Natural Law's Modern Cousin Germain: Specifying Rights

TO MAKE THE MOVE FROM a general concept to a specific conception of right, say, from the "right to life" to the "right to life from the first moment of conception until natural death," is sometimes a very controversial and complex subject. All of a sudden consensus as to concept falls apart when the concept is specified, concretized, particularized, or qualified into specific conception. In Finnis's view, general concept of rights have to be specified into conceptions, and this must be done by changing the rights from two-term rights ("I have a right to X" to three-term rights using the Hohfeldian analysis that Finnis adopted and which we discussed in an earlier posting* ("A has a right to X, which B has a commensurate duty"). The number of factors that must be thought through in specifying rights, in the determination of concept to conception, can be daunting:

1. One must identify the duty holder(s) who must respect or give effect to A's rights;
2. One must define the content of the duty--what specific acts, times, circumstances, conditions, apply to that duty.
3. One must identify the correlative scope of A's claim-right.
4. One must identify the conditions under which A may waive or lose his claim-right or waive any other persons duties that correlate to A's right.
5. One must identify A's remedies in the event there is non-performance of the duty and A's rights thereby infringed.
6. The liberties relating to A's claim rights, and any limits on those liberties, particular those that may involve the duty of non-infringement of others' liberties, which means a specification of duties upon A with regard to the claim-rights of others (e.g., B).
   

The moment B is brought it, it requires a similar analysis (1-6 above), which brings us to C (for which the same analysis, 1-6 must be made), which brings us to D . . .

Going from Concept of Right to Conception of Rights is Daunting
The Natural Law Must Guide

This is what happens to a rights analysis that is placed within a communal framework. It is no wonder, then that people who share the same concept of right (the right to life, or the right to free speech, or the right to trial by jury) have a difficult time when it comes to specific determination of that right, what Finnis calls conceptions of that right. The whole calculative complexity of the specification steps outlined above causes unanimity in concept to result in disagreement in conception.

The only way to order the specification of rights with any hope at consensus is to have some sort of overriding guiding principles:

There is, I think, no alternative but tho hold in one's mind's eye some pattern, or range of patterns, of human character, conduct, and interaction in community, and then chose such specification of rights as tends to favour that patter, or range of patterns. In other words, one needs some conception of human good, of individual flourishing in a form (or range of forms) of communal life that fosters rather than hinders such flourishing.

NLNR, 219-20. Such a matrix, Finnis observes, will distinguish art from trash, culture from ignorance, friendship and respect from hatred, group bias, and "anarchic sexuality." It will recognize that children need to be formed, but will reject "servility, infantilism, and hypocrisy," and so forth. NLNR, 220. It will, in fact, add some sort of objectivity to the process of moving from concept to conception. Without some sort of overarching matrix, the work and public discussion in moving from concept to conception can not only be fruitless, it can be positively harmful to the common good and lead to endless bickering, infighting, and ill-will. Ultimately, the concept of rights must be nestled within the framework of natural law:

Human rights (not to mention the public order and morality which constitute a necessary framework for their enjoyment) can certainly be threatened by uses of rights-talk which, in bad faith or good, prematurely ascribe a conclusory or absolute status to this or that human right (e.g., property, contract, assembly, speech). however, if its logic and and its place in practice reasonableness about human flourishing are kept in mind, the modern usage of claims of right as the principal counter in political discourse should be recognized (despite its dubious seventeenth century origins and its abuse by fanatics, adventurers, and self-interested persons from the eighteenth century until today) as a valuable addition to the received vocabulary of practical reasonableness (i.e., to the tradition of 'natural law doctrine').

NLNR, 221. It is like rights are a wild steed, and they must be reined-in and broken in by a steady hand, the steady hand of the natural moral law.

For all their problems, their "dubious . . . origins," their "abuse by fanatics, adventurers, and self-interested persons," for all their potential for capture and appropriation by opportunists, rights have some valuable contributions to make in public discourse as they have some intrinsic features which makes them particularly effective in certain areas. Finnis identifies three such traits:

1. Rights emphasize equality, which is "the truth that every human being is a locus of human flourishing which is to be considered with favour in him as much as anybody else." This keeps "justice in the foreground of our considerations."
2. Rights-talk tends to dissipate or counter the tendency towards utilitarian or consequentialist "calculation" since rights are frequently touted as absolute. And any absolute right queers a utilitarian's work, throws a wrench in the consequentialist machine.
3. Since rights must be specified, they serve as useful vehicles for identifying and amplifying "a usefully detailed listing of the various aspects of human flourishing and fundamental components of the way of life in community that tends to favour such flourishing for all." NLNR, 221.
   

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*See Natural Law's Modern Cousin Germain: Rights Talk.