Wide-ranging and ambitious, Justice combines moral philosophy and Christian ethics to develop an important theory of rights, and of justice as grounded in rights. Nicholas Wolterstorff demonstrates that the idea of natural rights originated neither in the Enlightenment nor in the individualistic philosophy of the late Middle Ages, but has long been present in Hebrew and Christian scriptures. After contending that socially count of natural human rights is successful, offering instead a theistic account.
Connecting rights and wrongs to God's relationship with humankind, Justice not only offers a rich and compelling philosophical account of justice, but also makes an important contribution to overcoming the present-day divide between religious discourse and human rights.
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About the Author
Nicholas Wolterstorff is the Noah Porter Professor Emeritus of Philosophical Theology at Yale University and a fellow of the American Academy of Arts and Sciences. His many books include Until Justice and Peace Embrace.
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Justice Rights and Wrongs
By Nicholas Wolterstorff Princeton University Press
Copyright © 2007 Princeton University Press
All right reserved.
Introduction WHY HOSTILITY TO JUSTICE AND RIGHTS?
Justice and rights are the most contested part of our moral vocabulary, contested not only, or even mainly, by philosophers, but within society generally. To publish a discourse on justice as rights is to plunge into a hornet's nest of controversy.
Few people oppose talk about responsibility and obligation-therapists who believe that guilt feelings are a bad thing, philosophers who see no acceptable way of accounting for obligation, that is about it. Lots of people pay little attention to their own obligations; few declare themselves opposed to talk about obligations. So too with virtue and love. Though many care little about either, few express opposition to talk about them.
Justice and rights are different. Opposition to rights-talk is common. Some of those opposed are also opposed to talking about justice; they connect the two, rights and justice. Others want to pull them apart. Justice is fine; it is talk about rights that is bad.
Why this hostility? Let us take a brief survey, starting with justice. Large swaths of American Christians believe that in the New Testament love supplanted justice-except for retributive justice. Jesus did not teach, in the second of the two commandments, that we are to treat people justly; he taught that we are to love ourneighbors as ourselves. In the now-classic book, Agape and Eros, published in the early 1930s, Anders Nygren worked out the idea in detail. After interpreting the love ascribed to God in the New Testament, and enjoined on us with regard to our fellows, as the love of pure impartial benevolence, he declared that what we learn from Jesus' words and deeds is that where such "spontaneous love and generosity are found, the order of justice is obsolete and invalidated."
This attack on justice, coming as it does from within my own religious community, is not one that I can ignore; most secular academics would be inclined to ignore it. I think that is a mistake on their part. Americans continue to be a religious people, dominantly Christian; we must expect consequences for our culture and society as a whole if many among us believe that justice is outmoded. And in any case, similar things are being said by secularists, albeit for different reasons.
In her essay, "The Need for More than Justice," Annette Baier argues that though justice may still have a place, it has to be supplemented with virtues less cold and calculating. "Care," she says, "is the new buzz-word, ... a felt concern for the good of others and for community with them. The 'cold jealous virtue of justice' (Hume) is found to be too cold, and it is 'warmer' more communitarian virtues and social ideals that are being called in to supplement it."
Baier explains that the ethics of care is a challenge "to the individualism of the Western tradition, to the fairly entrenched belief in the possibility and desirability of each person pursuing his own good in his own way, constrained only by a minimal formal common good, namely, a working legal apparatus that enforces contracts and protects individuals from undue interference by others" (52). One of the problems with the ethics of justice, she says, is that the rules of justice, at least as understood in a liberal sense, "do little to protect the young or the dying or the starving or any of the relatively powerless against neglect, or to ensure an education that will form persons to be capable of conforming to an ethics of care and responsibility" (55).
Others on the contemporary scene are opposed not so much to talk about justice as to talk about rights. The opposition is for a variety of reasons. Some oppose rights-talk because they find so many rights-claims silly that they think it best to purge our vocabulary of all such talk. I agree with the diagnosis but not with the prescribed cure; many rights-claims are silly. The U.N. Declaration on Human Rights declares, in Article 24, that everybody has a right to periodic vacations with pay. Many people do not work for pay. Some, such as children and the handicapped, do not work at all; others work, but not for pay-farmers, housewives, and the like. So how could everybody have a right to a periodic vacation with pay? Claims like this give rights a bad name.
Others are opposed to rights-talk for political reasons. All the great social protest movements of the twentieth century in the West employed the language of rights. They employed other language as well; but the language of rights was prominent in their vocabulary because, in general, it proved the most powerful. I have in mind the movements of protest against the position assigned in society to children, to women, to Jews, to African-Americans, to homosexuals; I also have in mind the protests against the Afrikaner regime in South Africa and against the Communist regimes in Hungary and Poland. It was these movements that made common coinage of such phrases as "children's rights," "women's rights," "civil rights," "human rights," and so forth.
One way to defend disagreement with one or another of these social protest movements is to insist that members of the group in question do not have the rights being claimed for them. Children do not have a right to be kept out of the labor force until they are of age, women do not have a right to vote, Jews do not have a right to be treated equally in the academy, South African "blacks" and "coloreds" do not have a right to equal treatment, and so forth. But often defenders of the status quo find the whole discourse of rights menacing; so they try to change the terms of debate. Instead of talking about rights, let us talk about responsibilities, about the social bonds of friendship and loyalty, about what is necessary for a well-ordered society.
Others, again, are opposed to rights-talk for social reasons. They charge that rights-talk expresses and encourages one of the most pervasive and malignant diseases of modern society: possessive individualism. In using such talk one places oneself at the center of the moral universe, focusing on one's own entitlements to the neglect of one's obligations to others and the cultivation of those other-directed virtues that are indispensable to the flourishing of our lives together. The prevalence of rights-talk obscures from us our responsibilities to each other and to our communities, obscures from us the singular importance of love, care, friendship, and the like. It demotes the giving self and promotes the grasping self, demotes the humble self and promotes the haughty self. It both encourages and is encouraged by the possessive atomism of the capitalist economy and the liberal polity. It invites us to think of ourselves as sovereign individuals.
Rights-talk is said to be for the purpose of me claiming my possessions, you claiming your possessions, him claiming his possessions. That is what it is for: claiming one's possessions, giving vent to one's possessiveness, each against the other. Possessive individualists are not abusing an innocent language by wresting it to their own evil purposes. They are using it as it was meant to be used. Rights-talk is inherently individualistic and possessive. The theologian Stanley Hauerwas put it like this in one of his essays:
The language of rights tends toward individualistic accounts of society and underwrites a view of human relations as exchanges rather than cooperative endeavors. Contemporary political theory has tended to concentrate on the language of rights, not because we have a vision of the good community, but because we do not. As a result, we have tried to underwrite the view that a good society is one where everyone is to be left alone rather than one that tries to secure the kind of cooperation that gives one a sense of contributing to a worthy human enterprise.
And then there are the objections coming from philosophers and others among the intelligentsia. Talk about rights is nonsense, said Jeremy Bentham; and talk about natural rights is nonsense upon stilts. The way to respond to this charge is obvious: develop an account of rights that makes sense.
PRELIMINARY DESCRIPTION OF RIGHTS
I have already indicated the position that I will occupy and defend against this fusillade of objections. I will defend the importance of justice and the importance of rights, in the context of defending the thesis that justice is ultimately grounded on inherent rights. At the heart of my defense will be an attempt to change how we think about rights.
Rights are normative social relationships; sociality is built into the essence of rights. A right is a right with regard to someone. In the limiting case, that "someone" is oneself; one is other to oneself. Usually, the other is somebody else than oneself. Rights are toward the other, with regard to the other. Rights are normative bonds between oneself and the other. And for the most part, those normative bonds of oneself to the other are not generated by any exercise of will on one's part. The bond is there already, antecedent to one's will, binding oneself and the other together. The other comes into my presence already standing in this normative bond to me.
This normative bond is in the form of the other bearing a legitimate claim on me as to how I treat her, a legitimate claim to my doing certain things to her and refraining from doing other things. If I fail to do the former things, I violate the bond; if I do not refrain from doing the latter things, I also violate the bond. I do not break the normative bond; that still holds. She continues to have that legitimate claim on me as to how I treat her.
The legitimate claim against me by the other is a claim to my enhancing her well-being in certain ways. The action or inaction on my part to which the other has a right against me is an action or inaction that would be a good in her life. A common apothegm in present-day political liberalism is that "the right has priority over the good." In the order of concepts, it is the other way around: the good is prior to the right. One's rights are rights to goods in one's life. The converse does not hold: there are many things that are or would be goods in one's life to which one does not have a right. I think it would be a great good in my life if I had a Rembrandt painting hanging in my living room. Sad to say, I do not have a right to that good. It is because the good is conceptually prior to the right that the second part of my discussion is devoted to the goods to which we have rights, and the third part to having a right to some good.
I will argue that it is on account of her worth that the other comes into my presence bearing legitimate claims against me as to how I treat her. The rights of the other against me are actions and restraints from action that due respect for her worth requires of me. To fail to treat her as she has a right to my treating her is to demean her, to treat her as if she had less worth than she does. To spy on her for prurient reasons, to insult her, to torture her, to bad-mouth her, is to demean her.
And to demean her is to wrong her. If I fail to treat her in the way she has a right to my treating her, I am guilty; but she is wronged. My moral condition is that of being guilty; her moral condition is that of having been wronged.
Lastly, rights are boundary-markers for our pursuit of life-goods. I am never to enhance the good in someone's life, my own or another's, or that of many others, at the cost of wronging someone or other, depriving her of that to which she has a right. I am never to pursue life-goods at the cost of demeaning someone. Rights have been described, and correctly so, in my judgment, as trumps. It may be that a wide range of life-goods can be achieved by pursuing some course of action; but if in pursuing that course of action one deprives someone of some good to which they have a right, thereby wronging them, one is not to do that. That good trumps the other goods.
The language of rights is for talking about these matters. It is for talking about these normative social bonds. It is for talking about the fact that sometimes by not enhancing the well-being of the other I fail to give her due respect. It is for talking about that curious and sometimes perplexing interaction, within the realm of the good, between the worth of the other person and the worth of goods in the life of the other.
The normative social bonds of rights are foundational to human community. I do not only mean that honoring these bonds is foundational to human community-though certainly it is. Rights themselves are foundational to human community. I have argued elsewhere that speech is a normative social engagement; causality is not sufficient for explaining how it is that by making certain sounds or inscribing certain marks, one makes an assertion, asks a question, issues a request. I argue that one has to appeal to rights to explain it. But without speech acts such as those, human community is impossible.
HOW RIGHTS GOT A BAD NAME
I have been skimming the surface. Everything I have said will be developed and defended in detail in the pages that follow. But a question already jumps out. If this is what rights are, how did they get such a bad name? How did they acquire their bad reputation? Why are so many so hostile for so many different reasons to talking about rights?
It is easy to see why those who oppose social protest movements prefer that the debate not be conducted in terms of rights. The rights of the other place limits on how I treat her. Not even for reasons of great good to be achieved am I permitted to treat her with less than full respect. Those who oppose liberation movements almost always claim that some great good will be maintained and some great evil averted if the status quo is preserved; they do not want to hear about limits on what they are allowed to do to the other in maintaining the status quo. Likewise, those who want to reshape society to fit their social ideals-National Socialists, Communists, and the like-do not want to hear about the limits that rights are, the boundaries that must not be crossed on pain of violating the worth of the other.
That seems clear enough. But if rights are what I claim they are, normative social bonds, why would anybody connect them with possessive individualism? There is a normative social bond between me and the other whereby the other bears legitimate claims on me as to how I treat her. What connection could there possibly be between that and possessive individualism?
The clue lies not in rights themselves but in the honoring and dishonoring of rights and in the claiming of rights. Notice that it is one thing for the other to have a legitimate claim against me; it is another thing for me to honor that legitimate claim. Likewise, it is one thing for me to have a legitimate claim against the other; it is another thing for me to claim that legitimate claim, to engage in the action of insisting that it be honored. Having a legitimate claim to police protection is one thing; going to a meeting of the city council to insist that the police honor that claim is another.
Now imagine a society inhabited by possessive individualists. What will they do? Each will claim his own rights while neglecting or refusing to honor the rights of others. In no way does this alter the structure of the rights themselves; that structure remains intact and symmetrical. The other comes into my presence bearing claims against me; I come into her presence bearing claims against her. It is the practices of honoring and claiming rights that have been distorted.
But note that the language of service and responsibility can also be abused, used to express appalling attitudes of domination, on the one hand, and servility, on the other. And while we are on the topic of individualism, let us also note that rights-talk scarcely has a monopoly on the language of choice for the self-preoccupied individualist. We have all known self-preoccupied persons who thought and spoke not at all in terms of rights but entirely in terms of obligation; their souls were filled to overflowing with their own rectitude-or their own guilt. Offensive or sickly self-preoccupation comes in many forms. Sometimes it employs the language of rights, sometimes it employs the language of duty and obligation, sometimes it employs neither.
Excerpted from Justice by Nicholas Wolterstorff
Copyright © 2007 by Princeton University Press. Excerpted by permission.
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Table of Contents
Part I The Archeology of Rights 19
Chapter 1 Two Conceptions of Justice 21
Chapter 2 A Contest of Narratives 44
Chapter 3 Justice in the Old Testament/Hebrew Bible 65
Chapter 4 On De-justicizing the New Testament 96
Chapter 5 Justice in the New Testament Gospels 109
Part II Fusion of Narrative with Theory: The Goods to Which We Have Rights 133
Chapter 6 Locating That to Which We Have Rights 135
Chapter 7 Why Eudaimonism Cannot Serve as Framework for a Theory of Rights 149
Chapter 8 Augustine's Break with Eudaimonism 180
Chapter 9 The Incursion of the Moral Vision of Scripture into Late Antiquity 207
Chapter 10 Characterizing Life-and History-Goods 227
Part III Theory: Having a Right to a Good 239
Chapter 11 Accounting for Rights 241
Chapter 12 Rights Not Grounded in Duties 264
Chapter 13 Rights Grounded in Respect for Worth 285
Chapter 14 The Nature and Grounding of Natural Human Rights 311
Chapter 15 Is a Secular Grounding of Human Rights Possible? 323
Chapter 16 A Theistic Grounding of Human Rights 342
Chapter 17 Applications and Implications 362
Epilogue Concluding Reflections 385
General Index 395
Index of Scriptural References 399
What People are Saying About This
Wolterstorff's Justice is the most impressive book on justice since Rawls' A Theory of Justice. In a fresh and vigorous manner, Wolterstorff defends a conception of justice as inherent rights and argues for its superiority to a conception of justice as right order. The sweep of the book is breathtaking, ranging from a detailed discussion of justice in the Hebrew Bible and the New Testament to medieval, early modern, and contemporary theories of justice. Wolterstorff's most provocative thesis is that all existing secular as well as most religious attempts to ground a theory of justice fail. Even those who are skeptical about his theistic grounding of justice will be challenged by the clarity, rigor, and thoroughness of his arguments.
Richard J. Bernstein, New School for Social Research
The work of a first-rate philosopher at the top of his game, this book sets forth a distinctive and challenging theory of justice formulated in explicitly scriptural and Christian terms, yet in conversation with the leading alternatives in the Anglophone world. Not only does this book reflect the clarity and acuity of thought that characterize Wolterstorff's work, it also reflects the humane sensibilities of someone who has thought and felt deeply about these matters for a long time.
Jean Porter, University of Notre Dame