Rights

Robert Nozick begins his clever and implausible study Anarchy, State and Utopia with a confident pronouncement: ‘Individuals have rights, and there are things no person or group may do to them (without violating their rights).’ Among Americans it is a claim which only a committed utilitarian is likely to wish to dispute. Americans suppose themselves to have many individual rights and, after their respective ideological fashions, take rights extremely seriously. At the level of pure hypocrisy their allegiance is far from distinctive in the modern world. Every member state of the United Nations, for example, is a signatory to a Declaration of Human Rights. But in many countries today (Kampuchea, Burundi, Paraguay, Haiti, Ethiopia) it is hard to imagine either government or people expressing themselves spontaneously quite in Nozick’s terms. The question therefore arises whether Nozick is indeed correct or whether he is simply American. If individuals just do have rights, what gives them these entitlements, or, if this is thought a tendentious way of putting the matter, what makes the claim that they possess them true? In the Declaration of Independence, the most famous and eloquent expression of the American theory of rights, what endows human individuals with such rights is, intractably enough, their Creator. All human beings are created equal and it is because they are created equal that it is correct for them to regard themselves and each other as endowed with certain inalienable rights. Not merely is this true: it is self-evidently true (and you cannot readily get truer than that). Nozick himself keeps his cards close to his chest on the matter of what (if anything) does make his initial claim true. But it is a safe inference that his views on the question diverge from those of Thomas Jefferson.

What, if anything, does make the claim simply true must be the rationally-interpreted place of human beings within the order (or disorder) of nature. If all human beings do simply have rights, that is to say, these rights must be natural rights. The simplest alternative which takes seriously the idea that human beings possess any rights at all assigns these essentially to the idiosyncrasies of historical expectation. Rights derive, not from the objective properties of nature, but from socially-invented conceptions of appropriate conduct. On this view rights are not natural but cultural. At first glance, this seems an admirably sharp dichotomy. But on closer reflection it tends (fortunately or unfortunately) to blur. The range of cultural invention is restricted, on any view, by the objective properties of nature; and, more guardedly, its acceptable range is likely to be further restricted by canons of logic and perhaps even of evidence. Even if the truth about what makes right and wrong for human beings right and wrong is simply that that is how human beings have invented them, human individuals severally (and perhaps even human societies severally) cannot reasonably be accorded the entitlement to invent and reinvent them with utter whimsicality. At the very least, some principles of consistency will be a feature of any cognitively-defensible ethics, just as they will of any pragmatically-coherent mathematics. By the same token even if conceptions of what is self-evident in the realm of human value are not today likely to be reversed by the passage of the Pyrenees, we certainly know enough about human historical and cultural diversity to be sure that what is universally evaluatively self-evident to human beings is unlikely to offer even theoretical protection to many human interests which are under direct practical threat.

This blurring of the theoretical dichotomy is thus a consequence of the fact that the rational way for human beings to regard the order of nature is one which must allow for its compatibility with all human cultural differentiation in past or future, and that the rational way for them to regard each other is one which cannot lead to the endorsing of every fugitive human whim. Rights theory is a point of impact between the unreflective parochialism of our moral intuitions and the epistemic insecurity of our present conceptions of the foundations of human value. A cogent theory of rights is one which can somehow draw the two together without evident (let alone self-evident) absurdity. The American confidence in their possession of a plethora of individual rights – where it does not merely indicate an individual’s accurate knowledge of the implications of the role of law in the United States for his practical social situation, or a condition of sheer ideological befuddlement – largely reflects the historically-intelligible prominence of the category of right within the practical politics produced by the peculiarities of the American Constitution. (In social fact, Americans, even pretty oppressed Americans, do have many more rights than do, for example, citizens of the Soviet Union or the French Fifth Republic, let alone the unfortunate citizens or Uganda. On the whole, they also have many more than we do.) But one other American intuition, the entitlement to a virtually indefinite extension of individual ownership, a theme at the centre of Nozick’s book, now appears, from ideologically more contested cultures elsewhere, to be very parochial indeed. The chances of a theorist being judged from outside America as linking such entitlements securely to a convincing universal conception of the foundations of human value seem more than slim. In British society at least, even ideologues of the right like Sir Keith Joseph, who argue vehemently for unfettered capitalist enterprise, give predominantly utilitarian (and almost wholly consequentialist) grounds for doing so. It takes an American today to think of unlimited appropriation as a human right.

The works considered here help to put these bemusements into a clearer perspective. All of them are very impressive: scholarly, acute and genuinely original. The most striking and in some ways the most ambitious of the three is Richard Tuck’s. But it is also the shortest and, because of a certain shift of focus and an almost wilfully enigmatic ending, in some ways the least satisfying. Tuck begins from the wish to resolve a number of problems over the concept of rights which have arisen within modern political philosophy, and proceeds on the conviction that these problems can be resolved by essentially historical investigation. The most important is simply whether there is a distinctive explanatory role for the concept of right within moral theory, or whether all right-claims can without loss be reformulated in the idiom of duties. On one view, where the explanatory role of the concept lies in specifying the schedule of human entitlements in one particular way rather than another, it is only in the case of active rights – rights to do – that such a role seems at all plausible. In the case of passive rights (rights to be done by), the correlativity of rights and duties is hard to avoid. On another possible view, however, where the explanatory role of the concept is seen more as one of vindicating the status of human duties as being genuinely duties, the concept of passive rights is not necessarily any more residual than that of active rights.

By the end of Tuck’s book it is not altogether clear either how far he judges these problems to have been resolved, or what he judges to be their correct resolution. But a great deal else is clear. The story which he tells extends from the Roman law texts in which the vocabulary of European rights theory begins to take shape up to the close of its ‘heroic period’ at the end of the 17th century. Tuck tells it at times with Borges-like economy, and he makes it extraordinarily rich and fascinating, highlighting the connection between the history of rights as personal possessions and the European appropriation of the globe, and boldly altering the perspectives in which some of the great political thinkers are commonly seen. His two main heroes are Hugo Grotius and John Selden. In historical range and intellectual suppleness, this is an enormously gifted book. But it is also in the last instance curiously ungenerous to the reader – offhand and introverted, as though by its close the author had simply lost interest in conveying the implications of his findings to others.

There could scarcely be more of a contrast than John Finnis’s Natural Law and Natural Rights, a volume in the distinguished Clarendon Law Series. An intriguing blend of Neo-Thomism and Oxford analytical jurisprudence, with handsome though far from uncritical acknowledgments to Aristotle and Aquinas, alongside Herbert Hart and Joseph Raz, it combines great historical and analytical sophistication and care with an engaging innocence of viewpoint. What it seeks to show is how to understand the place of law in human life. The viewpoint from which such understanding is possible, Finnis argues, following Aristotle, is that of human practical reasonableness, a perspective which is both normative and alert to causal possibility. It simply is the case that some things are human goods and other things are not. With the basic forms of human good, it is self-evidently the case that these are good for men. Such whole-hearted but subtly articulated ethical naturalism is not often encountered in Britain today in polite philosophical conversation and certainly has no need to apologise for making its appearance there. Finnis himself is deeply aware how far in time and against what powerful intellectual forces he is attempting to set back the clock. But there is nothing shallow or silly about his reasons for making the attempt. On the particular theme of rights he is more modernist than might perhaps be anticipated, acknowledging the value of modern rights theory as an instrument for articulating the conditions of human flourishing and firmly endorsing its egalitarian stress on the value of each human life. But he sees it essentially as an idiom for assessing the requirements of justice from the viewpoint of a prospective beneficiary, for ‘talking about “what is just” from a special angle’. Its explanatory role is thus fairly muted in comparison with that which Hobbes or Grotius (or Robert Nozick) would wish to assign to it.

Unsurprisingly, his account of the status of private ownership is very far from being founded on a presumed individual liberty to appropriate, and it is unclear whether Nozick, for example, would regard it as robust enough to be a right at all. What may, however, surprise some people (and what certainly should surprise anyone who has supposed C. B. Macpherson’s analysis of Locke to be correct) is the close resemblance between Finnis’s analysis of property right and that which James Tully presents as being Locke’s. This is of some importance, since Nozick models his account of property right so closely on what he incorrectly supposes to be that of Locke. Tully’s book is far less ambitious in scope than either Finnis’s or Tuck’s, though it does show a comparable level of knowledge and understanding of the history of rights theory (the Spanish Jesuit Francisco Suarez is a key figure in all three books). But by being concentrated on a much narrower issue – exactly how Locke understood the nature and scope of individual entitlement to use the material goods of this world – it achieves a very high level of definition in its depiction of how a natural rights theory in the hands of a very great philosopher actually worked. As such, it offers an indispensable complement to Tuck’s story by indicating, more valuably, how it is that in a thinker of real power a theory of rights will necessarily be embedded within a comprehensive ethics and epistemology. More concretely, Tully shows what is still commonly asserted about Locke’s understanding of property rights – that the purpose of government is to protect property and that human beings, with a few trivial provisos, are entitled to take personal possession of the world without limit and exclude each other from what they have appropriated – to be simply a myth.

Simply as a treatment of Locke’s views on property (a fairly central topic in the history of political ideas), Tully’s book is a huge advance on any previous account. But it does in addition underline one important question about rights theories in general. Tuck tells us admirably how natural rights theories arose in European intellectual history. But he does not quite succeed in clarifying why it is that they did arise in this setting. Partly, this is because he does not at any point consider this setting from the outside. On a more external view – and presuming Tuck’s story to be broadly correct – it is tempting to assign a crucial role in the history of rights theories to the intellectual history of the Christian religion and its rejection. If it is correct to interpret the genesis and morphology of rights theories in terms of this distinctive cultural ecology, this is likely to bear sharply on the issue of whether rights are best seen as intrinsically natural or as intrinsically cultural. In Tuck’s account the Christian creator plays a surprisingly marginal role. In Finnis, He lurks in the chaste segregation of the concluding chapter, though to a post-Nietzschean sensibility His presence exerts a discreet pressure throughout. Only in Tully does He dominate the entire book. Taking the three books together, it does seem likely that this centrality is both historically accurate and theoretically important. In particular, it emphasises the importance for us of attempting to distinguish what simply is given by nature from what we in our culture are apt to interpret nature as giving.

What a richer and more profoundly analysed history of ideas could offer us is not unique solutions to disputed issues at the centre of ethical theory, but a more accurate and perspicuous sense of why we think what we do and a better judgment of what sorts of good reasons we ever had (and what sorts of good reasons we might still retain) for doing so. History cannot solve fundamental problems in ethics (the problem, for example, of whether or not Nozick’s claim is valid). It cannot do so, not because philosophy is a deep form of knowledge and history a shallow one but because the past tense cannot stand in for the present tense. In the end we have to judge as soberly as we can for ourselves.