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The History of Natural Right

Given this revisionary account of the development of natural law (click for previous instalment in this series) in western intellectual history, how does it relate to the story of natural rights? In the case of Aquinas, as with many other medieval theologians, and the canon law itself, the Christian exaltation of individual uniqueness and liberty led to a greater recognition of subjective rights in the sense of both claim and exercise rights than had previously been the case. However, the claims generally remained claims upon others to exercise their more primary duties, while exercise rights were attached to social roles whose duties were derived from justice as distribution.[1] Later, in the 16th century, in the case of both Catholic and Calvinist thought, there was a greater development of the idea of “rights” as attaching to human beings as such, especially with respect to life, freedom and ownership. Thus for example, Suarez no longer, like Aquinas, defined ius as id quod iustum est, or as the equitable, but as “a kind of facultas which every man has, either over his own property, or with respect to that which is due to him.”[2]

These universal claim-rights of humans upon all other humans were now indeed over-absolutely affirmed, in relative neglect of equity.[3] Yet, no more than in the case of Aquinas and canon law were these rights most commonly based upon a subjective foundation, sundered from notions of right cosmic order (as Suarez’ invocation of “what is [objectively] due” can serve to indicate), even though this has started to become too theoretically and “factually” regarded, rather than prudentially, in such a way as to encourage a false “non-negotiability” of fundamental right and obligation. Instead, rights to feed and clothe and protect oneself followed from one’s duty to do so as God’s creature, as revealed by the factual circumstances of one’s given nature, while Protestant defenses of the liberty of religious conscience derived from the view that without this right one could not do one’s sincere, unconstrained duty towards God.[4]

Here one can note that today it is becoming clear that, without any sense of religion as necessarily an intrinsic good, the rights of religious freedom are liable to lapse, even though so many of our other liberties are in historical reality derived from them.

By contrast, the substitution of a general right of conscience for religious liberty is likely in practice to inhibit all religious and group freedoms, because it tends always to favour the plea of the individual against any form of perceived “pressure”—as for example the wearing of religious symbols at work, or the demands of a non-political corporate body that its members adhere to its regulations. Since most of our capacities are achieved through collaboration and association, the real effect of this is eventually to reduce even individual freedoms.

For these reasons, the historical development of religious freedom in terms of the right to associate, and to form rule-bound sub-communities has been crucial to the history of western liberty. This right was much developed, in the wake of medieval corporate jurisprudence, by Calvinist thinkers like Althusius in the Netherlands. But here again it was considered subordinate to our duty to enter into neighbourly formations. Sometimes, indeed, the grounding of this natural law lay ultimately in the divine will rather than the divine reason, but that did not necessarily mean that the primacy of self-determination was echoed at the human level.[5] All the same, one can also note here, with Michel Villey, that Althusius, unlike Aquinas, derives the right of associations themselves finally from the individual right to associate, rather than from the embodiment of relational justice that an association has entered into. So here, as in other instances, an over-weighting towards subjective content of rights does start to slide towards their subjective foundation, though without explicitly getting there.[6]

Later developments of the Protestant legacy, shading off into the enlightenment, tended (with seeming contradiction) on the one hand to cast off the voluntarist residue, yet on the other generally also to lose the covenanting impulse in favour of more individualist stoic notions of officium, combined with sentimental and at times egoistically-projected notions of fellow-feeling. It seems to have been exactly the unnatural hybrid of contract theory with the ethics of sympathy that led to the eventual replacement of natural rights with the rights of man, thereby somewhat obscuring the biopolitical aporia as to the relative naturalness or civility of all human ius.[7]

It then follows that, as several scholars have now shown, most natural rights thinking up till and even including the American Revolution, still remained inserted in a natural law, cosmic order context, even if the increasing focus upon subjective property rights implicitly tended to unsettle this adherence.[8] Rights, however to the fore, remained, if one looks closely, even for someone like Thomas Jefferson, ultimately subordinate to duties to others and to God. Nevertheless, from early modernity onwards there is an imbalance, as compared with Aquinas. For it is considerably forgotten, as Annabel Brett rightly stresses, that justice is mainly ad alterum, even if one properly claims the assertion of universal natural rights (as correlated with duty and holding “generally” rather than “universally”) to religious liberty, security of life and property, free speech etc as legitimate advances, compatible (given the limiting protocols just indicated) with the spirit of genuine Thomism. But what happens between people in terms of economic interaction and social behaviour tended to get relatively (if as yet by no means completely) demoralised and so handed over to power and convention, or the spectacle of mere fashion and customs of untrustworthy politesse. Just by reason of this neglect of the relational, the explicit stress tended to fall upon rights rather than duties, even though the latter remained precariously foundational, since the main anxiety of the age was to ensure that people could exercise their perceived responsibility without interference.

Nevertheless, when it comes to the always focal right of property, one already sees, even as far back as Francisco de Vitoria in the 16th century and then in almost everyone who came after him, an incorporation of the non-Thomist, but rather Scotist and nominalist idea that ius can be roughly identified with dominium (as witnessed by the quotation from Suarez above) and that right to ownership proceeds primarily from de facto power.[9] Even if ownership remains, as for Aquinas, ordained by God for the sake of general order and of community benefit, its derivation first from power rather than distribution concurs with Vitoria’s view that ownership goes naturally with “license” to do with the owned as one pleases, rather than being attached to various specific social duties of upkeep and usage. From this instance we can see again, that despite the importance of the distinction between subjective rights and their subjective founding, this is no tidy boundary. For the more they are the rights most insisted upon and the more they are detached from bonds of relation, then, inevitably the more they tend to become both self-founded and non-negotiably absolute and universal, like a kind of gated-community outside the perimeter of a normal, mutually-established human settlement.

A balanced sense of equity, as well as the dire if inchoate cries of the present day would seem to suggest that we now need a new natural law synthesis that would sustain the best gains of natural rights—rights to non-coercion in as many contexts as possible, rights to free speech, to security of ownership if this can be distributively legitimized, to community-securing of our health, and educational development, to political participation—while re-incorporating the ethical pertinence of what the Romans called the “incorporeal links” between people and things and people and people.[10] It is surely also obvious, as with Aquinas’s notion of a natural way to be cultural, that this fits better with the ecological concerns of our era if they are also to remain humanist ones.

However, an initially minority report of natural rights has eventually become the majority report. This report concerns the notion of subjective rights resting on subjective foundations. The story here is complex and highly disputed. Yet in summary it does seem clear that it does not just begin with Grotius and Hobbes, as Leo Strauss supposed. Rather, as Michel Villey argued, certain currents of Franciscan voluntarist theology replaced participation in the eternal law with notions of God as the maker and therefore proprietor of the Creation, who mediates his power-based authority in terms of the capacities and wills of his creatures.[11] Thereby, indeed, and before the early modern period, one starts to read off natural law from nature. The power one has over oneself implies self-ownership; the fact of the power of kings implies their unrestricted right to underwrite other property ownership. And if to have natural power is to own, then conversely to have artificial ownership is to enjoy unrestricted power over one’s own property.

This naturally gives rise to dilemmas of reflexivity: since the mark of inalienability is absolute power and will, can the inalienable itself be alienated? Such dilemmas lay at the crux of the medieval arguments over Franciscan poverty: did the friars have the right, as humans, to renounce right and become in a sense either animal or superhuman? Is the residual right to use which they share in common with beggars, children and the infirm really and newly a “right” beyond the mere expectation of charity? And is there therefore a will beyond self-possession implied in the very exercise of self-possession?[12] In this way the Franciscans seem to prefigure both Hobbes and Rousseau, both capitalism and communism, both absolute property and the revolt against it, both humanism and the ecologically posthuman.[13] It is difficult, despite many scholarly protests, not to think that the contrast between their path and that of the Dominicans is secretly more fundamental for eventual outcomes than the divisions of left and right since the French Revolution.[14] For it is this originally Franciscan path that theoretically, but also practically and liturgically, demotes central concern with equitable distributive justice, with justice as ad alterum.

By whatever routes (and some of them certainly visible) this same path resurfaces from underground in the 17th century. For Fernando Vasquez, Thomas Hobbes, and John Locke not only does justice reduce to adherence to contract, morality does as well—it is a fiction by which humans must abide, since all of culture is of our own making as an arbitrary sub-creation within a domain allowed us by God.[15] (A teleological and participatory construal of this sub-creating, as by Nicholas of Cusa and later Giambattista Vico being both rare and—promisingly for us, today—remarkable.)[16] And yet, even in the case of natural law subverted as foundational natural right, the theological dimension seems scarcely incidental. For Locke indeed, prior to all conventional sub-creation we must conserve other humans and creatures besides ourselves, since they are God’s property as his creation.[17] And even for Hobbes, as earlier for William of Ockham, the pre-political facts of our fearfulness and capacity can only be the foundation for right because they disclose the dissemination of the divine will and authority and provide us with the clue as to our self-sustaining in harmony with the self-sustaining of others.[18] Remove the divine from this picture and nothing stands in the way of a pure Nietzschean (or worse) political power-cult.

After the 17th century, pure self-founded natural rights emerges roughly in two versions, which can be associated respectively with the American (though with qualifications, as we have seen) and the French revolutions. And it is important to take careful note of this linkage, which effectively wrenches natural right away from natural law in the double name of the absolutely sovereign state and the originally isolated individual—arguably in defiance of all more fundamental social realities, before the revolutions and since.

In the American case, one can note three circumstances, which all have to do with the fact that natural rights cannot really be sufficient to provide a political foundation.

First, the individuals who enter into a contract with mere self-interest on either side are bound to find, as George Grant and Jean-Claude Michéa have variously argued, that the contract comes to rule them, rather than the other way round.[19] For a contract is an impersonal formal procedure and therefore is in automatic alliance with technology and bureaucracy. Thus, in a liberal society on the American model, the space of free choice will be more and more constrained, though more and more closely guarded, while the public sphere will be handed-over to impenetrable process, beyond the reach of reciprocal and consensual alteration.

As Werner Hammacher has argued, the possessive individualist construal of rights can never really suppress the anarchic agonism of its starting presupposition, whereby everyone is potentially an enemy to everyone else, with no positive construal of human collective or social identity as, affirmed by Marx’s idea of Man as “species being.”[20] Or as Edmund Burke discerningly puts it (and in agreement with Marx as to the real character of the French Revolution) “the right of the people is always sophistically confounded with power.”[21] Here the notion that one should exercise one’s own liberty only insofar as it does not intrude upon the freedom of others is not, in isolation, actionable as a moral imperative, for it is obvious that this boundary is always in some degree breached, and also that the very erection of a boundary depends upon the contingent establishing of arbitrary property boundaries, without which the reach and range of what is strictly “one’s own” has to remain elusive. The Hobbes-Locke model of possessive individualism (whereby selfhood is defined in terms of self-ownership)[22] tacitly acknowledges this state of affairs by regarding the non-transgressable boundary of non-interference between people as not intuitively a priori, but rather as only establishable by agreed, fictionally “initial,” contractual convention.

Again Burke deciphers the reality of this situation: “The moment you abate any thing from the full rights of men, each to govern himself, and suffer any artificial limitation upon those rights, from that moment the consideration of government becomes a consideration of convenience.” He adds that the assertion of abstract universal claim rights to food or medicine tend to evade the prior question of “the method of procuring and administering them.” Here his declaration that he would here look to answers to “the farmer and the physician, rather than the professor of metaphysics” is complexly ironical in a way that can easily be missed.[23] For Burke, in asserting the priority of duty and concrete end over right, is re-asserting a deeper metaphysics against one founded upon a demonic alliance of voluntarist with materialist priorities that fails to understand the perspectives of real, beneficent social operators whose concerns naturally unite the material with the formal and the teleological. Thus given Burke’s avowal a little later of the necessary roles of prudence and charity in a true political process concerned with the flourishing of human person according to practical right reason (very much as Aquinas, one could argue)[24] one can read his “convenience” in a double fashion. Either it is like traditional scholastic convenientia (that is still echoed in the 18th century dulce et utile), a matter of true distributive justice in accordance with true human fulfilment, or it is the debased “convenience” of supposed public utility that will amount in practice to the imposition of a tyrannical will, falsely claiming to represent the people.

Thus the inherently technological and utilitarian contract is only enforceable by an all-powerful sovereign “state” whose  novel “statehood” is itself defined by artificially achieved stasis, rather than by any claim to participation in divine equity. Marx (discussing here, like Burke, not the American but the French revolution, though his reasoning applies a fortiori to the former) also rightly recognises that, if this violence is backed up by the state, and if the state’s own power is channelled by this violence, then the state’s claim to act as guardian of absolute rights also depends, with the same paradox, upon a continuous infringement of this absoluteness, in terms of its constant decisions as to what are effectively “exceptions” to the regular but impossible equal exercise of contractual balance between isolated absolute wills, in which its establishment of its own sovereignty must always finally consist. Thus Marx writes: “The limits within which each individual can move without harming others are determined by law, just as the boundary between two fields is determined by a stake.” Arbitrariness can alone mediate between freedoms by arbitrarily limiting them, because “The liberty we are dealing with here is that of man as an isolated monad who is withdrawn into himself,”[25] and who therefore must “see in others not the realisation but the limitation of his own freedom.”[26] Since, after the official commencement it is the state, (even if, as for Locke, subject to some representational checks) that must continuously define and re-define the actual content of contractual boundaries, this means that established natural rights only have civic existence when, in reality, the originally violent natural liberty of some is civilly licensed to be enacted over others, in such a way that their both natural and civil, supposedly “absolute” right is in reality inhibited as a paradoxical precondition of the very possibility of asserting “absolute” rights at all.

Herein lies the essence of Marx’s critique of liberal revolutionary rights in his essay “On the Jewish Question,” and he rightly sees this civilly-released natural violence as most of all prevalent in terms of modern property distribution.[27] Marx (discussing here, like Burke, not the American but the French Revolution, though his reasoning applies a fortiori to the former) also rightly recognises that, if this violence is backed up by the state, and if the state’s own power is channelled by this violence, then the state’s claim to act as guardian of absolute rights also depends, with the same paradox, upon a continuous infringement of this absoluteness, in terms of its constant decisions as to what are effectively exceptions to the regular but impossible equal exercise of contractual balance between isolated absolute wills, in which its establishment of its own sovereignty must always finally consist. Thus Marx writes: “The limits within which each individual can move without harming others are determined by law, just as the boundary between two fields is determined by a stake.” Arbitrariness can alone mediate between freedoms by arbitrarily limiting them, because “The liberty we are dealing with here is that of man as an isolated monad who is withdrawn into himself,”[28] and who therefore must “see in others not the realisation but the limitation of his own freedom.”[29] For this reason Carl Schmitt’s apparently anti-liberal theory of state sovereignty as the power to decide upon an exception to normative legality is in fact simply an accurately liberal view, when coherently deconstructed.[30]

And in this respect also, Marx already grasps “the dialectic of enlightenment”: the French Revolution has for the first time constituted a “state” in the “real” sense of a separation of government as a “concern of the whole people” from “civil society” understood as, in the ancien regime, an inextricable mixture of the social and the political, insofar as rule worked with and through “estates, corporations, guilds and privileges.” Since these were both stratified and variously exclusive, the people have now been “emancipated” from them through the state, which has dissolved them.[31] Yet by the very same token “civil society” has been emancipated from the state, such that now the economic actor is anarchically free, alone and conceived of as prior and independent to the political process. It is this very man who is thereby naturalized and rendered “the bearer of natural rights.”[32] In this way, long before Foucault, Marx grasps the biopolitical cleavage endemic to foundational rights: “Political emancipation is the reduction of man on the one hand to the member of civil society, the egoistic, independent individual, and on the other to the citizen, the moral person.”[33]

However, instead of offering a metacritique of the very notion of emancipation, which would be an appeal back to the different logic of genuine natural law, Marx seeks a merely immanent critique of liberal natural rights logic which seeks to take emancipation further and thereby end its liberal contradiction. Such further emancipation can only imply a favouring of the “natural” side of the aporia, in an essentially Rousseauist manner, and in a way that seeks to evade human paradoxical constitution as cultural animal. Thus: “All emancipation is reduction of the human world and of relationships to man himself.” That is to say, to a fictional essence of man outside all culture and all history (in contrast to the Aristotelian understanding of essence). Thus it is the natural human being of civil society—economic man, capitalist man!—who is for Marx “real, individual man.” Precisely, then, man as bearer of natural right, for all Marx’s apparent deconstruction of this notion. It is this, mythically pre-social human person who, under communism “resumes the abstract being into himself,” appropriating and abolishing the moral, political dimension which is the sphere of debate and legislation. Now no longer is his natural freedom inhibited, because the alienated social as political force is now taken back into his forces propres.[34] This means then, that no longer is the individual’s absolute natural freedom politically constrained in terms of arbitrary boundaries between one freedom and another.

But how then, for Marx, is war and anarchy not then to ensue? The answer appears to be that, for Marx, the relationally-unmediated identification of the individual with “species being” naturally ensures that humans cooperate in terms of rational and technological norms. Thus to underscore the point made earlier: this means that for Marx (even, here, the young Marx) the application of natural rights, just as with liberalism, assumes a materialist, positivist and utilitarian notion of the calculability of people’s supposedly “fundamental” needs and the collective contributions they are able to make, in suppression the inherent debatability of shared value. So Marx’s view that emancipation can be “completed” beyond liberal natural rights remains a natural rights doctrine, founded upon possessive individualism, with all the chronic problems that attends any such perspective.[35]

Secondly, since rights are natural and yet only exist through contractual agreement under the state, they necessarily enter an aporia, which further illustrates Hammacher’s crucial point that the artificial contractual suppression of original natural anarchy depends upon the continued constrained channelling of this very anarchy. As Hannah Arendt pointed out, one only needs natural rights when one cannot have them since, as in the case of the refugee, one falls outside the scope of the state.[36] In that case it becomes undecidable as to whether outcasts have or have not rights, and it is pointless to say here with Jacques Rancière that a zero-rights position is never actually reached, for this only means (as is banally true) that all humans, even refugees, enter into some sort of minimal polity.[37] The point is rather the asymptotic tendency towards what Giorgio Agamben calls homo sacer, than its impossible actual attainment.[38] If, as regards those within this tendency, their rights are undecidable as between “already there” and “not as yet enacted” then, inevitably, states will decide to activate some natural not-as-yet-rights and to ignore others, or even to suppress already existent political rights according to international law in the name of the protection of rights in general. For this last possibility connects to a further aporetic dimension regarding natural rights that has already been invoked—if they belong absolutely to the individual but do so in the contractual interests of all as guaranteed by the state, then just as the individual may well decide in revolutionary fashion that his rights are after all not respected by the state (and there are no real criteria for this, so the anti-federal militiamen in the US outback are perfectly respectable Lockeans . . .), so likewise the state may decide that certain legitimate freedoms or protections must be suspended in the interests of state security which alone renders natural rights operable. One does not need to spell out how all these things have been exemplified in recent American history.

In the third place, the cult of a foundational possessive individualism of itself clearly courts social, economic and even political disorder. To compensate for this, American and initially Anglo-Saxon, and before that French Jansenist proto-liberalism had to have recourse to a theory of history whereby God or nature governs fallen men despite or through their amoral passions or even deranged instincts.[39] But once more the reality of the heterogenesis of ends is the dominance of impersonal, technological processes, which in reality are manipulated or tacitly encouraged by several visible, human hands, whether of egoistic individuals, monopolies or the entrepreneurial state. At the same time there has, at least until recently, always remained a more co-operative and intentional aspect to the market economy, driven by a teleological love of things and people (as, for example with the history of Quaker or Methodist-led manufacturing) than the theory of pure “capitalism” would allow. And finally, the more this theory of history has been enacted, then the more we see that the ends of amoral or malign actions are a mass criminal compounding of the nature of the original isolated intentions. Here a false theology still governs us to our continued peril.

In the second, French version of natural right, the theory of possessive individualism is apparently abandoned, by first Rousseau and then Kant, in the name of a purer presence to self of a freedom that one cannot possess. But arguably this is to simply occupy the other, anti-legal, possession-free half of the Franciscan cleavage, and it is no accident that Rousseau shares with the Franciscan spirituals the conception of an isolated and pure, originally quasi-animal human existence. Thus not right as possession is here emphasised, but the right simply to have right, or the freedom simply to be free as one is given to be (beyond and before any self-creation) and even to dispense with possession, and thereby right itself as dominium and consent to any dominium if one so chooses.[40] For this theory then, in the case of Rousseau, the collective right of the people, founded ultimately in their individual natural rights, can never be alienated to any representatives, as it lies beyond the scope of a possession that can be sold or transferred.

Yet as with the Franciscan pure usage, it is difficult truly to sunder merely negative freedom from all taint of property. For the very notion of ownership involves that of an owner who is not owned, while the absolutization of property itself as the social foundation implies that the owner enjoys a pre-social and pre-legal liberty which is therefore outside ownership and even self-ownership. Moreover, this inevitable linkage implies also inversion—if ownership must also be sold on the market, as well as the owned, if any ownership is to be transferred, then in all substantive reality the freedom behind this ownership can itself be traded, else it becomes so ineffable as to be inoperative. Indeed, the very exchangeability of one abstract freedom with the other renders dubious any Kantian notion that people treated as pure ends will never get treated as means in the most debased and not person-regarding way (since there may be an equitable and non-reductive way to treat people as means—for example towards the achievement of a commonly shared end.) Even the adulation of a person as unique, if this is not linked to any ethical exemplarity for others, can lead to her becoming a marketable icon precisely by virtue of that uniqueness, as in the case of Marilyn Monroe. The problem with the dominant subject-object model in modern thought, as opposed to a thing to thing model, that can be intensified as person to person, is always just this reversibility, the final revenge of a reduced object upon a subject that first thought to so despise and reduce it.[41]

Given this endemic insecurity of pure freedom in the face of alien possession, the French way has tried to supplement pure freedom with collective vigilance and state organisation, just as the American way has tried to supplement possessive individualism with the cunning of reason. But if the latter risks criminality and anarchy, gun-crime and mob-rule, the former from the outset has risked terror, as famously analysed by Hegel, in terms of an endless search for any exercise of assertive positive freedom or of teleological virtue that might inhibit the pure, supposedly virtuous options of negative liberty.[42] And all this has also from the outset been strongly sauced with a sense of sympathy and pity for inhibited “victims,” as again Hannah Arendt once argued.[43] Obvious terror may have speedily passed, but Fichte’s advocacy of the French way as pure atemporal practice (in contrast to Hegel’s Anglo-Saxon advocacy of historical heterogenesis) is allied in his thinking, as Hegel also noticed, to a continuous intensification of police regulation, of the kind which has grown exponentially in our own day—restricting all our substantive freedoms in the name of liberty itself.[44]

Herein lies the French republican theology of history as anti-history—in the name of “the Supreme Being” the sacred secular state can bring into existence, in any time, out of nothing, as a pure inaugural event, the supposed absolute “human” conjunction of a natural with a citizen right. Nothing can now legitimately be enacted save through this state, as the revolutionary Declaration of the Rights of Man declares—thus outside this scope, within tribes or churches or the House of Israel or the Islamic Umma, for example, there can abide no true humanity, enjoying any rights whatsoever.[45] As again, Werner Hammacher has emphasised, although the French model sees rights as just given to mythically isolated individuals by a declaration of nature under God, it also  seeks to suppress, beyond Hobbes and Locke, the constitutive biopolitical aporia of rights by regarding the declaration of the rights of man as a kind of new liturgical divine revelation, enacted through the state as a new quasi-church which, above all, one may add, has its (eventual and decisive) revolutionary essence in seeking to suppress the Catholic Church itself.[46] Thus, just as for Rousseau, the general will is mysteriously an expression and not an alienation (as it is for Hobbes and Locke) of original natural will, so also for the French settlement natural right somehow only exists and is only legitimate through state enactment. In this way the intransigence of later laicité stems from the fact that it is itself a civil religion—unlike the actually much purer secularity (contrary to received opinion) and anarchic neutrality of the American political domain.[47]

Thus in a more extreme version of the natural/civic rights aporia, these others may be either absolutely included within the republican order or else refused, exploited or ignored. Nor is it surely the case, as Luc Ferry and Alain Renaut argue, that the Kant-Rousseau model escapes a necessary utilitarian and technologising supplementation any more than does the Hobbesian one: for here again there must be some content to shared decision and if the norms are but formal, then this content will be determined according to instrumental criteria.[48] Marx rightly saw that this applied also to the French case, while failing to see that it was also sustained in his own.

In the end, even for the Rousseauian-Kantian trajectory, the essence of right, including ethical right as moral law, lies not in its release or exercise but always in its inhibition with regard to the acknowledging of the freedom of others. This inhibition is not, as for classical or medieval tradition, a matter of my own inherent flourishing, of suppressing false desires in favour of truer ones, but always just the suppression of desire tout court in recognition of an after all heteronomous social obligation, impinging extrinsically.

Since he arbitrarily and bizarrely erected freedom as the only ultimate value, Kant was able to draw up a list of absolute moral laws (such as not telling lies) incompatible with the non-inhibition of truly free decision as such. Yet he was well aware that in the cultural and political realm non-categorical and so merely self-interested and utilitarian imperatives must be taken into account.[49] It is always the case that, while right may be noumenally absolute, outside the kingdom of ends, in legal time it will constantly have to be qualified, just as Rousseau has to supplement the representatively unalienated general will with the role of the legislator. Thus for the French revolutionary tradition also, absolute freedom in effect gets treated as negotiably possessed property, as Marx thought. Absolute rights to life, liberty and property are never in practice absolute, just because only the state defines their legitimate bounds and must constantly protect its right to define these bounds, else the absoluteness of rights itself will be a dead letter.

And of course one can deconstruct this ontological scenario: as Hegel saw, the truth of the matter is that the supposedly noumenal is also political: for it is only if liberty and truth are defined in literally formal and so disguisedly human legal terms that one could imagine that any imperative is categorical and imperative, because then alone the boundaries between the free and the unfree, the true and the untrue are uncontroversial, in a spurious independence of all circumstance. The truth of this manoeuvre is that, by subordinating even the ethical to the law, as with Kant, one will in reality and in the long-term (as we see today) define the publicly ethical in terms of the legal, this being in reality the only imperative that is categorically operative. As Michel Villey insisted, the assumption of natural law and of the older European juridical tradition tout court is just the opposite: the subordination of lex to ius as objective right, and so of legislation to a goodness existing independently of the human.

Because of the covert role of always arbitrary central legislation, the absolute rights of liberalism, as of Marxism (which turns out to be a mode of liberalism) depend, as we have seen, upon their transgressability. The alternative approach of an authentic natural law approach to the widest claimed scope of subjective right is to proclaim outright that “in general” certain rights belonging to individuals obtain, such as the right to life, liberty, property (for use, exercise of talent and giving of social benefit, as appropriate) and freedom of speech and association, but that these are always subject to exception, because they do not exist apart from questions of just distribution and justice as debitum ad alterum. But this is a different kind of exception—not the arbitrary exception of the will of the individual or the state that is necessary in order artificially to construct social bonds, where no original social bonds are admitted to exist, but rather the exception of equity, continuously distilled by all between the incorporeal gaps that are nonetheless originally fundamental to human as well as social identity. Here, as we have indicated, even the Humanist, Reformation, Counter-Reformation and Enlightenment grounding of individual natural rights in natural law already tended, because of a false advertence to supposedly pre-given fact, to render generally normative rights too absolute and non-negotiable, because unmediated by distribution and equity and so already overly linked to self-possessed power and dominium. Yet it is clearly obvious that the rights even to life, liberty and free choice, never mind property, are necessarily suspendable in any legal order, national or international. The crucial question is whether their suspense be handed over merely to positivity or calculations of utility. For a subjectively grounded natural rights theory, or even a theory of natural law overweighted towards natural right, this handing over is inevitable, whereas it is not for a natural law theory mainly orientated towards equity and the ad alterum, and predicated on the participatory discernment by synderesis and phronesis of the eternally good.

EDITORIAL STATEMENT: This is the third installment of a six-part series by John Milbank on natural law and natural right. The installments will be collected here as they are published. The fourth installment is now available.


Renewing Nouvelle Théologie

Featured Image: Giotto, Sermon to the Birds [detail], c. 1290; Source: Wikimedia, PD-Old-100. 

[1] See: Milbank, “Against Human Rights.”

[2] Suarez, De Legibus, I, ii, 5.

[3] See Annabel S. Brett, Liberty, Right and Nature: Individual Rights in Later Scholastic Thought (Cambridge: CUP, 2003).

[4] See John Witte Jr., The Reformation of Rights: Law, Religion and Human Rights in Early Modern Calvinism (Cambridge: CUP, 2007). Even if ‘human rights’ is here something of an anachronistic misnomer, the book makes an important addition to the history of rights theory.

[5] John Witte Jr, The Reformation of Rights, 143-207.

[6] Villey, La formation, 513-527.

[7] See Knud Haakonssen, Natural Law and Moral Philosophy: From Grotius to the Scottish Englightenment (Cambridge: CUP, 1996), 310-341; Moyn, Human Rights and the Uses of History, 1-18.

[8] Haakonssen, Natural Law and Moral Philosophy, passim.

[9] Villey, La formation, 344-345; Brett, Liberty, Right and Nature 123-137.

[10] See Milbank, “Against Human Rights.”

[11] Michel Villey, La formation de la pensée juridique moderne (Paris|: PUF, 2003).  For a summary and defence of Villey’s case against recent detractors, see Milbank, “Against Human Rights.”

[12] See Olivier Boulnois, ‘”La plus haute pauvreté. L’expérience franciscain: un défi pour la pensée” in French language Communio, June-July 2014, 1-10.

[13] On the spiritual Franciscans and animality, see Giorgio Agamben, The Highest Poverty: Monastic Rules and Forms of Life, trans. Adam Kotsko (Stanford: SUP, 2013).

[14] Although this can seem likely a wildly idealist thesis, it is not, because the respective thought of the Mendicant orders was rooted in new and revolutionary liturgical and social practices. This points to the primacy of the “ritual,” which binds seamlessly together the mental and the corporeal, for historical development, rather than either the mental or the practical, taken in an unreal separation from each other. For objections to the Franciscan/Dominican contrast as fundamental to political theory, see Brett, Liberty, Right and Nature, 10-87. However, I find her reasonings here hard to follow (despite the instructive character of the book as a whole) and seemingly obfuscatory at points, compared, for example with the treatment by Boulnois.

[15] See Brett, Liberty, Right and Nature, 165-204.

[16] See Johannes Hoff, The Analogical Turn: Rethinking Modernity with Nicholas of Cusa (Grand Rapids, Mich: Eerdmans, 2013; John Milbank, ‘From Mathesis to Mathexis: Nicholas of Cusa’s Post-Nominalist Realism’ in Relire Cusanus, ed Isabelle Moulin (Paris: Seuil, forthcoming).

[17] John Locke, Two Treatises of Government, Book II, Chap. II, 6.

[18] Hobbes, Leviathan, The Second Part, Chap. XXXI, [187]: ‘To rule by words requires that such words be manifestly made known; for else there are no Lawes………..God declareth his Lawes three ways: by the Dictates of Naturall Reason, by Revelation, and by the Voyce of some man…’ That is to say, natural reason discerns God’s speaking in the material conditions of human beings’ lives.  Here Hobbes’s materialism lines up with his extreme voluntarist positivity as to the operation of revelation, which is itself but the command of confirmation of positive political rule, with the temporally apolitical message of the New Testament itself for Hobbes pointing to an eschatological but material divine rule.

[19] George Parkin Grant, English-Speaking Justice (South Bend, IN: Notre Dame, 1985); Jean-Claude Michéa, The Realm of Lesser Evil, trans. David Fernbach (Cambridge: Polity, 2009).

[20] Werner Hammacher, “The Right Not to Use Rights” in Political Theologies: Public Religions in a Post-Secular World ed. Hent de Vries and Lawrence E. Sullivan (New York: Fordham UP, 2006), 671-690.

[21] Edmund Burke, Reflection on the Revolution in France (London: Penguin, 1969), 153.

[22] Locke, Two Treatises, Second Treatise, Chap. V, 27: “Though the earth, and all inferior Creatures be common to all Men, yet every Man has a Property in his own Person. This no Body has any Right to but himself. The Labour of his Body, and the Work of his Hands, we may say, are properly his.” Hobbes construes the state of nature more anarchically and accordingly sees the divine claim to ownership of all, demanding our respect of others as only operative through political constitutions. Thus for Hobbes the original right over oneself is in the state of nature also an unlimited right over others. In the natural “condition of Warre of every one against every one . . . every one is governed by his own Reason . . . in such a condition, every man has a Right to everything; even to one anothers body” (Leviathan, Part I, Chap XIV [64].). For an implicit defence of C.B. Macpherson’s notion of the centrality of “possessive individualism” in Locke, against the revisionary readings of John Dunn and others, see Ellen Meiksins Wood, Liberty and Property: A Social History of Western Political Thought from Renaissance to Enlightenment (London: Verso, 2012), 256-287.

[23] Reflections on the Revolution, 151-152.

[24] Reflections on the Revolution, 153-154. One is tempted to say that the real cleavage in modern political thought is between Hobbes and Burke and not between left and right.

[25] Marx, “On the Jewish Question,” 229.

[26] Marx, “On the Jewish Question,” 230.

[27] Karl Marx, “On the Jewish Question” in Early Writings (Harmondworth: Penguin, 1975), 228-234.

[28] Ibid., 229.

[29] Ibid., 230.

[30] Carl Schmitt, The Concept of the Political, trans. George Schwab (Chicago: ChUP, 1996).

[31] Marx, “On the Jewish Question,” 232.

[32] Ibid., 233.

[33] Ibid., 234.

[34] Ibid., 234.

[35] It is for this reason that, by contrast, genuine socialism is always in some way (as with Proudhon, for example) religious and to do with participation in objective and transcendent justice through relational and reciprocal mediation.

[36] Hannah Arendt, The Origins of Totalitarianism (New York: Harcourt, 1968), 290-302.

[37] Jacques Rancière, “Who is the Subject of the Rights of Man?” in South Atlantic Quarterly, 103, (2/3) (2004), 297-310.

[38] Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life, trans. Daniel Heller-Roazen (Palo Alto: Stanford, 1998); and State of Exception, trans. Kevin Attell (Chicago: Chicago UP, 2005). But conversely Rancière is right to say that Agamben speaks as if being outcast were the inevitable human ontological destiny—at once our self-destruction and source of eschatological hope in an impossible animal humanity, beyond culture and the human as we know it. But as with Marx, once more this just reworks a Rousseauist construal of natural right.

[39] See Simone Meysonnier, La Balance et l’Horloge: La genèse de la pensée libérale en France au XVIIIe siècle (Montreuil; Les Éditions de la Passion, 1989), 35-51; Serge Latouche, L’invention de l’économie (Paris: Albin Michel, 2005), 154-160.

[40] See Hammacher, “The Right not to Use Rights.” But Hammacher in the end also goes in the impossible Rousseauist direction of wanting yet more unmediated rights attached to supposedly pure Levinasian alterities.

[41] See Tristan Garcia, Form and Object: A Treatise on Things, trans. Mark Allen Ohm and Jon Cogburn (Edinburgh: Edinburgh UP, 2014).

[42] See John Milbank, Theology and Social Theory, Second Edition (Oxford: Blackwell, 2006), 147-176.

[43] Hannah Arendt, On Revolution (London: Penguin, 2009), 89; Moyn, Human Rights and the Uses of History, 8-10.

[44] Milbank, loc.cit.

[45] Recently the French State has removed the reference to “the Supreme Being,” without seeing just how this compromises even the Republican rights legacy.

[46] This despite the fact that the Church was almost evenly split with respect to the revolution and tried to mediate – for example, early on voting only by a relatively narrow majority against the suppression of the role of the three estates in the voting of the Estates General. Especially was this true of the parish priests, whose sympathies were split between their commoner status inclining them towards democracy, and their belonging to one of the three estates, which gave them a Tocquevillian sense (mistakenly not allowed to them by Burke, who tends to underplay the in equity and decadence of the 18th century France, in accordance with his ‘distributional blindspot’ as discussed in the main text below) of the importance for freedom and justice of the ‘aristocratic’ function in the genuine sense, besides a Maistrian sense of the importance of adverting to transcendence as a check upon behaviour which otherwise requires sheer brute force (Burke’s very own major point)  See John McManners’ fine study, The French Revolution and the Church (London: SPCK, 1969). The turning point of the revolution seems indeed to have come with the break with the Church, when it was suggested that its structures be totally democratised in a way that is obviously, for the Catholic faith unacceptable. See William Doyle, The French Revolution: A Very Short Introduction (Oxford: OUP, 2009).

[47] French civil religion has later come to incorporate even a quasi-establishment of Catholicism and a development of a more ‘social’ reading, as opposed to the originally political-republican reading of its character by Durkheim and Mauss, in ways that covertly draw much upon the counter-revolutionary traditions of de Maistre and de Bonald. Yet if the the thought of the latter was a kind of socialised occasionalism and ontologism (after Malebranche), the same thing is true in a rather different way of the the proto-revolutionary thought of Rousseau himself. See note 2 above.The theological continuities here across political divides are striking.

[48] Luc Ferry and Alain Renaut, From the Rights of Man to the Republican Idea.

[49] Immanuel Kant, The Metaphysics of Morals, trans. Mary Gregor (Cambridge: CUP, 1991), “Metaphysical First Principles of the Doctrine of Right,” II, Section I, p.123-149; “Metaphysical Principles of the Doctrine of Virtue,” I Book I, Section I, pp. 239-40.

John Milbank

John Milbank is Emeritus Professor of Politics, Religion and Ethics at the University of Nottingham where he is also President of the Centre of Theology and Philosophy. His most recent book, written with Adrian Pabst, is The Politics of Virtue: Post-Liberalism and the Human Future.