Why study Natural Rights theory? What purpose does it serve?
What do we mean by Natural, Nature? Have not these concepts been aborted in the
more contemporary view of an evolving historicity, namely humans are changing
and so too are their views of what is a right and what is not. One need
consider nothing more than a political election where the contenders make
rights claims for almost everything. Rights to homes, education, medical care,
incomes, reproductive acts and sequalae, voting, immigration and so forth.
There have become so many "rights" that one wonders if it would be
better just to list what you cannot do or have. Like the Ten Commandments.
Short, simple, and leave it at that.
But what, one may inquire, is Natural, or Nature? Humans are
growing in a linear temporal manner and human ideas are evolving and one
wonders what is this inherent faculty which humans have that was the same now
as it was a millennium ago or even two or three? Those Ten Commandments were
allegedly brought down quite a while back and would it then not be natural for
us to have changed enough so that perhaps we could amend a couple of them?
After all, look at the dog. It came from a wolf. There are
still wolves, but few are kept as pets. They have the tendency to attack and consume.
But wait, is that not that Nature of a wolf. Yet in a dog has time and human
interaction changed that Nature? We keep using the term Nature, a term which
has some type of ahistoricity, yet here we see an ahistorical term applied to a
temporal change.
Our argument is simple. The term Nature is an artifact of
the past but can now take on a reality in fact. Consider the statement; humans
walk upright. The comparable statement is that; it is in the Nature of a human
to walk upright. But as we know today scientifically; the genetic structure of
human genes results in processes, functions, and structures the make human walk
upright. Namely the Nature or human to walk upright is the same as the genetic
predispositions of humans to walk upright. Genetic structure and functioning are
then the basis of the term Nature.
It is in the Nature of a rose to have thorns. The genetic
makeup of the rose is such that it has the persistent propensity to have
thorns. Thus, Nature and Genetics are isomorphic and isometric.
1. Middle Ages
The development of Natural Rights theories has a somewhat
uncertain history. There seems to be an ongoing examination of this effort and
the work of Tierney appears to be the clearest. We begin with Makinen who makes
note of some earlier Middle Ages discussion on rights. Namely he notes:
Henry of Ghent, for instance, posed in his Quodlibet IX
the question (q. 26) “whether one condemned to death can licitly flee” (c.
1289). Henry treated the question by distinguishing between the rights of the
judge and the rights of the condemned person in the body of the criminal. The
judge has the power (potestas) of capturing, holding, and executing the
condemned person, whereas the criminal has the power of using his body so as to
preserve his life as long as he does not injure another
This is an interesting analysis. It states on the one hand
the right to exercise control over another while have the one being controlled
having the right to prevent or negate the actions. He continues:
In his article “Origins of Natural Rights Language: Texts
and Contexts, 1150–1250” (1989), Brian Tierney argues that “the decretists put
forward a subjective definition of a natural right in terms of faculty,
ability, or power of individual persons associated with reason and moral
dicernment.” According to Tierney, this canonistic teaching on natural rights
influenced both later philosophical and juridical discussions on rights.
Tierney based his argument, on the one hand, on his study of the twofold textual
material of the decretists:
(1) their definitions of ius naturale in Gratian’s Decretum
(c. 1140) and
(2) their analyses of the example of the poor in extreme necessity
using the canon law principles concerned.
On the other hand, Tierney has also studied late medieval
and early modern rights discourse and shown the decretists’ influence on it.
The Decretum was a compilation of Canon laws compiled by
Gratian. By the time he had compiled them they were a collection of disparate
and often conflicting laws. This was an attempt to collect them in a logical
manner. There does not seem to be any overt attempt to deal with a Natural
Right issue but notwithstanding the influence has been argued.
Natural Rights was an evolution in the understanding of two
words; ius and dominium. Ius was originally justice, and namely the justice
handed down by the state. Dominium was control, control by the power of the
state, in most cases the ruler. But with the separation of subject and citizen,
between the power of the Papacy can the Conciliar movements rebirth, individual
thought and the power of the individual began to arise, and with it the concept
of rights versus duties.
2. Aquinas
Aquinas was a promulgator of Aristotle and in a sense, he
transliterated between Aristotle and then current Christian Theology. The
approach of Aquinas was to take the Aristotelian terms and approaches and to
lay upon them the fundamental Christian dogma. As Lisska noted:
In the tradition of human rights theory, scholars often
look to the texts of Thomas Aquinas, especially those passages in which Aquinas
discusses lex naturalis1, jus naturale, and jus positivum, as foundation stones
for the development of human rights in western political theory. While this
scholarly suggestion is correct as far as it goes, nonetheless the story of
rights theory rooted in Aquinas is more nuanced than what one sometimes finds
in political philosophy writings. This essay is an attempt to sort out several
conceptual complexities that arise when discussing how Aquinas’s texts
contributed to the development of human rights theory and practice.
To begin, one needs to distinguish between rights that
are called “objective” and those rights central to Enlightenment philosophy
that are often referred to as “subjective.” Secondly, an important distinction
arises between rights that are considered as “negative” versus those referred
to as “positive.” Thirdly, there is the further conceptual difference between
“natural” rights and “positive” rights. While there is some conceptual overlap
within these categories, nonetheless these sets of concepts are distinct to a
large extent, thus requiring substantive analysis.
Aquinas does not articulate true Natural Rights. He seems to
wander about and uses the claim to a Natural Law to delimit those rights,
whatever they may be. But the subjective rights above is a recognition of
individual rights. The concern always seems to be; what is the source of these
rights? In the Middle Ages the source was always Divine, directly. There were
to be no intermediary constructs. God gave the rights; thus, they were Natural
and part of Human Nature, Divine in origin.
3. Ockham
Ockham as we have presented elsewhere, is the fundamental
thinker who separates the past from the present on the thinking of Natural
Rights. As Van Duffel and Robinson have noted:
Hence discussion of Ockham's political work has remained
predominantly the territory of specialists in medieval thought. Surely Ockham's
theory deserves more attention, not only because of its immense influence, but
also because its nature and its significance in the history of natural rights
doctrines remain highly controversial. Many of the discussions of the
Franciscan doctrine of rights in general and Ockham's contribution to this
tradition in particular have focused on the strong association between rights
and dominium (and between rights and potestas).
The Franciscans often claimed to have no rights in the
things they used because having a right for them meant having dominium (insofar
as a right-holder is, ipso facto, on the dominant side of a relationship), and
having dominium was, for them, incompatible with the life of poverty and
humility that they had vowed to observe. Ockham has sometimes been depicted as
a radical innovator. His nominalism supposedly led to a "social
atomism" in political discourse, while his voluntarism would have led him
to exalt God's will and that of human beings. Consequently, Ockham would have
had no place for a genuine theory of natural law; instead he filled the
resulting void with a body of natural rights, marking off domains where human
wills prevail. Ockham is thus sometimes regarded as the proponent of a view
that sees an intrinsic link between rights and "freedom" or
"sovereignty.
He continues:
However, even if the most general power or natural right
of using can be restricted by laws, it cannot be emptied totally. Ockham, again
following what was the common belief of the day, thought that in times of extreme necessity-in case someone would face
certain death because of lack of access to some good-all things were common,
so that anyone in such a condition could licitly use whatever he needed to
avoid death (Roumy 2006). Outside cases of extreme necessity, however, if
someone is prevented from using some determinate temporal thing only by the
fact that it is another's, "the permission alone of the person whose thing
it is, which is ex- pressed through a licence, suffices for this: that he may
use that thing by right of heaven" (OND 65.221-223, 2:578).
Permission of an owner is thus sufficient, according to
this reasoning, to "untie" the natural right of using things that
anyone has at all times regarding all things (OND 65.218-227). It is this kind
of use, licit use by right of heaven, that the Friars Minor, according to
Ockham, have in the things they use
Burns has noted:
Prescriptive rights were strengthened by a widespread but
not yet very well-developed belief in natural rights. That men ought to be free
and that they ought to have safe possession of their goods slowly took shape as
philosophical truths during the fourteenth century. William of Ockham, by
locating freedom within what he called ‘second mode’ natural law, established
it as a necessary part of the best state. Because freedom was part of the law
which rational men would observe if not subjected to other pressures, states
needed substantial justification to depart from it.
From different assumptions, the natural right to property
was articulated by John of Paris and then by Ockham’s opponents in the course
of the poverty conflict. Both rights were brought together by Gerson in his De
vita spirituali animae, in what has been hailed as the first true natural
rights theory:
There is a natural dominium as a gift from God, by which
every creature has an ius directly from God to take inferior things into its
own use for its own preservation. Each has this ius as a result of a fair and
irrevocable justice, maintained in its original purity, or a natural integrity
... To this dominium the dominium of liberty can also be assimilated, which is
an unrestrained facultas given by God.
If natural rights were slow in finding adequate
philosophical expression, they were understood to exist and translated into
royal duties before Gerson’s day. Ockham deduced from natural freedom the
consequence that a king ruling by will alone was prevented from using his
subjects’ lives or goods for his own advantage. Oresme, from a vague right to
property based in divine law, concluded that ‘A Prince should not enlarge his
dominion over his subjects, should not overtax them or seize their goods,
should allow or grant them liberties, and should not interfere with them or use
his plenary powers, but only a power regulated by law and custom.’
But if subjects could transpose their rights into royal
duties, kings could deflect those duties back on to the subjects. So that they
might perform adequately their task of protecting their subjects’ lives,
liberties and goods against all other parties - a task which in practice
constituted the chief pillar of the people’s reverence for their king — the
French and English monarchs of the later middle ages demanded sacrifices of
lesser rights in the interests of the greater. Occasionally this meant
willingness to die for the defence of the realm; far more commonly, it meant
the acceptance of taxation.
Because taxation involved an infringement of prescriptive
and natural rights, it could not occur without the subjects’ consent — which in
any case was essential on practical grounds. The Roman law tag quod omttes
tangit ab omnibus debet approbari (what touches all should be approved by all)
came swiftly to mind as a means of expressing the principle (though the
question of how far beyond this taxation was affected by Roman law is still a
matter of earnest debate among historians). In England, the minority of Henry
III saw the communitas regni assent in grants of subsidy to the regency
government; by 1295, the representation of shires and boroughs in this act of
assent was formalised. In the 1320s, the author of the Modus Tenendi
Parliamentum was contending that the knights of the shire had a louder voice in
the act of consent than the magnates, since they represented the whole realm,
while the magnates spoke only for themselves.
The implications of representation were now well
understood. By accepting the principles of consent and representation, the
localities of England had turned the communitas regni from a baronial club to
an assembly which expressed the will of all tax-payers, hence of the political
nation as a whole. Since king and people negotiated within the same frame of
reference, thereafter only taxation of the clergy re-opened the question of
rights. For the laity, each demand for a subsidy began a strictly political battle;
neither side had recourse to fundamental questioning of the system.
Reid poses the following all important question:
The term ius naturale in the writings of such classical
and postclassical authors as Cicero or Ulpian meant "natural law" or
"natural order," not "natural right. By the seventeenth century,
however, the term clearly embraced subjective rights as well. When and under
what circumstances, then, did the natural law of Cicero and Ulpian also acquire
the meaning of natural rights?
Rights went from control to enablement, from dominium over a
subject to the freedom of an individual. Reid continues:
Tierney's analysis covers the entire corpus of Ockham's
political writings. He finds that Ockham's contribution to the development of
rights in the West was crucial. Indeed, Tierney proposes an entirely new
synthesis concerning Ockham's role in the shaping of the Western rights
tradition. Tierney demonstrates the falsity of the idea that Ockham replaced an
ordered theory of rational justice with a doctrine of rights dependent on blind
and inscrutable will. 96 Rather, Ockham creatively reworked the natural-law
tradition he had inherited from his thirteenth-century predecessors, and
thereby produced a theory of natural rights that had nature and reason as its
twin foundations
He continues:
Tierney's treatment of Ockham on political rights is
similarly original and provocative. He shows that Ockham argued that both the
emperor and the pope were obliged to respect the rights of their subjects.10 9
Ockham maintained that the emperor derived his power from the people, who
"could not confer more power than it actually possessed."110 A
provision of the canon law of corporations, Ockham continued, limited this
power, holding that a governing majority and, by extension, the emperor-could
infringe on the rights of the other members only in the case of "necessary
actions.""' The pope, furthermore, was limited by the canonistic
maxim that no one was to be deprived of rights "without fault" (sine
culpa),112 and the fundamental principle of evangelical liberty:
"Ockham's favorite way of proving [the restraints on
papal power] was to argue that the evangelical liberty proclaimed in scripture
limited papal power by safeguarding the natural and civil rights of the pope's
subjects.... Christian law was a law of liberty, indeed, "a law of perfect
liberty" according to the Epistle of James. Paul too wrote of "the
freedom that we have in Christ Jesus" and declared that "Where the
spirit of the Lord is, there is liberty." But, if the pope could command
anything not contrary to divine and natural law, then Christian law would be a
law of most horrid servitude. All Christians would be made slaves of the
supreme pontiff, for to command anything not forbidden by divine and natural
law was precisely the kind of power that a master held over his slaves.... The
proper limits to papal power were set by the liberties and temporal rights of
emperors, kings, princes and other persons, rights that came to them from
natural law or the law of nations or civil law. Without cause and without fault
the pope ought not to disturb these rights of others "(quoted from
Tierney)
4. Wycliffe
Wycliffe (or Wyclif and other variants) was a late 14th
century cleric who amongst other things translated the Bible into Middle
English. He was befriended by John of Gaunt and in turn by Chaucer. His views
were on the verge of being heretical and to some degree he had pushed the edge
of the political thorny envelop.
As Lahey has noted:
On the political level, John Wyclif advocates two social
classes-property owners (including
those who use what others own) and those who live in apostolic poverty, owning
nothing privately. He believes the duty of the just civil lord or king is to
see that the apostolically poor, who are all members of the church, are supplied with alms necessary for
acquiring the goods they share, and to protect their pure poverty. The king's
duty is also to ensure that society's civil owners can live harmoniously
together and with the apostolically poor, free from any threats.
The co-existence of these two classes under the
protection of the king suggests an attitude of toleration towards property
ownership, which Wyclif believes to be founded in Original Sin. Further, his
doctrine of Grace-founded dominium requires the king to serve as moral exemplar
for his subjects, to refrain from war for any reason but strictly defined
defense of the realm, and to keep the nation's laws and taxes to a bare
minimum. And given the still common social strictures of feudalism, Wyclif s
argument that no civil dominium, including both property ownership and civil jurisdiction,
can be granted in perpetuity overturns established feudal machinery.
He continues:
At the outset of De Mandatis Divinis Wyclif explains that
ius is a term used when something is just. To show that iustitia is an
effect of being in accord with ius, Wyclif suggests we look at the three senses
of the term ius.
First, it is used to describe any real created nature
justly exercised over a subject (servum), including the use of
something/someone.
Second, it is used to describe the power of a lord to
use something/someone (a right of use).
Finally, it is used to refer to the uncreated truth
paradigmatic for all iustitia, "which some call the art of the fair
and the good, and some a holy sanction, which commands the upright and forbids
the opposite, but some more completely say that ius is the constant and
perpetual will granting to each what is
their own."
Some have used this last definition of iustitia, but
incorrectly. We should recognize that iustitia is an effect of ius, for the
only thing prior to iustitia according to the jurist's definition is the
constant will to give to everyone their due. Can this constant will be anything
other than ius? Here Wyclif is extrapolating from Justinian's Institutes, where
in the first sentence the emperor begins with the working Roman definition of
iustitia just given. Perhaps Wyclif is reasoning that if created iustitia is founded
in a constant human will, the uncreated and purer divine iustitia must be
founded in the divine will. If so and if one reads Justinian's definition
"constans et perpetua voluntas ius suum cuique tribuens" as
presupposing a ius which is each person's due, it seems natural to conclude
that God knows as he wills what is each person's due, which would make what is
ius at least contemporaneous with divine willing and certainly prior to the
iustitia consequent on perfect willing.
Understanding Wycliffe is again understanding his context.
He was at Oxford and sought significant self-prominence. He managed to attain
influence through the Kings brother, John of Gaunt, and thus managed to see
this as a path to establish his influence. In a sense Wycliffe was a Hussian
before Hus and a precursor of Luther. If Gaunt had been more powerful and in
need, then perhaps Wycliffe could have been used as Luther was.
5. Suarez
Suarez was one of the Spanish theologians who followed a
somewhat Scholastic route. He lived into the 17th Century but
outside of the changing attitudes afoot in France and Germany.[1]
Makinen has noted:
According to John Finnis, the transition from Thomas
Aquinas’s (1225–1274) ius, defined as “that which is ius in a given situation”,
to that of Francesco Suaréz’s definition (1548–1617) as “something beneficial –
a power – which a person has” was a kind
of watershed.10 Suarez’s innovation redefined the concept of rights as a
potestas or libertas possessed by an individual, a quality that characterises
one’s being. There is, however, many scholars that defined ius as potestas or
libertas before Suaréz, and already before Aquinas.
6. Strauss
Leo Strauss was a brilliant mind and as a refugee from
Fascist Europe he managed to settle well at the University of Chicago at a time
when his thought and that of his new environment melded. Chicago was the
antithesis of Columbia and Berkeley. The latter were bastions of proto
communists and Marxists, and also were homes to the new intellectual elite of
the mid twentieth century. Strauss is not an original thinker as we the others
we have been discussing as much as he was an interpreter of many that had come
prior to him.
From Reid:
Leo Strauss and his followers have also maintained that
the seventeenth century was decisive for the shift from systems of thought that
emphasized transcendent and immutable principles to a way of viewing the world
that placed primacy on the competition of all against all and the individual
rights that flow from such an asocial struggle. …Tierney's work effectively
refutes this entire approach to viewing the development of rights. Two recent
exceptions to this school of thought are Richard Tuck, Natural Rights Theories:
Their Origin And Development (1979) (acknowledging that the twelfth through
fifteenth centuries were important to the development of rights, but
understating their significance) and Annabel S. Brett, Liberty, Right And
Nature: Individual Rights In Later Scholastic Thought (1997) (examining philosophical
treatments of the concept of individual right from the thirteenth century to
Thomas Hobbes's in the seventeenth century).
Strauss was a brilliant observer and interpreter of a broad
section of political and philosophical thought but it appears that his grasp of
the complexities of the Middle Ages is wanting. In many ways the writing of
Strauss were done in a polemical manner refuting those for whom he saw
inadequate theories. To some degree it is surprising that Strauss missed Ockham
and this period albeit having included it briefly in some of his writings. Yet
understanding Ockham requires a good understanding of the times and especially
the Church. In a sense the Avignon Papacy was the end of a Papal era and the
beginning of a newer one. It was however a continuation of the Papacy as one of
the two swords, and the more powerful of the two.
7. Observations
We now make several observations resulting from this brief
analysis.
Understanding Ockham and his time is essential to understanding
the development of Natural Rights.
We have argued that understanding Ockham and in turn Natural
Rights demands an understanding his times and the place he played in it. Many
writers refer to Ockham and others in a rather summary and I would contend
false fashion. Boyce has argued as follows:
We are only now beginning to appreciate the complexity
and diversity of the intellectual matrix from which the constitutional right to
property emerged. The notion that property, as a natural and pre-political
right, is the source and paradigm of all other rights is commonly associated
with Locke. Certainly, this notion exerted a critical influence on the
framers, not only in America, as has long been realized, but also in France, as
has more recently was recognized. Locke's assertion that the preservation of
property was the "great and chief end" of government' resonated
profoundly in both countries. Nonetheless, the Lockean rhetoric of property as
a natural and absolute right, with its roots in Aristotle and Aquinas, was by
no means universally embraced by the eighteenth- century revolutionaries.
Alongside this tradition flourished another that
regarded the right to property as conventional and thus subject to regulation
by society. This competing view can be traced from Plato and the Hellenistic
philosophers, through Augustine and William of Ockham, all the way to the
Enlightenment. In France, it found expression in Rousseau and his followers,
and in America, in the "civic republican" tradition that profoundly
influenced figures such as Franklin and Jefferson. Indeed, even
within the natural law tradition, to insist that Grotius, Pufendorf, and
Locke regarded property as an unqualified natural right is an
oversimplification. For Grotius and Pufendorf, property was both natural
and conventional, while for Locke, property was natural in the state of nature,
but conventional in civil society.
If I am to read Boyce correctly, he may have misinterpreted
Ockham, for Ockham and his followers saw property as a natural right emanating
from the loss at the Garden of Eden and the assembly of humans into societies
wherein they could now take dominium over the property that was held in common
in the prior time.
Natural Rights is the conjunction of Natural and
Rights. Each has their own meaning, and meanings have evolved over time. Yet
the Ockhamist Revolution in understanding individual rights set the context for
current day understanding.
Natural Rights exist perforce of human desires for certain
things. Consider a young child just learning to speak. Two words come to mind. "No"
and "Mine". The "Mine" is an expression of a right to
something, property or whatever. The child, actually infant, did not gain this
from his environment. It is a Kantian a priori construct. It is in my opinion
an expression of a Natural Right to Property. Now no 15-month-old has any such
construct, but it is a primal and "natural" expression of the
"nature" of this human. Second, is "No" an expression of self-autonomy,
an expression of individualism and an expression of doing what the child wants.
Exasperating as a parent may be there are a multiplicity of these glimpse into
the primal Natural Rights.
Thus, whence do they arise. We have argued that these
Natural Rights arise in the limbic system of the brain. It is here where we
find the complex signalling that forms desires, anger, and a multiplicity of emotions
which distinguish the human. However, each human is different genetically and
thus there may be different levels of intensity set in each brain. However, the
intensity relating to say the phrase "mine", the construct of private
property, may be intense to almost non-existent. Yet it is present and it is a physiological
and not a Divine attribute. Natural Rights we therefore argue is a natural
result of the wiring and intensity of the functioning of the human limbic
system.
Thus, when we examine "Natural Rights" we see
Natural as an expression of the limbic system and Rights as the specific
operation of that system in a specific individual. Unlike like Locke who see
the right to property as uniform, we see this right construct as variable, but
existent.
Natural and Nature have been used as a catch phrase
predicated on the assumption that somehow humans as part of their Nature have
an understanding or knowledge of these things independent of external
perceptions.
We have just examined the process of the limbic system in determining
the Natural Rights profile of an individual. We argue that Nature or Natural
are artifacts of the time gone by where we had no knowledge of how the human
brain functions and what the emotions are related to this process, and from
whence we see a "right". It is natural in the context to it being a
natural part of the human structure. It is not natural in the context of some
abstract attribution of some common and equal facility in each human.
This limbic variant is natural and is independent of
external perceptions, that is a priori, but it may not be ascertained unless
initiated by an external stimulant. Thus the "mine" is evoked when
someone sees something being intermediated in some manner.
In fact, Natural or Nature has a firm foundation in
the genetic makeup of the human species along with the variants of individual
genetic differences. As such the genetic basis for Natural and Nature also
establishes a firm scientific understanding for Individualism.
This statement is fundamental to our current construct.
Natural Law follows, rather than precedes, Natural Rights.
Natural Rights may require delimitation in a societal context and thus the need
for Natural Law, the societal controlling of Natural Rights
Natural Rights as we have described them as primal. They our
in our DNA. Natural Law is Law that controls the Natural Rights. Take property
rights. If we were all allowed to say "mine" without some rules we
would have chaos. Thus, humanity has evolved a set of rules predicate on
Natural Rights. This description is counter to many previous authors who see
Natural Law as Divine Law. Divine Law which supersedes Natural Rights. I am
arguing that it is the other way about. It is the Natural Right and its
distribution amongst humans that needs and ever-changing set of rules to avoid
conflicts.
Justice is the uniform and equitable application of
Natural Law.
Justice as a construct has been considered for millennia. In
our understanding we relate it to Natural Law which follow from Natural Rights.
Thus, Justice applies Natural Law, the law of consensus, to the balance of the
Natural Rights of the parties. This is a description of Justice which is in
contrast to some of the left-wing thinkers of today.
Consider the review of the work of Rawls, already somewhat
extreme left, by Sandel, in a paper by Baker:
After describing the theory of the person to which he
finds Rawls committed, Sandel claims that Rawls-and deontological liberalism generally-fail
because of the inadequacy and extreme individualism of this notion of the
person.
This individualism does not allow for the role of
community in constituting the person, nor does it allow for the possibility that
a person's meaningful identity is more a matter of cognition than choice.
Sandel develops each objection into a major line of critique.
In the first critique, Sandel argues that the
theory of the person to which Rawls is committed is inconsistent with Rawls'
difference principle. The difference
principle requires that basic societal institutions maximize the position of
the worst off. Sandel claims that if the moral subject is an individual,
then the difference principle will involve the conscription of some people's
talents in order to benefit the worst off; the difference principle thereby
treats those subjects as means.
Only a group or community subject could both choose
the difference principle and, since each person's talents would belong to this
larger subject, avoid treating the moral subject as a means. Thus,
the Rawlsian theory of the moral subject as an individuated person is
inadequate to support his theory of the right.
Sandel's second critique emphasizes that Rawls is
committed to a thin, denuded notion of the person-a person separate from all
ends, commitments, and capacities. This self is so sparse that it cannot
constitute an object for self-reflection. It can only be a subject that is, at
most, capable of arbitrary and ultimately meaningless choice. The arbitrariness
and meaninglessness of this choice result in another fault-an inadequate theory
of the good. In combination these two critiques argue that Rawls' notion of the
person is neither appealing, consistent with our understanding and experience
of ourselves, nor adequate to support Rawls' theory of justice. Specifically,
the Rawlsian theory is inconsistent with selves who are constituted by their
values, character, commitments, and practices, who are partially constituted by
their membership and participation in communities, or who engage in deep
self-reflection.
Rawls was moving to Group Justice and Sandel has taken it
all the way. From Sandel we see the true underpinnings of Social Justice, a
Group dynamic and control. Yet who gets to decide who is in the Group.
Social Justice is the applications of laws to benefit
Groups or Classes rather than individuals. Social Justice is fundamentally the
many controlling the few to benefit the many.
Social Justice is a recent construct. Fundamentally it may
be connected to the Aristotelian constructs but it is materially different.
Social Justice is Group Justice,
Social Justice is the antithesis of Natural Rights
Natural Rights is individualism expression of individual
humans. Social Justice is the law of the Group. Natural Rights are what each
person has a right to whereas Social Justice is the Groups redistribution of
those Natural Rights according to a formula which the Group determines. It is
fundamentally a total abnegation of Natural Rights.
References
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Brian Tierney, Cornell Law Review Volume 83 Issue 2 January 1998
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18. Tattay, Francisco Suárez As the Forerunner of Modern Rationalist
Natural Law Theories, Cauriensia, Vol. XII (2017) 191-211
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nto.ca/jwrobinson/articles/vanduffel-robinson_ockhams-theory-of-natural-rights.pdf 2010.
22. West, The Political Theory of the American Founding, Cambridge
(New York) 2017
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