The Idea of Natural Rights

"It’s The Idea of Natural Rights (1997) by Brian Tierney. This is by a medieval historian, but one who is extremely well read in the contemporary philosophy of rights. That’s interesting because there’s often an assumption that you can write a history of a topic without taking a stand on what you’re talking about. You could do a history of Nazism, say, without necessarily adopting any kind of moral stance. That’s a very problematic approach, in my opinion. You couldn’t write a worthwhile history of science without recognising that one of the reasons scientific developments happened as they did is precisely that some scientific theories genuinely were better than others. People at the time recognised this, and that’s why some theories became defunct and some became prominent. The same goes, I think, for the history of ethical and political ideas. Tierney is sympathetic to the ethical idea of human rights, but his immediate topic is: When did the notion of natural rights emerge as a distinct notion in our thinking? There’s a huge controversy about that. Many people believe the language of natural rights was born in early modern Europe, with the emergence of individualism within nascent capitalist society and the self-regarding—maybe even selfish—nature of that individual, and that the idea of natural rights is in deep tension with the Aristotelian tradition that focuses on virtue and the common good. What’s revelatory about Tierney’s book is that he says natural rights thinking emerged much earlier, in the 12th century, in writings of canon lawyers who were trying to reconcile the body of Roman law with the body of canon law. In their commentaries, he detects a momentous semantic shift. They were talking about ‘right’ (or, in Latin, ‘ius’), in the sense of what is right as opposed to wrong and then, at a certain point there’s this modulation. They start writing not just about the right thing to do, but about rights possessed by people: subjective rights in the sense that some subject has the right—rights as powers or capacities of that individual— independently of positive law. “There may or may not be the one correct way of justifying human rights, according to the correct moral theory, but we don’t need to be in possession of that theory in order to proceed responsibly.” Tierney’s history of natural rights is important in a number of ways. If, like me, you believe that human rights are objective moral norms, then it’s highly unlikely that we had no inkling of them until modernity or, as some claim, as recently as the 1970s. One of the things that Tierney’s book does is make you see that our present-day preoccupations with rights were foreshadowed in a very different era and cultural setting. Secondly, many people argue we have to disassociate human rights from natural rights: they think of natural rights as heavy-duty metaphysical, maybe even inherently religious, in character. The human rights we affirm now, however, can’t be anything like this: they can’t play their role in a pluralistic society if we see them as metaphysically freighted in this way. One of the great features of Tierney’s book is that he makes it very clear that natural rights thinking did not originate from metaphysics. In particular, it did not originate, as people like Richard Rorty have claimed, from some outmoded Aristotelian essentialist conception of human nature that is historically invariant and from which human rights can be derived. Tierney says that in the writings of these canon lawyers, natural rights emerge from certain qualities that human beings characteristically possess: in particular their rationality and their need for integration into a society if they are to flourish. You can believe in these qualities without believing in any notion of metaphysical essence, in exactly the same way that John Locke—who was sceptical about essences—nonetheless believed in these qualities and thought that they generated certain rights independently of legal enactment. So, the idea that there is a great difference between us wanting to be metaphysically lightweight and the metaphysically heavyweight natural rights tradition is an over-simplification. A third thing that’s important in this book is that Tierney stresses that for the authors he talks about, natural rights were just one element of morality amongst others. Natural rights did not exhaust the whole set of moral considerations. There are also other considerations, such as duties without counterpart rights, for example, duties of charity, and considerations of the common good. These ideas had to be integrated together into an overarching vision. There’s no thought here that rights are somehow intrinsically antagonistic to the common good, or that if you are someone who affirms rights then you are against notions of charity or benevolence towards other people. Rights are simply one strand in our ethical scheme amongst others. That’s a lesson that we really need to learn today, because in the contemporary era there’s a tendency for human rights to aspire to ideological hegemony. We try to formulate all of our moral arguments in their terms. I’ve even heard arguments that saving the whale is all about securing human rights. That has to be wrong. What Tierney teaches us is that when natural rights emerge in Western consciousness, they emerge as one important consideration amongst others, but they don’t monopolise the field of moral concern. If, in the process of seeking to elevate their importance, we fail to grasp this we will end up losing our grip on the distinctive significance of human rights. That’s right. Typically the kinds of rights that are talked about are ‘claim-rights’, which means that my possession of this right entails that others come under various obligations, for instance to allow me to make and pursue certain choices without interference or to provide me with certain goods and services. This book is deeply inspirational to me. Even though I’m not a historian, I get a lot of inspiration and support for the work I’m doing when seeing it as part of this broader tradition. I came into philosophy as someone who was attracted to Aristotelian ethics, and when I was an undergraduate one of the leading writers deploying an Aristotelian approach was Alasdair MacIntyre. MacIntyre notoriously claimed in After Virtue that human rights are like witches and unicorns: no good argument has ever been given for their existence. The thought seemed to be that if you signed up to some Aristotelian approach to ethics involving a conception of human flourishing and the virtues you had to be hostile to human rights. Human rights were, on this view, part of a misguided Enlightenment project that sought to vindicate moral standards without relying on a rich and objective account of human flourishing, of what makes a human life go well. Tierney, historically, gives the lie to that notion. He shows that, in fact, there is a natural rights tradition that is following in Aristotle ’s footsteps. You don’t have to be a Kantian, or to reject the idea that ethics is rooted in the promotion of human good, in order to subscribe to human rights. It is encouraging that MacIntyre, in recent years, appears to have abandoned his former hostility."