5.1 Introduction

The leading proponents of a marriage between the natural law and natural right traditions are Jacques Maritain (1882–1973) and John Finnis. Whereas Maritain sought to defend the concept of natural rights before a Catholic audience, Finnisian diplomacy has worked in the opposite direction of promoting natural law to a liberal audience. Leading critics of a marriage include: Ernest Fortin (1923–2002), James V. Schall (1928–2019), Robert P. Kraynak, Joan Lockwood O’Donovan, Oliver O’Donovan, Peter Quinlan, Stanley Hauerwas, and John Milbank. Fortin, Schall, and Kraynak approach the issue from the perspective of political philosophy. Quinlan offers a legal perspective. The O’Donovans, Hauerwas, and Milbank speak from a background in philosophical theology. In a number of his early works, Alasdair MacIntyre was also staunchly opposed to the marriage. More recently he declared that ‘our treatment of human rights will be theoretically and practically defective, until and unless we understand them in theological terms’.Footnote ¹ This implies that MacIntyre may be open to a marriage if it has a theological foundation. Mark Retter has also argued that MacIntyre may be open to a marriage if it were founded upon a Thomistic-Aristotelian philosophical anthropology.Footnote ²

There are therefore three positions on the issue of the desirability of a marriage: (i) natural law and natural right may be united without any recourse to revelation; (ii) natural law and natural right may be united but only by recourse to revelation; and (iii) any form of union between natural law and natural right should be avoided as contrary to the common good and the well-being of the City of God.

This chapter will offer a history of the debate over the merits of the marriage and will conclude with an argument in favour of the third position that no marriage should take place. The history is important because for many of the interlocutors the neuralgic points are about the provenance of ideas, their ‘DNA’, as it were. The issues are both historical and ontological at the same time.

The natural law tradition has a long history going all the way back to the Stoics but in the past century and a half its most prominent advocates have been Christians, predominately Catholic Thomists. It is from within the Thomist tradition that one finds the staunchest advocates of a union and within the broader spectrum of Christian jurists (including some Thomists) that one finds the sharpest critics of a union. Therefore, in this chapter ‘Natural Law’ will refer to conceptions of law that presuppose a divinely framed order within creation. The philosopher Leo Strauss (1899–1973), whose family tradition was Judaism, has also been a significant interlocutor in the field of natural law and natural right discourse.

5.2 No Marriage within a Hobbesian Jurisdiction

All the protagonists in this debate, including Finnis, agree that there can be no marriage between the natural law tradition and the version of natural right promoted by Thomas Hobbes. Douglas Kries has identified no fewer than one dozen elements of Leo Strauss’s judgement that modern (predominately Hobbesian) natural right represents a complete break with much that preceded it in Christian times: (i) Hobbes’s rejection of teleology; (ii) Hobbes’s replacement of reason with passion; (iii) Hobbes’s primary moral principle is a right to self-preservation, not a duty to a teleologically conceived common good; (iv) for Hobbes the duty of the state is not to promote the common good but to protect rights; (v) the kind of education that is required is not a moral formation in virtue and obedience to principles such as the Ten Commandments, but encouragement to follow one’s own desires, to act in a way that is autonomous of all traditions and thus ‘enlightened’ in the Kantian sense; (vi) it follows that the judgements of individuals trump all claims of wisdom traditions and individual consent becomes the foundation of moral obligations; (vii) there exists a pre-political state of nature containing perfect rights but not perfect duties; (viii) a social contract is needed to protect natural rights; (ix) within the social contract the most important element is the honoring of contracts that have their basis in consent; (x) the highest virtue is tolerance of the judgements of other individuals; (xi) the only legitimate regime is one based on a social contract to protect rights; and (xii) after the desire for self-preservation a second basic desire is for pleasure, so the sovereign must guarantee pleasure to those who adhere to the social contract.Footnote ³

Those wishing to effect a marriage between natural law and natural right seek to avoid these undesirable hallmarks of Hobbesian political and legal philosophy.

5.3 The Argument from History

Common to all three positions is an interest in the genealogy of the natural rights doctrine. Here there are at least six different accounts of the first appearance of natural rights. There is: (i) the position of Leo Strauss that a full-blown theory of natural rights begins with Thomas Hobbes in the seventeenth century;Footnote ⁴ (ii) the position associated with the early work of Richard Tuck that it begins with the fifteenth-century Conciliar movement, particularly the work of Jean Gerson (1363–1429);Footnote ⁵ (iii) the reading of Michel Villey (1914–1988),Footnote ⁶ followed by John Milbank, that the genesis of natural rights is to be found in the fourteenth century with the mediaeval Franciscan movement, especially the thought of William of Ockham (1287–1347);Footnote ⁷ (iv) the judgement of Finnis that a version of natural right can be found in the works of St Thomas Aquinas (1225–1274);Footnote ⁸ (v) the position of Brian Tierney and Charles Reid, Jr, that the origins may be found in the publications of twelfth-century canonists;Footnote ⁹ and (vi) the Wolterstorff thesis that natural rights can be found embedded in the Bible.Footnote ¹⁰ Wolterstorff has been described as a ‘Whig Calvinist’ whose project is analogous to that of the ‘Whig Thomism’ of Maritain and Finnis insofar as he seeks to uncover a Christian foundation for the natural right tradition. However, since Wolterstorff locates the foundation in the Bible, not in a Christian appropriation of Stoic philosophy, in order to effect his Liberal-Calvinist alliance. he does not need a ‘marriage’ but a simple ‘baptism’ of modern natural right in the name of his biblical natural right.

The reason for this interest in genealogy is that those who support the marriage believe that if they can locate the source of natural rights jurisprudence before the rise of liberalism, then the claim that the two traditions are incompatible may be demonstrated to be false on historical grounds.

Of all the different accounts that locate the point of origin in the mediaeval period, the most significant and also the most antithetical are the accounts of Finnis and Milbank. Finnis mounts his arguments for a Thomistic provenance of natural rights in his books Natural Law and Natural Rights and Aquinas. His argument is not that Aquinas directly asserted a theory of natural right, but that a theory of natural right is the ‘logical’ conclusion to be drawn from Aquinas’s understanding of law and justice. A theory of natural rights is, in other words, a ‘legitimate development’ of the Thomistic account of law and justice. Specifically, Finnis argues that the word ius means both ‘right(s)’ and ‘law(s)’ and that these two concepts are rationally connected in the sense that if there is a law against stealing, it follows that one has a right to private property.Footnote ¹¹

Milbank’s most extensive engagement with the rights tradition is found in the essay ‘Against Human Rights: Liberty in the Western Tradition’, where he argues that the rights tradition has a Franciscan rather than a Dominican pedigree. Specifically, he identifies it as an offshoot of the Franciscan nominalism that has been behind almost every bad move on the chessboard of European intellectuals for the past six centuries. As the argument goes, Luther over-reacted to a decadent, nominalist, Franciscan scholasticism, Kant was then burdened with the dualisms fostered by Luther, and Nietzsche reacted to Kant and what rationalists and an assortment of Protestants, in particular maiden aunts within his family circle, had made of the Christian heritage and its ‘God’.

In his first Stanton Lecture, Milbank suggested that we still live within a Franciscan Middle Ages and the question is whether an ‘alternative, Dominican Middle Ages can yet be revived in order to shape, in the twenty-first century, an alternative modernity’.Footnote ¹² For Milbank, the discovery that the DNA of the natural rights doctrine can be traced to William of Ockham is no recommendation for the marriage. However, Milbank agrees with Villey that ‘right is only subjective right when it ceases to be a relational matter and becomes something grounded in an isolated individual capacity’.Footnote ¹³ It is the subjective notion of rights rooted in the socially isolated, non-relational individual, existing in a flattened social order that Milbank opposes.

5.4 The Faith and Reason Relationship

The most significant cleavage between the protagonists is not about where to locate the shift to natural rights, but between those who believe it is possible to effect a union without recourse to revelation and those who regard this project as an impossibility. This is the neuralgic issue. Is a ‘priest’ needed for a valid ‘marriage’ or not? This is not a question of jurisprudence or political philosophy but a question of theological anthropology, and especially, a question of the relationship between faith and reason.

This relationship is not a matter of settled doctrinal teaching. Two works that provide expositions of the different interpretations are Aidan Nichols, From Hermes to Benedict XVI,Footnote ¹⁴ and Gregory B. Sadler’s Reason Fulfilled by Revelation.Footnote ¹⁵ Sadler focuses on debates internal to the Thomist tradition in 1930s France, where one of the voices was Etienne Gilson. Many commentators agree that in the encyclical Fides et ratio, John Paul II gestured towards a Gilsonian reading of the relationship, but it was only a gesture, not an explicit statement.Footnote ¹⁶ A Gilsonian reading is one that rejects the idea of a complete separation of the two concepts in this critical couplet. For Gilson there was no ‘pure reason’ just as for Henri de Lubac there was no ‘pure nature’. Nichols argues that Joseph Ratzinger (who became Benedict XVI) also follows a Gilsonian reading of the relationship, and this is certainly clear in his article ‘The Dignity of the Human Person’, where he declared that a non-historical ratio naturalis does not exist.Footnote ¹⁷

Prior to Fides et ratio, Dei filius of Vatican I was widely read as offering a ‘two-tiered’ or ‘cupcake’ theory of the relationship between faith and reason, analogous to the cupcake theory of the relationship between nature and grace, where nature and reason get ‘topped up’ or ‘iced-over’ with grace and revelation, without grace penetrating to the depths of nature or revelation doing more than offering the human intellect some additional data.Footnote ¹⁸ It was this reading of the relationships that Gilson opposed. Fergus Kerr has offered an in-depth analysis of the reception of Dei filius and according to his research, the fathers of Vatican I never intended many of the constructions commonly associated with the document.Footnote ¹⁹

The point of this background on an issue in fundamental theology is that every account of natural law presupposes some understanding of the relationships between faith and reason and between nature and grace. There is not one account of natural law, but several, depending on which construction of these critical couplets is adopted. The viability of a secular marriage of natural law and natural right is dependent upon the existence of something like the Kantian notion of ‘pure reason’ uncontaminated by anything theological. It presupposes something like the ‘cupcake’ theory of the relationship between faith and reason. Catholic scholars who operate from a more Gilsonian baseline tend to oppose the notion of any secular marriage. Within their anthropological framework, practical reason does not operate in a vacuum. They believe that to the degree that human persons are more or less integrated into the life of the Holy Trinity, the various faculties of the soul, including the intellectual faculties, will be more or less attuned to the transcendental properties of being, especially to truth and goodness. Catholic scholars of this kind emphasise the importance of the relationship between the natural law and the eternal law and argue for a Christocentric account of natural law. Prominent proponents include: Livio Melina, Angelo Scola, and David L Schindler. Melina argues that ‘Christ is the ultimate and perfect point of reference not just of the old law revealed to Israel but also of the natural law’.Footnote ²⁰

Both John Paul II and Benedict XVI have given their blessing to human rights only if they are founded upon a theological bedrock. Zachary R. Carlo has summarised the many speeches of John Paul II on the subject of rights as offering an account based on six principles: (i) human rights emerge from human dignity, (ii) are communal not individualistic, (iii) are theological and ordered to particular moral ends, not whatever the individual happens to desire, (iv) must be understood theologically, (v) include political and economic rights, and (vi) are inseparable from the culture of life.Footnote ²¹ In his essay ‘The Dignity of the Human Person’, Ratzinger was highly critical of the idea that there could be, in his words, ‘a rational philosophical picture of man intelligible to all and on which all men of goodwill can agree, to which can be added the Christian doctrines as a sort of crowning conclusion’.Footnote ²² He described this idea as a ‘fiction’. This means that for Ratzinger there is no possibility of a marriage without a priest. In his Bundestag Address, he endorsed a conception of human rights based upon Israel’s monotheism, the philosophical reason of the Greeks, and Roman law.Footnote ²³

Leo Strauss believed that Thomistic natural law is inseparable from revealed theology.Footnote ²⁴ Ernest Fortin’s position was similar to that of Strauss. Fortin declared: ‘What the Thomistic theory essentially requires is not only that the content of the natural law be naturally known to all human beings but that it be known precisely as belonging to the natural law, that is to say, to a law which is both promulgated and enforced by God as the author of nature and hence indispensably binding on everyone.’Footnote ²⁵

Consistent with this conclusion, Matthew Levering argued that ‘no matter how nuanced the schemes for exhibiting basic requirements of human flourishing or however much one attempts to provide an autonomous role for human practical reason apart from natural teleologies implanted by the Creator’, there are insuperable difficulties: ‘the “human flourishing” answers reduce to sophisticated pragmatism rather than real “law”; the “practical reason” answers appear to be a premature restriction of the possibilities of human freedom in ever-evolving history’.Footnote ²⁶ Kevin P. Lee has similarly concluded that ‘if a recovery of a Christian basis for discussing rights is to be made, it must be rooted in the Trinity’.Footnote ²⁷ The bottom line here is that if there is to be a marriage, then a Trinitarian anthropology will have to undergird it.

In effect, however, Finnis argues that through the instrumentality of practical reason, one can come up with a list of basic goods of human flourishing from which it is possible to deduce that it is always wrong to steal one’s neighbour’s wife or donkey, even if the God of Christianity does not exist. Statements by MacIntyre indicate that he has sympathy for this position. As he expressed the matter, ‘sound practical reasoning can proceed without any reference to the Logos’.Footnote ²⁸ Friedrich Nietzsche, were he alive to intervene in this debate, would probably side with Fortin in the sense that Nietzsche is famous for emphasizing the link between conceptions of truth and objectivity and what he regarded as Platonic-Christian ‘fantasies’.Footnote ²⁹ A middle position between the two may be that while sound practical reasoning can proceed without any reference to the Logos, those who deny the existence of the Logos are far less likely to accept ethical frameworks that include moral absolutes. While Rawlsian Political Liberalism may be construed as precisely an attempt to find some common ground for moral absolutes without reference to anything remotely theological or metaphysical, the common ground thus created from behind Rawls’s famous ‘veil of ignorance’ would seem to be much narrower than the territory envisaged by the Finnisian list of goods of human flourishing.

5.5 The Relationship between Practical Reason and Morality

Finnis describes the purpose of his Natural Law and Natural Rights as ‘making available to young, secular students the main truths of the classical tradition in political philosophy’.Footnote ³⁰ He describes ‘rights’ as the ‘correlatives of duties of justice’ and he regards ‘practical reasonableness’ as an integrating good of all the goods of human flourishing that he enumerates. His intention is not therefore to offer a Catholic account of natural law but an account that could be acceptable to secularists. The question is: can the package be sold without an anthropology to undergird it, apart from some account of the operation of practical reason?

Fortin answered in the negative. For Fortin only a virtuous person would buy a package that includes moral absolutes. He acknowledged that Finnis is not Hobbes but argued that ‘the break with the utilitarian tradition is not nearly as deep or as complete as it is presumed to be’.Footnote ³¹ Specifically, he claimed that ‘the rights whose defense [Natural Law and Natural Rights] takes up are still perceived as absolute or unconditional rights, circumscribed only by the derivative requirements of practical reasonableness and a proper respect for the rights of others’.Footnote ³² He further argued that for Finnis, ‘self-interest and public interest coalesce into a harmonious whole which does not depend for its coming into being on the conversion from a selfish concern for worldly goods to a concern for the good of the soul or the transformation of the individual into a citizen through the mediating agency of virtue’.Footnote ³³ Finnis counters that the integrating good of practical reasonableness is itself a ‘virtue’ (another name for prudentia or phronēsis) and that justice, another theme of Natural Law and Natural Rights, is also a virtue.Footnote ³⁴ Fortin responds: ‘To be sure, moral virtue is not excluded, but neither is it indispensable. Courage, moderation, generosity, and the other moral virtues are not themselves basic or non-negotiable values; they are ways or modes “deemed” by some people to fit them for the attainment of the basic values. [According to Finnis] one need not acquire them in order to enjoy their benefits.’Footnote ³⁵ For Finnis practical reasonableness functions exclusively as an intellectual capacity – ‘the soul, its passions, and the reordering of those passions do not enter into account’.Footnote ³⁶

While not directly addressing the issue of the proposed marriage, but speaking of natural law more generally, and in implicit agreement with Fortin, Melina argues that:

Moreover, Melina notes that in the Catholic, especially the Thomistic, conception, the perfection of the virtues is realised in charity, which is a particular kind of friendship with God.Footnote ³⁸ Melina describes the idea of using prudence as a vehicle for a ‘rational calculation for shaping society with a view to the common civil well-being’ as an idea of Lutheran provenance.Footnote ³⁹ In the Lutheran framework, prudence becomes detached from the moral virtues. In contrast:

Although Fortin, Melina, and others have not said so explicitly, one senses that at least one of their criticisms of Finnisian Whig Thomism, that carries the union of natural law and natural right as its centerpiece, is that the chances that a person may recognize what St Paul described as the law ‘written on their hearts’ is low in the absence of grace, virtue, and the gifts of the Holy Spirit. MacIntyre may well argue that practical reasonableness can lead an atheist on a Scottish island to conclude that if he steals his neighbour’s donkey or wife, his life on the island will be so complicated that theft and adultery do not appear to be a rational way forward. However, an individual living in a modern metropolis, where it is easy to change friends and business associates, may reach different conclusions about these and other elements of the Decalogue in the absence of grace and virtue.

Finnis does acknowledge that his version of rights ‘can only be enjoyed in certain sorts of milieu’, which he goes on to define as ‘a context or framework of mutual respect and trust and common understanding’.Footnote ⁴¹ He does not however explain where the foundations of such ‘mutual respect and trust and common understanding’ are to be found. MacIntyre would find them in a tradition-based community, but the culture of post-modernity is defined precisely by the absence of any commonly agreed tradition.Footnote ⁴² Tradition-based communities still do exist, but as sub-cultures.

Traditions usually have a foundation in a theological framework and Finnis tacitly acknowledges this by listing religion as a good of human flourishing; but, in his system, religion is not a foundational or infrastructural good, and it can be any religion. Finnis does not define religion in one pithy sentence, but in a paragraph explaining the concept he speaks of ‘a proper relationship between oneself and the divine’ and the ‘questions of the origins of cosmic order and of human freedom and reason’.Footnote ⁴³ He argues that someone like Jean-Paul Sartre has a religion insofar as he believes that he is obliged to act with freedom and authenticity and to will the liberty of other people equally with his own. This is a very thin understanding of a religion. A typical post-modern may well argue that his or her religion is that of creating a totally original ‘self’ without any reference to the divine, cosmic order, nature, or reason. A typical post-modern reading of Finnis’s definition of a religion is likely to dismiss it as ‘logocentric’. At the same time, many of the strongest criticisms of the Finnisian attempt to marry natural law and natural right have come from his fellow Christians, who argue that a proper grounding of natural law and rights requires not just any religion but one that recognizes the role of the eternal law in grounding natural law. This rules out many religious traditions, especially the pantheistic, that do not recognize God as an independent ground of existence, directing creation, and the inclinations of human beings, through Divine wisdom.

H. L. A. Hart’s remark on reading Natural Law and Natural Rights was that it would appeal to philosophers. Perhaps he thought this because God does not play any necessary part in the system beyond the very broad notion of religion as a good of human flourishing. Whatever the truth of this assessment, the work has had a very paradoxical reception. While it was written for people Finnis calls ‘secularists’, the people who have been most interested in it are Catholics, who either like it because they hope to use it as a lingua franca for engagements with secularists – or they really dislike it because it does not resemble their more traditional understandings of natural law. The secularists seem to have rejected it entirely because they are suspicious of it being a Trojan horse for papal ethical teaching, or more simply, something completely outdated because it makes a claim for moral absolutes. Moreover, the contemporary secularist is no longer typically someone who believes in reason but not in God. The contemporary post-modern secularist is equally suspicious of references to God and appeals to reason. Fortin is closer to the post-modern sensibility that associates appeals to reason with belief in a Creator-God, than is Finnis. As the argument goes, reason presupposes a Logos.

5.6 The Arguments against a Marriage in Any Form

James V. Schall, who lectured in political philosophy at both the Gregorian and Georgetown Universities, agreed with Fortin’s assessment of the undesirability of the marriage. He wrote:

Schall acknowledged that the Maritain project was one of using the rhetoric of rights but giving rights an objective component, that is, taking the socially fashionable idiom but ‘re-stuffing’ it with a decidedly non-Hobbesian, Thomistic content. Schall was not opposed to Maritain’s content, but he questioned the viability of such a project in a culture where ‘both rights and values are generally understood in a subjective manner’.Footnote ⁴⁵

In addition to this problem – the fact that the concept now has a very deep Hobbesian hallmark – MacIntyre argued that some concepts are ‘ideological’ in the sense that they are specifically designed to paper over or mask rival claims about the good.Footnote ⁴⁶ What MacIntyre calls ‘ideological’ concepts others have called ‘weasel words’. As Schall noted, the concept of a ‘right’ has no fixed content, it is malleable, and its malleability can be used to mute public debate and opposition by offering different interpretations in different social contexts.

Although Maritain offered a Thomistic account of natural rights in his own publications, in the debates of the UNESCO symposium on philosophical bases for human rights, in the lead-up to the drafting of the Universal Declaration of Human Rights, he was of the view that it was possible to agree on the rights to be recognized in the absence of agreement on their theoretical foundations. Sumner Twiss notes that Maritain’s views were ‘explicitly invoked by the French delegate to the Third Committee debate to support the Chinese delegate’s position on maintaining metaphysical and justificatory neutrality’.Footnote ⁴⁷ Schall’s position was that Maritain was naïve to think that the foundations did not matter, that a country run by Maoists would give the same interpretation to a ‘right’ as a country run by the kinds of Christian Democrat leaders who came to the fore after World War II. Robert Schumann of France, Alcide de Gasperi of Italy, and Konrad Adenauer of Germany were all devout Catholics.

Joan Lockwood O’Donovan agrees that the foundations matter and she argues that the meanings attached to the term ‘rights’ in both popular and scholarly usage cannot be ascertained properly in detachment from the liberal contractarian tradition; and hence ‘to appraise the contemporary vocabulary of “rights” is to appraise the dynamic theoretical complex that has given rise to it’.Footnote ⁴⁸ Referring to the partners in the proposed marriage, O’Donovan concludes that there is a ‘contrasting logic of the two orientations’ – ‘whereas in the older patristic and mediaeval traditions God’s right established a matrix of divine, natural and human laws or objective obligations that constituted the ordering justice of political community, in the newer traditions, God’s right established discrete rights possessed by individuals originally and by communities derivatively that determined civil order and justice’.Footnote ⁴⁹ She summarises her negative judgement against the marriage in the following paragraph:

Oliver O’Donovan adds to this bill of indictment that there is a political problem with the language of rights, a conceptual problem with the language of rights, and an historical problem with the language of rights. The political problem is summarised by his statement: ‘Burke’s critique of abstract human rights as formalistic impositions corresponding to no living social ties continues to give shape to one side in the struggle.’Footnote ⁵¹ The conceptual problem is that the language of rights (plural) appears to be in conflict with the language of right (singular). The historical problem is that the concept of rights is not found in the ancient world – ‘phantom “rights” spring up liberally across pages translated from Hebrew, Greek and Latin, corresponding to no plural noun in the original’.Footnote ⁵²

Oliver O’Donovan further claims that the language of rights was promoted ‘precisely to challenge our moral intuitions, intending to educate us out of them’. Thus, ‘at the root of the disagreement over the language of rights is a question of moral ontology. Multiple rights express a plural ontology of difference, the difference between each right-bearer and every other, instead of a unitary ontology of human likeness.’Footnote ⁵³ Human rights, in other words, are not based on an understanding of universal human nature.Footnote ⁵⁴

Louis Dupré, in his intellectual histories, also highlights the contextual issue of this question. Dupré draws attention to the fact that Francisco Suárez (1548–1617) gave natural law a content independent of any political structure and thereby ‘created a rift between a natural law based on abstract reason and the political condition in which it had to find its concrete expression’.Footnote ⁵⁵ He argues that this ‘typically modern separation between an abstract idea of human nature and a concrete political realization of it opened a space for an area of “human rights” that existed before and independent of any social structure’.Footnote ⁵⁶ It was then relatively easy for Thomas Hobbes to build the priority of the individual with respect to social structures into a consistent political theory. In contrast, Dupré observes that in the classical tradition, ‘rights had acquired a normative status only in and through the legal community’, since ‘once the human self becomes detached from its cosmic and transcendent moorings, the good can hardly be more than what Hobbes calls it: “the object of any man’s appetite or desire”’.Footnote ⁵⁷

What all the above authors emphasise is that rights are propagated and flourish in a particular kind of liberal political culture and without a dramatic, tectonic shift of this culture, anything like a Christian concept of natural right is at best a utopian vision. As Michael Ignatieff expresses the idea: rights language ‘cannot be parsed or translated into a non-individualistic, communitarian framework. It presumes moral individualism and is nonsensical outside that assumption’.Footnote ⁵⁸ Ignatieff concludes that ‘secularism has become the lingua franca of global human rights as English has become the lingua franca of the global economy’.Footnote ⁵⁹

5.7 The Order within Nature

An issue not so much on the surface of the debates, but embedded within them, is that of whether or not there is an order within nature, what Ratzinger called a human ecology. Pierre Manent’s works address this issue. As he observes: ‘Modern freedom was born as nature liberated, as nature unbound: freedom, for the moderns, is first of all the removal of impediments to nature.’Footnote ⁶⁰ Manent argues that ‘it is because human rights are attached ultimately to a nature without qualities, because they promote an equality that ignores differences, that such rights are the moving force of an indefinite social, moral and political movement that ceaselessly sets an undefinable and ever-deferred equality at odds with the inclinations and differences that human beings experience’.Footnote ⁶¹ Manent concludes that ‘even if we consider the notion of the state of nature to be scaffolding that is no longer needed once the edifice of rights has been constructed, a little attention to the stones of this edifice will force us to admit that we cannot speak of human rights without referring implicitly but directly and concretely to “nature”’.Footnote ⁶² In other words, a debate over the nature of the humanum is unavoidable. The idea that a truce might be effected if the parties agree to not talk about nature but only about ‘goods’ and ‘practical reasonableness’ misses the point that depending on what position one takes on human nature, there may or may not be any room for a belief in ‘goods’ and ‘practical reasonableness’.

A similar point about the indispensability of the scaffolding was made by Yves de Montcheuil SJ. He wrote:

A corollary argument is that secularised Christian concepts are rarely ever neutral in relation to Christianity. They provide the DNA for many strains of anti-Christian ideology. For example, the concepts ‘liberty’, ‘equality’, and ‘fraternity’ mean something quite different when used within the contexts of Christian theology and liberal political theory. For this reason, Robert P. Kraynak argues that the subversive powers of rights have been vastly underestimated and that ‘the culture of rights and democratic levelling also turn against the hierarchical authority of the church’.Footnote ⁶⁴ As an example, Kraynak views the pressure for women’s ordination in the Catholic Church ‘as a consequence of thinking that the Church is a mere protector of the rights of the people of God rather than the mystical body of Christ which cannot be measured by political standards because it is divinely ordained by Scripture and tradition’.Footnote ⁶⁵ He concludes:

As a consequence, Kraynak recommends that the highest priority of religious believers should be that of replacing Kantian Christianity with Augustinian Christianity in one form or another.Footnote ⁶⁷ This is a very similar proposal to Milbank’s vision of a Dominican modernity that rests on an Augustinian Thomism, not an Aristotelian Thomism that has had the theological components filtered out of it.

5.8 Affirmation of the Common Law Tradition

A question then arises, even if Western culture underwent a ‘Trinitarian tectonic shift’, even if Franciscan nominalism and all of its consequences were to be undone, even if the idea that the human person has been created in the image of God were to find popular appeal, should ‘rights’ be baptised and subsequently married to the natural law tradition?

An argument can be made that this question should be answered in the negative. First, because as K. R. Minogue observed: ‘a world in which all duties were precisely the reflection of rights would be an accountant’s world, a place with no room for the higher reaches of moral experience and for what theologians call “works of supererogation”’.Footnote ⁶⁸ There is always something abstract and disconnected from the concrete world of complex social realities about the tradition of natural rights. Secondly, in the Anglosphere, an alternative to the Rights jurisprudence exists in the Common Law tradition. The Common Law developed in a historical context where individuals were not monadic entities but members of communities with a complex network of relationships and social responsibilities and entitlements. The Common Law tradition was built on a synthesis of the best legal ideas that Roman, Greek, Hebraic, and Christian thought had to offer. It was formed out of the elements specifically endorsed by Benedict XVI in his Bundestag Address. This tradition was a bulwark against tyranny long before the arrival of Thomas Hobbes. As Milbank and Pabst have argued:

These ideas, they emphasise, are all of Greco-Roman or Germanic law or Christian provenance. They existed and can easily continue to exist within the Common Law tradition without recourse to the tradition of natural rights. It was the Common Law tradition, supplemented by the principles of Equity, that the great English jurist Sir Thomas More knew and practised. Gregory Wolfe described More’s conception of the Common Law in the following passage:

Unlike Bills of Rights that enumerate rights attached to individuals, the Common Law presupposes that human persons live in communities, that human life is relational, and that conflicts arise for adjudication when a clash of claims occur that needs to be resolved with reference to some higher common good. An illustration of this difference is found in the case of Miller v Jackson where Lord Denning was called to make a judgement about the conflicting interests of a village cricket club and a property owner whose house was built on the edge of the cricket oval.Footnote ⁷¹ Lord Denning held in favour of the cricket club on the grounds that the game of cricket brings the old men and the young men of the village together; that the old men would be lonely without the company of the young men, and the young men might get themselves into all manner of trouble if they were not focused on something wholesome like sport. Lord Denning also noted that, before the house was built on the edge of the oval, the cricket field was surrounded by grazing cattle and ‘the animals did not mind the cricket’. This case and thousands of others in the Common Law reports illustrate the complex nature of legal disputes in our cities and villages, and the ‘interpretative tradition’ that was used to resolve them for centuries before the current enthusiasm for statutes enumerating rights. As Milbank and Pabst acutely observed: ‘at the heart of liberal self-undoing lies the primacy of the economic and the political over the social and thus the subordination of both social bonds and civic ties to the abstract standards of law and contract’.Footnote ⁷² Social bonds and civic ties revolve primarily around mediating institutions such as the family and cultural, educational, and sports associations, not around the machinery of the state and abstract concepts. One of the virtues of the Common Law system is that its judges enjoy the flexibility to take the interests of such mediating institutions into account. The practice of the Common Law is not an accountant’s practice.

Chief Justice Peter Quinlan of the Supreme Court of Western Australia has argued that the process of

Justice Quinlan’s comments, made in 2010, sound even more prescient over a decade later with Western juridical and political cultures becoming ever more agonistic. While those who drafted the Universal Declaration were setting out the rights of individuals against the State and doing so in the shadow of the powerful abuse of State power by Nazi Germany and the Soviet Union, the present proponents of chartered rights in the Anglosphere are seeking something quite different. They wish to create rights that individuals may use against other individuals. The Common Law presupposed a common good, while Bills of Rights attach to individuals abstracted from their social bonds and communal life and presuppose something like Hobbes’s original violence rather than the Christian original peace.

5.9 Conclusion

Joan O’Donovan rhetorically asks why Christian thinkers have been so willing to ‘adopt a child of such questionable parentage as the concept of human rights’? She concedes that theologians who express reservations about the adoption run the risk of ‘being taken for complacent pietists or atavistic romantics’. Nonetheless, she suggests that ‘there are enough signs about today of social anomie, moral confusion, and ideological fatigue to suggest that the risk is worth taking’.Footnote ⁷⁴ As scholars increasingly search for alternatives to the liberal tradition and speak of a post-liberal future, within the Anglosphere at least, the Common Law tradition may present itself as a viable alternative to statutes of ‘rights’, affirming as it does, the significance of mediating institutions, above the desires of the socially isolated, abstract individual.