Natural rights in Noahic perspective.
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 underlies it. For Sandel, justice cannot be primary because it depends upon a rich conception of the good. (11) He defends what I have termed justice-as-constitutive. Additionally, like Sandel, Michael Walzer's communitarian alternative subordinates justice (and rights) to a theory of the good--or, more accurately, to a theory of the various goods properly differentiated through his notion of "complex equality." (12) Finally, John Finnis, offering another alternative to Rawls, adopts an explicitly natural law perspective. For Finnis, justice concerns distributive and commutative requirements of practical reasonableness, related to pursuit of human goods, in community. (13) This alternative also represents a justice-as-constitutive approach because a thick sense of the common good grounds Finnis's conception of justice and rights.
Major works by two prominent intellectuals of the past generation, Amartya Sen and Ronald Dworkin, bring this discussion up to date. First, Sen's The Idea of Justice is interesting and profitable, but one of its surprising features--given its title--is that it leaves the reader (or at least me) asking: now what exactly does Sen think justice is? What Sen gives us, I suggest, is a theory of the good society with flourishing people, or, a theory of identifying better societies by comparison of real-world alternatives. At the end of the day, it seems that what is just is what conduces to making people's lives better in the societies in which they live. This is justice-as-constitutive, and it explains why Sen so often critically engages Rawls. (14)
Dworkin's Justice for Hedgehogs is more difficult to interpret. In some respects it seems to reflect a justice-as-foundational perspective, insofar as Dworkin makes the right to equal concern and equal respect the center of his political morality and speaks of rights as "trumps." (15) Yet Dworkin's notion of equal concern/respect is vague, and he gives it content only through "interpreting" the notion through the development of a full-orbed political morality. His idea of justice is "integrated" with a host of other ideas (such as equality, liberty, democracy, and law): hence "justice for hedgehogs." His theory of rights as trumps is ultimately a mode of inquiry about the full-orbed implications of equal concem/respect, which turn out to match precisely the agenda of the left-wing of American politics. For Dworkin, justice, seems in many respects to be justice-as-constitutive: only his system as a whole determines what is just and who has which rights. (16)
To bring this discussion really up to date, what about French economist Thomas Piketty's recent surprise best-seller, Capital in the Twenty-First Century? Piketty does not identify himself as a moral or legal theorist, but he is not shy about speaking of "social justice" and similar ideas. He never defines what he means, and his very brief foray into the contemporary debates about justice discussed above is imprecise. (17) For example, from his appeals to the "general interest" and "common utility" it is clear that his moral vision is broadly utilitarian, seeking the greatest good for the greatest number. (18) Piketty envisions social justice in terms of an "optimal" level of in/equality in an "ideal" society (although these remain vague). (19) This is justice-as-constitutive (although in an impoverished sense from a classical perspective). Social justice is what promotes and conforms to a relatively egalitarian international economic order.
To conclude this section, I wish to be clear again that this justice-as-constitutive/justice-as-foundational distinction does not by any means tell us everything there is to know about a scholar's overall conception of a just society. One salient fact is that there are people on the left and right of the political spectrum among the advocates of both approaches. (20) However, what can be affirmed is that this distinction in approach is at least one very important aspect of contemporary debates about justice, one that intimately shapes the way in which people speak about justice and develop theories of justice. Therefore, I try to come to grips with this distinction in approach before addressing the question of natural rights directly.
The Noahic Covenant
As indicated earlier, I seek to offer a theological account of justice and natural rights, specifically through a study of the Noahic covenant. (21) I begin by commenting on three prominent features of the Noahic covenant that are important for developing a constructive theory of justice and rights. (22)
First, Genesis describes a universal divine covenant. (23) God enters the covenant not only with Noah, but also with his "offspring" after him and with "every living creature of all flesh that is on the earth." (24) This includes "the birds, the livestock, and ... every beast of the earth" as well as all human beings. It also extends to the broader natural order, as God promises the ceaseless regularity of "seedtime and harvest, cold and heat, summer and winter, day and night." (26)
Second, Genesis describes divine promises. (27) God's basic commitment is not insignificant, but is modest: God promises preservation. Many other places in the Hebrew and Christian Scriptures promise much more--the forgiveness of sins, reconciliation with God, a new age of everlasting peace--but we find no such promises here. Instead, God commits himself, for as long as the present earth remains, to sustain the regular cycles of nature, (28) to prevent mass destruction through another great flood, (29) and to keep wild animals from overrunning the human race. (30) The text speaks not of God abolishing evil, but of managing it by keeping it within certain constraints. Such promises are far from meaningless, but the picture is decidedly non-utopian.
Third, Genesis describes human responsibilities in this world. (31) These responsibilities are remarkably few and basic. First, God twice commissions the human race to be fruitful, multiply, and fill the earth. (32) Second, he gives them plants and animals to eat but forbids the eating of flesh with its life-blood still in it. (33) Finally, God appoints human beings to administer proportionate justice against their fellow human beings who violently harm other human beings, as memorably captured in this taut poem, "Whoever sheds the blood of man, by man shall his blood be shed, for God made man in his own image." (34) That is it. The requirements are few, but they are basic and foundational. If the human race is to survive (which is the main point of this covenant), then at a minimum it must procreate, eat, and constrain violence. Of course, some other human activities are highly conducive--perhaps even necessary--to the effective accomplishment of these three tasks. Being fruitful and multiplying suggests the need for family institutions. Eating plants and animals requires rules about property and organization of economic activity, and inflicting equitable punishment upon those who harm others prompts establishment of a formal legal system. And once families, economic structures, and legal systems are put in place, a great many possibilities for productive activity beyond the three minimal requirements open up for the human race. Thus, while this covenant with Noah does not constrict the arena of human endeavor to just a few things, it does establish a basic foundation, and without this foundation developing complex civil societies and unleashing the spectrum of latent human potentialities are impossible.
Noahic Justice: A Basic Proposal
I now return specifically to the question of justice. Earlier I described two basic approaches, justice-as-constitutive and justice-as-foundational. In this section I explore whether the Noahic covenant provides any reason to favor one approach over the other. Following this, we will be ready to address the main questions of this paper, whether natural rights exist and, if so, what kind of natural rights they are.
First, let me be clear why I believe the Noahic covenant is so important here. The Noahic covenant does not establish a worshiping community of redeemed saints (as later biblical covenants do), but it does establish the universal human community and authorize the formation of familial, economic, and legal institutions to carry out the basic responsibilities of the human race as a whole. And since God placed this covenant into effect for as long as the world in its present form endured, the Noahic covenant is still what authorizes legitimate legal institutions today. (35) To put it another way, we read in Romans that the governing authorities have been "instituted by God" to bear the sword and punish evildoers, and we ask how God has instituted them. (36) The compelling answer is that God has instituted and continues to institute them through the Noahic covenant. Therefore, if the Noahic covenant suggests a resolution to the justice-as-constitutive/justice-as-foundational debate, then we have the Christian theological answer we are looking for.
The Noahic covenant, it seems to me, indicates that each approach captures part of the truth but is not fully adequate. The justice-as-constitutive approach properly recognizes that conceptions of justice and rights always presuppose some conception of the good, and to the extent that formulations of a justice-as-foundational approach deny or ignore this, they are deficient. However, in its classical form (and in many contemporary forms) the justice-as-constitutive approach begins with a thick, holistic vision of the good society and understands justice as integral to this vision. The Noahic covenant, in contrast, presents no holistic vision of the good society. What the covenant does provide is a thin, sparse vision of the good--a growing human population that refrains from violent acts. Alongside this thin conception of the good is a minimalist ethic--the core of what a human society must do in order to survive. As I noted above, human society certainly can and should pursue a whole range of productive activities beyond this minimalist ethic, but the minimalist ethic is a floor, which must not be neglected. The Noahic Covenant itself does not specify a single model for human society; therefore, complex human societies rising upon this floor could conceivably take many different forms.
Part of this floor is the following principle of proportionate justice: "Whoever sheds the blood of man, by man shall his blood be shed, for God made man in his own image." (37) Thus here the Noahic covenant nods to the important truth captured in the justice-as-foundational approach. It establishes a basic, but fundamental, principle of justice that is not derived from a thick vision of the good society, but instead forms a basis upon which human beings can build complex and productive societies.
But what about this principle of justice expressed in Genesis 9:6? It is a version of the lex talionis, or law of retribution: if A harms B, B ought to receive a proportionate penalty in return (also known as an "eye for an eye," in its most famous form). At first, this may seem a highly unpromising foundation for justice in a humane civilization. Thus, I will offer four interrelated observations to clarify and defend the idea that the lex talionis can serve as foundation for a just society.
First, the lex talionis is really not crude and barbaric, but rather a supple principle of justice. "Eye for an eye" represents proportionality: the punishment must fit the crime. What exactly is a fitting penalty for one who harms another in a certain way? The maxim "eye for an eye" answers this question so handily because, in general, there is no more accurate price for a lost eye than another eye. The original harm and the corresponding penalty are an identical match. (38) But once we recognize this, we need not think that the lex talionis necessarily demands physical mutilation. Sometimes a literal application of the formula would not in fact produce a proportionate penalty; for example, when a two-eyed woman damages the remaining eye of an already one-eyed woman or an accountant mutilates the hand of a concert pianist. In addition, monetary damages can ordinarily capture the required proportionality quite efficiently (and without the blood). For example, if A destroys B's eye, the proportionate compensation may be something like an agreed upon price which A is willing to pay to keep his eye and which B is willing to receive to forgo the satisfaction of taking A's eye. (39) Putting things in these terms, furthermore, suggests that the lex talionis not only represents the principle of retributive justice, but can also capture the idea of restorative justice. In other words, the lex talionis concerns both administering a proportionate penalty upon the wrongdoer and making the victim whole. (40)
Second, while the lex talionis is not dependent upon a thick, holistic conception of the good society, neither does it fall prey to the charge of being vacuous or insubstantial. I am thinking here especially of the powerful accusation that Rawls's famous theory of justice presents the human beings who establish rules of justice in the original state, behind the "veil of ignorance," as disembodied individuals stripped of any interests, passions, and other concrete attributes that make them the people they are. (41) This is indeed a compelling objection against Rawls's version of justice-as-foundation, but it does not sweep the lex talionis into its lair. Even understood literally, the lex talionis envisions people as embodied beings with genuine interests and passions--if nothing else, certainly that! This judicial principal, understood in supple form, asks us to consider the circumstances of both wrongdoer and victim in order to determine what harm was really done and what would serve to repair the resulting damage to social relations. At the same time, the lex talionis is substantively minimal. Something like the old physician's maxim is at work. First, do no harm. That is a substantive claim, but the substance is minimal. The good does precede the right, but it is a thin rather than thick good. We hope there is much more to life than not harming others, but there is little prospect for good without at least that.
This leads to a third clarification about the lex talionis. My claim is not that a growing, advancing society will have no need to develop much more elaborate rules of law than the simple talionic principle, but that the lex talionis represents a foundation or a floor, without which everything else will be highly unstable. This gets to the truth captured in the justice-as-foundational approach. One does not need to know exactly what a house will look like in order to build a foundation, but one first needs the foundation to build a house. Without protecting its members from the kinds of measurable harm envisioned by the lex talionis, a society cannot undertake collaborative and constructive activity in the various areas of human culture. Likewise, a society that excludes certain people from the basic benefits of justice effectively excludes them from this broader human project. To the degree the lex talionis is honored by all and applied to all, there is strong reason to conclude that we have, at its core, a just society.
Finally, the lex talionis, when understood in the way described above, seems to capture an instinct and a desire that runs deep within the human soul. Although the application of the lex talionis will vary, people in many diverse cultures have embraced the principle. Harm to another person deserves recompense. That conviction is not easily expunged from the human breast. (42) Yet, if recompense is too little, the victim remains unsatiated; conversely, too much recompense instigates the original wrongdoer to strike again and perpetuate a cycle of violence. The proportionality of the lex talionis aims to settle matters once and for all, as far as that is ever possible in this world, by leaving both wrongdoer and victim without reasonable claim that the scales of justice remain unbalanced. These reflections help to explain why, historically, the lex talionis has served to deescalate cycles of violence and to put an end to blood feuds. (43) The principle reoccurs in various cultural settings through history. It appears in the Code of Hammurabi, in the Law of Moses, in the Twelve Tables of ancient Rome, and in the sagas of Iceland. (44) In order to be maximally useful, a foundational principle of justice should have a broad, cross-cultural appeal. In other words, it should prove to be descriptively attractive and prescriptively normative. The lex talionis seems to fit those criteria. Neighbors do not necessarily need to share a similar philosophy of the common good to agree that measurable injury to another deserves a proportionate penalty.
A Defense of (Negative) Natural Rights
With these considerations about justice under the Noahic covenant in hand, we now turn directly to the issue of natural rights. Previously I defined natural rights simply as claims that all people can make, by virtue of being human, regardless of the legal system under which they live. To put it another way, natural rights are those that all legal systems ought to protect as a matter of justice. The two main questions I posed were whether natural rights actually exist and, if so, of what sort they are. I argue here that natural rights do indeed exist and that they exist in the form of negative, rather than positive, rights. I understand that I am not offering a complete defense of these claims, nor addressing every objection, nor providing every necessary nuance. This is, instead, a sketch of an argument for these general conclusions.
My initial claim is this: it is evident from the Noahic covenant that natural rights exist. This claim is true, given my working understanding of natural rights, because of the following three basic (though inseparable) facts: the Noahic covenant recognizes rights of human beings as human beings; it recognizes these rights universally; and it recognizes these rights equally and reciprocally.
First, the Noahic covenant recognizes rights of human beings as human beings through the talionic principle in Genesis 9:6. This verse speaks of rights implicitly rather than explicitly, but it does so clearly. If the blood of a person (A) is shed, the person (B) who sheds it must be punished. This makes sense only if B wronged A, or in other words, B treated A in a way that A should not have been treated. Treated in such a way, A (or A's representative) has a just claim against B. This is what we mean by a "right." Furthermore, the only thing that identifies A is that A is a human being, an adam--ordinarily translated "man," but indicating a human being generically, not males only. Thus, by virtue of being human, a person at least has a natural right not to be physically harmed by other people.
Second, the Noahic covenant recognizes these rights universally, and not simply as belonging to some types or classes of human beings. This seems to be a necessary implication of what I just said about Genesis 9:6, since this verse speaks about human beings genetically. (45) But if there is any doubt, I call another feature of the Noahic covenant into service--the fact (considered above) that God makes this covenant with all of Noah's descendants after him, by which the text means to say: all human beings without exception from Noah's time forward. Thus, whatever rights Genesis 9:6 acknowledges, it acknowledges those rights for human beings universally.
Third and finally, the Noahic covenant recognizes these rights equally and reciprocally. This also may be implied in what was said above, but to solidify the case I make an additional observation about Genesis 9:6. Every person's blood has precisely the same value. For example, if A sheds B's blood, A's blood is an equivalent exchange. To put it more vividly, if a king sheds a pauper's blood, the shedding of the king's blood puts the scales of justice back into balance--and vice versa. No social status or any other feature incidental to one's human identity distinguishes the rights of one person from those of another for the foundational justice of the Noahic covenant. Each person claims the same thing and owes the same thing to every other person. (46)
These three considerations provide a basic argument, from the Noahic covenant, for the existence of natural rights. But this raises our second main question: of what sort are these natural rights? More specifically, are these natural rights only negative or are they also positive? To review, negative (or liberty) rights are claims not to be harmed by other people. Familiar rights such as rights not to be killed or robbed or hindered from carrying out one's religious worship are of this sort. Positive (or welfare) rights are claims to enjoy certain goods, which other people must provide if necessary (usually through a government program). These goods might include food, housing, and employment; they might also include paid holidays (per the Universal Declaration) or contraception (per recent American debates about Obamacare), or possibly anything else deemed important to a meaningful life (perhaps golf or a sexual partner).
It is clear that the Noahic covenant recognizes negative natural rights. This covenant ordains justice for the person who suffers harm at the hand of another human being. I recognize that reference to "harm" is potentially hazardous, given the freighted nature of the term at least since John Stuart Mill advocated his famous "harm principle." (47) Thus let me emphasize at once that by speaking of "harm" I do not mean to embrace Mill's principle per se. Let me also be clear that I do not take "harm" to be an uncontroversial, morally neutral concept, as writers in the liberal tradition sometimes give the impression of doing. (48) The full extent of what constitutes "harm" is debatable. I certainly cannot attempt to define its full sense here but can suggest some basic parameters for the kind of "harm" in Genesis 9:6. This will indicate the basic substance of the negative natural rights it recognizes.
To state the present question specifically, against what sort of harm does the Noahic covenant, through the lex talionis formula in Genesis 9:6, acknowledge natural rights? First, it acknowledges rights against harm that is immoral. Clearly the person envisioned as shedding another person's blood has wronged that person. It is possible for a person to be "harmed" in the sense of suffering detriment to his interests through another person's morally upright conduct. For example, a student who excels in academic studies, an athlete who excels on the playing field, or a businessperson who works hard and develops useful products may work to the detriment of the interests of other people pursuing these same endeavors but without as much success. But there is no wrong inflicted in these circumstances. The lex talionis in Genesis 9:6 does not recognize a natural right against being outperformed by others in lawful competitive activities.
Second, the Noahic covenant acknowledges natural rights against harm that is active. In Genesis 9:6, one person has done something in order to shed another person's blood. Sometimes people speak of "harm" in a passive sense, when someone fails to help another in need of assistance. For example, A was harmed when B did not pull her out of the icy river. I revisit this kind of scenario when we consider the issue of positive natural rights below. For now, I simply note that such passive harm is different in fundamental ways from active harm. The Noahic covenant recognizes natural rights against harm that is active.
Third, the Noahic covenant acknowledges natural rights against harm in the form of injury to another's bodily integrity. Genesis 9:6 explicitly protects from bodily injury in the form of bloodshed. It is probably uncontroversial to conclude that Genesis 9:6 also intends to protect against bloodless physical violence, but two considerations shore up this conclusion. One is that the Noahic covenant seems to present the judicial principle in Genesis 9:6 as a response to what Genesis 6:11-13 identifies as the chief reason why God brought the great flood: violence, which includes all sorts of bodily injury. The other consideration is that use of the lex talionis later in Scripture takes various forms, and while some of them describe blood-spilling acts (e.g., "hand for hand"), not all of them do (e.g., "bum for bum"). (49) The point of the lex talionis is not to specify only certain types of injury, but to establish a judicial principle--proportionate penalty--for all sorts of injury.
Fourth and finally, the kind of harm against which the Noahic covenant acknowledges natural rights probably extends to certain other kinds of non-bodily injury. Victims of immoral and active, but non-bodily, harms such as theft and slander often feel more severely wronged than do those suffering mild forms of bodily harm. One could make a strong argument for applying Genesis 9:6 to these non-bodily harms as well, although defining these harms would raise some difficult conceptual challenges. This is not an important issue for my present argument, and thus I will not pursue it further.
In summary, through the talionic principle of Genesis 9:6, the Noahic covenant acknowledges natural rights for all human beings against immoral and active harms to bodily integrity, and probably also to property and reputation. Since this corresponds to what is ordinarily known as negative rights, I conclude that the Noahic covenant recognizes the existence of negative natural rights.
What then about positive rights? Does the foundational justice of the Noahic covenant indicate that natural rights also take positive form? I answer no; there are no natural positive rights acknowledged in the Noahic covenant. This is no accident. It is doubtful that natural rights can take positive form in (almost) any circumstance. (50)
To begin my defense of these conclusions I simply note that the Noahic covenant never says anything about one person's rightful claim against another person to be provided with certain goods or benefits. (51) Now, someone might immediately object and assert that I was too hasty above when I concluded that the Noahic covenant acknowledges natural rights against harms that are active, but not passive. Is it not the case, the objector will say, that there is really no difference in principle between actively harming another person--the violation of a negative right--and passively failing to help a person--the violation of a positive right. We might imagine A coming across B in a deserted place. B is about to die from a disease, but A is in possession of medication that would heal him, and A has absolutely no other use for this medication. If A pulls out a gun and shoots B in the heart or simply walks by without giving the medication to B, there is no difference in moral culpability. In both cases B dies because of A's malicious con duct. Thus the objector concludes that if B has a (negative) right not to be shot by A, B can just as rationally claim a (positive) right to receive the medication from A.
This scenario presents about as persuasive a case as one could make for a positive right being the virtual equivalent of a negative right and hence being acknowledged implicitly in the Noahic covenant. (52) The stakes for B in this concocted scenario are maximally high: life or death is on the line. Meanwhile, the stakes for A are maximally low: he has nothing to lose by giving B the medication. Furthermore, we probably feel instinctively that A's conduct in both cases is similarly reprehensible. Even so, A's two courses of action are not the same; they may deserve the same moral condemnation, but they are not the same action. In one case, A kills B; in the other, a disease kills B. To equate A's two moral actions--killing A and letting A die--is to reason as if every death, or harm, is the fault of another human being. On the contrary, while some deaths occur by murder, most deaths are by so-called natural causes. Some setbacks to bodily well-being occur by human violence although most occur in the course of life apart from another person's willing them. (53) So even in this most unlikely of scenarios, failure to help cannot be equated with active harm. In other words, positive natural rights require their own defense, and cannot simply be subsumed under a defense of negative natural rights.
Therefore, we must inquire whether there is such a defense of positive natural rights. I do not believe so. Natural rights concern universal, equal, and reciprocal claims, but claims to positive rights are not of this nature. The scenario considered above is a good example, for its force depends on very particular circumstances--B has a right to A's medication if 'B's life is imminently threatened, if there's no one else around able to help, or if A has no other use for it. How many more details might we need to know in order to be sure that B really has this right toward A? Or would B still have the right if he were not actually dying, but only very sick, or just a little unwell? We could multiply such questions endlessly. It would take a full-orbed moral vision of the proper relationships among all sorts of different people in all sorts of different circumstances to even begin to parse this out.
At this point we must step back and consider that what we are looking for, through the lens of the Noahic covenant, is not a full-orbed moral vision, but justice-as-foundational, a basic understanding of justice upon which fuller moral visions can be pursued. Natural rights define this foundation. However, a person's claim that no one else should inflict immoral and active harm upon her is foundational, whereas a person's claim that someone should help her is not. The latter sort of claim may well identify a true moral obligation for another person in a given circumstance--I pause to highlight that point--but it is not the kind of claim that can provide a foundation of justice for human society.
In defense of this conclusion, I note that alleged positive rights--unlike negative rights against immoral and active harm--are neither truly universal nor reciprocal, and thus they are not natural rights, which, by virtue of being natural, apply to all people against all people in all circumstances. By necessity, one person's right corresponds to other people's duties. A person's negative right not to be harmed means that every other human being has a duty not to harm him, and this is a duty that every other person is capable of performing. Everyone in the world can claim such a right without creating a conflict with another's claim to the same right. When one claims a right not to be immorally and actively harmed, there is no need to ask "how much," for the answer is always: no harm at all. When one claims a right not to be immorally and actively harmed, there is no need to ask "by whom," for the answer is always: by every other human being.
In the case of positive rights this universality and reciprocity is entirely lacking. Claims to positive rights inevitably and inherently create conflicts and raise questions such as "how much" and "by whom" for which no clear answer is possible. (54) Consider the "how much" question. Does an alleged right to food involve a right to enough crumbs of bread to prevent starvation or a right to a well-balanced diet with plenty of fruits and vegetables? Does an alleged right to health care involve a right to basic first aid and aspirin or to the very best treatment the Mayo Clinic can offer? It seems impossible to know even how to begin answering such questions, even from an early twenty-first century American context, where people have access to a well-balanced diet and the Mayo Clinic. But these questions would not even have been comprehensible in most human societies throughout most of history. What would a right to food have looked like to human beings living several centuries ago, and engaged in subsistent farming in a remote village? What would a right to health care have meant to them--a right to a good bleeding? A mutually binding right not to be immorally and actively harmed would have made perfect sense to Noah and his family when they received the covenant; but not so for a right to health care and periodic vacations with pay. (55)
Similar difficulties emerge when asking the question "by whom." If someone claims a right to food or health care, who exactly has the obligation to provide it? If A claims from B a right to health care, what if B does not have the skills or resources to deliver? Or what if B has the skills and resources to meet A's claims, but a million other people also claim a similar right from her? If A instead claims this right from his community as a whole, or from the entire human race, that simply shifts the point at which analysis begins and does not make the questions any easier to answer. (56)
A couple of clarifying points may help to bolster this critique of the idea of positive natural rights. First, while negative rights do not presume any particular stage of cultural achievement, positive rights generally do. People do not need to possess any special resources in order to honor negative rights, but they do need special resources in order to honor positive rights, and, in particular, they need resources created, or achieved, by innovative human effort. Houses, medical care, education, and jobs are not just there for the taking; even food in the quantity and quality we have it today is the result of human ingenuity. Individuals and groups of individuals must expend energy, invest resources, and take risks in order to produce these things before anyone else could conceive of a right to possess them. Such rights claims, therefore, cannot be deemed natural, applying to all human beings everywhere by virtue of their being human. Such rights claims cannot serve as a foundation upon which society is built; at most they could emerge as civilization advances.
Second, claims to positive natural rights cannot exist in harmony with each other. Unlike negative natural rights, which all people can claim against everyone else without running into contradiction, positive rights claims make demands for limited, scarce resources. One's claim inevitably encounters competition from someone else's.
In addition, and perhaps even more troubling, claims to positive natural rights cannot exist in harmony with the claims to negative rights which I have already argued truly are natural, and foundational for human society. By demanding help and provisions from other people, positive rights are at least indirectly coercive. Rights to food, housing, and health care imply that someone somewhere must expend the time and energy to grow, process, and deliver food, to chop wood and build structures, to research treatments and perform surgeries. Positive natural rights cannot be enforced without some coercive threats to some people standing somewhere behind guarantees that a range of goods and service will be provided to others. Claims to positive natural rights, therefore, at some level run at cross-purposes to negative natural rights as discussed above. (57)
Claims to positive rights also seem self-defeating when we consider that (at least in the form they are claimed today) they presuppose great economic and technological advances. Such economic and technological advances require enterprise and innovation, which in turn requires a large measure of freedom of action which negative natural rights tend to protect and which claims to positive rights tend to restrict. In other words, claims to positive natural rights compromise the integrity of the negative natural rights without which the resources that positive rights claim would not even exist.
Many thoughtful skeptics of the pervasive talk about rights in modern political discourse point to how these alleged rights have a competing and unreconciled character, which causes confusion and makes it necessary to balance one against another. Additionally, they note that the absolute character of rights claims tends to choke off debate and compromise. (58) These are fair complaints. But some proposed solutions to the problem are unsatisfactory. Should we respond by retaining talk of a broad spectrum of rights --both negative and positive--but understanding them in a more modest and non-absolute way (59) or perhaps by abandoning talk of natural rights altogether? (60) The problem with the former, it seems to me, is that rights lose their meaning and force once subject to compromise or balance; we are then left with interests rather than rights. (61) The problem with the latter is that we lose something immensely important and useful--not to mention theologically compelling--if we give up on the idea of natural rights altogether. Do we really want to abandon the claim that there are some ways in which we simply should not act toward our fellow human beings? The only viable solution is to maintain the concept of rights, but only rights that are truly universal and thus not subject to compromise or balance. But this also means limiting this rights language to negative natural rights. (62)
To put it another way: it means limiting our acknowledgement of natural rights to what is truly foundational. Natural rights are not tools to outline the detailed contours of the comprehensively good society, but this hardly makes them worthless. (63) On the contrary, natural rights tell us what the absolute preconditions are for achieving the comprehensively good society. More realistically, natural rights tell us the absolute preconditions for working toward a better society--preconditions which in fact countless people have tried to subvert throughout human history, to the grave detriment of their communities. (64)
There is no debate whether increasingly sufficient and nutritious food, safe housing, and ever-improving medical care for all people are very good and proper goals for human society. But they are just that, goals. They must be achieved through a long process of creative human effort; they cannot simply be claimed. Such things are not rights to be enforced, but achievements to be won. (65) The Noahic covenant, as described above, envisions human beings as creatures with work to be done, but who need, before anything else, protection from harm by others so they can do the work. (66) The notion that each should be protected from immoral and active harm is arguably a widely shared human instinct about which there seems to be some prospect for substantive agreement among people who desire peaceful social life under the rule of law, while claims to inherently vague positive natural rights seem to be a recipe for entrenched social conflict. This in turn dangerously leaves little theoretical space for prudence, discretion, and compromise.
The notion of rights cannot accomplish everything good there is to accomplish. If we look to claims of justice and the mechanisms of law to attain everything worthwhile, few worthwhile things will be achieved. (67) The most meaningful and valuable goods of life usually blossom through social institutions other than the state and her courts--the latter existing to protect these social institutions rather than supplant them. And these meaningful and valuable goods are more often the product of free action and charitable gifts than of the coercive claims of positive rights.* 68
CONCLUSION: AMERICAN CRIMINAL LAW AND THIRD-WORLD VIOLENCE
To end on a practical note, I reflect on how my conclusions about natural rights might help to evaluate the current state of American criminal justice and the problem of third-world violence. Since I have no expertise in these very big fields, I rely, respectively, upon William Stuntz's The Collapse of American Criminal Justice and Gary Haugen's The Locust Effect (69)
To begin with American criminal law, I recognize that Stuntz makes many disputable claims. The Collapse of American Criminal Justice, however, is not a polemic from either the right or the left and addresses many issues that people across the political spectrum must agree are deep social problems, such as the high rates of violence in many inner-city neighborhoods and the high incarceration rates of African-American males--whatever their ultimate causes and solutions. Thus, I trust that readers will not object to my use of this work to test and apply my theoretical claims. I suggest that, to the extent Stuntz is correct about the American criminal justice system, its problems have much to do with failure to honor negative natural rights as foundational to justice.
Stuntz argues that American criminal justice has collapsed in the following ways. It took a lenient turn from the early 1950s to the early 1970s, during which time crime rates rose considerably. (70) This situation instigated an understandable though immoderate reaction beginning in the 1970s and continuing to the present. (71) During this period imprisonment rates have soared. Crime continued to increase through the 1980s, but during the past two decades, crime has decreased noticeably. However, many innercity neighborhoods remain war zones, even while most of the country is quite safe and peaceful. According to Stuntz, the problems of the criminal justice system have fallen disproportionately upon African-American communities. (72) African-Americans are imprisoned at much higher rates than others and are also usually the victims of inner-city violence. Prosecutors regularly use drug charges as proxies for violent felony charges (the former being much easier to prove than the latter) and gain the vast majority of convictions through plea bargains rather than jury trials. The criminal justice system, controlled largely by people outside the innercity neighborhoods where most of the violence and convicts come, has both failed to adequately protect these neighborhoods and been overly severe in arresting, convicting, and sentencing its residents. (73)
What do these things have to do with my claims about justice and rights? I move past some of the general problems Stuntz identifies--such as too much severity and racial disparity (74)--and reflect on two more particular issues he emphasizes: the use of drug charges as proxies for violent felony charges and the proliferation of plea bargains at the expense of jury trials. While these trends are understandable (they make it easier to obtain convictions against people deemed violent and worthy of incarceration), both seem to run aground upon the principle of proportionate justice, the lex talionis, that I have suggested is the minimal foundation of justice for a functional society.
The lex talionis, especially in the form observed in Genesis 9:6, indicates that violent felonies ought to be at the center of concern for a justice system. Violent acts that harm another human being ought to receive a proportionate penalty. Yet this is precisely what these two trends obstruct. Using drug charges as a means to incarcerate those considered bad people means the justice system does not address the violent acts themselves. This is not only a problem of principle. It means a crime victim does not gain the justified sense of satisfaction that justice has been administered--administered, that is, against the wrongdoer for the particular wrong committed against her. It also means the wrongdoer, even if he is incarcerated for drug possession, only suffers a penalty for what is essentially a matter of vice, and not for the act that in reality harmed another human being. Such a system fails to send any message to violent people that violent acts do not pay. (75)
Promiscuous use of plea bargains seems to exacerbate deviation from the lex talionis. According to Stuntz, plea bargains were originally meant to resolve easy cases; now plea bargains serve to avoid (expensive) trials and to guarantee convictions, and they simultaneously (and counter-intuitively) increase convictions and lengthen prison sentences. If Stuntz is correct, more innocent people are locked up (being scared by prosecutors into forgoing trials to avoid the risk of harsh sentences) and particular sentences bear less proportion to the actual crime of which the person is accused. If the lex talionis means anything, it means punishment should match the crime. The system Stuntz describes has major failings on this count.
This criminal justice system so often fails to protect and give just satisfaction to residents of inner-city neighborhoods whose most fundamental negative rights have been violated, and fails to mete out punishment to the violent for these violations of negative rights. However, I cannot help but observe that the ascription of positive rights to residents of these inner-city neighborhoods has boomed during the very decades in which their streets have become terribly violent. Though not always described in terms of "rights," entitlement programs to food, education, housing, jobs, and medical care now proliferate in ways they did not in the first half of the twentieth century, before the decline of these neighborhoods. Yet who would argue that these neighborhoods are thriving by any basic measure of human flourishing? My argument in this article suggests that failure to honor negative rights as the foundation of justice will make society as a whole unstable and unproductive. The case of American inner cities seems to vindicate that claim. (77) Though a worthy and fitting goal, full-orbed human flourishing cannot be society's foundation; full-orbed human flourishing needs a foundation.
The Locust Effect confirms this basic point on a global level. Haugen's main contention is that vulnerability to violence is a terrible plague for the global poor. (78) While first-world people tend to think of the global poor's problems in terms of insufficient food, clean water, housing, medical care, hygiene, and education, Haugen argues that violence is in fact their most serious problem and the chief reason great numbers of people cannot escape poverty. (79) 80 Without denying the other problems are important, Haugen claims that improvement in these other areas will be seriously hampered until the incompetence and corruption of so many third-world police forces and judicial systems are remedied.
Haugen's analysis of the tragic third-world situation seems to be exactly what my argument about natural rights predicts would be the case. Protection of negative, natural rights against immoral and active harm to one's bodily integrity and property--precisely the violence Haugen addresses--is foundational to any healthy and flourishing society. Without securing this protection, success is bound to elude any attempt to provide positive benefits. Whether in American inner-city neighborhoods or slums in the developing world, the ideals and achievements of a good society can be attained only by building upon protection of negative natural rights--a truth to which the Noahic covenant pointed long ago.
Westminster Seminary California
(1) Even those rights stated positively in the Sixth Amendment are really just negative rights put in a different form. The Sixth Amendment essentially concerns the right not to be arrested and tried in certain ways.
(2) Although I will not discuss this point further, readers may note that I also see my conclusions about the Noahic covenant as grounding a Christian theology of natural law; I have developed this case in detail. See David VanDrunen, Divine Covenants and Moral Order: A Biblical Theology of Natural Law (Wm. B. Eerdmans Publishing Co. 2014). Thus I understand myself here as both trying to establish a thick, Christian theological account of natural rights and also suggesting that these truths about natural rights are known to all people and that God holds them morally accountable for honoring them. Here I believe I am attempting to navigate something of the same course, although in a considerably different way, that Grace Y. Kao does. See Grace Y. Kao, Grounding Human Rights in a Pluralist World (Georgetown Univ. Press 2011). Kao seeks a kind of middle way between "maximalists," who think human rights claims can be intelligibly grounded only in a rich set of religious convictions, and "minimalists," who think they can defend human rights without recourse to any controversial philosophical or theological premises. Put in these terms, I agree with the maximalists. However, my substantively thick theological account points to the reality of an objective and universally known natural law, though of course not universally acknowledged and practiced (see Romans 1:19-20, 32; 2:14-15). Thus, while only a Christian theology can ultimately explain the nature and origin of natural rights, all people actually know that they and others have these rights.
(3) Although he uses different terminology and prescribes different solutions from what I offer here, Alasdair MacIntyre's study of justice and rationality in the ancient Greek and Thomistic traditions in comparison to the liberal tradition seems consistent with this basic claim. See Alasdair MacIntyre, Whose Justice? Which Rationality? (Univ. Notre Dame Press 1988); see also John Rawls, Political Liberalism 134-135 (Columbia Univ. Press 1993). "One of the deepest distinctions between conceptions of justice is between those that allow for a plurality of reasonable though opposing comprehensive doctrines each with its own conception of the good, and those that hold that there is but one such conception to be recognized by all citizens who are fully reasonable and rational. Conceptions of justice that fall on opposite sides of this divide are distinct in many fundamental ways. Plato and Aristotle, and the Christian tradition as represented by Augustine and Aquinas, fall on the side of the one reasonable and rational good. Such views hold that institutions are justifiable to the extent that they effectively promote that good. Indeed, beginning with Greek thought the dominant tradition seems to have been that there is but one reasonable and rational conception of the good. The aim of political philosophy--always viewed, as part of moral philosophy, together with theology and metaphysics--is then to determine its nature and content. The classical utilitarianism of Bentham, Edgeworth, and Sidgwick belongs to this dominant tradition. [He says that the "ethical liberalism" of Raz and Dworkin belong to this tradition too. 135 n.1] By contrast, we have seen that political liberalism supposes that there are many conflicting reasonable comprehensive doctrines with their conceptions of the good, each compatible with the full rationality of human persons, so far as that can be ascertained with the resources of a political conception of justice." Id.
(4) Cf. David VanDrunen, The Natural Law and Liberal Traditions: Heritage (and Hope?) of Western Civilization, in The Law of God: Civilization and Transcendence (Pieter Vos & Onno Zijlstra ed., Brill 2014). An important dimension of this is that my theory of natural law is built on Reformed theological convictions, which bear both continuities and discontinuities with medieval Thomism. See VanDrunen, supra note 2, at 22-36.
(5) See John Rawls, A Theory of Justice [section] 14 (Harvard Univ. Press 1971). But see John Rawls, Political Liberalism, Lecture 5 (2005) (discussing conceptions of the good and their relation to his liberal notion of the priority of the right).
(6) See Friedrich A. Hayek, The Mirage of Social Justice, in Law, Legislation and Liberty (2d ed. Univ. of Chicago Press 1976).
(7) For Hayek's comments on Rawls, see id. at 100. Although Hayek disliked Rawls' use of the term "social justice," he stated, "I have no basic quarrel with an author who... acknowledges that the task of selecting specific systems or distributions of desired things as just must be abandoned as mistaken in principle, and it is, in any case, not capable of a definite answer." Id. The fact that Rawls was not a committed socialist and Hayek not really a libertarian should serve to dampen some of the surprise many readers feel when reading Hayek's positive remarks on Rawls. For Rawls's explanation of why the basic principles of "justice as fairness" do not determine in advance the choice between a private-property and socialist economic system, or some intermediate form, see JOHN Rawls, A Theory of Justice 270-74 (1971); see also John Rawls Political Liberalism, 338-39 (1993). For Hayek's vision of how civil government should be structured and what its functions are, see Fredrich A. Hayek, The Political Order of a Free People, in 3 Law, Legislation and Liberty (Univ. of Chicago Press 1979). For example, he writes: "Far from advocating... a 'minimal state', we find it unquestionable that in an advanced society government ought to use its power of raising funds by taxation to provide a number of services which for various reasons cannot be provided, or cannot be provided adequately, by the market." Id. at 41.
(8) See Robert Nozick, Anarchy, State, and Utopia (Basic Books, 1974). Nozick argues that the foundational rules of justice can justify nothing more than a minimal, night-watchman state.
(9) Barry (very much to the left of Nozick) expresses great appreciation for Rawls, but thinks his own conception of "justice as impartiality" better accomplishes many of the things that Rawls's theory sought, but failed to do. See Brian Barry, Justice as Impartiality, in 2 A Treatise on Social Justice, 76-77,80-83 (Clarendon Press 1995).
(10) Nicholas Wolterstoff writes, for example, "Rights are boundary-markers for our pursuit of life-goods. Later he adds, "I think of a social order as just insofar as its members enjoy the goods to which they have rights." Nicholas Wolterstorff, Justice: Rights and Wrongs 5,10 (Princeton Univ. Press 2008). Thus, Wolterstoff does not understand (natural) rights as entirely prior to any conception of the good. He sees rights and justice as playing a boundary-defining role for how a multitude of individuals and communities can pursue their goals. Proper placement of Wolterstorff in the categories I am using also requires mentioning his other recent works dealing with justice, liberalism, and/or the protectionist purpose of government. See e.g., Nicholas Wolterstorff, Justice in Love (Wm. B. Eerdmans Publishing Co. 2011); The Mighty and the Almighty: An Essay in Political Theology (Cambridge Univ. Press 2012); Understanding Liberal Democracy: Essays in Political Philosophy (Terrence Cuneo ed., Oxford Univ. Press 2012).
(11) See Michael J. Sandel, Liberalism and the Limits of Justice 175 (Cambridge Univ. Press 1982). Though Sandel does not explicitly identify himself with the classical natural law tradition, he sets Rawls in opposition to it indirectly through contrasting Rawls's vision with the classical Greek and medieval Christian conceptions of a world with an objective moral order.
(12) See Michael Walzer, Spheres of Justice: A Defense of Pluralism and Equality (Basic Books, reprint ed. 1983).
(13) See John Finnis, Natural Law and Natural Rights ch. 7-8 (Oxford Univ. Press 1980).
(14) See Amartya Sen, The Idea of Justice (Belknap Press, reprint ed. 2009).
(15) See Ronald Dworkin, Justice for Hedgehogs (Belknap Press, reprint ed. 2011). In an earlier work, Dworkin stated: "Individual rights are political trumps held by individuals." See Ronald Dworkin, 5 Taking Rights Seriously xi (Harvard Univ. Press 1977). Bolstering the view (which I do not adopt) that Dworkin promotes justice-as-foundational is that Sen places Dworkin alongside Rawls and Nozick as guilty of the "transcendental institutionalism" that seems to bear some family resemblances to justice-as-foundational. See Sen, supra note 14, at 7-8. By "transcendental institutionalism" he refers to a focus upon "perfect justice," rather than upon relative comparisons of justice and injustice, and to a focus upon getting institutions right, rather than upon the actual societies that would emerge from given arrangements. Id. at 5-6.
(16) For what it is worth, Rawls places Dworkin in the same tradition as the classical philosophers and Thomists, the same tradition in which justice-as-constitutive tends to flourish. See Rawls, supra note 7, at 135 n.1.
(17) Although Rawls was staunchly anti-utilitarian, Piketty cites Rawls in support of his obviously utilitarian appeal to the "common utility." Then, in the very next sentence, he associates Rawls' approach with that of Amartya Sen, a staunch critic of Rawls. See Thomas Piketty, Capital in the Twenty-First Century 480 (Belknap Press 2014).
(18) See e.g., id. at 31, 471, 480.
(19) For an example of his identifying social justice with equality, see id. at 505.
(20) I mention a few examples. Among those representing a justice-as-foundational approach, Rawls is on the left and Hayek on the right. Among those representing a justice-as-constitutive approach, Dworkin is on the left and Finnis is on the right.
(21) See Genesis 8:20-9:17.
(22) For a similar discussion of the Noahic covenant, see VanDrunen, supra note 4. For more detailed consideration of all of these issues, see VanDrunen, supra note 2, at ch. 2.
(23) See Genesis 8:20-9:17.
(24) Id. at 9:9; 9:16; cf. 9:10-12, 15, 17.
(25) Id. at 9:10.
(26) Id. at 8:22.
(27) Id. 8:20-9:17.
(28) See Genesis at 8:22.
(29) Id. at 8:21, 9:11,9:15.
(30) Id. at 9:2.
(31) Id. 8:20-9:17.
(32) Id. at 9:1, 9:7.
(33) See Genesis at 9:3-4.
(34) Id. 9:6.
(35) Id. 8:22.
(36) Romans 13:1-4.
(37) Genesis 9:6.
(38) See the discussion of this point in William Ian Miller, Eye for an Eye 30 (Cambridge Univ. Press 2007).
(39) See id. at ch. 4. Ancient legal codes often permitted substitution of monetary compensation for literal enforcement of the lex talionis. The Twelve Tables ([section] 8.2) of early Roman law is a good example, "if anyone has broken another's limb there shall be retaliation in kind unless he compounds for compensation with him." See The Avalon Project at Yale Law School: Documents in Law, History, and Diplomacy (Nov. 5, 2007). http://avalon.law.yale.edu/ancient/twelve_tables.asp. The Code of Hammurabi prescribes literal application in some circumstances and monetary compensation in others, depending in significant part on the social standing of the offender and the victim. See 2 G. R. Driver and John C. Miles, The Babylonian Laws [section][section]196-204 at 2.76-79 (Clarendon Univ. Press 1952). Other extant ancient Near Eastern law codes prescribe monetary compensation without any literal statement of the lex talionis. See e.g., 2 The Laws of Eshnunna, in Reuvan Taron, The Laws of Eshnunna, [section][section] 42-27, 68-71 (Magnes Press, Hebrew Univ. and Brill, 1988); see also Harry Angier Hoffner, The Laws of the Hittites: A Critical Edition [section][section] 7-16, 21-28 (Brill, 1997). The Old Testament law at some points explicitly permits monetary compensation as substitution for physical punishment. See e.g., Exodus 21:30. But see Exodus 21:23-25; Leviticus 24:18-21; Deuteronomy 19:21 (scholars have debated whether the explicit statements of the lex talionis in the Old Testament law were intended to be, and actually were, carried out literally). Some scholars argue for a non-literal application of the Old Testament lex talionis in Israelite law. See e.g., Roland de Vaux, O.P., Ancient Israel: Its Life and Institutions 149-50 (John McHugh trans., McGraw-Hill, 1961). See also James F. Davis, Lex Talionis in Early Judaism and the Exhortation of Jesus in Marrhew 5.38-42, ch. 3 (T&T Clark, 2005) (discussing a strong counter-argument that the Old Testament lex talionis was applied literally).
(40) For further thoughts on the relationship of retributive and restorative justice in the lex talionis, see VanDrunen, supra note 2, at 501-05.
(41) See the critique in Sandel, Liberalism and the Limits of Justice (1998).
(42) For helpful reflections on this, see e.g., Peter French, The Virtues of Vengeance 97 (Univ. Press of Kansas 2001); Susan Jacoby, Wild Justice: The Evolution of Revenge 9 (Harper & Row, 1983).
(43) See e.g., Hans Dieter Betz, The Sermon on the Mount: A Commentary on the Sermon on the Mount, Including the Sermon on the Plain 276 (Adela Y. Collins ed. Fortress, 1995) (stating "Ancient sources testify that the talio principle replaced a primitive system of indiscriminate cycles of blood revenge.... The original purpose of the talio principle was to limit, or even to eliminate, revenge by revising the underlying concept of justice. Justice was no longer obtained by revenge but by proportionate punishment of the offender or by substitutional compensation."). E.g., Matthew 5:3-7:27 and Luke 6:20-49.
(44) See supra note 39 for references. For discussion of the Icelandic sagas, see Miller, supra note 38.
(45) If the appeal to the image of God in Genesis 9:6 is meant to explain why shedding human blood is such a serious thing, and if all human beings bear God's image, then this is another way in which this verse recognizes natural rights universally. Most interpreters do take the appeal to the image of God in Genesis 9:6 in this way. However, I believe it is more likely that the appeal explains why human beings themselves are authorized to administer the penalty against their fellow human beings; i.e., the agent of justice is an image-bearer of God. Both interpretations are grammatically possible in the original Hebrew text and the issue is not decisive for the present article. For arguments in favor of my interpretation, see e.g., Steven D. Mason, Another Flood? Genesis 9 and Isaiah's Broken Eternal Covenant, in Journal for the Study of the Old Testament 32.2, 192-93 (2007); W. Randall Garr, In His Own Image and Likeness: Humanity, Divinity, and Monotheism 163 (Brill, 2003).
(46) Here is a point where it's especially important to recognize the limits of the present study. When I say that no social status or feature incidental to one's humanity distinguishes one person's rights from another's, and that each person claims and owes the same things from/to everyone else, I do not mean to deny that as a community develops detailed legal rules it will have to account for many situations in which differences in social statuses do matter (e.g., relationships between parents and children, or between employers and employees) and in which differences in life situation are legally relevant (e.g., determining the degree of harm inflicted, and thus of punishment due, in the case of a one-eyed person who loses an eye in comparison to a two-eyed person who loses an eye). And it is easy to see how different people's worldviews will inevitably shape how these details get filled in. In this article, however, I am exploring only the basic idea, encapsulated in the Noahic covenant, that harming a person deserves a proportionate penalty in response. This applies equally and reciprocally to all.
(47) See John Stuart Mill, On Liberty (London, 1859) (presenting the most famous statement of the harm principle).
(48) Thus, I would agree with John Horton's basic thesis in Toleration, morality and harm. See John Horton & Susan Mendus, Toleration, morality and harm, in Aspects of Toleration: Philosophical Studies, 113-35 (John Horton & Susan Mendus eds., Methuen, 1985).
(49) See Exodus 21:23-25.
(50) I add "almost" in parentheses because I wish to leave open certain cases involving close family members. An example is a child's claim to be provided for by his parents as a positive natural right.
(51) See Genesis 8:20-9:17.
(52) This scenario is often discussed in terms of "bad Samaritan" statutes. For a defense of such statutes as justified under the Millian harm principle (and thus implicitly as protecting a negative natural right), see 1 Joel Feinberg, The Moral Limits of the Criminal Law, Harm To Others ch. 4 (Oxford Univ. Press 1984). Other possible examples in which a claim to a positive right is the virtual equivalent of a negative right concern situations involving close family members, which I mention in the preceding footnote.
(53) Daniel Callahan offers helpful discussion of some of these matters. See Daniel Callahan, The Troubled Dream of Life: Living with Mortality ch. 2 (New York: Simon & Schuster, 1993).
(54) I make this point over against claims such as those by John Gray. See John Gray, Beyond the New Right: Markets, Government and the Common Environment 100-03 (Routledge, 1993). Gray seeks to dismiss both negative and positive rights as indeterminate. Gray is probably correct with respect to some overblown claims to negative natural rights, but his argument that even the supposed right against rape, like supposed positive rights, is indeterminate and non-universal is quite misleading. There is an enormous difference between claiming a right not to be raped by anyone at any time (even though each human legal system will have to make some decisions about how exactly to define rape in order to clarify some borderline cases) and inherently indeterminate claims of positive rights to things such as food and health care, which provoke clarifying questions far beyond matters of definition in borderline cases (i.e., far beyond questions such as "is beef jerky food" or "is acupuncture medical care?").
(55) Onora O'Neill summarizes this point in Towards Justice and Virtue: A Constructive Account of Practical Reasoning 133 (Cambridge Univ. Press 1996), "Even in the best case, ... universal rights to goods and services and the corresponding obligations to provide them cannot be antecedently identifiable in the same way that liberty [negative] rights and their corresponding obligations are antecedently identifiable." Or as Maurice Cranston puts it: "The concept of rights ... contained in the Universal Declaration is ruinously ambiguous." See Maurice Cranston, Are There Any Human Rights?, 112 Daedalus, Fall 1983, at 1,8.
(56) See O'Neill, supra note 53, at 131-32 (stating "Unfortunately much writing and rhetoric on rights heedlessly proclaims universal rights to goods or services ... without showing what connects each presumed right-holder to some specified obligation-bearer(s), which leaves the content of these supposed rights wholly obscure").
(57) Someone might object here that negative rights also demand coercion, since they suppose institutional structures requiring people to serve on juries, pay taxes, etc. See e.g., Gray, Beyond the New Right, 101 (Routledge, 1993) (discussing such an objection). But this fails to make an important distinction between what is needed to administer a judicial system to enforce just claims about violated rights, and the very rights claims themselves. Positive rights claims themselves are coercive, while negative rights claims themselves are not. O'Neill gets at something similar by stating, "Universal rights to goods and services, such as welfare [positive] rights, are in fact unlike liberty [negative] rights. It is true that rights of both sorts need institutional structures for their enforcement, but liberty rights do not need institutional structures to be claimable and waivable." See O'Neill, supra note 53, at 131.
(58) These concerns are a major burden of Mary Ann Glendon. See Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse (The Free Press 1991). From somewhat different perspectives, see also Oliver O'Donovan, The Desire of the Nations 248 (Cambridge Univ. Press 1996); see Gray, supra note 55, at 5-6, 78, 82, 100-03.
(59) This is Glendon's route. See Glendon, supra note 56.
(60) This is Gray's conclusion. See Gray, supra note 55.
(61) Although I have many disagreements with Dworkin about justice, I believe he is correct to say, "if someone has a right to something, then it is wrong for government to deny it to him even though it would be in the general interest to do so." See Dworkin, supra note 15, at 269.
(62) In light of these considerations I refrain from speaking of human rights as something distinct from natural rights, as some writers do. For example, Kao sees natural rights as universal to all times and places, while human rights are universal in scope (that is, for all people) but not in time, since they depend upon political context and technological advance. E.g., Kao, supra note 2 at 122, 133-34, 203. It is difficult to see how human rights so understood are consistent with the way she says she will use the term "human rights" at the outset of her book as "the set of entitlements and justified claims that every human being has simply by virtue of being human." Kao, supra note 2, at 9. If I have a right simply by virtue of being human, it should not depend on the time and place I happen to occupy. Human rights, as she initially defines them, are what I mean by natural rights.
(63) As Wolterstorff puts it, rights are "boundary-markers for our pursuit of life-goods." See Wolterstorff, supra note 10, at 5. In Kao's words, "we all should regard human rights much more modestly, ... as setting a decent social minimum benchmark." Kao, supra note 2, at 136.
(64) It may be worth trying to clarify one point briefly here. As Kao notes, the "human rights project" has a certain cosmopolitan flavor, envisioning humanity as ultimately constituting one moral community. Kao, supra note 2, at 171. She thinks this is a good thing. A critic of this human rights project such as Gray would agree that it has a cosmopolitan flavor, but he thinks it harmfully snuffs out the local, the particular, and the traditional in favor of abstract rules that can be specified once and for all. See e.g., Gray, supra note 52, at viii-ix. Gray, it seems to me, creates a false dilemma. If negative natural rights are understood not expansively but as constituting the minimal foundation of a just society, as argued here, there is still wide latitude for the distinctive development of particular communities according to their own traditions. But these foundational negative natural rights have the important function of affirming that there ought to be limits to how particular communities develop. Some things, such as murder and rape, can never be justified by an appeal to one's local customs. Here we find a healthy cosmopolitanism.
(65) Cranston notes: "Such things ['amenities like social security and holidays with pay' that the UN postulated as human rights] are admirable as ideals, but an ideal belongs to a wholly different logical category.... Thus the effect of a universal declaration that is overloaded with affirmations of economic and social rights is to push the political and civil rights out of the realm of the morally compelling into the twilight world of utopian aspirations.... Nothing is more important to an understanding of a right than to acknowledge that a right is not an ideal.... An ideal is something to be aimed at, but which, by definition, cannot be immediately realized. A right, on the contrary, is something that can and, from a moral point of view, should be respected here and now. If it is violated, justice itself is abused." Cranston, supra note 53, at 12-14.
(66) For explanation of this claim concerning natural law and humans as creatures with work to be done, especially as it pertains to the idea of the image of God, see VanDrunen, supra note 2, at ch. 1; VanDrunen, supra note 4.
(67) Kao, commenting on Rawls's approach, says that its "most productive idea is its insistence that human rights should not be viewed as the means to all good and worthwhile things. In our contemporary context where many strongly felt desires and items of importance quickly become transformed into calls for rights, it is helpful to be reminded that human rights are neither designed to provide individuals with totally satisfying, meaningful, wonderful or exemplary lives.... If understood accordingly, human rights would be necessary to satisfy the demands of basic justice, but their fulfillment or realization would still not exhaust the topic of social or political justice much less all that could be said about morality." Kao, supra note 2, at 136.
(68) Cf. O'Neill's argument for the importance of both justice and virtue, as well as for the distinction between them (of particular interest is her case that virtues create obligations without corresponding rights). O'Neill, supra note 53, at 138-39, 143.
(69) See William J. Stuntz, The Collapse of American Criminal Justice (Belknap Press 2011); Gary A. Haugen and Victor Boutros, The Locust Effect: Why the End of Poverty Requires the End of Violence (Oxford Univ. Press 2014).
(70) Stuntz, supra note 69, ch. 1.
(73) As Stuntz puts it, "Poor black neighborhoods... receive the worst of both worlds: too much punishment in settings where punishment does
only modest good (as is probably true of imprisonment for drug crimes), and too little in cases where punishment is most needed to preserve social peace--meaning crimes of violence." Stuntz, supra note 69, at 55.
(74) Both too much severity and racial disparity, however, run counter to the Noahic covenant. Racial discrimination is clearly at odds with its universal dimension discussed above. Severity is a more complicated question, since Genesis 9:6 states the lex talionis in an absolute fashion. For an argument that a principle of forbearance should be understood as implicit in the Noahic covenant, see VanDrunen, supra note 2, ch. 2.
(75) See Stuntz, supra note 69, at 273.
(76) See id. at 258, 302.
(77) Stuntz's description of American cities of the late nineteenth and early twentieth centuries corroborate this point. The cities were flooded by immigrants and experienced massive social and economic dislocation, yet were also able to keep crime in check and to give their residents many opportunities for social and economic progress. These cities did not have government-run safety nets, but had a much more sensible criminal justice system without many of the problems of the system today. See Stuntz, supra note 69, at 18. See also id. at ch. 1.
(78) Haugen & Boutros, supra note 69, at ch. 1.
(80) As the authors state early in the book, "[T]he world overwhelmingly does not know that endemic to being poor is a vulnerability to violence, or the way violence is, right now, catastrophically crushing the global poor. As a result, the world is not getting busy trying to stop it. And, in a perfect tragedy, the failure to address that violence is actually devastating much of the other things good people are seeking to do to assist them." Id. at xi.
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|Title Annotation:||Faulkner Law Symposium: From the Magna Carta to the March from Selma to Montgomery|
|Publication:||Faulkner Law Review|
|Date:||Sep 22, 2014|
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