Justice: Rights and Wrongs

Justice: Rights and Wrongs by Nicholas Wolterstorff was the best philosophy book I read this last year. I had the privilege of taking a class with the venerable Tom Crisp who guided us through each chapter with careful observations and meaningful assignmenints. Though I came out a chastened writer, I was blessed to gain a deeper sense of this timely topic. In what follows are my notes that summarize the main argument of the book.

Broadly speaking, Wolterstorff gives his theoretical account of justice in light of his career of activism on behalf of the ‘coloreds’ in South Africa and Christians living in Palestine. The goal of his theory is to give us ears to hear the cry of pain, to help us see what justice is through the eyes of those who have suffered injustice.

His is an exposition of primary justice. Primary justice covers that which a person is due. It consists of distributive justice (how goods should be distributed in some social order) and commutative justice (how goods are exchanged via legal contracts). Rectifying justice is the justice that becomes relevant when there are breakdowns in primary justice–it calls for the righting of wrongs, so to speak.

There are two conceptions of primary justice (xii). The first is justice-as-right-order, which grounds justice in an objective matrix of obligations for the right ordering of society (11). The second is justice-as-inherent-rights, which considers a social order to be just insofar as its members enjoy the goods to which they have rights (35). Wolterstorff contends for the latter.

Inherent rights are had on account of the worth of the being who has them (11). But the worth need not be an essential feature of the person who has it. Suppose someone attains moral worth by virtue of performing some supererogatory act of charity. That would be an example of worth that is not essential to the person, because she might not have performed the act. Natural rights, on the other hand, are the rights of social beings that have not been socially conferred on them (33). Universal rights are those that everyone always has against someone or other. A human right attaches to the status of being human, being a member of the species Homo sapiens (315). Inherent rights can be all three.

That to which one has a right is always a good of some sort (135). More specifically, everything to which one has a right is an event or a state, a happening or a condition; rights are to states of affairs (137). The events or states to which one has a right are always happenings to oneself or conditions of oneself; in that way they are states of affairs of which one is a constituent (137-38). One does not have a right to actions of oneself. The right to walk on the New Haven Green is actually the right to not being hindered from walking on the Green (138). Nonetheless, the states and events to which one has a right consist of human actions or restraints from action toward oneself. The possession of a right always has the following structure: X has a right against Y to Y’s doing or refraining from A (261).

The events of one’s life and one’s history begin at the same time, that is, when one comes into existence. One’s life then ceases with one’s death, whereas one’s history continues as long as time continues. The events and states to which one has a right all belong to one’s history; only some belong to one’s life. (141). The goods to which we have rights are such that they positively contribute to the non-instrumental worth of one’s life and one’s history—that is, they are good for a person’s life or history (143).

Wolterstorff thinks that the degree of non-instrumental worth that a person’s life or history possesses is determined by the states of affairs that comprise that life or history. In that way, states of affairs are good or evil to varying degrees (143). What is needed, then, is a vision of one’s life and history that goes well (225). And Wolterstorff thinks the goods that constitute of a well-going life or history is are those God desires for that life or history (236).

Wolterstorff’s takes a lot of time to explain why the ancient normative theory of eudaimonism won’t serve as a framework for a theory of rights. A theory of rights cannot be developed within eudaimonism’s framework, because eudaimonism’s  conception of the good life cannot accommodate all of the goods to which we have rights. (136) There are goods to which one has a right that make no contribution whatsoever to how well one’s life is lived (148). For example, the right to being paid on time or the right to walk freely on the New Haven Green (176). A second problem is that eudaimonism has the wrong sort of rule of application. It is too agent-centered; it needs to be patient-centered. When the choice confronts me whether to perform some action the question I should not ask is, “What contribution will this make to my own life being well lived (177)?” I am to do what you have a right to, period. Instead of the agent’s happiness determining his action, the worth of the recipient is to determine what the agent does (178).

Another part of Wolterstorff’s argument is that rights aren’t grounded in duties, and he argues that divine command theory fails as a general account of the source of moral obligations. Begin with DCT’s premise that claims all moral obligations are generated by God’s commands (273). That is, there are no moral obligations without God’s commands. But Wolterstorff thinks that there is a moral obligation that exist apart from God’s commands. Since God has a standing right to our obedience by virtue of the power and authority that inheres in the worth of his being, we have a standing correlative obligation to obey God regardless of whether he commands us to do something or not (274). Yet this standing obligation is not itself generated by the God’s commands. Therefore, God’s inherent rights, not his commands, are the ultimate grounds for moral obligation.

Wolterstorff thinks rights are grounded in respect for worth. If they weren’t and they are grounded in a set of objective duties instead, we could not make sense of what it means for a victim to be wronged; we could only talk of perpetrators acting wrongly. Following Jean Hampton, Wolterstorff thinks that to wrong X is to treat X in a way that disrespect X’s non-instrumental worth. There are three ideas at work when we judge that someone has been treated disrespectfully. First we assume that people have non-instrumental worth; if they didn’t, we could not speak of treating them disrespectfully. Second, we assume that some of our actions towards others have respect-disrespect import; that is to say, they are instances of treating people as if they had a certain worth. Third, we assume that the respect-disrespect import may not fit the actual worth of the one who is the recipient of the action.

In determining whether there can be a secular grounding for human rights, Wolterstorff searches for a dignity-bestowing property that will include all human beings and exclude all non-human animals. Kant’s capacities approach names the property being a being that has a capacity for rational agency as that dignity-bestowing property. The problem is that this excludes some humans (e.g. infants and people with dementia) and includes some non-human animals (e.g. chimps and dolphins). All Kant’s approach can do is bestow worth on those beings (human or nonhuman) that have the capacity, and it cannot be tweaked to accommodate the times when the being has it in its development without running into the same problems (333). The same is true for other capacities we might come up with, because capacities are second-order functional properties dependent on first-order realizers. If one’s constitution fails to realize those capacities, then they are left out of the scope of human rights.

Instead, Wolterstorff thinks worth is bestowed by God. Start with his idea of bestowed worth, that is, non-instrumental worth that something has by virtue of standing in some relation to something other than itself or an aspect of itself (355). Through this relation, Wolterstorff is able to find a worth-imparting relation human beings have with God that makes no reference to human capacities (352). Being loved by God is such a relation; being loved by God gives a human being great worth (353).

The book ends on a pessimistic note as Wolterstorff thinks that justice-as-inherent rights cannot be sustained in our post-Christian culture. While we are fortunate to live in a time that honors them, secular accounts of human value that tie one’s value to one’s capacities ultimately erode the dignity of those at he margins of life.