In Justice: Rights and Wrongs, Nicholas Wolterstorff makes a compelling case that the idea of human rights, commonly attributed to enlightenment secularism and subsequently claimed by the tradition of liberal individualism, in fact has its roots in Judeo-Christian theology. Dissecting prior attempts to forge a compelling secular foundation for human rights in the capacities or dignities of the human person and finding them wanting, Wolterstorff concludes that we must either accept that rights are socially conferred and ungrounded or seek recourse in theistic convictions. Suppose we are willing to concede Wolterstorff’s argument for a long theological history of inherent rights, an argument whose sentiments echo those of trends in secularization theory exploring the mutually constitutive nature of secularism and Judeo-Christian theoculture. Suppose too that we accept the validity of his critique of secular rights foundationalism; even so, Wolterstorff’s attempt to anchor inherent human rights in a particular Christian conception of God raises more questions than it answers.
In this post I begin my discussion of Justice: Rights and Wrongs by elucidating the main trajectory of Wolterstorff’s argument, paying specific attention to its final phase, where his argument transitions from delineating genealogies and evaluating the strength of various philosophical systems to his own attempt to articulate a vital theory of inherent rights. With a studied account of various conceptions of the good life as his axis, Wolterstorff turns his argument to the conclusion that the problem of rights comes down to questions of worth. In his account, rights are the correlative to the worth conferred upon all human beings by God’s love, a love bestowed equally on all beings bearing the imago dei. With this love and the imago dei as the backstop for the foundationalist project toward which the book aspires, much of the argument’s strength or weakness depends upon how satisfying his readers find his account of God’s love, the nature of God’s image, and their effects.
Wolterstorff’s archaeology of the idea of natural rights in medieval cannon law and in the Old and New Testaments explicitly refutes the argument popularized by Alasdair Macintyre that a vocabulary for what is meant by rights—and thus the very idea of inherent rights—does not exist prior to the fifteenth century. In this way, Wolterstorff seeks to undermine a common refrain in Anglophone philosophy that the myth of personhood underlying human rights is specific to the post-Enlightenment West: the individual as separate, atomistic, and free. To question this concept of the individual is to question human rights, and vice versa. Contrary to dominant readings of justice in the Old Testament as being primarily a matter of law and judgment (and thus focusing on the “right order” of a society rather than on the inherent rights of its individuals) and to those who see the Christian tradition as replacing law and justice with love and forgiveness, Wolterstorff argues that the Old Testament implies a rigorous and consistent idea of inherent rights.
Because such inherent rights are never overtly theorized in the Old Testament, Wolterstorff infers their existence from extensive accounts of being wronged. If maintaining a properly ordered society constituted the horizon of the scriptural conception of justice, there would be no need to dwell so persistently on the society’s peripheries. Instead, biblical discussions of justice focus disproportionately on those Wolterstorff calls “the quartet of the vulnerable”: “widows, orphans, resident aliens, and the poor.” Only with a sense of the inherent worth of those individuals and an underlying conviction that all are worthy of basic life goods like physical security, sustenance, and shelter do the prevalence of such accounts cohere.
In his discussion of the Gospels, Wolterstorff’s attempt to dispel the sensibility that renders justice irreconcilable with forgiveness follows a similar logical and exegetical trajectory. Forgiveness, Wolterstorff argues, is not justice-blind; rather, “[t]he concept of forgiveness incorporates the concept of being wronged,” and “can occur only in the objective context of the agent having a right that has been violated and acquiring retributive rights on that account…justice-blind love cannot forgive.” The implication of this line of reasoning is clear: Wolterstorff’s long history of inherent rights severs the link between the political liberalism developed by Hobbes and Locke and the birth of human rights, demonstrating conclusively that rights culture is innocent on at least one count for which it is indicted. As Wolterstorff puts it, “[a]ssuming that present-day Western society is indeed afflicted by attitudes of possessive individualism, the cause cannot be the use of rights language.” Beyond critiques of justice and rights foundationalism from those, like Rorty, who suggest that we abandon such endeavors in order to devote our resources to the task of expanding the normative compass of rights cultures, many critique the persistent Eurocentric bias at the heart of the human rights project, a bias generative of continuing relationships of dominance of the West over the rest. While Wolterstorff’s argument absolves rights discourse of the individualist charge, it reinforces and even heightens its historical particularism.
If the first trajectory of Wolterstorff’s argument recuperates a theological history of inherent rights, the second avenue of argumentation, one more familiar to the tradition of analytic philosophy, considers why a project of rights foundationalism unmoored from theism fails to offer an adequate account of natural rights. Since the eudaimonist thinkers of antiquity offer the most expansive and influential alternative to the biblical account of social structure in the European tradition, Wolterstorff begins there. Eudaimonists, from Aristotle and the Stoics to MacIntyre and Martha Nussbaum, articulate a vision of ethics in which an individual evaluates actions by virtue of whether that action contributes to their happiness, where happiness is not understood in terms of pleasure but as the well-lived life. As Wolterstorff argues, such an approach cannot support a theory of rights because it conceives of the good life primarily in terms of an individual’s actions rather than in the way that individual is treated. Whereas the Bible valorizes the emotive state of being wronged as a spur to justice, eudaimonists regard such anger as an undesirable emotional disturbance. The insufficiency of eudaimonism as a foundation for rights is even more transparent when considering our actions toward others; as Wolterstorff argues, “[a] theory of rights needs the idea of a person’s worth requiring that she be treated in certain ways. The eudaimonist speaks only of the worth of life-goods…the worth of persons and human beings has no place in his scheme.”
If eudaimonism cannot sustain a theory of rights because it lacks an account of human worth, attempts to ground such worth—and therefore human rights—in the capacities and dignity of the human person prove inadequate because they depend upon too narrow a conception of the human person. Just as the “circumstance of justice” employed by Rawls and Hume presupposes a concept of the human person as a rational, physically capable adult, arguments for human rights based on capacities and dignity require as their subject a properly formed, properly functioning human person. For Rawls as for Wolterstorff, Kant is the central figure in this tradition and thus can stand metonymically for capacities approaches as a whole. Kant argues that our worth as human beings inheres in our capacity for rational action; Wolterstorff, like many of Kant’s critics, rightly observes that not only do people vary significantly in their rational capacities, some people—infants, those born with mental disabilities, those suffering from severe Alzheimer’s, those in vegetative states—lack this capacity entirely; most of us are unwilling to accept that the worth of such persons is insufficient to merit rights or that torturing them for our pleasure would not constitute a serious breach of justice.
Attempting to redeem flaws of this kind leads to mediated, qualified articulations. The best argument Wolterstorff can muster to rescue Kant would be that rights inhere in beings “belonging to a species such that maturation of its properly formed members includes possessing the capacity for rational agency” (Original italics). Wolterstorff concludes—and rightly so—that this attenuated property is unimpressive indeed and certainly inadequate to the task of rights foundationalism. Kantian ethics, like those of the eudaimonists, simply cannot offer an account of human worth of sufficient strength to build upon it the edifice of inalienable, universal human rights.
In the wake of a compelling archaeology of inherent rights in the Gospels and an impressive account of the insufficiencies facing secular rights foundationalism, we come to the core of the argument. For Wolterstorff, justice is grounded in natural or inherent rights. Rights, in turn, are not the possession of an individual isolated subject, but rather “normative social relationships” with a necessarily interpersonal structure. And here Wolterstorff’s argument turns an important corner: we have rights to certain goods (namely to the goods of a flourishing life) because of the worth conferred upon us by virtue of the unique relationship between God and human beings, who are made in the image of God; rights express the worth imparted to us by the love of God for those made in God’s image. Wolterstorff formulates the crux of the argument as follows:
From these reflections, I conclude that if God loves a human being with the love of attachment, that love bestows great worth on that human being…and I conclude that if God loves, in the mode of attachment, each and every human being equally and permanently, then natural human rights inhere in the worth bestowed on human beings by that love. Natural rights are what respect for that worth requires.
But why should we conclude that God’s love for human beings takes the form of attachment love as opposed, for instance, to the agape love dominant in the Christian tradition? Why should we conclude that God loves us at all? And if God and God’s love exist, why should we conclude that God loves every human being equally? Whereas Wolterstorff offers careful exegesis of Biblical texts supported by thorough etymological analysis in his argument for the presence of a concept of inherent rights earlier in the book, he marshals no such evidence here to suggest that alternate conceptions of God’s love are untenable. How would one prove that God’s love takes the form of equally distributed attachment? While such evidence would not compel agnostics, atheists, or those who do not profess an Abrahamic faith, one avenue open to an argument of this kind would be to extend the scriptural and historical analyses to these subjects as well, a task we can reasonably expect Wolterstorff to pursue in his project on love and justice.
I am particularly unsettled by Wolterstorff’s recognition that only if God’s love is imparted to us equally can theistically grounded human rights overcome the objections that plague capacity and dignity approaches to human rights. Just as human beings differ radically in their exercise of reason and these differences have unintended consequences to their worth in a Kantian system, must not human beings differ in lovability, with similar implications for theistically grounded human rights? If God’s love is not distributed on the basis of merit, is it not therefore love as caritas or agape and precisely not the kind of love, in Wolterstorff’s account, on which inherent rights can be based? Wolterstorff’s poignant example of attachment-love as the unjustifiable affection a child has for her particular blanket or stuffed animal addresses only the unmerited nature of God’s love, not its even and universal distribution. A way out of this conundrum could be found in arguments from relative asymmetry. To someone traveling at the speed of light, the difference in speed between Lance Armstrong on his road bike (to borrow one of Wolterstorff’s favorite examples) and my daughter on her tricycle would be absolutely insignificant. From the perspective of the speed of light, Armstrong’s talent and strength would not add to his worth. Perhaps from the perspective of an omniscient, omnipotent God, the difference between a person of the keenest intellect and the most severe Alzheimer’s patient would be equally negligible, thus supporting the claim that God loves all humanity equally.
God’s love alone does not singlehandedly sustain Wolterstorff’s argument; instead, it is God’s love coupled with a particular conception of what it means to bear the image of God that forms the basis for inherent human rights. Wolterstorff’s approach to the question of what it means to be made in the image of God (a question, he observes, that “has provoked more indecisive speculation and fruitless controversy” than any other theological conundrum) follows a now-familiar path: exegesis of relevant Biblical passages, considered analysis of critical and philosophical debate, articulation and refinement of concise and rigorous argument. For Wolterstorff, to bear the image of God is to possess a “human nature,” and “that nature,” he continues, “is such that the mature and properly formed possessors of that nature resemble God with respect to their capacities for exercising dominion.
Wolterstorff’s argument is logically and textually coherent; I do not dispute its validity, nor is it necessary to do so. More to the point, the argument is neither satisfying in affective terms nor is it ultimately persuasive in the context of rights foundationalism. Even if we withhold judgment on Wolterstorff’s premises about God and do not interrogate the questionable status of Biblical testimony introduced as evidence within the framework of a deductive argument, two aspects of his imago dei argument remain profoundly unsettling. First, the argument’s structure (which Wolterstorff calls a “nature-resemblance” approach) is functionally equivalent to the Kantian “capacities-resemblance” approach dismissed earlier as insufficient. Indeed, Wolterstorff’s critique of a similarly watered-down capacities approach to human worth is equally applicable to the nature-resemblance argument advanced here.
Second, and more pressingly, I have grave reservations about the seminal characteristic through which Wolterstorff reads the imago dei, namely that of “dominion.” At times, Wolterstorff’s argument assumes a recognizably Levinasian attentiveness to the rights of others, most notably in the preface: “the presence of the other before us places a claim on us, issues to us a call to do justice.” A dominion-based approach to human nature and the imago dei would seem to render ancillary the worth of any other person to individual practices of domination. To predicate rights and justice on control and sovereignty is to inscribe hierarchy and power in advance of any social relationship and thus to weaken the rights that arise on such a ground. To be sure, the dominion bestowed upon humanity in Genesis is limited to rule over the non-human world; but dominion establishes relationships in which the idea of others (any kind of other) as the bearer of worth comes a distant second to the pragmatics of domination, control, and violence. God’s dominion over creation is replicated in and reflected by human rule over a natural world subjected to our power. Since in the Abrahamic monotheisms God lacks others who come before God with inherent worth (human worth is conferred by the creator), the model of divine dominion provides no model for inherent worth other than God’s own. Models of mutuality do appear in Genesis—particularly in God’s recognition that it is not good for Adam to lack an equal partner and subsequently in the erotic bond between Adam and Eve—but dominion is not the structuring force behind relationships of this kind.
Wolterstorff’s attempt to ground the worth of human persons in God’s love is explicitly conditional: “My argument has been hypothetical…I have not argued that God does in fact so love every creature who bears the imago dei. I have argued that a grounding of natural human rights is available to the person who holds the theistic convictions indicated.” Consequentialist arguments of this kind seem unlikely to convert or convince many people (they strike an affective register dissonant to the intensities of faith) but they do imply that a greater public role for specific religions—those that conceive of humans as made in the image of God and where that God loves every human being with equal attachment-love—could be a force for greater justice in the world. The greatest achievements of Wolterstorff’s book—those that ensure its centrality to the flourishing debates surrounding human rights, religion, and secularism in the public sphere—lie in its compelling histories of faith cultures and philosophical traditions. The move from hypothesis to thesis regarding the imago dei, God’s love, and human rights awaits further analysis.