overall, and everyone consented to use it. Locke concludes that, since property precedes government, the purpose of government is to protect the lives and property of the people who consent to form it.
Yet the Lockean view of property makes good politics difficult. It leads to a constricted role for government and sharp limits on taxation and spending. The libertarian view that governments may only tax if doing so is necessary to protect property flows naturally from the Lockean view of property. But libertarianism arguably prevents the state from promoting other goods, such as the prevention of poverty, promotion of scientific research, and the promotion of virtue. Adopting a Lockean view of property produces endless debates about the precise extent of the right to property and about whether the promotion of other public goods “overrides” property rights.
It is better to frame the issue of property as a question of the best method for producing common human goods. In the Summa Theologica, Aquinas considers the question whether it is “lawful for anyone to possess something as his own” or whether all things should be “held in common” (Aquinas 2002, 207). He recognizes that according to nature nothing is owned by anyone in particular, and he acknowledges that someone taking property from the common pool leaves less available for others. Still, he states that it is “lawful for man to possess property” for three reasons: (1) people work more diligently to procure their own property than to procure “that which [is] to belong to all in common;” (2) there is more order and less confusion if everyone attends to his own things rather than everyone attending to everything; and (3) common property gives rise to quarrels and contentions (Aquinas 2002, 208). Nevertheless, Aquinas makes it clear that, because natural law dictates that property (or goods) are intended to fulfill human needs, people do not have an absolute right to dispose of their property as they see fit. People who have abundant possessions may be required to “share them with others in the event of need,” and a very needy person may even steal necessities if the wealthy refuse to voluntarily give them up (Aquinas 2002, 208, 216-217).
Aquinas’ reasoning is pragmatic and sensitive to the necessities of human nature, not abstract. His position leaves the state a great deal of latitude with regard to taxation, redistribution of wealth, and property rights. Statesmen ought to direct the procurement and use of goods with an eye to human flourishing for all citizens. Given the realities of huma nature, this view need not lead to socialism. In fact, I hope that postliberal conservatives adopt a generally favorable view of markets and wide protections for private property, since these have proven over time to prevent tyranny and to raise living standards for everyone. But because property is not seen as a sacred “right,” appropriating individual property to promote basic human goods is less contentious and involves fewer ideological acrobatics. The state need not contend with the hyper-individualistic view that the government’s only role is to protect the endless acquisition of material goods.
From Rights to Goods
I will conclude with a few summarizing comments. First, political dialogue should refer to goods more than to rights. “Rights” are not the primary objective of government and shouldn’t limit our pursuit of the common good. Government should protect rights when they are linked to genuine human goods, the promotion of which fosters the common good of all. So, for instance, education and health should be promoted by government because, as humans, we all individually and communally flourish when we gain knowledge and are healthy.
Second, adopting a “goods-based” approach rather than a “rights-based” approach promotes a politics or prudence and moderation. Postliberal conservatism should avoid both the extreme libertarianism of the Right (which totalizes the right to property) and the extreme libertinism of the Left (which totalizes individual “rights” in the sexual and bodily realm). The state is not forbidden from promoting the common good, but neither will it be called on to guarantee an endless and conflicting list of “rights.” Rather, statesmen must make prudent decisions about which basic human goods to pursue, and in which ways. Extreme actions that dramatically harm undisputed human goods, such as murder and rape, will of course continue to be illegal. But there will be much latitude regarding how and to what extent the state should promote reproduction, commerce, family values, knowledge, and other human goods. Each decision to pursue one of them will foreclose opportunities to pursue others. And, as I hope to make clear in future posts, most of the basic goods are generated by sub-governmental associations such as the family, the church, and the corporation, rendering governmental involvement unnecessary or counterproductive.
Finally, there nevertheless is a proper place for rights in postliberal republicanism. For one thing, some rights can be derived directly from moral values or duties. If it is wrong to take innocent human life, then everyone has a duty not to kill innocent people, and everyone also has a right not to be killed. Postliberal republicans may properly speak of the “right to life” or the “right to liberty.” Second, allowing for the instantiation of a good often requires carving out a right to perform a certain activity or to have something. The good of knowing God, for instance, is best achieved not by compulsion but by allowing people to create voluntary associations (churches, mosques, etc.). Some preliberal philosophers disagreed and rejected the right of free exercise of religion, but a strong case can be made that the good of religion itself is best secured by preventing compulsion in religious matters. It is entirely appropriate, then, to speak of legal rights derived from the legal system. For instance, the government may decree that, to secure the good of justice, citizens shall have the right to trial by jury. In this case, something that is not necessarily required by natural law (jury trials) is still a legal right of citizens. In the ideal case, such legal rights actually do serve to promote human goods and should be judged on that basis.
Postscript: This post has only skimmed the surface of this complicated topic, and I am not under the delusion that I have provided a comprehensive philosophical case against rights talk. In the future, I hope to flesh out these arguments by writing posts defending my claims in more depth or engaging with specific arguments on both sides of the issue.
Aquinas, Thomas. Political Writings. Trans. and ed. by R.W. Dyson. Cambridge: Cambridge University Press, 2002.
Crowe, Jonathan. Natural Law and the Nature of Law. Cambridge: Cambridge University Press, 2019.
DeGrazia, David, and Lester H. Hunt. Debating Gun Control: How Much Regulation Do We Need? Oxford: Oxford University Press, 2016.
Finnis, John. Natural Law and Natural Rights. Oxford: Oxford University Press, 1980.
Locke, John. Two Treatises of Government. Ed. by Peter Laslett. Cambridge: Cambridge University Press, 1988.
MacIntyre, Alasdair. After Virtue: A Study in Moral Theory. 2nd Edition. Notre Dame, IN: Notre Dame University Press, 1984.