All Too Alienable

In the 1970s the philosopher Nicholas Wolterstorff witnessed first-hand what happens when a people tries to replace justice with goodwill. In order to justify their position, the Afrikaners insisted that they were “a charitable people” and their policies would eventually work toward the common good. Here Wolterstorff saw, “as never before, the good overwhelming the just” and benevolence used as an “instrument of oppression.” The only cure for this, he believes, is to ground justice in the inherent rights of each person. Being kind to the poor is not adequate to the problem. We require an ethic that ensures the poor get what is due them.

In Justice: Rights and Wrongs, Wolterstorff elaborates this argument, while contesting the widespread claim that the best way to ground the concept of justice is in the “right ordering” of the human community and the well-lived life within such a community (so-called eudaimonism). Justice, he thinks, must always start with rights, and rights derive from the inherent value of the human person.

Wolterstorff divides his argument into three parts. In the first, he contests the common claim (associated with the political philosopher Leo Strauss) that “rights talk” is a product of the Enlightenment. According to this view, the modern individual has become obsessed with what is due himself alone and forgetful of his responsibility to the culture in which he lives. In response, Wolterstorff argues that there is a case for inherent human rights that is much older than the Enlightenment and not grounded in selfish individualism. It can be found in the medieval decretals, in the preaching of St. John Chrysostom (who taught that giving alms is nothing more than returning to the poor what was their due in the first place), and ultimately in the teaching of the Israelite prophets. This prophetic teaching, Wolterstorff claims, is grounded in the theology of the first chapter of Genesis: by creating us in his image, God has conferred upon each of us certain basic and inviolable rights.

In the second part of the book, Wol-terstorff turns to the Greek (and, later, Thomistic) account of eudaimonism, which understands the exercise of justice mainly as an ingredient of the good life. His main problem with this account is that it focuses too much on the person who does justice and not enough on the person to whom justice is done. To return to South Africa, many of those Afrikaners he encountered in the 1970s may have been decent, charitable folks who strove to live “the good life” and were genuinely kind to their black African neighbors. But too much emphasis on the goods that accrue to the virtuous moral agent can undermine the rights of those regarded mainly as the objects of virtuous action. Wolterstorff argues that Augustine was the first to break with this eudaimonistic framework on the grounds of what the Bible teaches about love. We are to love our neighbor even to the point of welcoming sorrow. Whereas the Stoics had claimed that the best life was defined by apatheia—a condition in which the happiness of the individual could not be touched by unforeseen circumstances—Christians were to make themselves vulnerable by identifying with their suffering neighbor.

In part 3, Wolterstorff offers a philosophical argument for the necessity of human rights. The most provocative part of his argument is the claim that universal human rights can only be grounded theologically. Nietzsche famously remarked that once widespread belief in God has finally receded from Western culture, morality as we have known it “will gradually perish.” The late Richard Rorty disagreed; he thought that the belief in human rights can and will continue without the foundation religious teaching has provided. Rorty believed that the practice of treating each person as though he or she bore inalienable rights has become so entrenched that it can now be presumed to be true, without warrant. On this view, our task is more pragmatic: we must expand the scope of these rights and not worry about where they come from. Telling “sad and sentimental stories” about those whose rights have been violated is, Rorty claimed, the best strategy for protecting and expanding rights.

Though Wolterstorff acknowledges the power of such stories, he is unhappy with Rorty’s indifference to the task of grounding human rights philosophically. In the penultimate paragraph of his book, Wolterstorff writes: “Our moral subculture of rights is as frail as it is remarkable. If the secularization thesis proves true, we must expect that that subculture will have been a brief shining episode in the odyssey of human beings on earth.” Wolterstorff believes the West has been living on social capital it inherited from the church. Like Pope Benedict, he calls secular readers to consider the source from which their treasured values sprang.

My only quibble with Wolterstorff’s book is the way it uses the Bible. Scripture’s emphasis on treating the widow and the orphan justly is indeed remarkable and significant, but I think Wolterstorff misses something else important by translating this directly into an account of human rights. The reason Israelite law and prophecy so emphatically warn Israel about treating the poor justly is not because the poor are “rights-bearers”—though that may be true, too—but because they fall under the special protection of God. The reason the supplicant in the Psalms so frequently identifies himself with the “poor” is that he feels himself totally dependent on God’s care. This is also why the poor were compared to the sacrificial altar in Second Temple Judaism and early Christianity (it was a favorite motif of Chrysostom). Christians of the medieval period took great care to have the poor present at their funerals. Why? Because God has said it is their prayers to which he will incline his ear. These examples do not exclude the idea that the poor are bearers of rights, but they do show that concern for the poor had other reasons and other roles to play in the Bible.

The word for justice in the Old Testament (tsedaqah) came to mean almsgiving in Second Temple Judaism and early Christianity. It was therefore translated into Greek as eleemosina (“to be merciful or feel pity toward”), from which we get the English word “alms.” One of the reasons almsgiving came to be so important in the early church is that it symbolized the love God has for the world. Just as God has mercy on all, irrespective of their merits (or what is “due them”), so individual Christians are to show mercy in their everyday lives by giving freely to all the poor, deserving and undeserving alike. This teaching has affinities with both the rights-based and eudaimonistic approaches. The “happy life” in the early church was the life empowered by God’s unmerited grace. But it was never sufficient simply to accept the gift of grace; one was also required to live by grace, to do good works that partake of it. Doing justice (tsedaqah as eleemosina) was inseparable from acting charitably toward one’s neighbor. This obviously doesn’t rule out Wolterstorff’s claim that rights belong to all people by virtue of their status as creatures made in God’s image. But overemphasis of this claim could lead one to miss a sizable piece of our biblical patrimony.