The Natural Wrong in Natural Rights—and the Problem With Communitarianism

For all the benefits that it provides and for which we can be immensely grateful, modern liberal democracy does not of itself produce a strong attachment to the common good of society and was not calculated to do so. Anyone in search of models of public-spiritedness will have to look elsewhere, as did our American forefathers, who sought them in classical antiquity, often naming their cities after such ancient places as Athens, Rome, Syracuse, Troy, Ithaca, and Utica.

Whereas, from its inception in fifth-century Greece and for the next 2,000 years, scholarly debate concerning moral matters focused on natural right or natural law, today it focuses almost exclusively on individual or subjective rights. This is true even of the official documents of the Roman Catholic Church, where the once-ubiquitous natural law doctrine appears to have been all but eclipsed by an overriding concern with rights in the plural. Typical of the new trend is Pope John Paul II’s 1991 encyclical, Centesimus annus, where the natural law and its chief exponent, Thomas Aquinas, are passed over in silence, a fact all the more striking as both of them are massively present in Leo XIII’s Rerum novarum, the epoch-making encyclical whose centenary Centesimus annus commemorates. I hasten to add that, for reasons about which one can profitably speculate, Thomas and the natural law make a spectacular comeback in the Pope’s 1993 encyclical, Veritatis splendor.

Nowhere in the older tradition does one run across anything like a theory of natural rights, by which I mean rights that inhere in individual human beings qua human beings and quite independently of their membership in the larger society to which they belong, as distinguished from civil rights or rights that have their source in some duly enacted law. The passage from natural law to natural rights and later (once nature had fallen into disrepute) to “human” rights represents a major shift, indeed, the paradigm shift in our understanding of justice and moral phenomena generally. Prior to that time, the emphasis was on virtue and duty, that is to say, on what human beings owe to other human beings or to society at large, rather than on what they can claim for themselves. This emphasis is surely the case with the Bible, which invites us to think in the first instance of others rather than of ourselves (we do not need to be reminded to think of ourselves) and does not promulgate a Bill of Rights but the Ten Commandments, a Bill of Duties as it were. But it is also the case with all of premodern literature, classical as well as Christian, whose foremost representatives—Plato, Aristotle, Cicero, Ambrose, Augustine, and Thomas Aquinas, to mention a few—wrote treatises or dialogues on natural right in the singular, on moral virtue, on laws, or on duties. It never occurred to any of them to publish a book entitled, The Rights of Man, or to issue such documents as the “Declaration of the Rights of Man and the Citizen” or the “Universal Declaration of Human Rights.”

To be sure, the expression “natural rights” does appear sporadically in the older texts, but never as part of a theory that claims independent status for them. In one of his anti-Pelagian tracts, Saint Augustine alludes in passing to the “natural rights of propagation,” iura naturalia propaginis, in connection with original sin, the sin transmitted by way of generation from parent to child, but he does not explain the expression or show any awareness of its novelty. A little-known contemporary of Augustine, Primasius of Hadrumetum, speaks in a metaphorical sense of the “natural rights of places,” iura naturalia locorum, apropos of the antlers that burst forth from the heads of certain animals and keep on growing, seemingly without end. None of these cursory statements amounts to anything like a bona fide natural rights doctrine of the kind that would later be propounded by Hobbes, Locke, Pufendorf, and a host of other early-modern thinkers.

 

Numerous efforts have nevertheless been made to demonstrate that our rights theory is a product, not indeed of modern political thought, but of the medieval Christian tradition. The late Michel Villey, one of the most respected legal historians of our time, attributed its paternity to the fourteenth-century nominalist William of Ockham, who denied the existence of universals—only individuals exist—and was thus led to conceive of all rights as being themselves individual and subjective. Building to some extent on Villey’s work but going beyond it, another distinguished medieval historian, Professor Brian Tierney of Cornell, has spent the last 15 years arguing powerfully for an even earlier origin. Subjective rights are ultimately traceable neither to Ockham and his nominalist disciples nor to the illustrious seventeenth-century contractualists with whom they are traditionally associated. Rather, they are a characteristic product of the “great age of creative jurisprudence that, in the twelfth and thirteenth centuries, established the foundations of the Western legal tradition.”

Both Villey and Tierney have shown convincingly that there was far more talk about rights in the Middle Ages than had previously been noticed. What they overlook is that the rights with which our medieval forebears were preoccupied and which had suddenly assumed greater importance for a variety of historical reasons, such as the growing complexity of medieval society and the persistent conflicts between popes and emperors, are not rights in the modern sense but legal rights or rights subordinated to an antecedent law that defines and relativizes them. For Ockham, a “right” was a “lawful power,” licita potestas. For his contemporary, Johannes Monachus, it was a “virtuous power,” virtuosa potestas. Rarely do any of these authors use the expression “natural rights,” and when they do, clearly it is with reference to or in the context of a discussion of the natural law from which these rights are drawn. None of them ever talked of absolute, inalienable, unconditional, imprescriptible, or sacred rights. It was taken for granted that rights were contingent on the fulfillment of prior duties and hence forfeitable. Anyone who failed to live up to these duties could be fined, imprisoned, or in extreme cases put to death.

Altogether different is the view that comes to the fore in the seventeenth century, where the equation is reversed and where rights become the fundamental moral phenomenon, the source rather than the result of such natural laws as will enable people to live comfortably and at peace with one another. In his classic treatment of this subject, Hobbes begins precisely by laying down the basic right of self-preservation, which he defines in terms of freedom. From this he infers the self-enforcing laws, 19 in all, that human beings are required to abide by lest they should jeopardize that freedom. In Hobbes’s own terms, “The right of nature . . . is the liberty each man has to use his own power as he will himself for the preservation of his own nature—that is to say, of his own life—and consequently of doing anything which, in his own judgment and reason, he shall conceive to be the aptest means thereunto.”

Tierney unwittingly furnishes us with a striking example of the shift in perspective that marks the transition from one world to the other, namely, the classic question whether a criminal who has been convicted of a capital offense and is in jail awaiting his execution can flee when the opportunity presents itself—if, for example, the jailer has fallen asleep and inadvertently left the jail door unlocked. The premodern answer was, Yes, but with the proviso that the convict was not to kill or maim the jailer, something that would have constituted a second punishable offense. What Tierney fails to note, and it is the key point, is that when we come to Hobbes and Locke, that crucial proviso has been lifted. Their novel reason is that the right of self-preservation is strictly inadmissible and may legitimately be exercised against anybody, including one’s executioner.

The standard objection to the chasm between the premodern and modern understandings of rights is this: even though our premodern forebears spoke seldom of natural rights, they had the reality to which it refers. Hence, to oppose rights to duties is to set up a false dichotomy between two complementary rather than antithetical approaches to the subject. Fly from San Francisco to London via New York or via the North Pole and you arrive at the same destination in roughly the same amount of time. On any given day one route may be preferable to the other, say, in order to avoid severe thunderstorms, but otherwise the choice between them is a matter of indifference. As correlatives, rights and duties imply each other. If I have a duty to do something, I must have the right to do it. For whatever reason, the premoderns did not speak explicitly of natural rights, but this is not proof that they would have rejected them had the problem been put to them in those terms.

A Right or a Duty?

At first hearing, the objection sounds unimpeachable, but it fails to address the question of which takes precedence over the other, rights or duties, in the event of a conflict between them. Did Socrates have the right to defend himself or was it his duty to do so? Which of the two is the primary moral counter, the right or the duty? In the premodern view, duty came first. This accounts for the natural inclination to sacrifice oneself for the whole whenever necessary, and to do so because one instinctively perceives that the good of the whole—the “common good,” as it used to be called—is one’s own good. For such a good would not truly be common were it not at the same time the “proper” good (albeit not the “private” good) of the individuals who compose the whole.

In the final analysis, we are confronted with two vastly different conceptions of morality, one that assumes the point of view of what a given action does to the person who performs it, and the other the point of view of what it does to the recipient. The problem had not escaped the great Hercule Poirot, who, when asked one day by that impossible woman, Mrs. Ariadne Oliver, whether he did not think that some people “ought” to be murdered, had the good sense to reply: “Quite possibly, madam, but you do not comprehend. It is not the victim who concerns me so much; it is the effect on the character of the slayer.” This is not to say that what happens to the victim is unimportant, but only that it is not the consideration through which the nature of the moral act best reveals itself.

The Good of Doing Good

The same holds of course for good deeds, which likewise have an effect on the character of the doer and benefit him as much as they do the recipient of the good deed. We find this thought expressed in any number of places, among them the fable of the old man and the three youths who made fun of him when they saw him struggling to plant trees that he would never live to see; to which the old man, who had his children and grandchildren in mind, replied: “Are the wise forbidden to work for the pleasure of others? This is itself a fruit that I enjoy today.”

The point is not at all farfetched. It was brought home to me in an unexpected way a few years ago by an incident that occurred in a small restaurant on Beacon Hill to which I had gone for lunch with a Jesuit colleague. Sitting two tables away from us was Ted Williams, whom my friend recognized and to whom he waved discreetly. Williams acknowledged the greeting with a smile, and we went on with our meal. When it came time to pay, the waiter announced that our tab had been picked up by someone else in the room. At this point, my friend went over to Williams’s table to recite the usual platitudes: that, although we appreciated the gesture, it was not necessary, blah, blah, blah. Williams listened patiently and then replied in the simplest, most unpretentious way: “Father, please don’t deny me this small pleasure. I have so few of them left in life.”

Numerous biblical texts, among them the parable of the Good Samaritan, make the same point. According to the scholarly interpretation that I find most plausible, the Good Samaritan is indebted to the man to whose rescue he comes, for the opportunity to serve him, and not vice versa.

To generalize from these homely examples, human beings are most closely bound to others not by what they hope to receive from them, but because they find their deepest satisfactions in doing something for them. This is the prototypical premodern understanding of one’s relationship to one’s fellow human beings. It is emphatically not the understanding that informs the original modern rights approach, which denies the natural sociality of human beings and views them instead as atoms that are complete in themselves and hence not essentially dependent on others for the achievement of their perfection. Not being ordered to any pre-existing ends, these free-floating individuals are at liberty to choose their own ends, along with the means by which they may be attained. In the modern view, the just society grants to each individual as much freedom as is compatible with the freedom of every other individual. It has nothing to say about the good life and is not concerned with the promotion of virtue. Its sole function is to insure the safety of its members and provide both for their comfort and, as we now see everywhere, the satisfaction of their vanity.

Political Hedonism

The advocates of this new scheme were not themselves monsters of self-centeredness. Theirs was no ordinary hedonism, a dog-eat-dog outlook in which everyone runs the risk of being devoured. It was a political hedonism, something entirely new on the intellectual horizon of the West. Behind it lay the laudable desire to put an end to the age-old conflicts that had become particularly acute in the wake of the wars of religion then ravaging Europe. Its great advantage was that it did not depend for its success on a painful conversion from a concern for worldly goods to concern for the good of the soul. Pursuing one’s selfish interest, it was decided, was the best way to serve others. Properly managed, private vices could lead to public benefits. It thus became a moral duty to encourage people to think of themselves rather than of others, for by so doing one necessarily contributes to the good of the whole. The entrepreneur who is out to enrich himself benefits the whole of society by creating lucrative jobs for the rest of its members. In the end, everybody is materially better off. A clever scheme indeed, which, by reconciling selfishness with altruism, enables everyone to reap the rewards of virtue without going to the trouble of acquiring it. Mandeville stated the issue with the greatest bluntness and accuracy when, in the Fable of the Bees, he argued that the day bees started worrying about moral virtue the hive would be ruined and that it would recover its prosperity only when each one returned to its vices.

The question is whether this narcissistic atomization of individuals can coexist with genuine community—whether any society is likely to endure let alone prosper without a shared notion of the good life. The problem has been with us for a long time. It was raised as far back as the middle of the eighteenth century by Rousseau, the first modern thinker to criticize modernity and call attention to the deficiencies of the society to which it was giving rise: its lack of nobility or elevation, its pettiness, its manifest disunity, its magnificent boringness, and the multiple alienations that it inevitably produced. Its typical product was the bourgeois, as Rousseau called him and as we have been calling him ever since: the man who has been taught to live for himself in the midst of people for whom he does not care but in whom he is nonetheless obliged to feign interest. The trouble with the new society is that it was not held together by the love of a good in which everyone can share. Its members, attached to it by bonds of self-interest alone, have nothing to die for and, by the same token, nothing to live for. As Rousseau put it famously: “We have physicists, geometers, chemists, astronomers, poets, musicians, painters; we no longer have citizens.” All of the virtues on which society normally relies for its well-being, such as civic-mindedness, patriotism, religion, military valor, and self-restraint, had been weakened beyond recognition.

I do not exaggerate when I say that the whole of modern thought since then has been a series of heroic attempts to reconstruct a world of human meaning and value on the basis of Rousseau’s and our own purely mechanistic understanding of the universe. This is obviously not the place to enter into a discussion of these attempts, whether it be Kant’s bloodless categorical imperative, a direct descendant of Rousseau’s “general will,” for which it sought to provide a philosophic justification; Hegel’s entrusting to History with a capital “H” the carrying out of a similar task; Nietzsche’s and Heidegger’s appeals to creativity as a means of overcoming the predatory nihilism of the age; and, to begin with, Rousseau’s own project, the aim of which was to recreate the Platonic soul by means of a complex process of sublimation whereby all the higher things in life are made to originate in the impulses of our lower nature.

Not coincidentally, it is to Rousseau, the seminal writer of the late modern period, that we owe the first formulation of the non-mercenary notion of rights that has come to prevail in our time. I know of no finer statement of the basic issue than the passage in Rousseau’s Émile in which Émile and his tutor, Jean-Jacques, fail to show up for an announced visit to Sophie, the person to whom Émile is to be married, without informing her of their change of plans. Afraid that something terrible has happened, Sophie is beside herself with anxiety, until she learns that Émile and his tutor are safe and will soon be arriving; at which point her anxiety turns to rage at the affront she has suffered. The matter is finally cleared up when Émile explains that he and his companion were on their way to Sophie’s house when they stumbled upon a man lying in the forest with a broken leg and carried him to his home. At the sight of her crippled husband, the man’s wife promptly went into labor and had to be helped by Émile and Jean-Jacques. This forced them to spend the night where they were, unable to send word to Sophie of their whereabouts. Émile ends his account by declaring: “Sophie, you are the arbiter of my fate. You know it well. You can make me die of pain. But do not hope to make me forget the rights of humanity. They are more sacred to me than yours. I will never give them up for you.” Moved by this declaration, Sophie replies: “Émile, take this hand. It is yours. Be my husband and master when you wish. I will try to merit this honor.” In his commentary on this passage, Allan Bloom writes: “Émile has won his fair maiden. Dedication to human rights has taken the place of slaying dragons or wicked knights as the deed that makes him irresistible to his beloved.”

In view of the fragility of the foundations on which they rest, it is hardly surprising that none of these solutions to the problem of modernity should have won the endorsement of a majority of our educated contemporaries; and that is why the search goes on. The currently most popular alternative is the one that goes under the name of communitarianism, a label that captures at least part of what was once meant by the “common good.” I note in this connection that The Ethics of Authenticity, the latest book by Charles Taylor, one of the best-known representatives of the new movement, bears in its original edition the title of The Malaise of Modernity, which could easily have served as the subtitle of Rousseau’s epoch-making Discourse on the Arts and Sciences, the first but by no means the only full-scale attack on modernity from the side of modernity to which we have been treated over the years.

If I allude to communitarianism (according to the newspapers the philosophy to which President Clinton and his wife subscribe), it is because it is symptomatic of our present situation. My reservation is that it is still committed to finding within modernity itself the intellectual and moral resources needed to overcome the limitations of modernity. One does not transcend the “ego” by expanding it into a “we” through the incorporation of other “egos” into it; for the “we” of modern thought is not a community. For this, a crucial further step is required: the realization that the “we” is more fundamental than the “I” and hence not derivable from it. It is something with which we start and not something with which we end.

We find this fundamental “we” not in modern but in premodern thought, whose approach is at once more natural and more attractive to people who have not been brainwashed into believing that modern science and the philosophy that comes out of it are the sole arbiters of our intellectual and moral tastes.

Where the Action Is

It is always a pleasant surprise to see how much more enthusiastically college students respond to Plato and Aristotle than to Kant, Hegel, or for that matter, Nietzsche, despite his enormous appeal to young minds. I have just finished going through Aristotle’s Ethics with a group of freshmen and received the greatest compliment of my teaching career from one of them—not an “A” student, mind you—who said one day as we were walking out of class, and here I apologize for his language, which is more colorful than mine: “You know, I eat this shit right up!”

Indeed, the most significant intellectual development of our time is the recovery of classical thought and the reopening of the life-and-death struggle in which it was once engaged with modern thought for the minds and hearts of our seventeenth-century predecessors and their descendants, ourselves included. When I started teaching many years ago, the ongoing debate among academics was between three forms of modern thought: Kantianism, Utilitarianism, and either logical positivism or its offshoot, linguistic analysis. That debate is not dead by any means, but it has gradually been taking a back seat to a much livelier debate, this one between modern thought as a whole and a premodern thought that was supposed to have been laid to rest once and for all at the dawn of the modern era. In advanced intellectual circles, this is where the real action now appears to be.

Fortunately, we do not have to go far to find living examples of the premodern mentality. For starters, I recommend Paterno by the Book, the autobiography of the famed football coach of the Penn State Nittany Lions, who is almost as sharp on the subject of virtue and the common good as my old friend Agatha Christie. It will lead you right back to the classics and, in particular, to Virgil’s masterpiece, The Aeneid, a book to which Paterno was introduced by one of his prep school teachers and by which he learned to play the serious game of life long before making a name for himself as a football coach. “Aeneas,” he says,

is not a grandstanding superstar. He is, above all, a Trojan and a Roman. His first commitment is not to himself but to others. He is bugged constantly by the reminder, the fatum, “you must be a man for others.” He lives his life not for “me” and “I” but for “us” and “we.” Aeneas is the ultimate team man. . . .

A hero of Aeneas’s kind doesn’t wear his name on the back of his uniform. He doesn’t wear “Nittany Lions” on his helmet to claim credit for touchdowns and tackles that were enabled by everybody else doing his job. For Virgil’s kind of hero, the score belongs to the team.

Toward the end of the 1972 season, Paterno was offered the job of coach and general manager of Billy Sullivan’s old Boston Patriots (now the New England Patriots) at an annual salary 40 times as great as the one he was making at Penn State—$ 1,400,000 versus a measly $35,000, not counting such perks as a summer home on Cape Cod and the chance to move in the highest professional circles. The offer was, as they say, irresistible, and he accepted it, only to reconsider it during the course of a sleepless night and finally turn it down because “it was not right for him.” Paterno’s personal destiny, his fatum, as Virgil would have said, was to remain where he was. Here again, the decisive factor was not what he could do for Penn State by staying there—one cannot predict the outcome of one’s efforts—but what leaving the school would do to him.

There would be a lot less talk about community everywhere today if we all had a better idea of what a true community is like. How we go about recovering our lost sense of community I do not know. The emptiness of so much of what is currently being said on the topic makes me think that the proper place to begin is where I end, namely, by listening to those who have experienced it in their own lives and demonstrated not only in speech but in deed that they understand both what it demands of us and what it promises us in return.

Ernest Fortin

By

Ernest L. Fortin, A.A. (1923 - 2002) was a professor of theology at Boston College. While engaged in graduate studies in France, he met Allan Bloom, who introduced him to the work of Leo Strauss. Father Fortin worked at the intersection of Athens and Jerusalem.

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