
I have never been especially enthusiastic about "rights" language, at least when it is used in terms of inherent rights of nature. My concern has been the fundamental theoretical difficulty of affirming something like "rights" given the radically contingent nature of human life. It doesn't strike me that we're in much of a position to make any sort of appeal to a moral standard that is ours by right in this sense. Right as a matter of justice exterior to oneself doesn't need to be abandoned, but the idea of rights as possessed by persons has never really seemed to me to be a proper way of speaking.
I've relaxed a bit on this; while I would still generally agree with what I've said above, I'm not so staunchly opposed to modern "rights" talk, and I realize a little better that it's quite important as a legal fiction, even granting some deeper philosophical difficulties with the idea. Also, much opposition to modern rights talk is more an opposition to modern modes of talk in general, rather than with the point that any particular theory of right is trying to convey. (I'd add that I'm not well-read on the history of the concept of
right, so my assessment here is of course open to severe correction).
Yesterday, I was reading an interesting theological account of right from
Kathryn Tanner, one of the most prominent living American theologians. I am mostly familiar with Tanner's work in dogmatic theology, and I imagine she gets into this further in
The Politics of God or in
Economy of Grace, neither of which I have read. The following passage is from
Jesus, Humanity, and the Trinity, which is a brief systematic theology published in 2001. I'm going back to this book in preparation for a conference panel that I'll be giving a paper for at the end of March, on Kathryn Tanner's latest book
Christ the Key.
Tanner is here in the midst of discussing the gifts and benefits imparted by God to all of God's creatures; "the gift" is a central theme throughout the book, as well as the overflow of God's goodness:
In order to be proper ministers of God's benefits, we would therefore need to recognize the common right of all to the goods of God, simply as creatures; we would have to recognize our obligation to advance the fortunes of that universal community of creatures that is the object of God's favor. God's giving is not owed to creatures but if those gifts are being given unconditionally by God to all in need, creatures are in fact owed the goods of God by those ministering such benefits, without being or having done anything in particular to deserve them. Our good works, in short, are not owed to God but they are to the world.
Those in need have a rightful claim on the ministers of divine beneficence in imitation of the way the Son and Spirit have by rights of nature what the Father nonetheless gives to them. On an equal footing with the Father, the Son and the Spirit already are by nature what they are given by the Father; in this sense they have by rights of nature what they are given; they are given what is their very own. The humanity assumed by the Word in Christ, though in the needy situation of sin, has by rights of nature the gifts bestowed on it in virtue of its being the Word's very own. Though creatures are never owed anything by God -- God's gifts are nothing but gracious here -- God's decision to give them everything means an oddly analogous coming together of gift and right. In the creature's case, one is given that to which one has a right in that what one lacks is one's due. Because of God's unconditional beneficence, need determines a right here; we are only giving the needy their due when we try to meet their needs.
The community of concern to human beings as the ministers of divine benefit should therefore be as wide as God's gift-giving purview. In this universal community, humans should try to distribute the gifts of God as God does without concern for whether they are especially deserved by their recipients. Without bothering themselves, for example, with distinctions between the deserving or undeserving poor, they should give their full attention, instead, to the various needs of members of this worldwide community. They must offer special protections, moreover, as these become necessary, to those most likely to be left out of the community of concern at any point in time -- the outcasts and strangers in their midst.
(pp. 89-90, emphasis mine)
In Tanner's understanding of human right, the problem of contingency is avoided... in fact, contingency is approached from another angle so that it can become the very basis of "rights" talk. As creatures we do not ourselves
deserve any right. God, however, imparts gracious gifts to creatures in need, entirely out of God's grace. Insofar as this is done, relationships between people, who are the vehicles of God's good work in creation (as Tanner says, "the ministers of divine beneficence"), can be understood as a situation where rights are present. That is, because God grants certain goods to my neighbor, my neighbor by rights can expect such goods from me, as need requires. My neighbor's right does not come from an inherent state that the neighbor possesses, but rather from my own state as a radically contingent and creaturely being who can claim no inherent right to my own goods. Given a situation where no one can demand rights in and of themselves, rights work themselves into the system by means of the ultimate Giver of Good Things.
This understanding has some advantages over the vagueness of a Rawlsian idea of justice as fairness, while still preserving the idea of basing right to goods on necessity. It also shatters the flimsy individualism of libertarian notions of inherent right, without abandoning the natural basis of right that is important to classic statements: this natural basis is simply located more thoroughly in God, and the creator-creature distinction is maintained more thoroughly than in conceptions of natural right where we supposedly just
have them, self-evidently and God-given. Only God has rights by nature. See the second paragraph I've quoted for more on this... this is exciting for theologians: a liberal notion of natural right that is actually sophisticated in its reference to God (no vague deist references here) and true to trinitarian doctrinal standards! God's right by nature is maintained analogously in creatures because God gives... not rights, but goods, to creatures... and so creatures can come to expect good from their neighbors by virtue of the fact that these goods are not the neighbor's, but the benefits of God to humanity.
As I said, I have not read Tanner's more political writings... nor have I read more recent theological accounts of rights language that also might engage with this further. It strikes me as a very workable alternative to usual talk about rights in political philosophy, though, and probably worth a discussion.