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IMPRUDENT JURISPRUDENCE? HUMAN RIGHTS AND MORAL CONTINGENCY

Published online by Cambridge University Press:  10 September 2015

Nigel Biggar
Nigel Biggar*
Affiliation:
Regius Professor of Moral and Pastoral Theology, and Director of the McDonald Centre for Theology, Ethics, and Public Life, at the University of Oxford
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Abstract

Oliver O'Donovan is mistaken to think that subjective rights are irredeemably bound up with Hobbesian individualism, but correct to criticize their abstraction from deliberation about a wider range of moral considerations. As Grotius's thinking shows, the existence of a natural, moral right against physical harm depends on the contingent presence or absence of morally significant circumstances. There is, however, an important distinction between natural moral rights outside a particular, effective legal system and positive rights granted by such a system. Positive rights are less contingent and more stable, because society thinks it prudent to bear the social costs of that stability. Take, for example, the positive right against torture. This is not based simply on the intrinsic evil of what is done to the tortured. It is based partly on the intrinsic evil of the sadistic motive of the torturer. However, this motive obtains only in some cases, not others. Let us distinguish the latter as cases of “aggressive interrogation.” There might be instances of such interrogation that are conscientious and morally justified, all considerations of social cost and risk apart. There is, therefore, no natural moral right against it. Nonetheless, its general legal prohibition under a positive right against torture is justified by the prudential judgment that any possible momentary advantages to national security are outweighed by the high risk of social and institutional corruption and its political costs. That said, extraordinary circumstances might still justify—morally—the rare violation of the positive, legal right.

Keywords

objective rightsocial costsprudencesubjective rightstorture
Type
SYMPOSIUM: CHRISTIANITY AND HUMAN RIGHTS
Information
Journal of Law and Religion , Volume 30 , Issue 3 , October 2015 , pp. 391 - 401
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 2015 

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References

1 Biggar, Nigel, “Nicholas Wolterstorff, Justice: Rights and Wrongs,” Studies in Christian Ethics, 23, no. 2 (2010): 130–37CrossRefGoogle Scholar. I acknowledge the kind permission of the editor of Studies in Christian Ethics to quote extensively from this article.

2 O'Donovan, Oliver, “The Language of Rights and Conceptual History,” Journal of Religious Ethics, 37, no. 2 (2009):193–207CrossRefGoogle Scholar.

3 Ibid., 202–03.

4 Ibid., 198.

5 Ibid., 194. This view, among others, O'Donovan attributes to the theological critics of subjective rights, whom he refers to at a certain arm's length in the opening pages of his essay. I assume that he adopts this remote stance in order to defuse the “quarrel” with Wolterstorff. Nevertheless, it has the unfortunate effect of creating uncertainty in the reader's mind as to whether and how far the views he describes are his own. Nevertheless, in the light of what he writes later, it seems fair to attribute to O'Donovan what he says of the critics here.

6 Ibid., 195.

7 Ibid., 195. O'Donovan does not state (or show) that such rights cannot sufficiently ground obligation; he just casts doubt on their ability to do so: “The intellectual problem … is whether the distinctness and multiplicity of human persons is sufficient to ground the social and moral phenomenon we call obligation or duty.” Ibid. The emphasis is O'Donovan's.

8 Ibid., 199.

9 Ibid., 200.

10 Ibid., 202.

11 Ibid., 194. The emphasis is O'Donovan's.

12 Ibid.

13 This is how I understand the statement that individual human rights “cannot … drive a rooted social reform, which has to be self-reform within some determinate political community.” Ibid.

14 Ibid., 198. The emphasis is O'Donovan's.

15 Ibid., 201. I observe that O'Donovan reports that, according to Michel Villey, the shift in the concept of right in the fourteenth century was merely “synchronous with”—and not caused by—“the scholastic development of nominalism and voluntarism.” Ibid., 196–97.

16 Ibid., 195. The emphasis is O'Donovan's. The concept of prima facie multiple rights could help, I think, to resolve the dispute between O'Donovan and Wolterstorff over John Chrysostom. Wolterstorff argues that Chrysostom's view that the rich steal from the poor implies that the poor have prior property rights over the material goods that the rich possess in law. O'Donovan counters that Chrysostom held that there is only a common right to the use of the world's goods and that there are no private property rights at all. Ibid., 198–99. This raises a question, however: On what grounds did Chrysostom criticize the rich? The answer, presumably: For taking more than their fair share of the common wealth. Does this not imply that everyone has a right to a fair share? What this fair share is, of course, remains to be determined “in concrete deliberation”—that is, according to obligations and circumstances. Nevertheless, one can still assert from the beginning the right of each to such a share. What this suggests is that the problem lies in the concept, not of multiple rights as such, but of multiple rights as “specific”—that is, as determined in advance of any larger process of moral deliberation.

17 Thomas Aquinas, Summa Theologiae, trans. Fathers of the English Dominican Province (London: R. & T. Washbourne, 1915), Ia–IIae, question 94, article 2, 189:

Because in man there is first of all an inclination to good in accordance with the nature which he has in common with all substances: inasmuch as every substance seeks the preservation of its own being, according to its nature: and by reason of this inclination, whatever is a means of preserving human life, and of warding off its obstacles, belongs to the natural law. Secondly, there is in man an inclination to things that pertain to him more specially, according to that nature which he has in common with other animals: and in virtue of this inclination, those things are said to belong to the natural law, “which nature has taught to all animals” (Pandect. Just. I, tit. i), such as sexual intercourse, education of offspring and so forth. Thirdly, there is in man an inclination to good, according to the nature of his reason, which nature is proper to him: thus man has a natural inclination to know the truth about God, and to live in society.

18 Thomas Hobbes, Leviathan, ed. C. B. Macpherson (London: Penguin, 1968), part I, chapter XIV: “The right of nature, which writers commonly call jus naturale, is the liberty each man hath, to use his own power, as he will himself, for the preservation of his own nature; that is to say, of his own life; and consequently, of doing anything which, in his own judgement and reason, he shall conceive to be the aptest means thereunto.” Here and in subsequent quotations from Hobbes and Grotius, the original capitalization and italicization has been modified in accordance with modern usage.

19 Hugo Grotius, The Rights of War and Peace, 3 vols., ed. Richard Tuck (Indianapolis: Liberty Fund, 2005), volume 1, book I, chapter I, section IV, 138.

20 Ibid., volume 1, book I, chapter II, section I.3, 184.

21 Ibid., volume 2, book II, chapter XXV, section III.1, 1152.

22 Ibid., volume 2, book II, chapter XXIV, section I.1, 1133.

23 Ibid., volume 2, book II, chapter I, section IX.3, 405.

24 Ibid., volume 2, book II, chapter XXV, section III.2, 1153.

25 Ibid., volume 2, book II, chapter XXV, section III.4, 1154–55.

26 Ibid., volume 2, book II, chapter XXI, section X.1, 1081.

27 Ibid., volume 2, book II, chapter I, section IV.1, 398.

28 Biggar, Nigel, “Individual Rights versus Common Security? Christian Moral Reasoning and Torture,” Studies in Christian Ethics, 27, no. 1 (2014): 11–14CrossRefGoogle Scholar. In this and the following section, I use some of the 2014 article verbatim. I acknowledge the kind permission of the editor of Studies in Christian Ethics to do so.

29 I believe that I owe this example to Richard McCormick, S.J., but I am no longer able to locate the source.

30 I prefer aggressive interrogation to the more common enhanced interrogation, because it is less euphemistic.

31 I take this to be implied by David Omand, formerly intelligence and security coordinator in the British government's Cabinet Office from 2002 to 2005, when he writes, “[a]lthough some of the methods used by the U.S. on those captured were not accepted as legitimate by the U.K., the intervention in Afghanistan did provide valuable intelligence that, in the words of the U.K. parliamentary oversight committee ‘saved lives.’” David Omand, Securing the State (London: Hurst & Company, 2010), 175.

32 See “Muslim 7/7 Poll,” Populus, July 5, 2006, http://www.populus.co.uk/the-times-itv-news-muslim-77-poll-050706.html.

33 Jeremy Waldron, Torture, Terror, and Trade-Offs: Philosophy for the White House (Oxford: Oxford University Press, 2010), 221.

34 Henry Shue concedes the possibility of rare cases of morally justified, but presumably non-sadistic, “torture”: “I can see no way to deny the permissibility of torture in a case just like this [where a fanatic has set a hidden nuclear device to explode in the heart of Paris].” Shue, Henry, “Torture,” Philosophy and Public Affairs 7, no. 2 (1978): 141Google Scholar. And so, implicitly, does Waldron, when he comments on Shue: “But few cases are just like this.” Waldron, Torture, Terror, and Trade-Offs, 41–42.

35 Waldron, Torture, Terror, and Trade-Offs, 32–33.

36 Philippe Sands, “I've Quit the Lib Dems Too,” Guardian, March 12, 2013.

37 I think that I detect in (Lord) David Pannick's thinking a similar tension to that in Sands's. According to a report in the Guardian, Lord Pannick said in the House of Lords that “[c]losed … procedures are inherently damaging to the judicial process. [They are] a departure, maybe necessary, from the principle of transparent justice.” Owen Bowcott, “Secret Courts Bill Savaged by the House of Lords,” Guardian, November 22, 2012, 2. The emphasis is mine.

38 Eamon Collins, Killing Rage (London: Granta Books, 1997), 339–41.