Hesitation about Rights and the Need for a Mutual Defense

Adam and Eve made for themselves fig-leaves, but God made for them coats of skins. If justice is the coat of skin with which God has clothed vulnerable and mutually aggressive postlapsarian humanity, rights are the fig-leaves with which they propose to clothe themselves. One difference between the two garments is that the coats of skins are more opaque, and so is justice. It does, indeed, defend us; but only when we allow ourselves to be clothed in it whole and entire; if our concern is with defence instead of justice, we will never achieve justice, and so will never achieve a sufficient mutual defence either.

The above, from Oliver O’Donovan, is worth meditating upon in the context of disputes about what sort of stability and harmony our society should be pursuing.  I’ve not given up on the notion of “rights” as O’Donovan has–in case anyone wishes to dispute whether it is possible for me to disagree with the man–but the cautions that he notes have been working at me in a variety of ways the past few years, especially as the conflict between sexual liberty and religious liberty seems to be proceeding apace.

But it is that last sentence that I find haunting, as it illuminates a peculiar kind of danger that comes upon us in the middle of conflagurations like those we’ve been through recently.  It is easy in the disputes over religious liberty for those with conservative instincts (like me) to shift into a mode that subtly shifts our first concern away from justice and toward the  preservation of a space where people are free–to be unjust. Yes, even that.  Not every wrong done demands the public recognition and legitimation that the law provides.

The preservation of such a space is its own kind of justice, to be sure:  we will all lose if every dispute over cakes ends up in the courts, even if we do not necessarily feel the loss.  But the danger of pursuing this strategy as a form of protecting a business owner’s particular rights is that it disposes us to be inattentive to the grievances that are being claimed.  The conflict between rights also potentially shifts the attention toward the bearers as individuals, rather than attending to what is done by those agents in a particular situation and judging accordingly.  Such a disposition may in fact increase the claims of grievance and the underlying hostilities at work.

That isn’t to say that we shouldn’t seek legal protections for business owners, or anyone else.  In doing so, we preserve a space for non-legal or political resolutions to disputes.  But we should be attentive to how our defense of the freedom to do wrong sits with the substantive questions of what is just, and how our first and primary concern must always be with the just so that we can ensure–as much as possible–that every citizen is a participant within it.

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  • Bobby

    A friend recommended your blog to me today. I’m glad I found it.
    I wonder if it’s ok to speak of rights, so long as they are conceived of contingent and not inherent. In that sense, rights are a coarse approximation of justice. They are a pragmatic means of identifying certain extreme departures from justice, notably those that cause specific, identifiable harm to others or that impose high transactional costs on society. And because the existence of rights implies enforcement, such rights can only relate to harms that can be prevented by injunctive relief or translated into a monetary award.
    Surely it’s an injustice when someone cuts in front of me when I’m waiting to buy my morning coffee. But I’m not sure that I have a “right” to be free of such indignities. Any harm is purely emotional and not readily quantifiable in terms of monetary damages.
    I recently re-read Wolterstorff’s critique of O’Donovan and MacIntyre. I think I’m convinced that the latter two are right. But the language of “rights” still seems to have pragmatic utility.
    At a certain level, that’s why the rights-talk surrounding Arizona’s SB-1062 rings a bit hollow. When the law is given its broadest reasonable construction, it seems to create a regime that confers upon Christians the “right” to maintain a bubble that remains free of everything that may offend their religious convictions. I think we laugh at that conception of “rights” because we know that it makes no practical sense. Sure, there may be some legitimate religious-liberty issues at stake, such as with those who may be legally compelled to participate actively in same-sex wedding ceremonies. But the law was not narrowly crafted to such legitimate concerns, which make pragmatic sense. After all, we can sense that it may injure someone to be forced to participate in a personally objectionable religious rite, and that it’s reasonably easy to construct a pragmatic remedy to prevent that injury. It’s much harder to see how the clerk at Target is injured merely by ringing up a gay couple’s purchases.