Michael J. Perry's The Idea of Human Rights: Four Inquiries is a major contribution to the clarification of the idea of human rights, which he considers to be, for many, the most difficult of all the influential moral ideas to take center stage in the twentieth century. He argues that it is, “in one form or another,” an “old idea” and opens his Introduction with a quotation from Leszek Kolakowski dismissing the assertion that “the idea of human rights is of recent origin.” For someone who is as ready to admit being a “secular enthusiast of human rights” as the author of this comment, Perry's denial of the fact that human rights constitute a recent phenomenon certainly “poses a problem.” The problem is really essential with regard to Perry's foundational conviction advanced in Chapter I, where he claims that the idea of human rights is ineliminably, inescapably, religious, and that so is the view that “every human being is sacred.”

The twelfth century canon lawyer Gratian once wrote “Feed the man dying of hunger, because if you have not fed him you have killed him.” If Gratian were alive today, he might take a look at the current state of global health and say, “Succor the woman dying of disease, because if you have not helped her you have killed her.” Both of these statements express an ethical obligation: if I have food, and someone else who is hungry does not, I am obligated to share my food. Likewise, if I have medicine, and someone else who is sick does not, I am obligated to share my medicine.

Unfortunately, with regard to medicines and other essential products, modern institutions of intellectual property often fail to enforce or even recognize such ethical obligations. In some ways, these institutions uphold an even harsher attitude toward intellectual property than other types of property. With food, even if the hungry person receives no bread, he is still permitted to produce his own. With medicines, medical technologies, and other types of goods that are protected by institutions of intellectual property, the law can and often does prevent the sick person from producing her own.

Michael Perry's The Idea of Human Rights raises important and difficult issues. One such issue, reformulated, is whether the latter half of the twentieth century has witnessed both the rise of human rights language in international law, and the erosion, if not the collapse, in the intellectual sphere of the theoretical underpinnings of human rights as traditionally understood. This is part of a broader tension, in which the advance of broadly liberal values has coexisted with increasing skepticism about the objectivity of ethics, freedom of the will and genuine moral responsibility, meaningfulness in a natural order, and the irreducibility of mind.

Judges are seldom content merely to annul the particular solution before them; they do not, indeed, they may not, say that taking all things into consideration, the legislators' solution is too strong for the judicial stomach. On the contrary they wrap up their veto in a protective veil of adjectives such as ‘arbitrary,’ ‘artificial,’ ‘normal,’ ‘reasonable,’ ‘inherent,’ ‘fundamental,’ or ‘essential,’ whose office usually, though quite innocently, is to disguise what they are doing and impute it to a derivation far more impressive than their personal preferences, which are all that in fact lie behind the decision.

There is a metaphorical reciprocity between theology and law. In brief, and in sum, let me begin in this way in grateful acknowledgment of Professor Ball's probing and provocative, fascinating, and instructive analysis, which sets out from the other pole of this reciprocity. At times, his search for an alternative to the dominant metaphor for law leaves the reader in some bewilderment and tempted to take cover in that salutary squib, offered from time to time by The New Yorker under the caption: “Block that metaphor!” As though anticipating that rude and facile exit from the search, Professor Ball is careful to provide an awesome and safer harbor in the paradigmatic law of the sea. This paradigm conceals both the alternative sought for and the unexpectedly promising expectation that—as things penultimate express and make room for things ultimate—the exciting prospect is that the lion and the calf do lie down together. “For the Lamb in the midst of the throne will be their shepherd, and he will guide them to springs of living water;… and there will be no more sea” (Isaiah 11:6-9; Revelation 7:17, 21:1). Even Woody Allen will be able to join the calf and the lion in the exchange of sleepless nights for waking and sleeping amidst the peace which passes all understanding (Philemon 4:7).

“It is my opinion,” testified the chairman of the Hopi Indian Tribal Council in the unsuccessful effort of the Hopi (and the Navajo) to stop further development of a ski resort on U.S. Forest Service land in the San Francisco Peaks in North Central Arizona,

With such high stakes involved it is little wonder that the Hopi Indian Tribe resorted to the courts. Yet, such a step is a high risk venture. The immediate costs in terms of time, money, and emotional involvement are likely to be high. Further, every such investment involves the possibility of loss of the case and with it the additional possibility that the decisive language of the court may find its way into opinions in similar cases. Most importantly, perhaps, an attempt to defend a tribal religion in court could involve subtle longer range costs. Paradoxically, an effort to defend tribal religion may also undermine it.

John Calvin's (1509-64) theology, as expounded in his definitive work, the Institutes of the Christian Religion, and in his topical theological treatises, biblical commentaries and sermons, may be accurately described as a lifelong meditation on the law of God. And, as was true for the Psalmist David (Psalm 119), his meditation is characterized by delight, praise, and thanksgiving for the law, in all its various forms and uses; as a blessing, a gift of a gracious God solicitous of the welfare of his chosen people.

In order to teach this positive view of the law properly and to evoke a similar response of appreciation for the law from Christians, Calvin attempts in his theology to present “the whole doctrine of the law” or “the whole office of the law.” He takes care, therefore, to avoid some of the more common partial theological interpretations of the law of his day. Specifically, in his theology he strives: not to place inordinate emphasis on the negative, punitive function of the law, as Luther was prone to do; not to ignore the punitive function of the moral law, as the “papists” were wont to do; not to reject the benefits of civil law, as the Anabaptists tended to do; and finally, not to reject the law altogether, as the Libertines did. In response he carefully constructs a balanced and nuanced view of the law that incorporates a variety of forms and a variety of uses (both negative and positive) of the law. The following presentation of his understanding of the law in relation to creation, sin, justification, and sanctification is an attempt to summarize that complex position.

The Holocaust remains imprinted on western consciousness as the epitome of a crime “which no human justice can eradicate.” Primo Levi, an Italian Jewish survivor of Auschwitz, knew this well. The tragedy of the Holocaust is that the cry “never again,” which came in its wake, has failed to control human evil. Stories of the former Yugoslavia, Rwanda, Burundi, apartheid South Africa and elsewhere remind us of the capacity of humankind to commit the kind of heinous crimes that no amount of human justice nor reparation can assuage. This tragic reality motivates Carlos Nino in Radical Evil on Trial to pose the all-important question: “How shall we live with evil? How shall we respond to massive human rights violations committed either by State actors or by others with the consent and tolerance of their governments?”

Milner Ball's essay, and all of his work, ring with hope; that is, both with his clear-sighted, scholar's interest in finding and telling the truth, and with the optimism that comes of his belief that chaos has been overcome. His thought is an inspiration; and his lyrical prose is, for all of its somber truth, a joy to read.

In the spirit he brings to his work, I suggest that the Hebraic religious tradition contains a richer theological basis for the claim that law is a medium (or, perhaps more modestly, a conversation) than he seems to allow for; and I suggest that there is perhaps more hope to be found in human relationships in a lawyer's professional life than there is in the institutional forms provided by the government—more in the law office than in the administrative apparatus that Professor Ball prefers to invoke for examples of medium.

With those suggestions out of the way, I want to argue that Professor Ball's characterization of property ownership as “the apparatus of bulwark law” is premature. I want to suggest that the bulwark-like difficulties in property law are less the essence of ownership than a perversion of ownership.

Thomas Shaffer once observed: “[I]t is better to bear the discomfort of trying to be a [believer] and a lawyer at the same time than it is to pretend that the symbols of faith have nothing to do with law offices, law schools, or courts.”

I am among the many who have been instructed and moved by Professor Shaffer's example and am, therefore, among those who know something of the contagious discomfort of being a believer and a lawyer at the same time. It is a condition out of keeping with the times. But those whose vocation is faithfulness at the same time that their profession is law or politics have no choice. “Divine discontent” it is sometimes called.

I make no claim for my remarks except that they arise out of this discomfort. Specifically, I am troubled by American law's systemic injustice—i.e., its capacity for victimization, its fallenness. My way of responding to the discomfort, of trying to do something about it, is the act of rethinking which Karl Barth described as “the ‘primary’ ethical action.” The “transformation of thought,” he said, “is the key to the problem of ethics, for it is the place where the turning about takes place by which men are directed to a new behavior.”

It is easy to be depressed about the state of law these days. As the voters have become increasingly fearful and hateful, legislators and judges have made our law less generous and honorable. The death penalty has been reintroduced and corners have been cut in procedural protections to speed it along. The honorable basis of the exclusionary rule—the unwillingness of judges to countenance wrong-doing—has been abandoned. Legal aid for the poor has been cut back. The steam has gone out of civil rights enforcement. There no longer seems to be a vision among lawyers that law can be a source of nourishment for society. The positivist vision of law—the will of the strong—dominates legal thinking. Even the liberals, “burnt-out” and cynical in the light of legal realism, do not think of law as special.