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Published online by Cambridge University Press: 25 November 2015
In this essay I offer a nuanced account of my critique of “rights” language. I argue that my primary concern is not to discount the usefulness of rights language in contemporary expressions of legal and moral duties. Rather my concern is with the overreliance on rights language such that it guards a society from acknowledging prior claims to a common good. Rights language has become too powerful when appeals to rights threatens to replace first-order moral descriptions in a manner that makes us less able to make the moral discriminations that we depend upon to be morally wise. Finally, I turn to Simone Weil and Rowan Williams, who both turn to the body to suggest a more constructive way for thinking about rights as attending to the body, which forces us to attend to contingency. Human contingency can help us resist abstractions that fail to properly account for and address bodily needs.
1 Steven Pinker has called into question the appeal to dignity itself in his article, “The Stupidity of Dignity,” The New Republic, May 28, 2008, www.newrepublic.com/article/the-stupidity-dignity. For a well-argued defense of the appeal to dignity see Gilbert Meilaender, Neither Beast nor God: The Dignity of the Human Person (New York: New Atlantis Books, 2009). I am indebted to Brian Volck and Joel Shuman for reminding me of the controversy Pinker's article occasioned. I have benefited from their yet unpublished paper, “Dignity and the Body: Reclaiming What Autonomy Ignores.”
2 David Gushee, The Sacredness of Human Life: Why an Ancient Biblical Vision Is Key to the World's Future (Grand Rapids: Wm. B. Eerdmans, 2013), 19–20.
3 John Milbank, “Dignity Rather than Right” (working paper, Centre of Law and Philosophy, University of Nottingham, 2013), http://theologyphilosophycentre.co.uk/online-papers/.
4 Esther Reed, The Ethics of Human Rights: Contested Doctrinal and Moral Issues (Waco, TX: Baylor University Press, 2007), 29, quoting Hauerwas, Suffering Presence: Theological Reflections on Medicine, the Mentally Handicapped, and the Church (Notre Dame, IN: University of Notre Dame Press, 1986), 130.
5 Hauerwas, Suffering Presence, 130. Of course one of the crucial questions is whether a family can have rights. I have always thought John Rawls's understanding of the family has not received the attention it deserves because Rawls with his usual clarity and honesty saw quite clearly that the family “may be a barrier to equal chances between individuals” in a well-ordered society shaped by the two principles of justice. Rawls, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971), 301. That such is the case does not mean that right-making claims are antithetical to a commitment to the family, but neither can it be denied that there may be a tension between claims to have rights and how the moral status of the family is understood.
6 Reed, The Ethics of Human Rights, 23.
7 Ibid., 22.
8 This lecture, which was titled “Pentecost: Learning the Languages of Peace,” can be found in my book, War and the American Difference: Theological Reflections on Violence and National Identity (Grand Rapids, MI: Baker Books, 2011), 117–34. The observation about rights is on page 122. I am, of course, aware that Nicholas Wolterstorff has argued that rights cannot be grounded in duties. I will not, however, address his argument directly because I am not sure why rights need a “grounding” in the first place. It is not clear to me also if what I mean by a duty is what Wolterstorff means by obligation. See Wolterstorff, Justice: Rights and Wrongs (Princeton, NJ: Princeton University Press, 2008), 264–84.
9 I must acknowledge, however, that given Wolterstorff's distinction between right-order accounts of rights and inherent rights I remain firmly in the former category. To explore that distinction as well as to defend a right-order position would make it impossible for me to ever get around to my worries about rights. See Wolterstorff, Justice: Rights and Wrongs, 21–43. For an extremely informative, at least informative for me, account of my interactions with the law see Inazu, John, special editor, “Theological Argument in Law: Engaging with Stanley Hauerwas,” Law and Contemporary Problems 75, no. 4 (2012)Google Scholar. I am indebted to the authors of the essays that make up this issue, and, in particular, I owe John Inazu much for planning the conference in which the papers were delivered. All the essays are interesting, but I think many would find the essays by Inazu and Stephen Carter relevant to the central issues at the heart of The Work of Theology. I responded to the essays in Law and Contemporary Problems in an essay titled “Hauerwas on ‘Hauerwas and the Law’: Trying to Have Something to Say,” 233–51.
10 For a good overview of these debates see David Gushee, The Sacredness of Human Life, 214–59. Milbank, John provides a spirited response to Wolterstorff's genealogy of rights in his “Against Human Rights: Liberty in the Western Tradition,” Oxford Journal of Law and Religion 1, no. 1 (2012): 203–34CrossRefGoogle Scholar .
11 Milbank, “Against Human Rights,” 29.
12 Rawls, A Theory of Justice, 512.
13 Wolterstorff, Justice: Rights and Wrongs, 352–60.
14 Ibid., 306.
15 Gushee, The Sacredness of Human Life, 376.
16 Simone Weil, Selected Essays: 1934–1943, trans. Richard Rees (London: Oxford University Press, 1962), 9–34.
17 Ibid., 9.
18 Ibid., at 21. I am indebted to Rai Gaita for calling my attention to this passage in Weil.
19 Ibid., 22. If Weil seems to be operating in a Wittgensteinian key on these matters, that may well be the case, at least if Peter Winch is right. See his introduction to Simone Weil, Lectures on Philosophy (Cambridge: Cambridge University Press, 1978), 1–23. Winch makes some fascinating comparisons of Weil and Wittgenstein.
20 Weil, Selected Essays, 23–24.
21 Ibid., 19–20.
22 Ibid., 10.
23 Ibid., 34.
24 Simone Weil, The Need For Roots, trans. Arthur Wills (New York: Harper and Row, 1952), 3.
25 Ibid.
26 Ibid., 4.
27 Ibid., 4–5.
28 Ibid., 13.
29 Rowan Williams, Faith in the Public Square (London: Bloomsbury, 2012), 152.
30 For a declaration about the nonexistence of rights, see Alasdair MacIntyre, After Virtue (Notre Dame, IN: University of Notre Dame Press, 2007), 69. MacIntyre argues that rights and utility, which are thought to be the moral alternatives to an ethic of the virtues, are fictions that hide from agents that we lack an account of the rationality of our morality.
31 Williams, Faith in the Public Square, 152. In “Against Human Rights” John Milbank criticizes Williams for grounding rights on the idea we are our speaking bodies because to do so reproduces the liberal subject that assumes we own our body rather than receive our bodies as gifts. I do not think Williams makes that mistake, for no other reason than I do not think Williams is trying to “ground” the doctrine of rights at all.
32 Williams, Faith in the Public Square, 152–53.
33 Herbert McCabe, Law, Love, and Language (London: Continuum, 2003), 90–91.
34 Williams, Faith in the Public Square, 153.
35 Ibid., 154.
36 Ibid., 156.
37 Ibid., 158.
38 Ibid., 165.
39 McGowan, Pragmatist Politics: Making the Case for Liberal Democracy (Minneapolis: University of Minnesota Press, 2012), 119–47.
40 Ibid., 120, quoting, John Dewey, Human Nature and Conduct (New York: The Modern Library, 1950), 326.
41 McGowan, Pragmatist Politics, 124–25.
42 Ibid., 127.
