Nicholas Wolterstorff’s Justice: Rights and Wrongs is a profoundly ambitious book. His normative aspiration is nothing less than “speaking up for the wronged of the world” by reorienting contemporary thinking on rights and justice. His method combines the painstaking care of an analytic philosopher with staggering intellectual range, and his theory is unabashedly theistic. Justice, he argues, consists in natural rights, and those rights “inhere in the worth bestowed on human beings by [God’s] love.”
Wolterstorff knows his arguments swim against the intellectual tides. By linking justice to inherent rights, he is taking on the many critics of contemporary “rights-talk,” who allege that a preoccupation with rights has fostered possessive individualism and undermined our weightiest social obligations. By linking inherent rights to God, Wolterstorff is confronting widespread skepticism about theistic groundings of justice. Most of the book is taken up with addressing these two challenges to his argument.
He begins with an “archeology” of rights and justice, which reveals two competing narratives. One narrative traces the ascendancy of inherent rights to fourteenth-century nominalism or the Enlightenment (depending on who tells the story), during which rights were inextricably fused with a harmful atomism. As Wolterstorff sees it, proponents of this narrative insist that conceptions of justice-as-rights displaced earlier and better understandings of “justice as right order”—that is, the idea that there is a “natural law for the right ordering of society [that] ultimately grounds justice.”
In contrast to this narrative, Wolterstorff attempts to revive inherent rights by telling the story with an older and less individualistic derivation. He sketches a line from the rights-based thinking of the Church fathers and twelfth-century canon lawyers to the rights-talk of the ancient world, especially as reflected in Judaic and Christian scriptures. The theme of Wolterstorff’s alternative narrative is a biblical inheritance in which human beings, as a result of their relationship with God, have a right to certain goods in their lives. To deny them those goods is to wrong them; to honor their rights to those goods is to do justice.
But how do we account for these goods? In the second part of the book, Wolterstorff combines his narrative with theory about the “life-and-history” goods to which we have rights. After a discussion that is thick with distinctions, qualifications, and refutations, his answer, put too simply, is that it is not enough to follow the ancient eudaimonists, who focused on the worth of life-goods rather than the worth of persons. A theory of the goods to which we have rights requires an underlying idea of a person’s fundamental worth.
That conclusion, of course, raises yet another question: how do we account for human worth as a basis for inherent natural rights? Wolterstorff’s answer is especially provocative. After assessing arguments from Kant to Gewirth, he concludes that no existing secular reasons provide an adequate account, but a theistic argument does. Rights inhere in our equal worth as God’s beloved, regardless of our capacities or choices. Wolterstorff acknowledges this argument will resonate primarily with those who share his own undefended theistic convictions, but he is unapologetic, noting that “seldom anymore does the analytic philosopher assume that he is obligated qua philosopher to rationally ground what he says in certitudes.”
Justice resists easy categorization, but as a political scientist who only dabbles in political theory (and even less in theology and biblical exegesis), I came away with the impression that Justice could be read as a defense of some of liberal democracy itself. I say “impression”; Wolterstorff does not emphasize the point. But he obviously insists on a high view of human worth and the possession of fundamental rights, which liberals can generally accept; and, as a general approach, his theistic argument for rights is a problem only if a theorist believes that liberalism can rest solely in a secularist’s faith.
But what about the practice of liberal democracy? What would it mean to govern so that members of a society can “enjoy the goods to which they have a right”? Justice is not a book of practical application, but it is clearly on Wolterstorff’s mind. The book begins with a touch of autobiography that suggests Wolterstorff comes to the question of justice because of his vicarious experience of actual injustice, not “the imperatives of some theoretical scheme or the duties of some academic position.” And the book concludes with some tantalizing reflections on the “unsettling” possibility that secularization will erode the “moral subculture of rights”—a discussion that suggests real concern about the real-world prospects of his theory.
Perhaps Wolterstorff would respond that shaping political institutions (in contrast to political purposes) asks too much of his theory, which is limited to the source and scope of inherent rights. Yet, at the very least, Wolterstorff would clearly reject an approach (advocated by many contemporary religionists) that focuses on how institutions are “rightly ordered” along some purported scheme of justice ungrounded in inherent rights. Moreover, Wolterstorff suggests a connection between natural inherent rights and institutionally conferred rights; the moral force of natural rights allows us to evaluate “what transpires in society, including…an appraisal of the presence or absence of law and social practices conferring rights.”
While Wolterstorff does not provide examples of such an appraisal, Michael Perry’s Toward a Theory of Human Rights does. Like Wolterstorff, Perry links human rights to inherent human worth and he rejects arguments that attempt to ground that worth in non-religious reasons. Like Wolterstorff, he also identifies the “the serious question [about] whether the morality of human rights can survive the death—or deconstruction—of God,” and he answers it—again similarly to Wolterstorff—by suggesting that God is unlikely to succumb. But whereas Wolterstorff provides a full account of his theory, Perry provides only a sketch and moves quickly to application. As a result, the two books make an interesting pairing.
It is beyond the scope of this review to detail Perry’s arguments, but suffice to say that his book illustrates the challenges in honoring Wolterstorff’s view of inherent rights through the legal rights conferred by governments. Perhaps chief among those complexities is the nature of democratic governance itself, which often fails to yield to inherent rights-claims. Perry’s solution is a chastened faith in independent constitutional courts. But it seems to me that a commitment to inherent rights does not by itself account for that solution. One is left wondering if it is sufficient to argue that a “just” government is whatever is most likely at a given time to ensure, in Wolterstorff’s terms, that human beings “enjoy the goods to which they have an inherent right.” If that is an insufficient argument, are we thrown back on something akin to a “right order” view of justice?
The fact that reading Wolterstorff raises such questions is reason alone that his book ought to be a prominent part of ongoing conversations about justice. His closely-reasoned and humane work clarifies the moral stakes when we talk about how public institutions approach justice. But the book also pushes us past these matters of statecraft to more basic issues, ultimately forcing readers to confront head-on what justice would mean in a “moral subculture of rights” shorn of religious meaning. In the last paragraphs of the book, Wolterstorff takes comfort in his rejection of the inevitably of secularization. Readers of The Immanent Frame will undoubtedly ask whether he is warranted in that rejection—or whether he needs comforting at all.
Just one point of response to Kevin den Dulk’s generally very accurate and perceptive comments. It is not my view that all natural rights “inhere in the worth bestowed on human beings by [God’s] love.” I am of the view that that is true for all those natural rights that are human rights. But it is far from the case that all natural rights are human rights. A human right is such that all one needs, to possess the right, is to be a human being. But for many natural rights, one has to be something much more specific than that. Children, for example, have natural rights that adults do not have, and conversely. It is important here not to confuse human rights, with the rights that human beings have. Only a few of the rights that human beings have are human rights.
I find that a good many readers misunderstand me on this point; I conclude that it is something that I did not make sufficiently clear, even though I think my terminology is very standard.