1. Beginning with the obvious[1]
Some things are difficult to understand because they are very abstract, separated from the concrete and sensible realities surrounding us—this is a difficulty that we experience, for example, in the consideration of the most universal predicates. Other things are difficult to understand because they are so exalted, existing on a higher level of perfection than us—this is the difficulty we find, for example in understanding the hierarchy of the angels. Yet other matters are difficult to understand because they are so complicated, involving so many parts and elements and influences that it is difficult to keep them all in our minds at once—for example, the politics of Bosnia and Herzegovina.
But there are some things which we find difficult to understand, because they are more concrete, lowlier, and simpler than we expect. Our minds fly at once to vague abstractions and lofty ideals, and we suspect complexity and complication when, in fact, the truth is concrete, close at hand, and simple. This, I think, is the difficulty in understanding rights. Many of the difficulties that people get into in thinking about rights stem from a lack of the patience necessary to begin with the first and most basic notion of rights, which is also the most concrete. Only by patiently considering the most basic and concrete rights, the rights that lie, so to speak, at our feet, can we see the order in which the notion can then be extended analogously. The most basic notion of a right is, I will argue, the “object of justice,” or “the just thing.”
I will presently explain what that means. Before doing so, however, I will consider the role that rights have played in the debate on liberalism in recent decades. That debate shows the importance of a proper understanding of rights, and also some of the difficulties involved in understanding them.
2. Strauss and MacIntyre on Rights and Liberalism
The political system that has been dominant in many parts of the world since the 19th century is liberalism. Liberalism traces its philosophical influences back to the Enlightenment thinkers of the 17th century—especially in England and Scotland. But in the decades following the French Revolution it was “moderate” supporters of the ideals of the Revolution in continental Europe, who popularized the term and formed liberalism as a powerful political movement.[2]
Now, from the first liberalism has had many critics from many different traditions—Neoscholasticism, Marxism, Romanticism, reactionary monarchism, natural law jurisprudence, and others. I want to turn particularly to the critique made from within the Socratic tradition of political philosophy—the philosophy of Plato and Aristotle, and their many followers.
In the past 70 years or so, two of the most trenchant critics of liberalism from within the Socratic tradition have been Leo Strauss (1899-1973), a German-Jewish philosopher who emigrated to the United States, and Alasdair MacIntyre, born in 1929, a Scottish philosopher, who also emigrated to the United States, and is now a Catholic.
Both of these thinkers criticize the role that “rights” play in liberal theory and practice. In his 1953 masterpiece, Natural Right and History, Strauss argued that liberalism can be defined by the role that it gives to rights:
If we may call liberalism that political doctrine which regards as the fundamental political fact the rights as distinguished from the duties, of man and which identifies the function of the state with the protection or the safeguarding of those rights, we must say that the founder of liberalism was Hobbes.[3]
Strauss contrasts this centrality of rights in the tradition of politics inaugurated by Hobbes, with what he sees as the marginality of rights in the Socratic tradition:
The premodern natural law doctrines taught the duties of man; if they paid any attention at all to his rights, they conceived of them as essentially derivative from his duties. As has frequently been observed, in the course of the seventeenth and eighteenth centuries a much greater emphasis was put on rights than ever had been done before. One may speak of a shift of emphasis from natural duties to natural rights. […] The fundamental change from an orientation by natural duties to an orientation by natural rights finds its clearest and most telling expression in, the teaching of Hobbes, who squarely made an unconditional natural right the basis of all natural duties, the duties being therefore only conditional. […] The profound change under consideration can be traced directly to Hobbes’s concern with a human guaranty for the actualization of the right social order or to his “realistic” intention. The actualization of a social order that is defined in terms of man’s duties is necessarily uncertain and even improbable; such an order may well appear to be Utopian. Quite different is the case of a social order that is defined in terms of the rights of man. For the rights in question express, and are meant to express, something that everyone actually desires anyway; they hallow everyone’s self-interest as everyone sees it or can easily be brought to see it. Men can more safely be depended upon to fight for their rights than to fulfil their duties. In the words of Burke: ‘The little catechism of the rights of men is soon learned; and the inferences are in the passions.’[4]
Strauss goes on to argue that the consequence of this shift is modern individualism. The ancients (meaning Plato, Aristotle, and Cicero, not, say, Lucretius) had been convinced that man can reach his telos only as part of a city, and that the common good of the city is therefore teleologically prior to the private good of the individual. Man’s duties towards the city and his fellow citizens are, as a consequence, prior to any claim of rights against them. But for liberalism, the individual is prior to the community, the community is established for the sake of defending the individual’s rights, any rights of the state or the sovereign are derivative from the rights of the individual, as are any duties the individual may have towards state or sovereign. This individualism of liberalism remains even when its notion of rights goes through great changes. Hobbes and Locke derived rights from nature, modern liberals, however,
became impatient of the absolute limits to diversity or individuality that are imposed even by the most liberal version of natural right, they had to make a choice between natural right and the uninhibited cultivation of individuality. They chose the latter.[5]
This choice of individuality is often taken in the name of “tolerance” which is a quality on which liberals pride themselves. But the result is (paradoxically) intolerance:
Liberal relativism has its roots in the natural right tradition of tolerance or in the notion that everyone has a natural right to the pursuit of happiness as he understands happiness; but in itself it is a seminary of intolerance.[6]
A reason for this paradox (If I may slightly modify Strauss’s argument) is that radical individualism sees itself threatened by ways of thinking or living that assume that there is some more objective measure for human life than individual choice. Thus, the securing of the right of each one to choose his own final end necessitates vigorous attacks on anyone who calls such a right into question. We can see this very clearly today, for example, in the LGBTQ+ movement, which attacks and denounces anyone who refuses to agree that homosexual perversion is good for homosexuals, or that a transvestite is a woman.
Alasdair Macintyre, the second of the critics of liberalism that I want to bring up, is often thought of as being very far from Strauss. This is because MacIntyre is (in some sense) a man of the left, whereas Strauss was seen as being on the right wing of the political spectrum. Moreover, Strauss was (at least exoterically) a strong critic of historicism, whereas MacIntyre appears to be an historicist. But the difference is much less than appears.[7] As far as their critique of liberalism, and the role that rights play in that critique, go, Strauss and MacIntyre are very close.
In his 1981 book After Virtue, Macintyre argues that modern moral and political philosophy is an incoherent collection of concepts divorced from their original context in societies which saw their goal in leading human beings as they are in their “untutored state” (slaves of their passions), to a perfected state in which they reach the telos of their essential nature through the virtues that perfect that nature.[8] In such older societies,
the individual is identified and constituted in and through certain of his or her roles, those roles which bind the individual to the communities in and through which alone specifically human goods are to be attained; I confront the world as a member of this family, this household, this clan, this tribe, this city, this nation, this kingdom.[9]
In such non-individualistic societies, justice is a matter of what is owed to others on account of my and their role in society. Rights are not important, although MacIntyre recognizes that they exist “conferred by positive law or custom on specified classes of person.”[10] But in modern society, rights take on a new importance, and a new concept of universal rights is developed “alleged to belong to human beings as such” and as providing reasons for “their pursuit of life, liberty and happiness.”[11] These kinds of rights MacIntyre takes to be a moral fiction invented to try to make sense of a morally incoherent society:
It would of course be a little odd that there should be such rights at- taching to human beings simply qua human beings in light of the fact […] that there is no expression in any ancient or medieval language correctly translated by our expression ‘a right’ until near the close of the middle ages: the concept lacks any means of expression in Hebrew, Greek, Latin or Arabic, classical or medieval, before about 1400, let alone in Old English, or in Japanese even as late as the mid-nineteenth century. From this it does not of course follow that there are no natural or human rights; it only follows that no one could have known that there were. And this at least raises certain questions. But we do not need to be distracted into answering them, for the truth is plain: there are no such rights, and belief in them is one with belief in witches and in unicorns. The best reason for asserting so bluntly that there are no such rights is indeed of precisely the same type as the best reason which we possess for asserting that there are no witches and the best reason which we possess for asserting that there are no unicorns: every attempt to give good reasons for believing that there are such rights has failed.[12]
Macintyre is thus even more critical of the liberal idea of rights than Strauss.
3. Tierney and Legge: Questioning MacIntyre and Strauss
The critic of liberal conceptions of rights that we find in Strauss and MacIntyre has been questioned by a number of writers who have pointed to the role that the notion of rights did in fact play in medieval thought. The historian Brian Tierney sought to show that the idea of rights in fact had deep roots in medieval jurisprudence and theology. Far from being contrary to older understandings of human morality, Tierney argues, correlative to natural law. The Latin word jus, according to Tierney, could mean an objective moral order, or a moral precept, or finally it could also mean a moral faculty or power, a “right” in the modern sense—and these three meanings are not only compatible, they are the same thing viewed from different perspectives:
The various senses of ius […] are not contradictory concepts. Rather they are correlative. In considering Aquinas and the canonists we suggested that the concepts of ius as objective right order and as moral or legal precept are not intrinsically incompatible with one another. Now we can add that both concepts are compatible with the idea of individual rights. (We can define the relationship of parents and children in terms of an objectively right order. Or we can define it in terms of moral precept—“Honor thy father and thy mother.” But we could also define the same relationship by saying that parents have a right to the respect of their children.) As for individual rights and ius naturale considered as meaning what is objectively right: to affirm a right ordering of human relationships is to imply a structure of rights and duties. In propounding a system of jurisprudence one can emphasize either the objective pattern of relationships or the implied rights and duties of persons to one another—and then again one can focus on either the rights or the duties. The emphasis can fall in different ways depending on social and economic and political circumstances and on the temperament of a particular author. (It will probably have little to do with his abstract metaphysics.) The resulting works may be very different in tone and spirit, but the different emphases do not necessarily imply logical contradictions.[13]
The distinctions that Tierney raises here between different senses of the Latin jus, and between “objective” and “subjective” right are very important, although I think that Tierney misunderstands them.
A similar but (in my opinion) stronger argument has recently been advanced by the American theologian, Dominic Legge, O.P. He argues that (contrary to MacIntyre’s assertion that there was no concept of rights before the 14th century) St. Thomas Aquinas had a concept of subjective rights. Nevertheless, Legge argues that there was an important shift between St. Thomas and later scholastics, such as William of Ockham and Francisco Suarez, and the many modern neoscholastics influenced by Suárez. For St. Thomas, “law and justice, and consequently any theory of natural rights, should always be understood in terms of an over-arching order to the good.”[14] This dimension was, however, eclipsed by Ockham and Suárez, who put more emphasis on the will of the lawgiver (human or divine).
4. What Strauss and MacIntyre, Tierney and Legge Get Right, and What they Get Wrong
I believe there is something true about all of the positions that I have discussed: Strauss, Macintyre, Tierney and Legge. (Although Tierney less than the others). I think Strauss’s insight into the function of rights in modern political philosophy and practice is particularly important. There is indeed something new about the predominance of rights in modernity. And it is indeed connected to modern moral pessimism about man’s achieving perfection as a common good, and is therefore bound up with modern individualism. MacIntyre’s arguments confirm these insights. But I also agree with Tierney and Legge that the history of rights is not quite as simple as Strauss and MacIntyre make it out to be. And particularly, I agree with Legge that there is a concept of subjective right in St. Thomas, and that the most important shift is that from a view which sees rights as integrated into an overarching order to the good, to one that sees them more in terms of the will of the ruler.
On the other hand, I think that all of these accounts miss something. I think that Strauss’s account misses how the notion of objective right is a middle term between duty and subjective right. That is, the shift that he correctly identifies is not just a shift from a primacy of duty to a primacy of right, but also a shift of priority between two senses of right. Legge for his part, I think slightly misunderstands the notion of objective right and its relation to law, and therefore does not see how important the reversal in the order between objective and subjective right is to the shift he correctly identifies between right understood as part of an overarching order to the good, and right not so understood.
5. On Justice, Law, and the Common Good
At the beginning of this lecture I said that the most basic notion of a right is the “object of justice,” or “the just thing.” I am almost ready now to discuss what that means. But an essential preliminary to understanding the object of justice is to understand justice, so I will first indicate some things about justice, and its relation to law and the common good, before, finally, turning to right.
Father Legge, in the paper I have already cited, argues that St Thomas sees justice as connected to a wise understanding of the good. He points to the following text from the Prima Pars:
Since the object of the will is the good as understood, God cannot will anything other than what conforms to the ratio [rational order] of His wisdom. For the ratio of His wisdom is, as it were, the law of justice, in accord with which His will is right [recta] and just [justa]. Hence, God does justly whatever He does in accord with His will, just as we ourselves do justly whatever we do in accord with the law. But we act in accord with a law that is given to us by some superior, whereas God is a law for Himself.[15]
As Fr. Legge points out, this means that justice follows from a prior wise ordering of all things by God, whereby He gives everything its proper goodness, which in various ways tends toward Himself as the highest good and last end of all things:
For Aquinas, law is not primarily the expression of God’s will, but rather, the wisely ordered plan of creation in God’s intellect is like the “law” that guides the perfectly just willing of God. Law is an expression of reason, an ordering according to reason, even in God. And so justice results from rightly willing according to the wise or reasoned ordering of all things to God.[16]
It is important to note here that, according to St. Thomas, there are different senses of “justice.” There is “general justice,” also called “legal justice,” which is what establishes right order in man’s actions toward the common good of society. And then there is particular justice (further divided into commutative and distributive), which establishes right order in men’s relation among themselves. Particular justice is a particular virtue, but general justice, since it establishes order in view of the common good, includes acts of all the virtues:
Now it is evident that all who are included in a community, stand in relation to that community as parts to a whole; while a part, as such, belongs to a whole, so that whatever is the good of a part can be directed to the good of the whole. It follows therefore that the good of any virtue, whether such virtue direct man in relation to himself, or in relation to certain other individual persons, is referable to the common good, to which justice directs: so that all acts of virtue can pertain to justice, in so far as it directs man to the common good.[17]
Recall that in the text from the Prima Pars St. Thomas says that the ratio of God’s wisdom, is like a “law of justice.” Law is what determines what is truly for the common good. Hence, general justice is also called “legal justice.” In subjects it consists in obeying the law, and in rulers it consists in laying down the law in a wise manner, so as to help the whole community achieve its good.
St. Thomas defines law as follows:
Law is an ordering (ordinatio) by reason, directed toward the common good, made by one who is in charge of the community, and promulgated.[18]
Of particular importance for us are reason, and the common good. Law is something reasonable, something based on understanding of the good. And the good in question is the common good. In St Thomas’s understanding, the common good is not a merely instrumental or useful good. It is not a means to individuals attaining purely individual goods. Rather, the common good is a common end communicable to many, not instrumental. The common good, St Thomas argues, is identified with the end of human life as such:
As has been explained (a. 1), by virtue of the fact that law is a rule and measure, it has to do with the principle of human acts. Now just as reason is the principle of human acts, so too within reason itself there is something which is the principle with respect to everything else. Hence, this must be what law is chiefly and especially concerned with. Now in actions, which practical reason is concerned with, the first principle is the ultimate end. But, as was established above (q. 2, a. 7), the ultimate end of human life is happiness or beatitude. Hence, law must have to do mainly with an ordering that leads to beatitude. Again, since (a) every part is ordered toward its whole in the way that what is incomplete (imperfectum) is ordered toward what is complete (perfectum), and since (b) a man is part of a complete community, law must properly be concerned with the ordering that leads to communal happiness (ad felicitatem communem). Hence, in the definition of legal affairs alluded to above, the Philosopher makes mention of both happiness and political communion. For in Ethics 5 he says, “The laws (legalia) we call ‘just’ are those that effect and conserve happiness and its elements within the political community.” For as Politics 1 puts it, a city is a complete community.[19]
St Thomas is here clearly within the Socratic tradition of political philosophy, which, as Strauss wrote, “had assumed that man cannot reach the perfection of his nature except in and through civil society and, therefore, that civil society is prior to the individual.”[20] If the Socratic tradition is right on this point, and I think it is, then what follows for our understanding of rights?
6. On Rights[21]
The English word “right” is derived from the Indo-European root “reg,” meaning straight (and hence, to move in a straight line, to lead straight, to put right, to rule, etc.) “Right” is the etymological equivalent of the Latin rectitudo. But in our context “right” translates another Latin word, namely jus. Jus has a variety of analogically related meanings. The primary meaning, I claim, is the “object of justice,” or “the just thing.” What does this mean?
Many modern writers have misunderstood what is meant, because they assume it means something very lofty and universal, such as an objective moral order. Jus can certainly also be used in that sense. But “the object of justice” is much more concrete. It is something so concrete, particular, and banal that at first glance it seems hardly worth mentioning. This is the problem that I brought up at the beginning: some things are so obvious that they are easily misunderstood. The virtue of justice is the firm will to give to each their due. Thus, an object of justice is what is due, the thing or action due to another. Thus an “objective right” is nothing more than a thing or action due to another. For example, a fair share of the spoils of battle is due to Achilles—it is his right. Or, money is due to the baker who gives me a loaf. The money is his right. Or the cantor’s singing of an antiphon is due to the cathedral chapter which has appointed him—the singing of the antiphon is the chapter’s objective right. The spoils, the money, and the singing are themselves the objective rights. That is, it is not primarily that Achilles has a right to the spoils, but rather that the spoils are his right.[22]
Now what determines what is due to another? Justice. But, as we saw, justice is connected to a sapiential order to the good. And it is above all law, “the law of justice” that determines what is just. That is, law makes a certain distribution of things, of objective rights, for the sake of the common good. This distribution of things is made in the first place by God’s eternal law with a view to the universal common good of all things— both the intrinsic common good of the harmonious order of the whole of creation, and the extrinsic common good of God Himself as the object of happiness. The objective rights distributed by natural law can be called “natural rights.” In this sense, therefore, (pace MacIntyre) there are indeed rights that “belong to human beings as such,” or rather that belong to them as members of the order of the whole of creation.
In the second place, the distribution of things is made by human custom and law for the sake of the common good of temporal happiness and peace. Law is, as St Thomas puts it, the “ratio iuris,”it gives the reason why some thing is due to someone.[23] Legge mistranslates this to say that “law is a kind of expression of ius.”[24] Clearly, he is thinking of jus here in the sense of an overarching order of rights. That is indeed a sense of jus, but it is not what St Thomas means in the passage in question. Rather, he means jus in the sense of the just thing. The just thing is an expression of lex, because lex is the ratio of the just thing. Literally translated, the passage says, “law is the reason of right.” But this does indeed confirm and strengthen Legge’s more fundamental point, that everything goes back to wisdom about the common good, and what serves it.
The consequences of St Thomas’s view on the relation of rights to law (and therefore the common good) are far reaching. For example, the distribution of private property will be regulated with a view to what serves the common good. Therefore, the law can put limits on the acquisition of wealth, if it judges that too great an acquisition damages social peace. Or it can forbid certain kinds of contracts or loans that are judged to be prejudicial to civic friendship.
Now, the modern sense of “right” as a moral power, that is what someone ought to be allowed to do without interference was originally an analogical extension of jus (anticipated already in St Thomas, as Legge shows,[25] but fully developed by later Scholastics ), and originally meant that if a thing is one’s right, then the power or license that one has to do certain things to or with the thing is also due to one, i.e. one’s right. For example, if a piece of bread is someone’s ius, then eating the bread is also his ius. That is, he ought to be allowed to eat the bread.
This analogical extension would be unobjectionable in itself. Such moral powers do indeed have some foundation in reality, and it makes sense to extend the name jus to them. But in the course of the extension, a fatal reversal takes place. The analogical extension of jus, right as a power, comes to be seen as the prime analogate, and objective right, the object owed to the other, as an analogical extension. On the basis of this reversal, Suaréz and his Enlightenment imitators hold that something is due to another, because of the inviolable moral power that he has of demanding it, rather than the power being an effect of his being owed something. Henri Grenier explains the consequences with his customary concision:
If objective right is understood as right in the strict sense, it follows that subjective right, i.e., right as a power, is measured by the just thing, according to conformity to law. Moreover, since law is an ordinance for the common good, it follows that the whole juridical order is directed to the common good. But, if subjective right is understood as right in the primary, strict, and formal meaning of the term, it follows that the juridical order consists in a certain autonomy, independence, and liberty. For subjective right is not measured by the just thing, but the just thing is measured by the inviolable faculty, which is a certain liberty. Therefore, according to moderns, the juridical order is directed to liberty rather than to the common good. This gives rise to errors among moderns, who speak of liberty of speech, liberty of worship, economic liberty, — economic liberalism, — without any consideration of their relation to the common good.[26]
Here we can see why Strauss is correct in thinking that the primacy of rights in modern politics is essentially liberal. It leads to an instrumental understanding of the common good. For liberals the common good is not that in which the members of society find their flourishing and happiness, but rather an order instrumental in bringing about the liberty of all. The true goal is not an actual good, but the maximum freedom for each to determine his good. If tyranny is defined by subordinating the common good to the private good, then the liberal order is a tyranny in which everyone is a tyrant.[27]
[1] The following paper was first delivered as a lecture at the Adenauer Forum, ITI Trumau, January 27th, 2022. My thanks to John Hennenfent for the invitation. A pdf of this article can be found here.
[2] See: Helena Rosenblatt, The Lost History of Liberalism: From Ancient Rome to the Twenty-First Century (Princeton: Princeton University Press, 2018).
[3] Leo Strauss, Natural Right and History (Chicago: The University of Chicago Press, 1953), p. 181.
[4] Strauss, Natural Right, pp. 182-183.
[5] Strauss, Natural Right, p. 5.
[6] Strauss, Natural Right, p. 6.
[7] Cf. Nathan J. Pinkoski, “Alasdair MacIntyre and Leo Strauss on the Activity of Philosophy,” in: The Review of Politics 82 (2020), pp. 97-122
[8] Alasdair MacIntyre, After Virtue: A Study in Moral Theory, 3rd ed. (Notre Dame, IN: University of Notre Dame Press, 2007), p. 53.
[9] MacIntyre, After Virtue, p. 172.
[10] MacIntyre, After Virtue, p. 67.
[11] MacIntyre, After Virtue, p. 68-69.
[12] MacIntyre, After Virtue, p. 69.
[13] Brian Tierney, The Idea of Natural Rights: Studies on Natural Rights, Natural Law, and Church Law 1150-1625 (Grand Rapids: Eerdmans, 1997), p. 33.
[14] Dominic Legge, O.P., “Do Thomists Have Rights?,” in: Nova et Vetera, English Edition, 17.1 (2019): pp. 127–147, at p. 129.
[15] St Thomas, Summa theologiae, Ia, q. 21 a.1 ad 1.
[16] Legge, “Do Thomists Have Rights?,” p. 130.
[17] IIa-IIae, q. 58, a. 5, c.
[18] Ia-IIae, q. 90, a. 4, c.
[19] Ia-IIae, q. 90, a. 2, c.
[20] Strauss, Natural Right and History, p. 183.
[21] The following section is based in part on my essay: “Hard Liberalism, Soft Liberalism, and the American Founding,” The Josias (2018), https://thejosias.com/2018/04/11/hard-liberalism-soft-liberalism-and-the-american-founding (accessed March 25th, 2022).
[22] Cf. Petrus Hispanus, “Notes on Right and Law,” The Josias (2017), https://thejosias.com/2017/05/16/notes-on-right-and-law/ (accessed March 28th, 2022);
[23] IIa-IIae, q. 57, a. 1, ad 2.
[24] Legge, “Do Thomists Have Rights?,” p. 131.
[25] Legge, “Do Thomists Have Rights?,” p. 133.
[26] Henri Grenier, Thomistic Philosophy, vol. 4, Moral Philosophy, trans. J.P.E. O’Hanley (Charlottetown: St. Dunstan’s University, 1950), § 950.
[27] Cf. St. Thomas, De Regno, I,2.