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Sojourns with Schall
September 01, 2016
Real generosity implies some area of reality beyond the right and just; it is this latter area that the current practice of rights is quickly closing off as it implies something outside of state control which now claims a monopoly also over benevolence.
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I.

Our political rhetoric is no longer formed in terms of virtue and vice but in terms of “rights”. A virtue requires that we take a careful look at ourselves. We intuitively see that we need to have some insight into our actual tendencies and where they lead. We need to control and guide our desires. Other people will often frankly tell us of the dire effects of our skewered actions which we are not willing to see. We thus need to develop a habit of controlling feelings and passions so that we deal in a just, courageous, moderate, or prudent way in our relations with one another. We can be helped (or hindered) by laws and customs that indicate to us what is good or evil in our actions. We are praised or blamed for how we act. A vice is simply forming a habit of doing what is disordered to the degree that we no longer see it as evil. Habits, both good and bad, indicate what we conceive as our good, the principle of our important activities.

A “right” can be defined, presumably, as what is due to something because of what it is. This view assumes that different things exist in an order. Existing things ought to be what they are. The differences found among things contribute to a common good that enables the differing realities to come to their best functioning. Nothing exists in complete isolation. Our thoughts have generally expected results, but only when we choose to put them in the world. We thus have “human rights”. We have “rights” to life, to defend ourselves, to liberty, property, religious freedom, and freedom of expression. Our law books have hundreds, even thousands of “rights”. A human being can be defined as a “bearer” of rights. 

In Los Angeles in July, the National Conference on Animal Rights was held. I am not sure whether insects are included in these rights. But I am sure that the mosquito as a species has a “right” to exist even while I swat one landing on my arm. After all, mosquitos are feed for reptiles and fish. It is good that they are around, though not, perhaps, within our screened-in porches. Plants and trees are also said to have “rights”. We cannot just root them out or saw them down even if we own the land on which they grow. Yet, trees also age; it is possible to plant forests and see them grow. 

The term “mineral rights” usually means that the owner of an extent of surface ground owns the material below the surface such as coal, oil, or gold. Many states, however, separate by positive law those who own the surface and those who own what is below the surface. It often turns out, no surprise, that it is the government that ends up with control of the oil or valuable underground minerals and assets. The control of water is probably the next big step in state control of population. We can perhaps also speak of the “right” of iron to be iron, or the “right” of a volcano to be a volcano. But this terminology means little other than saying that iron or the volcano is what it is. I do not think anyone has yet come up with the idea that it is against the “right” of iron to be mined or made into a steel component, though many theories of limited resources tend in this direction. 

We also hear of “rights” to abortion, to a living wage, to a job, to health care, to immigrate, to organize, to free education, and to choose our own gender. We speak of a “right” to die and even the “right” to a dead child when abortion fails. From all these now familiar usages, it is clear that the concept and language of “rights” is something of an intellectual minefield. “Rights” are, no doubt, a growth industry in liberal democracies, with new ones constantly being declared or legislated. 

At one time, even while granting that “free will” was part of our essential structure, we talked about “gaining” our freedom. This phrase meant that freedom in the public order was something that we had to work for, even fought for. It was not simply given to us. It was better that we worked for it, or even suffered for it. The term “emancipation”, however, meant that someone who was not legally free was liberated from bondage. It was something conferred on someone else by someone with the power to do so. The terms “rights” and “freedoms” were often interchangeable—a “right” to worship, a “freedom” to worship”, a right to speak, a freedom to speak. 

In this sense, it was possible to have a “right” without the “freedom” to exercise it. We can even imagine a “freedom” that is not based on a right, as in the parable in the Gospel of the owner of the vineyard. The owner gave equal wages to his workers no matter how long or briefly they worked in a day. He was being just to some, but generous to others who did not have a “right” to his generosity (Mt 20:1-16). Indeed, generosity implies some area of reality beyond the right and just. It is this latter area that the current practice of rights is quickly closing off as it implies something outside of state control which now claims a monopoly also over benevolence. Everybody has a “right” to everything and it is “unjust” if anyone lacks anything he wants.

II.

The idea behind the concept of freedom as emancipation was that we were “born” free, but found ourselves in chains, to recall Rousseau’s famous words. Someone had taken something—say, our property—away from us that was ours by nature. Politics came to mean giving us back our “rights” and protecting them when we re-acquired them. Attention was shifted from gaining “rights” to “receiving” them. The first usage meant working to acquire what we did not yet possess. The latter meant receiving from the government what it gave to us based on its estimate of what was available to everyone according to some formula of relative worth.

But if we deny, as we do today, that there is such a binding (but freeing) thing as a “nature” that is normative to us in reason, we cannot appeal to a standard of something objectively “due” to us in virtue of what we are. Generally speaking, natural law is denied not because evidence of its existence is lacking but because it prevents us morally from doing whatever we want. With this background, the word “rights” takes on its practical and operative meaning in our society that it has today. It is what Hobbes pointed out most clearly. “Rights” have no objective meaning or content. No objective and discoverable reality can be acknowledged outside of our desires. At first sight, this view appears to be a new and exhilarating freedom. We do not have to answer to anything but ourselves. We are free to do what was once called evil. A “right” is whatever we think that we need for our preservation and flourishing. We are not bound to avoid evil if we can use it to achieve what we want or need.

The only trouble with this apparently exalted view is that everyone else has the same “rights” that we do. And since no common agreement is found on who should have what, we need to have an institution that will adjudicate for us what we can have lest we be constantly at war with one another. Suddenly, “rights” shift from what we supposedly want and need for ourselves, based on our own estimates of need, to what the state will allow us to have on its estimate of possibility. “Rights” become a list of state regulatory decrees that are established to prevent us from fighting and killing each other over conflicting “rights”. The individuals within the state become the raw material, as it were, for fashioning and refashioning the citizens into whatever configuration or way of life that seems viable to the government.

III.

The “right” to religion in this type of thinking now means, at least negatively, that the state defines what religion cannot hold and do within the existing polity. Neither the so-called “freedom of religion” nor “freedom of speech” takes any precedence over the positive law. If they exist at all, they are concessions of man-made positive, changeable law. Religion is civic, not transcendent. Any religion that holds tenets that are contrary to the enforced public law cannot receive any public standing, recognition, or assistance. 

A religion such as Christianity must be looked upon as hostile to the state if it refers to transcendence to justify its morals and beliefs. If there is a state-sanctioned “right” to something, any Christian opposition to it is deemed divisive and intolerant if it opposes it on the grounds of any higher or natural truth. A “natural law” or an abiding human nature is non-existent in public law. No higher authority exists to which anyone might appeal in case of conflict. A written Constitution is no longer a criterion or standard. It is replaced by a living constitution that is defined by public opinion, legislative and judicial law as well as by ad hoc presidential decrees and edicts. 

The Qur’an has legal standing and is enforced in Muslim states, but the Bible has no such standing in any western society. Even if it inspired much of what we know as constitutionalism, it is not formally recognized as a source of information about human worth. If it contains principles or laws contrary to civil law, it is thereby unfit for citizens who are always free to hold what they want, provided the state sanctions what they want with positive law and penalties. The state does not officially “persecute” Christians or others. They are welcome to live in peace provided they do not attempt to criticize or oppose the laws on the basis of some presumed “superior natural or divine law”. 

It is not enough to not oppose these laws of the state—it is considered “hate language” to maintain that there is something immoral or unreasonable about them. This critical language, we are told, causes unsettlement among the citizens; it creates unnecessary tensions. In this sense, it is a great evil to oppose or criticize, say, abortion, cloning, or same-sex relationships as all of these enjoy established “rights”. Such speech will be considered unpatriotic, inhuman, and destructive of civil peace. These are now the terms that rule the civil polity and its discourse. Man lives in this world and for this world. These are the terms of the civil contract of his present being. Man does not live by bread alone but by every “right” granted by the state.

The Catholic Church, in most of its official documents and in much of its apologetics, has retained “rights” talk. It has tried to give it another grounding, derived usually from Roman law or Greek philosophy. It sought to find a way to keep a terminology of “rights” but eliminate from it any pejorative meanings. Many of the popes have occasionally noted the way in which the term “rights” has come to mean license. What seems to have happened in practice, however, is that many citizens who persist in identifying themselves as Catholic have accepted the more modern meaning of “rights”. Opposition to abortion, “gay marriage”, or other such moral issues is now seen as contrary to the common good, which has come to be identified with what the state requires. 

The majority of Catholics in most countries now accepts (or, at least, do not oppose) most of the “modern” rights that were once vigorously opposed. Leading politicians, media  personalities, and academics publicly approve positions long held to be in opposition to human dignity. For the most part, they retain their standing as Catholics in the sense that they are not excommunicated or reprimanded specifically by popes or bishops. Most Catholic citizens, if we go by their voting records, no longer form a single cohesive body of citizens agreed on certain truths rooted in natural and divine law. We can now affirm that, for the most part, modern natural “rights” rule the public order.

The significance of the forthcoming election, at least in this country, will be the voting approval—directly by voting or indirectly by not voting—by a large majority of citizens identifying themselves as Catholics, of the candidate that most clearly represents these modern human “rights” as the settled law of the land. Religion must now conform itself to the positive law of the land, with no exceptions. No appeal to conscience or higher law will be legally tolerated. Nor will any significant criticism of these trends go without legal consequences in both private and public institutions. These new human “rights” are legally and politically superior to any religious or philosophical opposition. Such, I think, is the “legacy” of “rights” in our time. In a “rights” regime, even Catholic citizens will approve their chains, or at least approve those who impose such “rights” on them.

 
About the Author
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James V. Schall, S.J. 

James V. Schall, S.J. taught political philosophy at Georgetown University for many years until recently retiring. He is the author of numerous books and countless essays on philosophy, theology, education, morality, and other topics. His most recent book is Reasonable Pleasures: The Strange Coherences of Catholicism (Ignatius Press). Visit his site, "Another Sort of Learning", for more about his writings and work.
 

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