THINKING AGAIN ABOUT OLIVER O'DONOVAN'S CRITIQUE

What is wrong with human rights? Certainly some people think that there is something wrong, perhaps with the very concept of a right as an individual's property, at least with certain ways of talking about individuals’ rights. Among these critics are Christian ethicists such as my predecessor at Oxford, Oliver O'Donovan, and his wife, Joan Lockwood O'Donovan. In an article published five years ago, I argued against Oliver O'Donovan in support of Nicholas Wolterstorff's Christian justification of “subjective rights”—that is, rights attaching to human subjects.Footnote ¹ I now think that O'Donovan was more correct than I then thought—albeit still less correct than he then thought.

What is it that O'Donovan argues? As representative of his thought, I take his critique of Wolterstorff in the June 2009 issue of the Journal of Religious Ethics. Footnote ² Here O'Donovan makes clear that the object of his criticism is a certain modern conception of human rights combined with the political use to which it is put. This is the “rights project,” which shares with “the modern tradition prevailing in the liberal West since the seventeenth century” an affinity for “grounding political community in the wills of the individuals who compose it.”Footnote ³ Accordingly individuals are seen as “right-bearers prior to their communal existence.”Footnote ⁴ Rights are set apart from social right, and are therefore destructive of society.Footnote ⁵ Since they derive from “the radical ontological distinctness and multiplicity of human persons,” rights are themselves “radically multiple.”Footnote ⁶ As such it is doubtful that they are “sufficient to ground the social and moral phenomenon we call obligation or duty.”Footnote ⁷ They are “specific,”Footnote ⁸ the nature of individuals’ attachment to them is “proprietary,”Footnote ⁹ and they set “what is due to each above every idea of moral order.”Footnote ¹⁰ As a consequence they militate against “a conception of order, which demands a resolution of each controversy, a right thing to be done.”Footnote ¹¹ The problem with the conception of subjective rights is internally connected with the problem of its political use—that is, its being “serviceable” to the end of subverting “working orders of law and justice.”Footnote ¹² What is problematic about subverting “working orders” appears to be a certain heteronomy, a peremptory lack of regard for local particulars.Footnote ¹³

Insofar as the concept of an individual's right is tied to a Hobbesian account of human being and society, I think that O'Donovan is quite correct to protest. For dogmatic reasons Christians cannot—and for empirical reasons they should not—endorse a view of human beings as radical atoms, originally at war each with every other and motivated basically by the will to avoid pain and death. Nor can Christians endorse the corresponding view of human society as bound together merely by positive contracts, whose ultimate obliging authority lies in the basically private interests of the contracting parties. If the concept of an individual's right were inextricably bound up with such an account of human nature and society, then a Christian would have to repudiate it. But is it?

O'Donovan seems to think so. Otherwise he would not feel the need to contest, as he does, Wolterstorff's claim that the concept of “subjective rights” is implicitly present in the Bible and in the thought of the early fathers of the church. Nor would he feel the need to express doubt “that there are ontological presuppositions in what the Bible and the Fathers assert about justice … that individuals are right-bearers prior to their communal existence.”Footnote ¹⁴ Nevertheless, O'Donovan does imply that a distinction can be made between the concept of individual rights and what he calls “modern” and I call “Hobbesian” anthropology, when he admits that, while the language of rights began to emerge in the twelfth century, it was not until the sixteenth century that subjective rights made “totalitarian claims to colonise and reorganize the whole sphere [of justice].”Footnote ¹⁵ In other words, the concept of multiple individual rights was alive and kicking for several centuries before it assumed its objectionable, Hobbesian form. Moreover, on one occasion O'Donovan explicitly admits that an unobjectionable concept of multiple rights can be distinguished, when he gingerly concedes that there is “no very great problem” with a concept of specific, multiple rights so long as they are prima facie, representing “claims that have to be balanced out in concrete deliberation.”Footnote ¹⁶

In my 2010 appraisal of O'Donovan's dispute with Wolterstorff, I concluded that O'Donovan had failed to show that the concept of rights adhering to individuals is irredeemably bound up with Hobbesian anthropology and sociology—and indeed that he himself implicitly admitted that it need not be. I still stand by that conclusion. Nevertheless, it is now clearer to me that O'Donovan had begun to identify an important set of problems with much contemporary rights-talk. In his terms, the most basic of these is the conception of a right as an individual subject's aboriginal property without any reference to an objective moral order—an order of objective right—in terms of which conflict between subjective rights can be resolved rationally (rather than just politically). Implicit in this subjectivist concept of a right is a view of the individual as originally and essentially asocial, which undermines the authority of social obligation. And from this follows a tendency not to view an individual's right as a prima facie claim that might be qualified by other such claims—“balanced out”—on objectively moral grounds.

O'Donovan, I believe, is onto something important here. However, I think his diagnosis requires two qualifications. First, the fundamental problem lies, not in the absence of reference to any moral order at all, but rather in the implicit reference to a moral order that has been radically reduced and impoverished. For Thomas Aquinas, following Aristotle and the Bible, human beings are essentially social. Accordingly, human flourishing, which generates the obligations of natural law, comprises a variety of goods—not only the individual's self-preservation but also his generation of children, his investment in society, and his knowledge of God.Footnote ¹⁷ For Thomas Hobbes, however, human beings are essentially isolated. Accordingly, Hobbesian human flourishing reduces to the single good of the preservation of the individual self from pain and death, and natural law to the single right of self-defense.Footnote ¹⁸ The effect of this cynical, materialist view of human flourishing is not exactly to undermine all notions of social obligation and society, but rather to instrumentalize them. In the Hobbesian view, social contracts become merely the expedient instruments of individuals’ pursuit of security, and the obligation to keep contracts is fueled by a combination of natural desire and practical shrewdness.

Second, and more briefly, the problem is not exactly that a right is seen as an individual's property, but rather that that property is seen as absolute, precluding all other considerations. The assertion of a proprietorial right marks the end of moral discussion, not the beginning.

HUGO GROTIUS ON THE CONTINGENT RIGHTS OF INDIVIDUALS

I take my leave of O'Donovan by way of Hugo Grotius—and in particular by way of his reasoning about the morality of causing physical harm. This makes plain that O'Donovan is wrong to suppose that the concept of an individual's right is necessarily tied to Hobbesian individualism and social contractarianism.

Writing almost a generation before Hobbes, Grotius does affirm the notion of a right attaching to individuals—“a moral quality annexed to the person, enabling him to have, or do, something justly”Footnote ¹⁹ One such right is over “our lives, limbs, and liberties.”Footnote ²⁰ This natural right of liberty from bodily interference or harm, however, is not absolute. Rather, it must yield to the overriding claims of the social good, for, Grotius tells us, “if one subject, tho'altogether innocent, be demanded by the enemy to be put to death, he may, no doubt of it, be abandoned, and left to their discretion, if it is manifest, that the state is not able to stand the shock of that enemy.”Footnote ²¹ Yet the reasoning here is not simply that the urgent requirements of the social good trump an individual's right. It is more subtle than that. Grotius argues that the virtue of charity sometimes obliges us to “a greater piece of goodness” and “to abate somewhat of our right, than rigorously to pursue it.”Footnote ²² Thus, in general charity sometimes commands us “to prefer the advantage of many persons to my own single interest,”Footnote ²³ and in this particular case it obliges the subject to surrender himself voluntarily to the enemy.Footnote ²⁴ What is more, if he will not volunteer surrender, his sovereign may force him, since sovereigns may generally force their subjects to do what charity obliges—for example, in time of great scarcity to bring out their corn.Footnote ²⁵

For Grotius an individual's right not to be harmed is contingent upon his own subjection to the obligations of charity—and through them to the claims of the social good. More than this, however, it is also contingent upon circumstances entirely external to him: the intentions of other agents, whether taking his life would be proportionate, and whether it would be a last resort. So, alluding to Aquinas's adumbration of the theory of double effect, he writes, “a distinction should be made between an intended and direct damage, and what is only consequentially such.”Footnote ²⁶ He also argues that, while the natural law permits us to kill an innocent person who happens to obstruct defense or escape that is absolutely necessary for our self-preservation, the evangelical law of charity, “which has put our neighbour upon a level with our selves,” withdraws that permission.Footnote ²⁷ In other words, we may not kill the innocent bystander because we have no proportionate reason to prefer our own life to his.

Pace O'Donovan, therefore, in Grotius’ early seventeenth-century thinking Christian ethics had come to think of individuals possessing a natural, moral right against physical constraint and harm. However, this subjective right was understood in relation to a wider, transcendent moral order and therefore as not absolute. On the contrary, it was seen to be highly contingent upon the right-bearer's moral innocence, upon the motives and intentions of other agents, upon whether harm is a last resort and proportionate, and upon what are his social obligations under charity. In other words, in Grotius (and in contrast to O'Donovan) we find an affirmation both of an individual's right and of its contingency upon a range of other moral factors. All of these factors ordered together constitute objective right in a given situation. Depending on the circumstances of the situation, objective right might—or might not—include a subjective right. The rights of individual subjects are prima facie, not ultima facie.

MORAL RIGHTS AND POSITIVE RIGHTS

However, there are rights and there are rights. On the one hand are natural, moral rights that obtain outside the jurisdiction of any effective, settled legal system—for instance, in virgin territory, during a collapse of civil order, or in a theater of war. On the other hand are positive rights granted by a particular legal system or by international treaty and backed by the threat of coercive sanctions. This is an important distinction that goes unacknowledged in the O'Donovan-Wolterstorff debate. The highly contingent, unstable right not to be harmed, which Grotius affirms, is natural and moral. It is unstable, partly because its existence depends on a variety of contingent, morally significant circumstances, but also partly because the fate of its recognition lies at the mercy of the consciences of the relevant parties. Since private consciences have been known to err, positive legal systems deliberately transfer much, if not all, of the room for discretion to public courts, strengthening the presumption in favor of the right and so stabilizing it. Such constraint of the discretion of individuals comes at a certain social cost, but it is a cost that society judges worth paying. The rationale for the granting of a positive right, it seems to me, often involves a prudential judgement of this kind, in which the social costs are considered and reckoned affordable.

WHERE IS THE WRONG IN TORTURE?

Take, for example, the right against “torture.” In one sense, there is obviously a moral right against torture, insofar as the word torture means the wrongful, deliberate infliction of harm. Of course, one has a right against a kind of action that is wrong by definition. But what exactly is it that makes torture wrong? Since I am a proponent of Christian “just war” reasoning, it follows that I believe that under certain conditions—such as right motive and intention, last resort, and proportion—it is permissible for someone deliberately to perform harmful acts that he knows will have the effect of punching bloody holes through others’ bodies, tearing limbs off them, wrenching their heads from their shoulders, or causing them simply to evaporate. Therefore, when I come to the issue of torture, what is immediately striking is that the kinds of physical and psychological damage that torture involves are not necessarily and obviously graver than those permissibly inflicted on the battlefield. This raises the question: If it can be morally right to shoot or dismember an enemy soldier, why can it not be right to subject a terrorist prisoner to verbal threats, sleep deprivation, or waterboarding? If torture is immoral, then it does not seem to be because of the objective harm that it does to the tortured.

Here I disagree with views of Jeremy Waldron and Jean Porter, for both of whom torture is intrinsically evil, in part because of what it does to the victim. I have explained elsewhere and at length why I disagree with them.Footnote ²⁸ In a nutshell, I am not persuaded of two things. First, I am not persuaded that any act that chooses to inflict pain in order to force a change of will is, as such, objectively evil. That, for example, is exactly what I am doing when, having brought the mugger to the ground, I twist his arm up his back until he releases my wallet.Footnote ²⁹ Punishment is usually, if not invariably, about forcing wrongdoers to act against their own will; and sometimes punishment may even take the form of the lethally destructive force of war. Second, I am not persuaded that all deliberate infliction of pain is, as such, subjectively vengeful or sadistic, suffering no limits. It seems to me that some kinds—for example, waterboarding—could in fact be well motivated, rightly intended, and disciplined by the requirements of proportion. Therefore, I distinguish between sadistic “torture” and non-sadistic “aggressive interrogation.”Footnote ³⁰

WHAT IS THE REASON FOR A POSITIVE RIGHT AGAINST AGGRESSIVE INTERROGATION?

About torture there is nothing further to say except that it should be abhorred. But what about aggressive interrogation? If the wrongness of aggressive interrogation cannot be located either in what it does to the victim or in the motivation of the agent, where else might it lie?

One non-intrinsic reason why it might be immoral is that it does not work—that is, it does not produce information that can be relied upon. However, again as I have argued elsewhere, the evidence suggests that aggressive interrogation can sometimes work.Footnote ³¹ If that is so, then to refrain from it—all other considerations apart—is to weaken one's defenses. It is to incur a cost. Nevertheless, there might be prudential reasons for bearing this cost. For example, crucial to winning a counterterrorist campaign is the business of “draining the swamp,” of robbing terrorists of popular support, of winning hearts and minds. That is certainly a major consideration in present British counterterrorist efforts to suppress homegrown Islamic jihadism, given the showing of the 2006 Populus survey that 13 percent of British Muslims regarded the London suicide bombers of the 7 July 2005 as martyrs.Footnote ³² That 13 percent amounts to over two hundred thousand people—which is a much, much larger pool of supporters and potential recruits than that ever enjoyed by the Irish Republican Army in the recent “Troubles” in Northern Ireland. If the British government were known to subject terrorist suspects to aggressive interrogation (even of the non-sadistic, proportionate kind), its efforts to woo British Muslims would be severely damaged. This fact, therefore, gives the government a strong political, prudential reason to eschew such interrogation and to grant all British citizens a positive right against it.

There are other prudential reasons, too. While I do not think that the practice of aggressive interrogation necessarily corrupts the interrogator or the institutions that support him, there is certainly a risk that it will. And if your anthropology is like mine—if not exactly pessimistic, then a lot less than starry-eyed—that risk will appear high. Insofar as the libido dominandi is a widespread human motive, insofar as we humans take deep and frequent pleasure in the sheer domination of others, the psychological forces tending to make the practice of aggressive interrogation a source of individual and institutional corruption are great. Jeremy Waldron puts the point well:

As I see it, then, the rationale for the granting of a positive right against both torture and aggressive interrogation contains judgments about prudential considerations, and it is upon these judgments that the rationale stands. Prudential features, however, wax and wane according to circumstances: it will not always be the case that aggressive interrogation is politically counterproductive or corrupting, any more than it will always be sadistic. Therefore, notwithstanding the prudential wisdom of granting a positive right against aggressive interrogation, there is no correspondingly absolute natural, moral right. Accordingly, there might arise an extraordinary case where a conscientious interrogator judges that the stakes are so very high as to warrant the use of aggressive methods and so the violation of a positive right against them; and, morally speaking, he might be quite correct. In support, I observe that even a liberal philosopher such as Henry Shue concedes such a possibility—and so, implicitly, does Jeremy Waldron.Footnote ³⁴ In such a rare case, the interrogator should follow his conscience, render himself accountable to the courts, make a moral case for his law-breaking, and entrust his fate to the discretion of the judge and jury.

SUSPENDING POSITIVE RIGHTS IN EXTREMIS: THE CLOSED MATERIAL PROCEDURE, DIPLOCK COURTS AND MR. JUSTICE HIGGINS

Positive rights often contain and stand upon prudential judgments about social costs and their affordability. The prudential nature of their rationale makes it possible to argue, in rare cases, that extraordinary circumstances justify their violation, morally speaking. Again, I call as friendly witness Jeremy Waldron, who writes, “there are very few [philosophers] who believe that rights should be utterly impervious to very large changes in social costs.”Footnote ³⁵

My impression is, however, that lawyers do tend to regard positive rights of all kinds as absolute and so impervious to morally significant changes in circumstance, with the result that their jurisprudence becomes imprudent. And imprudence, you will remember, is a moral vice.

As illustration, I offer the following example. In 2011 the UK government began to propose the introduction of so-called closed material procedures into ordinary court hearings of civil cases. The reason for this was that former detainees in Guantanamo Bay, most notably among them Binyam Mohammed, had brought a civil claim for damages against the UK government, which, they alleged, had been complicit in their illegal detention and ill treatment by foreign authorities—that is, the United States. In its defense, the government had wanted to use material that had been gathered and supplied by US intelligence agencies. However, it could not use this material, because its public disclosure in open court would seriously discourage the United States from sharing intelligence in the future, to the detriment of British national security. Consequently, the UK government had been forced to settle out of court. This not only involved considerable public expense, but it also robbed the Government of the opportunity to have its name publicly exonerated.

Hence the proposal to introduce the closed material procedure. Already used in other circumstances, this procedure would involve part of the court's proceedings being held in secret. In these secret or closed sessions, the intelligence material would be presented to the judge and to a security-cleared ‘special advocate’ of the plaintiff. This advocate would be allowed to provide their client with a “gist” or loose summary of the material, but would be forbidden to reveal precise details. At the end of the proceedings, the court's open judgment would be supplemented by a closed one.

The government's proposal provoked vociferous criticism from the legal profession and far more opposition than support—at least, judging by my daily perusal of the press. The most fundamental criticism was that it threatened the basic principle of “open justice.” By this was meant, in my analysis, three distinct things: first, that all evidence against the plaintiff should be tested; second, that the reasons for a court's judgment should be made plain to the parties involved; and third, that the court's proceedings should be fully transparent, in order to maintain public confidence.

I do not intend to assess this set of criticisms, far less all the others. I simply observe that not a little of the legal rhetoric implied that the proposed closed material procedure would involve a fundamental betrayal of justice. Thus, for example, Philippe Sands, barrister, human rights advocate, and professor of law at University College London, argued that the government's proposal “is wrong in principle, and will not deliver justice. It will be used to shield governmental wrongdoing from public and judicial scrutiny. The bill threatens greater corrosion of the rights of the individual in the U.K.”Footnote ³⁶ So far, it appears, so uncompromisingly principled. But let us look again. The statement that the government's bill “is wrong in principle, and will not deliver justice” is preceded by the phrase, “under conditions prevailing today”; and the whole sentence in which it appears is preceded by these two: “There may be times when the country faces a threat of such gravity that the exceptional measure of closed proceedings might be needed. This is not such a time.” This bears critical reflection. Sands concedes that there might come a time, when the introduction of the closed material procedure would be justified. But if that is so, then how exactly is it wrong “in principle”? And if the procedure could (presumably) deliver justice then, why can it not do so now? What these symptoms of inconsistency reveal is the overreach of the rhetoric of absolute principle. What Sands should have said, I think, is that the closed material procedure makes the court proceedings less than optimal, that it weakens (without altogether removing) the plaintiff's power to defend himself, that it reduces (without altogether abolishing) the transparency of the court's judgment, and that it raises the risk that public confidence—or at least that part of it inclined to skepticism—will be lowered. In short, the closed material procedure does not so much contradict the principle of open justice as compromise it; and it is not so much simply unjust, as less securely just.Footnote ³⁷ The issue is one, not of principle, but of risk.

So, there are safer and riskier ways of trying to do justice; but justice can still be done in riskier ways. Here I call as friendly witness a candidate even less likely than Jeremy Waldron: Eamon Collins, a member of the Irish Republican Army who was, by his own admission, responsible for the murder of a policeman at point-blank range. In 1987, Collins was brought to trial in a Diplock court. Diplock courts were introduced into Northern Ireland early in the thirty-year-long Troubles in order to overcome the problem of the terrorist intimidation of jurors in cases suspected of involving paramilitary activity. In such courts the right to trial by jury was suspended and the accused was tried by the judge alone, although counsel for both parties were present to test the evidence. The Diplock system was abolished in 2007, but while it lasted it was, of course, highly controversial and its procedures were less safe than normal ones. Did this mean that justice could not be scrupulously done? No, it did not. In his autobiography, Eamon Collins tells us that the judge before whom he stood strongly suspected his guilt but nevertheless dismissed the case on the grounds of a legal technicality. In a chapter entitled “Their Justice and Ours,” Collins describes his reaction:

Even in the less than optimal judicial proceedings of a Diplock court, where the court's judgment was not the expression of the common mind of a plurality of jurors, a conscientious judge, notwithstanding severe personal provocation, could still scrupulously permit the letter of the law to acquit a probably guilty man. And even in those procedurally less secure conditions, conscientious judges might have acquitted the innocent and convicted the guilty—and they probably did.

CONCLUSION

A Christian is bound to insist that rights-talk have reference to a larger, given, created, natural moral order. On this general point Oliver O'Donovan is quite correct. Where he errs is in supposing that acknowledgment of this objective moral order excludes recognition of subjective rights altogether. Rather, the elements of the objective order—goods, social obligations, proportionality, motives, intentions—should be seen as potentially qualifying, rather than necessarily excluding, the subjective rights of individuals. The objective elements are most likely to qualify natural, moral rights, which are highly contingent and unstable, fading in and out of existence according to circumstances. But they can even qualify positive rights in extraordinary circumstances.

The rationale behind the granting of positive rights sometimes, perhaps often, incorporates a prudential judgment about the tolerability of social costs. The cogency of a prudential judgment is contingent upon social circumstances, and when those change, its cogency might weaken. Rights are not always trumps. Christian anthropology conceives the flourishing of individuals as social: individuals flourish in gladly and freely meeting their social obligations, even unto death. Therefore, morally speaking, social obligations can trump individual rights—or, rather, it can cause them to vanish. And since Christian anthropology also believes in sin, it believes in punitive coercion. Sometimes, where a sinner refuses to meet his social obligations, he may be forced to do so.

For example, as Grotius says, in time of famine the private citizen's moral right to own a surplus of grain and withhold it from the market lapses. What is more, since public authority may compel the release of the grain, the corresponding positive right is suspended. Had the British government in the 1840s so compelled Irish landowners, the horror of the Irish famine might have been lightened.

Are all positive rights susceptible of suspension in extremis? I am not sure. Obviously, a right against treatment that is by definition immoral is necessarily absolute—for example, sadistic, disproportionate “torture.” And I cannot imagine how social exigency could ever justify the suspension of a right to racial equality before the law. So I will not say that all kinds of positive right are susceptible of suspension by social obligation. Nevertheless, I think that some are. Notwithstanding the political rhetoric of their advocates, the positive rights of individuals to trial by jury and to know all the evidence against their civil cases are not absolute and can be trumped by the moral, social obligations to which extraordinary circumstances can give rise. And even if we think it wiser never to suspend the positive right against aggressive interrogation, courts should nevertheless be prepared to recognize—somehow—extraordinary cases where such interrogation is morally justified.