 This program is brought to you by Emory University. Ladies and gentlemen, good afternoon. Welcome to our special lecture today. It's a great privilege to see all of you here. Thank you so much for coming. My name is John Witte. I serve as Director of the Center for the Study of Law and Religion, the sponsor of today's proceedings. Our center is dedicated to studying some of the religious sources and dimensions of cardinal themes at the intersection of law, politics, and society. Working with some 75 faculty from around the campus, the center sponsors advanced research projects and publications, senior fellowships, specialized courses, joint degree programs, clinical internships, and a variety of public forums, such as this one today. We are privileged to offer you today the McDonald Lecture in Christian Jurisprudence. This is a new lecture series that we established last year as part of the work of our center on Christian legal studies. And we are planning to develop two new lecture series in forthcoming years, one on Jewish legal studies and a second on Islamic legal studies consistent with those accents in our center's portfolio of projects as well. It's a great privilege for me today to introduce our McDonald Lecturer, the great Yale Don Professor Dr. Nicholas Woltersdorf. Dr. Woltersdorf is the NOAA Porter Professor of Philosophical Theology at Yale University and a world-class scholar of that subject, as well as political theory, theological ethics, epistemology, aesthetics, and rights theory. Educated at Calvin College in Harvard University, he has graced distinguished lecterns around the world. He has delivered, among many others, the prestigious Wild Lectures at Oxford, the Gifford Lectures at St. Andrews, the Stone Lectures at Princeton, and the Taylor Lectures at Yale. He has published some 200 articles and 20-plus volumes. Among some of his more recent titles, I would commend to you three brilliant Cambridge University Press titles, Divine Discourse, John Locke and the Ethics of Belief, and Thomas Reed in the Story of Epistemology. Professor Woltersdorf has a powerful new title in the making on justice and human rights forthcoming from Princeton University Press, and it's that title into which he is giving us an advanced peak today in a sterling address entitled, Speaking Up for Rights. Will you please join me with a robust round of applause to welcome to our lectern Professor Dr. Nicholas Woltersdorf. Thanks, John, for that characteristically over-the-top introduction. And I begin by thanking you for honoring me with the invitation to give the McDonald Lecture on Christian Jurisprudence for 2006. The microphone system is okay. When I became aware that in accepting your invitation, I was following immediately in the large footsteps of my good friend and your very distinguished colleague, John Whitty, I realized that you had bestowed on me an honor but an intimidation. I've read this fine lecture from last year. But as they say, we're angels feared of tread, fools tread, so here goes. I want to use this occasion to speak up for rights, especially though not only natural human rights, and for justice as grounded in rights. Now, I realize that speaking up in a law school for rights and for justice as grounded in rights is likely to be carrying coals to Newcastle. I would expect that in a law school, if anywhere, there will be nodding agreement with what I have to say in both senses of the word nodding agreement. But even Newcastle can use an extra coal now and then. And of course I have in mind a larger audience and readership for this talk than just the faculty and students of this or indeed other law schools. Justice and rights are the most contested part of our repertoire of moral terms and moral concepts, contested not only or even mainly by theorists but within society generally. Few people oppose talk about responsibility and obligation. Therapists who believe that guilt feelings are a bad thing, philosophers who see no acceptable way of accounting for obligation, that's about it. Obviously lots of people don't pay much attention to their own obligations, but few of them declare themselves opposed to obligation talk in general. And so too I would say with virtue and love, though many care a little about either, not many express opposition to talking about them. Justice and rights are different. Opposition to rights talk is common. Some of those opposed are also opposed to talking about justice. They connect the two, rights and justice. Others want to pull them apart. Justice is fine. It's talk about rights that's bad. Why this hostility? Let's take a brief survey and start with justice. Large swaths of American Christians are hostile to talk about justice because they believe that in the New Testament love has supplanted justice except for retributive justice. Jesus did not teach, they point out, in the second of the two great commandments that we are to treat people justly. He taught that we are to love our neighbors as ourselves. In his now classic book Agape and Eros, published in the early 1930s, the Swedish Lutheran bishop Anders Nigren worked out this idea in rich detail. After interpreting the love ascribed to God in the New Testament, and then joined on us with regard to our fellows, as the love of pure impartial benevolence, Nigren declared that what we learned from Jesus' words and deeds is, and now I want to quote him, what we learned from Jesus' words and deeds is, quote, that where such spontaneous love and generosity are found, the order of justice is obsolete and invalidated. Now this is a particular attack on justice coming as it does from within my own religious community, Christian community, is not one that I can ignore. Most secular academics are inclined not to give it the time of day. I think that's a mistake on their part. Americans continue to be religious people, dominantly Christian, and I think we must expect consequences for our culture and society as a whole if many among us believe that justice is outmoded. And in any case, similar things are being said by secular writers, albeit for somewhat different reasons. In her essay, The Need for More Than Justice, for example, the philosopher Annette Byer argues that though justice may still have a place in human life, it has to be supplemented with virtues less cold and calculating. Care, she says, and I'm quoting her, care is the new buzzword, a felt concern for the good of others and for community with them. The cold, jealous virtue of justice, that's a quote from David Hume, the cold, jealous virtue of justice, says Byer, is found to be too cold, and it is warmer, more communitarian virtues and social ideals that are being called in to supplement it. Byer goes on to explain that the ethics of care is a challenge, quote, to the individualism of the Western tradition, to the fairly entrenched belief in the possibility and desirability of that person pursuing his own good in his own way, constrained only by a minimal, formal, common good, namely a working legal apparatus that enforces contracts and protects individuals from undue interference with each other. One of the problems with the ethics of justice, she says, is that the rules of justice, and again I quote, at least as understood in a liberal sense, do little to protect the young or the dying or the starving or any of the relatively powerless against neglect or to ensure an education that will form persons to be capable of conforming to an ethics of care and responsibility, the end of the quotation from Annette Byer. Others on the contemporary scene are opposed, not so much to talk about justice, as to talk about rights. This opposition is for a variety of reasons. Some opposed rights talk because they find I have a brother-in-law who lives in the city of this sort who finds so many rights talk silly that they think it best to purge our vocabulary of all such talk. I agree with the diagnosis, but not with the proposed cure. Many rights claims are, I concede, silly. The UN Declaration on Human Rights, by enlarge an admirable document, declares in Article 24 that everybody has a right to periodic vacations with pay. Now, many people don't work for pay. Some, such as children and the handicapped, don't work at all. Others work, but not for pay. Farmers, housewives, and the like. So how could everybody have a right to a periodic vacation with pay? I concede that claims like this give rights a bad name. Others are opposed to rights talk for political reasons. All the great social protest movements of the 20th century in the West have employed the language of rights. They've employed other languages as well, but the language of rights was, this is my impression, prominent in the vocabulary of all of them, because overall it proved the most useful, most powerful. I have in mind the movements of protest against the position assigned in society to children, to women, to Jews, to African-Americans, to homosexuals. I've also got in mind the protests against the Africana regime in South Africa, the communist regimes in Hungary and Poland, and so forth. It was these movements that have made common coinage of such phrases as children's rights, women's rights, civil rights, human rights, and so forth. Now, one way to defend disagreement with one or another of these social protest movements would be to insist that members of the group in question don't have the rights that are being claimed for them. Children don't have a right to be kept under the labor force until they are of age, women don't have a right to vote, Jews don't have a right to be treated equally in the academy, South African blacks and coloreds don't have a right to equal treatment, and so forth. But very often defenders of the status quo find the whole discourse of rights menacing. So what they do instead is try to change the vocabulary of the debate. Instead of talking about rights, they say, let's talk about responsibilities, about the social bonds of friendship and loyalty, about what's necessary for a community and a well-ordered society and the like. And then there are those who are opposed to rights talk for what can maybe best be called social reasons. They charge that rights talk expresses and encourages one of the most pervasive and malignant diseases of modern society, possessive individualism. In using such talk it said, one places oneself at the center of the moral universe, focusing on one's own entitlements to the neglected one's obligations to others and the cultivation of those other directed virtues that are indispensable to the flourishing of our lives together. The prevalence of rights talk, so to say, obscures from us our responsibilities to each other and to our communities, obscures from us the singular importance of love, care, friendship, and the like. It demotes the giving self and promotes the grasping self, demotes the humble self and promotes the haughty self. It both encourages and is encouraged by the possessive atomism of the capitalist economy and the liberal polity. It invites us to think of ourselves as sovereign individuals. Rights talk, continuing the point, is said to be for the purpose of me claiming my possessions, you claiming your possessions, him claiming his possessions. That's what us foreords said, claiming one's possessions, giving vent to one's possessiveness, each against the other. Possessive individuals, et cetera, not abusing an innocent language by resting it to their evil purposes, they're using it as it was meant to be used. Rights talk is inherently individualistic and possessive. The theologian Stanley Howard-Wass puts it like this in one of his essays. He says the language of rights tends towards individualistic accounts of society and underwrites a view of human relations as exchanges rather than as cooperative endeavors. Contemporary political theory has tended to concentrate on the language of rights, not because we have a vision of the good community but because we don't. As a result, we have tried to underwrite the view that a good society is one where everybody is to be left alone rather than one that tries to secure the kind of cooperation that gives one a sense of contributing to a worthy human enterprise. So far, Howard-Wass. And then lastly, there are the objections coming from philosophers and others among the intelligentsia. Talk about rights as nonsense, said Jeremy Bentham, and talk about natural rights as nonsense upon stilts. The way to respond to this chart is pretty obvious. Develop an account of rights that makes sense. Now, it's my judgment that some of these objections not probably most but not all, rest on a mistaken understanding of what rights actually are. So the way to begin a defense against this fusillade of objections is to make clear what it is that we're talking about. Now, I got to apologize in advance for the schematic and dogmatic quality of what follows. I hope that my description of what I take rights to be of for you some degree of intuitive plausibility. But on this occasion, I'm not going to be able to defend and elaborate my description. I do that in the over long, not yet published book that Woody was mentioning, Justice as Rights. So here's how I understand rights. Rights are normative social relationships, normative social relationships. Sociality is built into the essence of rights. A right is always a right with regard to somebody. In the limiting case that someone is oneself, I admit, one is as it were other to oneself. But usually the other in question is somebody other than oneself. Rights are toward the other with regard to the other. Rights are normative bonds between oneself and the other. And for the most part, those normative bonds of oneself to the other are not generated by any act of will or intention on one's own part. The bond is there already antecedent to one's own will binding oneself and the other together. The other comes into my presence already standing in this normative bond with me. And this normative bond, as I see it, is in the form of the other bearing a legitimate claim on me as to how I treat her. A legitimate claim on my doing certain things to her and refraining from doing other things. If I fail to do the former things I violate this normative bond. If I do not refrain from doing the latter things, I also violate the bond. I don't break the normative bond that still holds. She continues to have that legitimate claim on me as to how I treat her but I violate the bond. The legitimate claim against me by the other is a claim to my enhancing her well-being in certain ways and enhancing the good in her life. The action or inaction on my part to which the other has a right against me is an action or inaction that would be or would produce a good in her life. A common apathem in present day political liberalism is that the right has priority over the good. In the order of concepts it's the other way around. The good has priority over the right because one's rights are rights to goods in one's life and the converse does not hold. There are many things that are or would be goods in one's life to which one does not have a right. I think it would be a great good in my life if Rembrandt's wonderful painting The Jewish Bride were hanging on my living room wall. Sad to say I don't have a right I further more hold that it is on account of her worth that the other comes into my presence bearing legitimate claims against me as to how I treat her. The rights of the other against me are actions and restraints from action that do respect for her worth requires of me. I fail to treat her as she has a right to my to fail to treat her as she has a right to my treating her who is to demean her to treat her as if she had less worth than she does to spy on her for prurient reasons to insult her to torture her to badmouth her is to demean her and to demean her is to wrong her if I fail to treat her in the way she has a right to my treating her I am guilty but she is wrong my moral condition is that of being guilty her moral condition is that of having been wronged and lastly rights are boundary markers for our pursuit of life goods for our pursuit of well-being I am never to enhance the good in someone's life my own or that of others or that of many others at the cost of wronging somebody or other depriving her of that to which she has a right I am never to pursue life goods at the cost of demeaning somebody rights have been described and correctly so in my judgment as trumps it may be that a whole wide range of life goods are to be achieved by some course of action but if in pursuing that course of action one deprives somebody of some good to which he or she has a right thereby wronging them one is not to pursue that array of goods that good to which she has a right trumps all the other goods now as I see it the language of rights is for talking about these matters is for talking about these normative social bonds is for talking about the fact that sometimes by not enhancing the well-being of the other I fail to give her due respect it is for talking about that curious and sometimes perplexing interaction within the realm of the good between the worth of the other person on the one hand and the worth of goods of goods in her life and the lives of others the normative social bonds of rights are foundational to human community I don't only mean though I certainly do mean that honoring these bonds is foundational to human community I mean that rights themselves as I see it are foundational to human community I've argued elsewhere and won't do so on this occasion a speech the performance of acts of assertion and interrogation and so forth of command question and promise a speech is a normative social engagement causality I think is not sufficient for explaining how it is that by making certain sounds or inscribing certain black marks on white pages when makes an assertion asks a question issues a request and so forth I think one has to explain appeal to rights in order to explain this phenomenon but of course without speech human community is impossible I warned you in advance that I'd only be skimming the surface quasi dogmatic fashion describing how I understand rights without offering a defense of that understanding or much of an articulation of it everything I've said will be going to say merits elaboration and defense but already a question jumps out if this is what rights are how do they get such a bad name they sound pretty good how do they acquire their bad reputation why are so many people so hostile for so many different reasons to talking about rights well it's easy to see why those who oppose social protest movements prefer that the debate not be conducted in terms of rights the rights of the other person as I've suggested place limits on how I treat her not even for reasons of great good to be achieved am I permitted to treat her with under respect and those who oppose liberation movements almost always claim that some great good will be maintained and some great evil averted if the status quo is preserved and they don't want to hear about limits on what they're allowed to do to the other in maintaining this status quo likewise those who want to reshape society to fit their social ideals national socialist communists and so forth don't want to hear about the limits that rights are not be crossed on pain of violating the worth of the other that all seems clear enough but if rights are what I claim they are normative social bonds why would anybody connect them with possessive individualism there's a normative social bond between me and the other whereby the other bears legitimate claims on me as to how I treat her what connection could there possibly be between that and possessive individualism I think the clue lies not in rights themselves but rather in practices of honoring and dishonoring rights and in claiming rights not in the rights themselves but in the claiming or failing to honor rights notice that as one thing for the other to have a legitimate claim against me it's another thing for me to honor that legitimate claim likewise it's one thing for me to have a legitimate claim against the other it's another thing for me to claim that legitimate claim to engage in the action of insisting that it be honored having a legitimate claim to police protection is one thing going to a meeting of the city council to insist that the police start honoring that claim is another thing now imagine a society inhabited by possessive individualists what will they do each will claim his own rights claim his own rights while neglecting to honor honor or refusing to honor the rights of other people in no way does this alter the structure of the rights themselves that structure remains intact and symmetrical the other still comes into my presence bearing claims against me and I come into her presence bearing claims against her it's the practices of honoring and dishonoring and the practices of claiming rights that have been distorted but I think it's also worth noting that the language of service and responsibility can be abused used to express appalling attitudes of domination on the one hand and servility on the other and while we're on the topic of individualism let's note that rights talk scarcely has a monopoly on the language of choice for the self preoccupied individualist we have all known self preoccupied people who thought and spoke not at all in terms of rights and obligation their souls were filled to overflowing with their own rectitude or with their own guilt offensive or sickly self preoccupation comes in many forms sometimes it employs the language of rights sometimes it employs the language of duty and sometimes it doesn't use more language at all so I've tried to explain in preliminary fashion what rights are what is within reality that rights talk brings to speech but why is it important that rights be brought to speech the critics point to the abuses of rights talk I can see the abuses but rather than concluding that we should abolish rights talks so as to eliminate the abuses I hold that we should heal rights talk of the abuses because I think something of enormous worth would be lost if we could no longer bring rights and the violation of rights to speech the critics focus entirely on the abuse of rights talk they don't ask what would be lost if we tossed it all out now it's not so easy to identify what would be lost but here's my attempt I think what would be lost is our ability to bring to speech one of the two fundamental dimensions of the moral order call it the recipient dimension or in the old sense of patient the patient dimension recipient patient dimension I've come to think that to the moral status of each of us there are two dimensions that of moral agent and that of moral patient or recipient when we speak of duty guilt, benevolence love, virtue, virtue rational agency and the like we focus on the agent dimension when we speak of rights and of being wronged we focus on the recipient dimension so I think that to eliminate rights talk would be to make impossible the coming to speech of the recipient dimension of the moral order and maybe said in reply that the same thing as duties in different words suppose one singles out from the agent dimension generally that part thereof which pertains to obligation and sets to the side the parts that pertain to virtue, love, benevolence rational agency and all of that just the obligation dimension what maybe said is that what I'm calling the recipient dimension is nothing more than the obligation dimension of the obligation part of the agent dimension described in different words everything that can be said in the language of rights can be said in the language of duty and obligation same facts different words nobody suppose that south and north are fundamentally distinct dimensions of space I'm to the south of you if and only if you're to the north of me same thing different words nothing is lost so the proposal is nothing is lost if we toss out rights talk as long as we keep duty talk something would be lost if we tossed out both of them now I think that the best way to see that we are dealing here with two distinct dimensions of the moral order connected of course not independent rather than with one dimension differently described I think the best way is to look at duties and rights from the dark side from the side of being guilty and from the side of being wronged one is guilty if one has failed to do what one was obligated to do one is wronged if one has not been treated as one had a right to be treated and my guess is that we all have some intuition to the effect that you're being guilty and my being wronged are not just the same thing in different words maybe the following observation will strengthen this intuition suppose that in treating me a certain way you have violated your obligation toward me and that correlatively I have been deprived of my right against you so you are not treating me that way you are guilty I am wronged now suppose that you are absolved of your guilt perhaps you go to a priest confess your sin and he absolves you I'm not convinced that absolution for guilt really is a possibility but let's suppose it is so you've been absolved what then is my moral condition does your being absolved of your guilt mean that I am now automatically also relieved of having been wronged of course not I am in exactly the same moral condition that I was in before your absolution took place absolution if there is such a thing deals with guilt it doesn't deal with being wronged it's repentance by one party and forgiveness by the other that deals with being wronged though in a way very different from absolution when one thinks of what one is doing in terms of obligations one focuses on the bearing of one's actions on one's own moral condition one is upright or guilty when one thinks of what one is doing in terms of rights one focuses on the bearing of one's action on the recipient of what one is doing her rights are honored or she is wronged if one thinks exclusively in terms of obligations and if furthermore when thinks of guilt as simply guilt for violating the moral law rather than guilt for wronging the other then the person who has been wrong falls entirely out of view the language of duty and guilt enables the battered wife to point to the effect of her spouse's actions on his moral condition he is now guilty the language of rights and of being wronged enables her to point to the effect of her spouse's action on her own moral condition she has been wronged deprived of her right to better treatment treated as if she were of little worth he's not only guilty of having acted out of accord with some moral law he's guilty of having wronged her the language of duty and guilt enables the oppress to point to the effect of the oppressor's action on the moral condition of the oppressors the oppressors are now guilty the language of rights and of being wronged enables the oppress to bring their own moral condition into the picture they've been deprived of their right to better treatment treated as if they were of little worth the oppressors are guilty of having wronged them so I think the reason that the language of rights has proved so powerful in social protest movements is that it brings the victims and their moral condition and not just the Asians into the light of day in September 1985 a remarkable pamphlet called the Kairos document was issued by some 150 theologians and church leaders and political leaders in South Africa in a section of the document in what they say about church theology in a section of the pamphlet that they called justice the authors of the Kairos document point to the difference between the two dimensions of the moral order that I've been calling attention to they state why those in power prefer to attend only to the Asian dimension and why it's important to bring the recipient dimension into the light of day I'd like to read a little bit of it which captures which helps to capture the idea we should remember that the pamphlet was written before about six, seven years before the overthrow of the apartheid regime in South Africa here's what they said it would be quite wrong to give the impression that church theology in South Africa is not particularly concerned about the need for justice there have been some very strong and very sincere demands for justice but the question we need to ask here the very serious theological question is what kind of justice an examination of church statements and pronouncements gives the distinct impression that the justice that is envisaged is the justice of reform that is a justice that is determined by the oppressor by the white minority and that is offered to the people as a kind of concession one of our main reasons for making this conclusion is the simple fact that almost all church statements and appeals are made to the state or to the white community about their guilt the general idea appears to be that one must simply appear to the conscience and the goodwill of those who are responsible for injustice in our land but the problem that we are dealing with here in South Africa is not merely a problem of guilt we cannot just sit back and wait for the oppressor so that the oppressed can put out their hands and beg for the crumbs of some small reforms that in itself would be degrading they say and oppressive that would be nice if I could move into a concluding at this point and invite your questions but I can't there are two groups of people who will find what I say not so much incomplete they may be willing to wait for my book but fishy they may not be able on the spot to pinpoint where I've gone astray but they're absolutely sure that I've gone astray somewhere one of the two groups that I've got in mind consist of those Christians who hold that love as supplanted justice in the New Testament the other consists of those who are convinced by a certain narrative concerning the origin of the idea of natural rights many of those who belong to the latter group the narrative group also belong to the former Christian group and I think I can't conclude without explaining how I would go about answering these two groups of people who say well Walter Stofi can't exactly identify what you've said wrong but it can't be right more detailed answers once again I've given this yet unpublished book let me begin with those who adherence to a certain narrative concerning the origin of the idea of natural rights leads them to find my description of rights fishy to explain this narrative I must now connect what I've been saying about rights with how I think of justice I think of a social order as just insofar as its members enjoy the goods to which they have rights some of those rights are generated by actions on the part of human beings by the issuing of legislation by the performance of various speech acts promises and so forth and the like but some of the rights are not so generated the ones not so generated by actions on the part of human beings are natural rights natural rights I hold are in good measure intrinsic to those who have them that is to say members of the social order don't have them on account of how they the members are related to some norm to themselves they've got them on account of their own worth and I hold that all rights are ultimately so grounded I call this way of thinking about justice kind of clumsy but anyway justice as in intrinsic rights now I've come to think that in the western tradition there's another way of thinking about justice justice's right order I call it natural law for the right ordering of society it's said is what ultimately grounds justice not the intrinsic rights of members of society and those who favor this latter conception of justice conduct their polemic against the conception I favor almost entirely by means of a narrative and a social critique based on the narrative once upon a time so it is said everybody who thought about justice thought about it in terms of right order then individualistic modes of thought arose and they introduced and employed this idea of natural rights as such modes of thought became more common the old way of thinking about justice gradually lost its appeal and was displaced by this alternative conception of justice as grounded in intrinsic rights so the story says individualism is in the DNA both of the idea of natural rights and of this conception of rights is ultimately grounded in of justice is grounded in intrinsic rights so there's an inherent connection between on the one hand the idea of natural rights and the conception of justice as based on intrinsic rights and on the other hand the possessive individualism of modern society earlier I said that the language of rights is susceptible to being bent to the purposes of the possessive individualist the claim here is that the connection between the language of rights and possessive individualism is essential not contingent as I presented it as being but essential and the story continues both for correctly understanding justice sort of an intellectual matter and for the health of society we must recover that older more venerable way of thinking that was displaced by the justice as intrinsic rights conception we must rid our thought of the idea that there are natural rights we've got to recover the idea of justice as right order if you want some names here the names would be Leo Strauss Alastair McIntyre Joan O'Donovan, Oliver O'Donovan as Stanley Howard-Wass very good examples of the justice's right order way of thinking and what were those individualistic modes of thought as supposedly introduced and employed the idea of natural rights and hence also introduced the idea of justice as grounded in intrinsic natural rights well some say that the idea of natural rights was introduced by the individualistic political theorists of the Enlightenment others in this movement say that it was certainly employed by the Enlightenment political theorists it was in fact introduced way back in the 14th century by that near heretic William of Occam in his defense of his fellow Franciscans against the attacks by Pope John the 22nd and that Occam's nominalism provided the theoretical framework for his introduction of this idea either way the main is that the idea of natural rights emerged from individualistic modes of thought and that only within such modes of thought does it have any relevance and utility now my reply to this narrative depends almost entirely on the labors of others that fine scholar of medieval intellectual history of whom many of you know I've come to realize has now shown us decisively as anything ever does get shown in intellectual history that this narrative is just plain false in his superb book the idea of natural rights studies on natural rights natural law and church law 1150 to 1625 tyranny shows decisively that in the mid 12th century hence two centuries before this fellow William of Occam canon lawyers were employing the concept of natural subjective rights in their comments on Gretchen's Decretum and in their corresponding discussion of ecclesiastical legal issues and some political issues of the day now I take it nobody would accuse the canon lawyers of the 1100s of being individualists in their thought my own view is that one finds the natural rights in various of the church fathers already some of the relevant passages having been collected there in Gretchen's Decretum and I think and this is the most provocative part of it all and I think one finds it back behind the church fathers in the Old Testament but this is not the occasion for me to offer my counter narrative concerning the archaeology of natural rights what's relevant to note here is just that the evidence points to the conclusion that the concept of natural rights is one of our most ecumenical of concepts it can be and has been employed by those who think along individualistic lines it can also be employed and has been employed by those whose thought doesn't carry even a whiff of individualism about it and last what about the argument of my fellow Christians that justice has been supplanted by love in the New Testament well a full treatment of this argument would obviously require an interpretation of the relevant New Testament texts and sorry about this here too I must beg off on the occasion of this present lecture I think what I can do though is show in somewhat a priori fashion why this claim cannot be correct we can see why it cannot be correct by looking at the main argument that Anders Nygren gave for his position an argument that a great many Christian ethicists of the 20th century have found persuasive goes like this one day a lawyer was trying to trap Jesus in his words I'm not making this up the New Testament says he was a lawyer and says that he was trying to trap Jesus in his words one day a lawyer was trying to trap Jesus in his words and asked him which commandment in the Torah is the greatest Jesus replied this is your heart with all your soul and with all your mind this is the greatest and first commandment and a second is like it you shall love your neighbor as yourself whatever may have been the trap that the lawyer was trying to set he didn't succeed in catching Jesus on another occasion Jesus was talking to a leader of the Jews a member of the Pharisee party named Nicodemus now Nicodemus like everybody else who encountered this in Jesus wanted to know who and what he was wanted to know his identity so in the course of answering Nicodemus his question as to who he was Jesus declared that God so loved the world that he gave his only son so that everyone who believes in him may not perish but may have eternal life now in those two passages the English word love occurs I mean in the English translation three times in each case the Greek word being translated is Agape A-G-A-P-E Agape the question that gripped Anders Ligman's attention was what was meant by the Agape that the New Testament writers report Jesus as attributing to God and as in joining on us and his conclusion was that Agape was benevolence sheer pure benevolence commitment to advancing the well-being of the other it is not he insisted at great length Eros Eros now the Greek word Eros is also standard translated into English as love it's translated that way in Plato's Symposium Eros is that form of love which consists of being attracted to or by the worth of something Eros is what Plato talks about in the Symposium when he describes the soul as drawn to attracted by the form beauty itself now here is Ligman's argument for his claim that New Testament Agape is pure benevolence the prime example he says of God's love for us Agape is God's forgiveness of the sinner but God does not forgive us because God finds us so compellingly worthy and attractive it's not that God is drawn to us like the people in Plato's Symposium are just drawn to the beautiful itself so the love manifested in forgiveness cannot be Eros but neither, and this is the part of the argument that's important for my purpose it's neither does God forgive us because justice requires it because in the nature of the case forgiveness is not something that justice requires the wrongdoer doesn't have a right to be forgiven on the contrary the one who is wronged is within his rights if he subjects the wrongdoer to retribution so the divine love manifested in forgiveness has to be sheer benevolence motivated neither by the worth of the wrongdoer nor by what justice requires Agape here's the conclusion of the argument Agape is justice blind now let's think about this for a minute Neigman claims that the New Testament presents God's forgiveness of the sinner as exemplary of God's love divine love in general I think he's mistaken about that God's love does indeed include forgiveness and forgiveness is benevolence but God's love as a whole includes, so it seems to me the love of attraction Eros the love of attachment Neigman furthermore claims that forgiveness is not required by justice the wrongdoer is not wronged if he's not forgiven on that I think he was right but I think it's mistaken to conclude that forgiveness is or could be justice blind and here's my reason note that forgiveness is not something that you can scatter just hither and yon I cannot forgive some afghan farmer known to me only from an article in the New York Times which reports him as growing opium poppies in violation of law and isomerality I can only forgive those people who have wronged me and only for the wrongs they have done me that is to say I can only forgive someone for having deprived me of some good to which I had a right though this may be involved indirectly with other people as well I can only forgive someone for having wreaked injustice on me because to forgive someone is to forgo exercising some or all of the retributive rights that one has on account of their having wronged one that is on account of their having deprived one of some of one's primary rights so if there were no such thing as violations of justice a primary justice there could be no such thing as forgiveness and if I were oblivious to violations of justice I would simply never know when justice was possible and wouldn't know when it was relevant so nighman's argument that in the New Testament loves a plant's justice has to be mistaken without even looking at the texts yes it's true that the wrong doer doesn't have a right to be forgiven nonetheless forgiveness presupposes justice and injustice and presupposes alertness to justice and injustice forgiveness cannot be justice blind it has to be justice alert and since God's forgiveness though not exemplary the totality of God's love is certainly a prime example of God's love God's love has to be justice alert it cannot be justice blind God's forgiveness transcends justice in such a way that it continues to presuppose it it does not supplant rights but it takes rights for granted I close by returning to my main point the other comes into my presence she's a preacher of worth she is created as an icon of God and is loved by God on account of that worth along with lots of other modes of worth she has legitimate claims on me as to how I treat her if I fail to treat her that way she's been wronged by me the language of rights and of justice is for bringing to speech that fundamental dimension of the moral order thank you applause thank you so much Professor Waltersdorf for vindicating your sterling reputation for subtlety and for wisdom at once in such a compact and beautiful text we have some time for questions from the audience Michael Perry doubtless will have several Harold Berman will no doubt a few more as we'll up do on Naim our three great rights theorists in the room amongst many others while Professor Perry is sorting out the several questions he will ask I do want to make note that the wonderful book the idea of natural rights by Brian Tierney that Professor Waltersdorf mentioned I was happily published in our Emory University studies law and religion series and the guts of that book were presented at this very lectern some 12 years ago in a series of lectures that Professor Tierney offered us here so Professor Perry no doubt you have several questions that you can put directly to our Sage I do have a question for Nick but I have to work my way up to it first I want to say God talk and rights talk in one lecture who could ask for more than that the two most introverted styles of discourse Nick I don't know whether you yet had a chance to read deus caritas est deus caritas est benedict to say but I'm told I'm not familiar with nigran but I'm told that there's significant traces of nigran in the piece so that's something you may want to track down I'm also told that you shall treat your neighbor as yourself is better translated from the Greek of the Septuagint as you shall treat your neighbor lovingly for he is like yourself and I prefer the latter imperative to the former because the former doesn't offer me much consolation if the person to whom it's directed doesn't treat himself very well so whenever I hear that you shall treat your neighbor as yourself I always think about that alternative articulation the at various points in your talk one point you talked about violating the bond and another point you talked about violating the worth of the other in each time I wanted to say what we should be saying is violating the other it is the person who is violated and this gets me closer to my question because when you said you wanted to tell us what rights are I wanted to say that what I understand you to be doing is telling us what you mean when you engage in rights talk and although I'm deeply sympathetic to the substance let me connected I'm deeply sympathetic to the substance of what you say I'm inclined to think that everything that you gain the natural rights talk in which you engage can be translated without remainder into a language that does not rely on natural rights talk that relies on violation talk a woman is raped you could say that her natural right not to be raped has been violated I would prefer to say and that someone is not complied with his duty not to rape her I would prefer to say that the act of rape violates the woman you say she's wronged I say she's violated you say that somebody has forsaken his duty I say that he has violated her he is a violator so this gets me to the fundamental part of my comment which is that I find myself simultaneously drawn to the substance of what you say but also still very sympathetic to Bentham because it's not that I have that I think there's anything wrong with rights talk as long as you specify its meaning the way you do it'll be a language that I can translate into my language my discourse a violator violated worth of the person it's just that as a lawyer I'm inclined to agree with Bentham that rights talk can be misleading that's a cost because it when rights talk in the law from rights talk in morality and it is those differences that lead me to shy away from it obviously this isn't the time or place to go into this but these are just some thoughts that I hope will lead to a later fuller conversation thank you Michael is always challenging comments whether I can meet the challenges another matter so I think I think we cannot dispose of the language of rights and simply make do with the language of violation in my mind I want to distinguish those rights and the ground for the rights is is inviolability or worth or something in that region so if all we had is language of rights what we couldn't do is this with the language of rights we can talk about the goods to which we have rights and those goods I think are goods always to be treated certain ways by one's fellow human beings or in the limiting case by oneself for them to do something positive or negative do something or refrain from doing so Michael I don't see with the language of inviolability you can maybe substitute that for my language of honoring worth and dishonoring worth and so forth which I see is the grounding of rights but you can't talk about the goods to which we have rights so let me use a powerful figure but but I had him as a student so John may he say one more thing and reply there are two issues one has to do with the worth of the other and in the language of human rights we talk about that worth in terms of inherent dignity a separate issue it has to do with the normative force if any that inherent dignity has for us that there's a two fold claim one that the other has inherent dignity and the second part of the claim is that we ought to live our lives accordingly namely to respect that dignity we ought not to deny that someone has it or treat it treat her as if she lacks it the problem I have with rights talk is if you say to the person who is raped to the person who has been the raper that you have violated her that's a way of saying you have treated her you have either denied or treated her as if she lacks in her indignity if you then say you have violated her natural right it seems to me that person is entitled to say come again if you're saying that she has a right not to be raped you're saying I have a duty not to rape her meaning I have reasons not to rape her we're now suddenly talking about a different set of criteria the criteria involved in the claim that I should live my life accordingly that that inherent dignity has a force for me that takes us off in the direction of what kind of person I should be and what kind of reasons I have to be that kind of person so it's complicated and we've talked about it before two years ago and one year ago but I just think there's an alternative way of sorting all of this out that is that leaves intact the substance of what you're concerned with but that is forgive me maybe more nuanced with respect to the various issues involved here on the one hand worth on the other hand the not to be violatedness of the person which is a claim about the kind of people we should be yeah I am not reminded of where you were going and you're right getting into that would take a long time I think your way of going is not the right way to go but that's Michael and I have talked about this for several days and we didn't resolve it so yes I'm not a lawyer or a theologian but I'm a 10th generation Scottish Presbyterian I was reading a book recently by Len Yutang who made a comment which startled me and then I got to thinking maybe he's right he said fighting is necessary and I thought fighting is necessary maybe Jesus would go along with that you write that fighting is necessary I'm not sure what I don't know what to say that Jesus would go along with that it's going to depend very much on what kind of fighting you've got in mind what kind of challenging we're dealing with I mean Jesus is not meek and mild what comes out of the 19th century romantic tradition is Jesus meek and mild and when I read the gospels I must confess that the last set of words that come to my mind are meek and mild it's filled with abrasive behavior I mean one of the most vivid he gets invited by a Pharisee to a dinner party at the Pharisee's house on a Saturday on a Sabbath he's hardly in the house and he says the seating arrangements are all wrong here people of high social standing have seated themselves next to the host and people of low social standing have seated themselves way off you shouldn't hold dinner parties in which the seating arrangements are like this a little bit of chatter and then Jesus says furthermore you really shouldn't invite people who can pay back your dinner invitations you should invite people who can't pay back your dinner invitations now meek and mild if a guest would behave like this in my house I won't finish that sentence I want to go to an easier subject and that is how can you reconcile the human rights of the Palestinians in the West Bank with the divine rights and in this case this one in history the Christian churches all over America are preaching from pulpits that the land belong to the Jews so it's a divine right how do you reconcile that issue which is a very tough issue so we get into an issue of or testament exegesis in that case I don't think the land does belong to the Jews and I think the rights of the Palestinians have been systematically violated for the last what are we now 2006 for the last 50 years even if you disagree with whether Israel in 2006 has a right I mean lots of things there there are all kinds of different descriptions of the boundary of this land in the Old Testament the Hebrew Bible for one thing some of the descriptions carry it all the way to the Euphrates River and down to the Nile and so forth but even if you think Israel has the right to national sovereignty in this land even if you think that the way the Palestinians have been treated is a deep violation of their natural human rights of their God-given rights in my view if the right to forgiveness or to forgive inheres in the recipient or the victim of the wrong as you have discussed here today if that is where that right of forgiveness and thus I would assume the right of vengeance or vindication might inherit and that victim would you comment on what that might tell us about the right of America to is essentially a stranger to the relationship between Saddam Hussein and the Iraqi people what does that tell us if anything about the right of America to avenge the wrong or wrongs committed by Hussein upon the Iraqi people ah so ah how does all this apply to all the troublesome problems in the world um so I'll start with the part that I feel more sure about and move to the part that I feel less sure about the forgiveness part um so I think let me start differently as I read the documents of pagan antiquity the ethical writings of the ancient Greek and then Roman moralists they were of the view that when one has been wronged ah retribution is a duty that the world has to be set right again and after the world is by some kind of equal and then we get talk about equity of equality and so forth that the world has to be set right again by some sort of equal hard treatment ah some sort of hard treatment of the wrong doer that will be roughly equal to the hard treatment that the wrong doer imposed on me I think that um one has to read the Christian and Hebrew Bible as disagreeing with that fundamental assumption it's not in general true that punishment is a duty if you thought it was a duty then you think that forgiveness and the Greeks have deep troubles with forgiveness Aristotle was basically against it if you thought that punishment was a duty then forgiveness is immoral so I think one gets on that point a strikingly different moral vision between the moral writings of pagan antiquity and those of the Hebrew and Christian Bibles I think what the Bible teaches is that punishment is often a permission the retribution is often a permission but it's not a general and may sometimes be a duty but it's not in general a duty and that forgiveness then is not consequently a violation of the duty to punish it's just it's not it's just not taking up the permission to punish it's it's foregoing punishment um the wrong doer doesn't have a right to one's foregoing that permission um hence it is that forgiveness is a kind of grace it's a love how does that apply to our treatment of Saddam Hussein um the international order well let me uh the international order is in fact full of examples in which nations forego retribution for being wrong they find it unwise and so forth so one can't create international affairs by saying that every wrong's got to be punished or be a pretty horrible world that we live in um our engagement with Hussein I don't know that's I'm gonna pass I've got profound difficulties with American practice and policy but but it's gonna take me a while to lay them out and uh sounds a little bit wimpy I realize but final question uh Nick thank you very much I'm very much drawn to the idea that rights should be understood in terms of existing moral bonds and I think this is apart from the possible criticism that Michael has raised but in your presentation it seems to me that there is some ambiguity about what you mean by an existing moral bond that's already there the examples that you give are ones in which typically there is assumed a kind of rough equality between the two but in fact rights language is quite at home in traditional forms of society or various hierarchical forms of society where people have mutual rights that do in fact express reciprocal rights that's put that way that do express a moral order between them um and yet they are reciprocal but unequal rights whether it's the feudal system or one could think of many other possibilities and relationship between male and female would be a good example of this and I'm wondering whether part of the both controversial aspect of rights language but also its potential is that when it does get raised and is given uh to speech uh that often an existing moral bond a a jury moral bond is actually being called into question by virtue of other sets of relationships that have transformed roles and self perceptions in other words it's not just two persons uh but when women are claiming rights it's not that they are claiming a right that they have always had by law covenant cultural understanding it's often a claiming of a right that they are making on the basis of other sets of moral relationships which can be also very critical prophetically critical of the existing moral relationships so there are really two ways in which a moral bond can be in place the one is the existing bond to a culture legal system society the other is what it seems to me you were invoking often which was a transcendent moral bond either transcendent by virtue of having a religious dimension whether we could put it in terms of violation or in terms more sociologically speaking the consequence of transformation of self understanding and roles um if I understand your question John I mean to give a general account of rights especially in the book now today I suppose I emphasize more natural human rights than general account of rights but for us who work in a university rights are not just not so much natural human rights but the rights of accomplishment are part of the fine texture of how the university operates that if a student writes a first rate paper for me and is asked first rate questions in a seminar and so forth they've got a right to first rate grade in the American Grading System in A and if they don't get it they've been wronged and that's not some natural human right it's a right of accomplishment I think the appeal to natural to natural rights is what often yet I'm not sure I've thought that entirely through but the appeal to natural rights is now say it differently when one thinks that there's something wrong with the practices with the way rights and duties are understood in some practice academic practice or familial practice or how men and women are related in fact what in business practice whatever when one thinks that there's something wrong with practices often it's not possible to appeal to some super practice or piece of legislation to critique I mean sometimes it is but to critique the lower one now sometimes you can appeal to a piece of legislation but often the legislation you think is wrong or missing or something like that so natural rights becomes a final court of appeal which is sort of why it's so difficult in thinking about rights to give it a priority though when I talk and write about rights in the book I insist that we start at the bottom as it were not with natural human rights I think it's important to see that they pervade the fine texture of our human existence and those who talk about getting rid of recognition of rights are sort of oblivious to that fine texture I'm not sure that that meets your question very well thank you we're dealing with timeless questions and I hope that Professor Waltersdorf will come back many times to continue to address them I want to thank Nick for a sterling address and for this subtle introduction to a rich topic that his book I think will lay out in greater detail in which several of his earlier books have also addressed and I would particularly commend a book called Until Justice and Peace Embrace which works through a number of what we would call constitutional rights or international rights dealing with both groups and individuals I want to recognize and thank April Bogle, Eliza Ellison, and Janice Wiggins in our shop for their work in putting together this forum I want to thank Scott Andrews and Corky Gallo in our AV shop for all their hard work I want to thank all of you to come to this forum today if you have some comments about the forum if you see a little flyer in your program that you received, fill it out and let us know how we can serve you better I hope that you will come back to many forums that the Law and Religion Center has in years to come this I believe is our final public forum for the spring semester would you please join me in a final round of applause thanking Professor Woltersdorf