The central claim of Nicholas Wolsterstorff’s Justice: Rights and Wrongs is that justice is based on natural human rights that inhere in the worth of human beings, a worth that is bestowed on each and every human being through God’s love. He contrasts this view of “justice as inherent rights” with an alternative notion of “justice as right order,” the view that was espoused by pagan philosophers such as Plato and Aristotle and dominated philosophical thinking until relatively recent times. Wolterstorff’s is a specifically Christian conception of the foundations of justice. He traces its origins to Hebrew and Christian Scriptures and argues that the widespread acceptance of human rights that has been achieved in the twentieth century would probably erode if the theistic grounding of those rights were to be discarded in favor of secularist views.
Wolterstorff’s book is a challenging, serious, sustained reflection on the foundations of justice. He wrestles with a wide range of difficult issues, often with considerable success. Yet the net result with which the reader is left seems to amount to something less than the sum of its parts. I shall point to a handful of difficulties, touching on both his historical narrative (which occupies roughly half the book) and his philosophical argument.
One of the book’s major claims is that the idea of rights that apply equally to all human beings originated in the literatures of ancient Judaism and Christianity, not in pagan sources. Wolterstorff is certainly right that justice is a central theme in Hebrew Scriptures. But he also argues that justice is one of the main themes of the New Testament, an argument that runs counter to the widely shared view that the New Testament focuses much more on love than on justice. Is this claim correct?
I think not. Wolterstorff rightly notes that the New Testament contains numerous instances of words based on the Greek term diké, which is the root of a family of words that are normally translated by variants of the word “justice” but are in the New Testament commonly translated by the word “righteous” and its variants. Yet a careful examination of the very texts he cites to support his claim about the centrality of the theme of justice to the New Testament points in the opposite direction, namely to the conclusion that a central aim of the New Testament was to supplant ideas based on justice with ideas clustered around love. For example, Wolterstorff highlights a passage from Luke that is borrowed, with revisions, from Isaiah. He argues that since the original passage from Isaiah explicitly invokes justice, the reworked passage in Luke must have been intended to evoke the idea of justice in its early readers, who would have been familiar with the book of Isaiah. Yet what seems most significant in the passage from Luke is the omission of any reference to justice, an omission that readers familiar with Isaiah would likely have understood to be deliberate. Wolterstorff is right that the writers of the New Testament were able to “think in terms of justice”—indeed, I know of no one who denies that they were able to do so—but it does not follow that justice was one of their central themes. The more plausible reading is the more familiar one that love, not justice, is the central theme of the New Testament.
Wolterstorff is right, of course, that Christianity is a major source of the idea that each and every human being possesses a great deal of inherent worth. This proposition is relatively uncontroversial. His account of the development and spread of ideas about justice would have been more accurate, however, if he had given due credit to ancient Stoic thinkers who argued, beginning before the advent of Christianity and apparently with no influence from Hebrew Scriptures, that every human being by nature is capable of giving and receiving justice, as well as to the enormous role that was played by Roman law in the dissemination of ideas about justice.
Wolterstorff rejects all secularist attempts to provide a foundation for the idea of justice, including a family of attempts based on the notion that human beings possess a capacity for rational agency, a family of which Kant’s moral theory is the most prominent member. It is true that arguments that justice is founded in the capacity for rational agency are not free of difficulties. But some of his central complaints about this line of argument strike me as tendentious. He suggests that some human beings have this capacity to a greater degree than others, and that some, such as infants and those suffering dementia, do not have the capacity for rational agency at all. I agree that some human beings have more fully developed powers of reasoning than others. But Kant’s argument is based on the capacity for rational agency, a capacity that in his view creatures either do or do not possess, not on the developed power to reason well. Indeed Wolterstorff himself suggests that humans and only humans have a capacity for what he calls “moral agency.” It is not clear that he has drawn a real distinction between his view and Kant’s.
Wolterstorff goes to considerable lengths to distinguish his view of justice as inherent human rights from the idea of justice as right order, but his effort leaves this distinction much murkier than he seems to realize. His chief exhibit among theorists of justice as right order is Plato, for whom, Wolterstorff observes, justice is identical to right social order. As all careful readers of Plato’s Republic know, however, the definition of justice as right social order is actually preliminary to Plato’s real definition of justice as a rightly ordered soul, i.e. a soul in which the appetites and emotions are subordinated strictly to reason. Like Plato, Wolterstorff vigorously endorses the idea that some human beings are deformed by virtue of their failure to place their appetites into a proper, natural order; this idea is central to his critique of utilitarian attempts to ground justice in the satisfaction of desires. Wolterstorff, then, appears to endorse a conception of right order within persons that is very similar, at least on the evidence of his book, to Plato’s conception of justice.
The task Wolterstorff evidently sets for himself in this book is to give an account of the foundations of justice. He has accomplished that task, and his account will likely appeal to many readers who are theists. It will not appeal to readers who are not theists, unlike the theory of justice developed by John Rawls, whom Wolterstorff brushes aside (and misreads) in less than three pages toward the beginning of his book. The widespread acceptance of the discourse of human rights in the twentieth century was neither the product of nor linked to a vast increase in acceptance of Christian teachings, and Wolterstorff’s argument that erosion of the latter—or at any rate, of adherence to theism—would result in the demise of that acceptance seems to me far-fetched. Although more secularist (and more substantive) accounts of justice like Rawls’s are far from flawless, the wager they place is more likely to yield intellectually persuasive answers to questions about justice than is Wolterstorff’s approach.
David Johnston: The more plausible reading is the more familiar one that love, not justice, is the central theme of the New Testament.
Is the book referring to God’s attributes? If so, doesn’t the scripture mandate justice over love?
David Johnston: The widespread acceptance of the discourse of human rights in the twentieth century was neither the product of nor linked to a vast increase in acceptance of Christian teachings.
I’m unaware of how the twentieth century could accept rights espoused by Aquinas to the Founding Fathers, which were clear natural law (rights) come from Christianity.
Your review of Wolterstorff’s book is helpful and generous. I have not read the book, so I will not attempt a defense of Wolterstorff. I have to admit, however, that I cringed to read that love, not justice, is the heart of the New Testament. While a certain and selective reading of the NT seems to support this, especially if one’s definition of justice is juridical, I think many recent biblical scholars and theologians would hasten to object that God’s justice and mercy are not oppositional, but merely two different ways of talking about the same one character. (Indeed, to say that God is both justice and love, and yet that these somehow collide, seriously violates trinitarian theo-logic, notwithstanding the popularity of such a claim even among Christians.) Karl Barth, for instance, defined God’s justice as his effecting of right community with himself, most concretely in the cross and resurrection, the ultimate act of love / mercy. That divine justice and love (caritas) are not agonistically related obviously entails the same among humans. So the Sermon on the Mount calls followers of Jesus to the dike that surpasses that of the Scribes and the Pharisees, while much of the content of that dike could easily be described as “mercy” or “love.”
This doesn’t get Wolterstorff off the hook for the potential misreading of the NT that you rightly point out; but perhaps it explains the affirmation of justice’s centrality in the NT. It’s just that this is a strange justice. I hope this comment is as helpful in clarifying a contested issue as your review is in clarifying some problems in Wolterstorff’s book.
I don’t really have anything more to say about the role of justice in the New Testament than I said in the book. And David Johnston doesn’t challenge my argument that ancient eudaimonism did not have the conceptual resources necessary for developing an account of rights. Let me content myself with addressing the charge that I was dismissive of Rawls (“brushes aside”), and that I “misread” him.
My point about Rawls was two-fold. In his theory, Rawls assumes the existence of natural rights; I give textual evidence for that. Rawls does not, however, develop an account of natural rights; his interest was elsewhere. But my project was to give an account of natural rights. Hence there’s not much in Rawls for me to engage in carrying out my project. I don’t see why not engaging him for this reason constitutes brushing him aside.
I am open to being shown that, in spite of the evidence I cite, Rawls does not assume the existence of natural rights. If he does not, then it is even more clear that he is not, for me on this issue, a dialogue partner. Perhaps I should add that I have engaged Rawls extensively on other matters.
Since Professor Wolterstorff chose to respond to the points I made about his treatment of Rawls, let me explain why I think he misreads and consequently brushes off Rawls prematurely. I’d like also to amplify a point I originally made in passing about the relevance of the Stoic tradition of thought to his arguments about justice—arguments that are, I repeat, challenging and serious.
In the slightly more than two pages Wolterstorff devotes to a discussion of Rawls, he argues two points: first, that Rawls’s theory of justice is an inherent natural rights theory (that is, a theory of the type Wolterstorff defends in his book), and second, that Rawls “does nothing at all to develop an account of such rights.” I believe that the first of these claims is mistaken. The second claim is ambiguous, since the phrase “an account of” can mean various things, but on most reasonable readings, this claim also seems to me mistaken.
The central piece of textual evidence Wolterstorff cites in support of his first claim comes from a footnote late in A Theory of Justice (1971) in which Rawls explains how a feature of his theory of justice can be used to “interpret the concept of natural rights.” Rawls’s central point here is that the term “natural” suggests a contrast between rights identified by the theory of justice and rights that are merely conventional; the former are fundamental, while the latter are derivative and can be overridden by other considerations. So there is an affinity between the idea of natural rights and the idea of Rawls’s theory that individuals should as a matter of justice enjoy some rights that cannot be overridden by other considerations, such as the perceived greater good of the whole.
Although Rawls is happy to point to the affinity between his conception of rights and the notion of natural rights, he makes it absolutely clear that this affinity is nothing more than that, and is not an identity, as Wolterstorff would have it. In Rawls’s view, the concept of a natural right is the concept of a foundation or premise of a theory of justice. Rawls rejects the concept of natural rights because he regards the account of the rights all individuals should enjoy without fear that those rights will be overridden as a conclusion, not a premise, of his theory.
For his interpretation, Wolterstorff leans heavily on a claim about Rawls’s theory that Ronald Dworkin published in 1977. But Rawls rejected Dworkin’s claim implicitly in his lectures on “Kantian Constructivism in Moral Theory” (published in 1980) and explicitly in his essay “Justice as Fairness: Political not Metaphysical” in 1985. In these writings Rawls makes it clear that his theory is “conception-based,” not “rights-based.” That is why, as Wolterstorff observes, Rawls was so reluctant, already in A Theory of Justice (1971), to “make explicit the natural rights basis of his theory.” Rawls in fact consistently rejected the idea that his theory of justice is based on the idea of natural rights, though he believed that his theory provided an illuminating reinterpretation of that idea, just as he believed that his idea of “legitimate expectations” provides a reinterpretation of the idea of “desert” (which he rejects) and his idea of “primary goods” provides an alternative to the idea of “well-being” (which he also rejects). I don’t understand why Wolterstorff so readily accepts Dworkin’s account of Rawls’s theory, which Rawls repudiated not long after it appeared in print, rather than accepting Rawls’s account of his own theory.
In his response to my initial comments on his book, Wolterstorff says that if Rawls does not assume the existence of natural rights, “then it is even more clear that he is not, for me on this issue, a dialogue partner.” But this defense seems disingenuous. Wolterstorff’s book is a defense of the idea of natural rights; he does not address it only to readers who accept his conclusion. Moreover, he does treat as serious dialogue partners writers who defend the idea of justice as right order, an idea that he considers the major competitor to his idea of justice as inherent natural rights.
The principal reason why it seems unfortunate that Wolterstorff brushes aside Rawls’s theory so quickly is that Rawls does offer an “account of rights.” He offers an elaborate and challenging account of the reasons why the members of a just society would accept the proposition that each and every one of them has rights that cannot be overridden for the sake of a greater good. Wolterstorff’s account is foundationalist, while Rawls’s is constructivist in character. Rawls offers an important alternative that is neither a variant of “justice as right order” nor of “justice as inherent rights,” and Wolterstorff’s own argument could be improved considerably through recognition of the distinctiveness of Rawls’s account.
As I suggested in my initial comment, I wish also that Wolterstorff had given due credit to the Stoic and Roman law sources of natural law thinking. In De legibus Cicero, who was assassinated toward the end of 43 B.C.E., asserts that justice is rooted in “that highest law, which was born eons before any law was written or indeed before any state was established” and argues that justice is rooted in nature, and specifically in the nature of human beings. Cicero insists on the equality of all human beings with regard to justice. The reasons why Wolterstorff’s neglect of Cicero, the Stoic tradition, and the tradition of Roman law is unfortunate are twofold. First, as a matter of historical fact, the contributions of these traditions to thinking about justice and about natural law and natural rights in particular, including the thinking of medieval Christian writers, are of tremendous importance. Second, Cicero in particular addresses many of the difficulties with secularist accounts of rights Wolterstorff discusses. It may be that Wolterstorff would have rejected Cicero’s arguments, but it might have strengthened his argument if he had at least considered them.