Natural rights in Noahic perspective.

• Author: VanDrunen, David
• Position: Faulkner Law Symposium: From the Magna Carta to the March from Selma to Montgomery

The language of rights has become a popular rubric for analyzing many social issues. In general, a right refers to a claim that someone can make against other people, as a matter of justice, to be treated or not treated in a certain way. But rights take a number of forms. Legal or political rights refer to rights granted by law in particular jurisdictions, and some of them apply only to certain people. Various political bodies around the world declare such rights in their constitutions and civil codes. Natural rights, on the other hand, refer to just claims that all people can make, simply by virtue of being human, regardless of the legal system under which they live; or, to put it another way, natural rights are those that all legal systems ought to protect as a matter of justice. The content and existence of natural rights are much disputed. People also speak about human rights, and while some use this term as a synonym for natural rights, others see human rights as a somewhat broader category, referring to rights that all people can justly make, though only under particular political or economic circumstances.

Many writers also distinguish negative rights and positive rights--or, liberty rights and welfare rights. The former are rights to protection from harm caused by other people and especially by the civil government. The United States' Bill of Rights, for example, presents rights entirely within this framework. (1) The latter are rights to enjoy certain goods, to be provided by other people if necessary and by the state especially. Some of the items in the Universal Declaration of Human Rights are of this nature, such as rights to social security, periodic holidays with pay, and an adequate standard of living, including medical care. How people evaluate claims about the existence of natural rights, and debate about whether such natural rights take positive as well as negative forms, has potentially profound implications for how they view the role of the state and even the meaning of the rule of law.

Debates about rights are complex and not easily simplified. Although I cannot deal with many important issues, this paper does address the following two foundational issues: do natural rights exist and, if so, do they take positive as well as negative form? I am a lawyer by training, but I make my living as a Christian theologian, and thus what I believe I can best contribute to these debates is a theological account of natural rights. In what follows I argue that natural rights do indeed exist, and these natural rights take negative but not positive form. These negative natural rights ought to be a foundation upon which particular civil communities develop and a boundary within which political debate transpires.

Among the many ways one might approach these issues, even from a theological perspective, I do so primarily through an analysis of the nature and implications of God's covenant with Noah recorded in Genesis 8:20-9:17. (2) To accomplish this, I first survey important scholarly debates about justice in the past generation, since every conception of rights is grounded in some notion of what is just. Then, I discuss the Noahic covenant and explore its relevance for evaluating these recent debates about justice. Having laid this foundation, I offer my arguments about natural rights. I close on a practical note, reflecting on how my conclusions about natural rights might help to evaluate the current state of American criminal justice, as described in William Stuntz's The Collapse of American Criminal Justice, and the problem of third-world violence, as described in Gary Haugen's The Locust Effect.

Two Kinds of Justice

One's view of natural rights is necessarily intertwined with a broader view of justice, and thus exploring the former needs to happen in the context of the latter. Accordingly, in this opening section I describe some of the debates about justice over the past several decades. Justice, of course, has been of central concern in moral and legal theory throughout the entire Western intellectual tradition and recent debates reflect this history. But the contemporary discussion--whose origin I believe can be dated to the publication of John Rawls's A Theory of Justice (1971)--is quite interesting, and in any case is important for us here because it is our own context.

Acknowledging the dangers of over-simplification that the following move risks, I suggest that the contemporary discussion about justice can be seen in part as an ongoing struggle between two basic approaches, which I will call justice-as-constitutive and justice-as-foundational. Let me be clear, this is not the only way to understand the contemporary discussion; many significant disagreements exist among proponents of each approach. But the difference between these two approaches is very important--acknowledged as such by many participants in the contemporary discussion--and I believe the debate between them needs to be confronted before many other justice-related questions, including those of natural rights, can be productively addressed.

For the first approach, justice is that which reflects and protects the virtuous society ordered toward the common good, thickly understood. One needs to know what the good society looks like, in other words, if one is to specify what constitutes just relations among human beings. From this perspective, justice is a constitutive aspect of a thick moral vision of the common good. The second approach, in contrast, focuses upon general rules and principles on the basis of which individuals and communities with diverse worldviews can agree to co-exist and collaborate in a single civil society, within which they can pursue their own different visions of the good. Whether such a society is deemed just depends not upon a mutually shared thick vision of the common good but upon whether people honor the general rules and principles, regardless of the precise shape the society takes. From this perspective, justice is foundational: it aims to establish a legal framework within which people of diverse convictions can order their lives together in mutual peace, the end result of which remains constantly open-ended.

From a historical perspective, my distinction between these two approaches to justice has similarities to classic debates in political philosophy over which is primary, the right (justice-as-foundational) or the good (justice-as-constitutive). From a slightly different angle, my description of justice-as-constitutive corresponds roughly to the approach embraced in different ways by prominent representatives of classical philosophy and medieval theology (e.g., by Platonists, Aristotelians, and Thomists), while my description of justice-as-foundational corresponds roughly to the approach characterizing the main lines of modern political liberalism. (3) My own proposal regarding natural rights has sympathies with and criticisms of both of these traditions, and represents a kind of natural law liberalism that is indebted to the intellectual work of both traditions but can be identified with neither. (4)

Consider some of the most influential theorists of justice over the past several decades, beginning with Rawls. Rawls offered an intricate defense of the "maximal individual liberty principle," accompanied by the "difference principle." The difference principle proposes that social and economic inequalities, which inevitably result from the liberty principle, are justified when they work to the benefit of the least well-off. His incorporation of both principles results in a procedural view of justice. Rawls does not present a vision of what the good society ultimately looks like. Instead, he asserts that as long as the basic laws and institutions of a society honor his two principles of justice, that society should be reckoned as just, whatever exactly it looks like and however its resources are distributed. (5) This is what I term "justice-as-foundational."

Shortly after the publication of Rawls's book, A Theory of Justice, F. A. Hayek presented a different version of justice-as-foundational in his three-volume Law, Legislation and Liberty. The heart of his argument is that justice requires following general rules of conduct applicable to all people. Hayek dismisses as incoherent the idea of "social justice." According to Hayek, social justice is nothing more than a superstition or "mirage." Justice, he claims, can only pertain to human conduct and not to a state of affairs. Therefore, as with Rawls, Hayek's just society operates according to general rules of conduct, and it is impossible to predict ahead of time what that society will look like. (6) This association of Rawls and Hayek may seem surprising, in light of the popular reputation of Rawls as champion of the socialist left and of Hayek as champion of the libertarian right. Although Rawls and Hayek used very different conceptual tools to develop their respective theories of justice--Rawls's "veil of ignorance" and Hayek's "spontaneous order" seem poles apart--their mutual embrace of a justice-as-foundational perspective explains why Hayek professed basic agreement with Rawls's theory. (7)

A number of other influential theorists have adopted a justice-as-foundational approach, albeit with different assessments of Rawls. Those theorists include Robert Nozick, (8) Brian Barry, (9) and Nicholas Wolterstorff. (10)

Many of Rawls's most prominent critics, however, object to his theory from a justice-as-constitutive perspective. For example, Michael Sandel, a leading "communitarian" theorist, criticizes Rawls for making justice primary in his political philosophy. Sandel argues that, in doing so, Rawls elevates the right over the good and makes justice independent of any particular substantive goal. Sandel's chief critique, therefore, concerns Rawls's conception of justice-as-foundational and the "deontological liberalism" that...