Universitas, Number 10, November 2001
The discussion of rights is affected nowadays by an ambiguity in the use of the word. In one sense "freedoms" can be readily substituted; but in another sense rights are only correlatives of duties, not in others but in ourselves. For example, as a creature I have the right to worship God but that is no different from my duty. As a citizen I have the right to defend my country, but that is my duty. As a parent, I have the right to educate my children, but that too is a duty. However, in a lot of respects, I have the right to do as I please. If I want to go and kick a football in the park, who is to say I cannot? I have a right to do so, but I have no duty to do this. I have a right to say what I like, but no duty as such to do so. These kinds of rights may be circumscribed by the rights of others (and by my duties in other respects). But the point is that they are really an expression of my basic freedom to do as I please.
For, as a human being, I am a person, the essential notion of which is that I exist (and have been made) in a real sense for my own sake. This does not conflict, as we can see, with the fact that I only exist in order to know, love and praise my Maker. For by being most perfectly and freely myself that is precisely what I am disposed to do. Properly understood, therefore, it is true to say that I should regard myself as an end, not as a means. As St. Thomas says "person" names that which is most perfect in all nature. Everything else (i.e. non-persons) exists for my sake. My perfection, then, lies in the most perfect freedom, where I can just be myself.
Now it is this fundamental character of humans, rooted in their free will, which is more often than not expressed when we talk about human rights, or the rights of the individual. In religious terms, we have been made in the image of God, who exists for his own sake. It is basic that the freedom of human nature be respected. That is the truth in Liberalism. It is a truth that seems too to have been given a special emphasis in modern times.
However, that is not the whole story. Man is not just to be conceived in terms of free will or freedom (the error of Liberalism). Indeed, human freedom is not true to itself unless it is rooted in reason and truth. So it is that we can only do as we please within limits marked out by what we are, our human nature. This comes out in the very definition of freedom (given by St. Anselm) as "power elective of means, the due order of ends being maintained." Human freedom is a true freedom, like unto God's, but not unlimited, and hence unlike God's. Thus though we can rightly regard ourselves as free spirits of a sort, we have definite limits within which we may freely operate. These limits are determined by what we are, our human nature, a strange complex of matter and spirit. We are animals that reason. The need to respect the limitations of our nature, therefore, underlies all our actions. This second fundamental character of our human nature, that we are rational, makes for the use of "rights" in terms of "natural rights", which names an order of natural justice or obligations. For we have to act in accord with our rational nature if we are to be human at all. This order of rights is defined in the moral or natural law. This is where the meaning of right corresponds with duty. It carries with it the notion of freedom, for we cannot separate freedom from human action. But it is rather the definition of the (natural and rational) limits of our free will, than a pure expression of its power, as in the first use of the word right.
Which is the more fundamental feature? This is an awkward question. For it asks us to give preference to reason or free will, to truth or love, when the two are intimately tied and indeed in practical terms one cannot operate without the other. Sufficient for us here to say that there are no rights that do not involve exercise of our freedom, nor are there any rights that conflict with reason and the natural law.
So where does the appearance of conflict come in? This occurs, it appears to me, because some think of rights only in terms of freedoms. Intoxicated with the sense of freedom they would be as gods, accountable to none but themselves. Hence, there is a tendency to expand the concept of right to where it is almost equivalent to a notion of absolute freedom. In old-fashioned terms, pride rears its ugly head. Non serviam. Who is to tell me what to do?
When there is at the same time a breakdown in moral sensibility, i.e. the awareness of the limits imposed upon us by reason of our nature, all sorts of claims to new "human rights" arise. There are glaring instances of this today in the area of sexual morality. It is now technically possible to have sex without "risk" of pregnancy. So a new right, of sex without responsibility, as a pure expression of human freedom, is proclaimed. The moral link between sexual intercourse and procreation is ignored. Unfortunately for this argument however the right to sex belongs to those kinds of rights that carry with them duties or responsibilities. The technically possible (which is in a way associated with the first kind of right, as freedom) is not to be simply equated with the morally possible (to which the second notion of right is tied).
The apparent conflict, then, comes about when certain freedom of action is claimed as a right. Infringing upon the area of our duties and responsibilities these new "rights" clash with the old. Let us take a familiar example from the family, or rather the break-up of the family in modern times. Once a person divorces and re-marries the "rights" to the children of the first union become complicated. For such rights are premised upon the natural institution of marriage, which is no longer acknowledged. There is necessarily a conflict of "rights" if one accords to the new marriage as much validity as the old. What does the law do? It says the "interests" of the child are paramount, ignoring the fact that the second marriage is an immoral union. The end result, generally one unholy mess, with sad social consequences. But we muddle along. The law then becomes used to the notion of compromise of rights and even talks of conflicting rights.
Even more complications, with the need for "compromise" (of moral principles), come with the legal recognition and even enforcement of "rights" of persons to more flagrant immorality. Sadly, all this can only end in more conflict and social disintegration. Meanwhile the field of "human rights", as guarantees of freedom of action, expands at the expense of "natural rights", as correlatives of moral responsibilities. The field of rights becomes a battleground with the newly liberated fiercely defending their newly won "rights" to be immoral. For the moment they seem to be carrying the day, having succeeded in enlisting the support of the media and the lawmakers.
Without going into the details of the relations between rights we can say that there is no conflict between "genuine', i.e. true, rights; nor can one ever cancel out another. There are of course difficulties with particular cases where even among natural rights there appears to be opposition. But here it will be found that there is a hierarchy of duties with the higher ones prevailing over the lower. This does not mean that there is any conflict or cancellation. For the order is fixed by nature already. It is simply a matter of determining, in the particular case, which is the ruling duty and corresponding right. Take the case of a parent's right to be supported by his (adult) child in his infirmity. Suppose there is a war and the child cannot be spared from combat. The duty to one's country overrules the duty to one's family in the appropriate circumstances. The right of the parent, then, simply does not apply where a higher duty calls.
There is a further matter that tends to complicate the discussion and that is the distinction between legal and moral rights. We use the term "legal right" in various contexts some of which imply a moral right but others which only signify a toleration of some behaviour that is immoral. But a proper analysis of the relation between the moral or natural law and human or positive law would show that there is no necessary conflict between the two, i.e. between natural rights and those positively created by human law. Such an analysis, however, is best left to another time.
dgboland © 2001 is a lecturer at the Centre for Thomistic Studies, in Sydney, Australia.
This article posted November 2001. It was published in
Universitas, No. 10 (2001).
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