James Schall, "Rights" and Liberties

Few recognize how dangerous the origin of this word is. Many fine scholars such as Jacques Maritain, John Finnis, and others have worked valiantly to save “rights” terminology from relativism, the context in which it is understood in modern political philosophy. They have not prevailed in baptizing it as was their intent, even though they provide plausible arguments about why it need not be a relativistic concept. These arguments are simply ignored or rejected by most rights advocates, though seldom confronted intellectually.


David Walsh has noted that the word “rights” still retains a vague relation to some stable grounding in being. Today, however, “rights” mean what Hobbes, its original formulator, claimed: namely, the word rights means whatever the de facto political authority says it means. A “right” is what the government defines and enforces as a right, nothing more, nothing less. The current president’s whole anti-life agenda, the most extreme ever designed in any responsible or irresponsible polity, is presented to us under the guise of “human rights.” It is breathtaking.


The idea that such “rights” have “natural law” behind them, a way of looking at them so that we can appeal to a common and agreed rational concept of human nature, is fine. But this understanding is neither what the word nor the actions of the government mean. We like to say that the “right to life is the fundamental right.” Nix that “right” and all else falls. This is true. All else is falling. The “right to life” now means politically what, and only what, the government and courts define it to mean, not some “inalienable” idea of human dignity from God or nature.


The Church has taken up the term “natural right” as if it meant something rooted in human nature. I can count almost on one hand the number of times that, aware of the problem, a pope or theologian will say, almost as an aside, that “natural right,” of course, does not mean what “natural right” does mean in the public order. They then use the very same term as if everyone agreed with a grounded view, rooted in natural law.


In practice, we seem to think that everyone agrees with this Catholic background of “natural rights.” We have a basis for common discourse. Yet we soon find that people polemically inquire: “If you claim a ‘right to life,’ why not grant a ‘right’ to abortion or any such thing?”

It seems that the word right is used to refer to both subjective passive rights and subjective active rights, it is being used equivocally, and not univocally. Given our disregard for natural law and its Author, naturally we would associate our conception of rights with some brand of legal positivitism, would we not? What possible limits could there be? Some may say that the liberal 'no harm' principle is sufficient. But how is harm to be defined? Just the production of physical evils? Or moral evils as well, and everything "in between"?