In the matter of rights, there are many problems with the word, which can either refer to that which is right or normative and that which is a claim on someone else. The notion of a natural right as claim is foreign to most ancient philosophy, foreign to Thomas, foreign to the Christian tradition. It can be deduced, perhaps, from the Epicurean argument for a state of nature and social contract, but what has that to do with Christian thought–or with reality?
When Rothbard and I used to discuss these questions, he would always suggest that the ancient notion of obligation could be converted to one of rights, and I have written about this elsewhere. As a strategy for saving rights theories from the evils that generally attend them, such an approach might have uses, but, I would ask, why should we be saving a theory that is manifestly untrue and runs counter to Christianity?
While some duties may be convertible to rights, it is a dangerous step. To go, for example, from the duty of parents to take of children to the rights of children to be taken care leads to children’s rights. To go from the Christian obligation to practice charity to the rights of bums to claim our income leads to socialism.
The Decalogue does not, in fact, imply any notion of rights, though one can twist the commandments to produce them. Apart from the insistence on the priority of God over other supernatural beings, there is scarcely anything unusual about the 10 Commandments, and I have never understood why Christians should make such a fuss. Yes, they are traditionally used as a means of organizing catachesis–and very useful they are, too, for that purpose. But, does anyone think that Egyptians and Sumerians, Greeks and Romans, did not require children to honor their parents, or forbid adultery, theft, and covetousness? The wisdom literature of most higher cultures contains similar prohibitions, and Greek moral philosophy goes a great deal further in the direction of Christian philosophy. There is absolutely no philosophy or right in the Decalogue, and it seems a little perverse to read the unChristian Locke into the OT. I am not at all saying, by the way, that laws and customs of specific societies do not confer rights.
By the 19th century, the language of rights had been so triumphant that we find even Catholics trying to make good use of it. I don’t have the text of Rerum novarum before me and no time to look it up, but I would suggest to you one of two things–or both are at work. 1) The text is in Latin, and English right is ordinarily used to translate ius, with quite unfortunate results, in the case of St. Thomas. In this case I don’t know. 2) The Pope, who was a close student of Thomas, may have begun with the Thomistic conception which then became contaminated with later thought. In any event, please keep the distinction between those actions that are right by nature and according to divine law and those things we claim from others. I entirely agree with the Pope that, for example, possession of private property is a right in nature without any idea of subscribing to the notion that anybody owes me property. Of course, if I have a legal title to property, it is wrong, both in nature and according to divine law, for another to take it away.
I will agree with Dr. Fleming that while laws involve obligation and rights (see my outline of Aquinas's teachings on ius), a right that is a claim against another may not be recognized by human law, though it may be recognized by natural law. For example, here in the United States I do not think children can be prosecuted for failing to support elderly parents, even though it is something that they owe to them under natural law. I believe such a prosecution has happened in Singapore. As for this sentence: "I entirely agree with the Pope that, for example, possession of private property is a right in nature without any idea of subscribing to the notion that anybody owes me property."--I'd have to look at Leo XIII and others to see how they understand the "right to property," but it may be that they are referring to what is more like a subjective active right (the faculty to do something or moral claim to something) rather than a subjective passive right (what is owed).
He reminds us that the Decalogue is, for the most part an expression of the natural law.
It seems to me that what Dr. Fleming is opposed to is a Lockean account (or some other modern account) of right being imposed on traditional natural law morality. He is probably correct to judge Locke and others negatively (I would have to read Locke and others to make a proper judgment), and rights language is so associated with modern theories of law, politics, and morality that perhaps Catholics should try to avoid speaking of rights. But there does seem to be a medieval tradition of rights, and so maybe we should not dismiss rights language so quickly. However, even if we can show that the medieval understanding of rights is better than modern understandings, and can better explain our laws, how many would accept that we should interpret our laws in accordance with the medieval or Western tradition, rather than as protection for radical individualism?
Dr. Fleming also provides some thoughts on the common good:
Another roughly conceived and crudely expressed set of principles:
II Society is Natural. Man is a natural being but in his own mind at least he is not an exclusively natural being. In most human societies including those of the progenitors of our civilization (Greeks, Jews, Romans, and the Germanic/Celtic/Slavic barbarians), man has aspirations beyond getting and begetting. Men have usually seen their own social and cultural order as a reflection of a supranatural order. For the Greeks, the originators of viticulture, music, bee-keeping, etc. were gods or divinely inspired heroes.
A Man’s nature is art, which is another way of saying we are social and cultural beings as well as natural beings. Thus it is not enough for a commonwealth not to make war on property and income and marriage. In living together with our fellows, we naturally pursue these supranatural ends, but together not as individuals.
B It follows that in a healthy society these higher instincts toward worship and toward the crafts that represent and elevate reality—poetry, painting, music—are not stifled but nurtured.
C But since neither religion nor “the arts” are purely individual enterprises, we cannot properly speak of “freedom of expression” or freedom or religion.
D Since we are born both into families and into communities where cooperation is required for our survival and propagation, our natural egotism, which leads us to seek our own good, is and must be balanced by a concern for the common good in which we share. I say “is,” because it is a fact—demonstrated by Axelrod’s game theory studies as well as by history and experience—that raw egotism is destructive not only to society but to the egotist. Another way of putting this is that while we may often prefer to speak in the first person singular—of the “ego”—we also have to speak in the first person plural—the “nos.” Every “nos” implies a set of “egos” and every “ego” a “nos.” And, there are multiple “nos.” When I say “I,” I am implying a set of we’s that include my parents and children, my colleagues and/or friends, my fellow-citizens (though that concept in America is rather weak, so weak as to have hardly an meaning these days.) Since there is no “I” that does not imply a “we”—since I am defined, in fact, by “we,” then nothing could be more fatuous than to speak, as liberals and libertarians do, as if society does not exist except as a random collection of competing individuals.
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