Arguably, it is plain to see that modernity, understood in the context of most democratic liberal societies, has yielded a highly individualistic conception of freedom, specifically in terms of rights. This transmutation of freedom and justice into talk about rights undergoes a further transmutation where rights in general have become more narrowly construed in terms of economic rights, and even more specifically, as the right to private property. To this point, political theorist Gerald Gaus and others have argued that many, if not most, liberal theorists have made this shift of either closely aligning or in some cases equating freedom with prosperity in general and in terms of private property in particular. (See Gerald Gaus, ‘Property, Rights, and Freedom’, Social Philosophy and Policy 11, no. 2 (1994): 209-40.) And with this overemphasis of economic rights, there emerged also the incommensurable nature of rights-talk as well.
This incommensurability can be seen in cases which involve disputes such as between the ‘right to abortions’ and the ‘right to life’, and between the ‘right’ to a certain minimum economic quality of life as favoured by ‘egalitarian liberals’ vis-à-vis the ‘right’ against redistributive policies as favoured by ‘libertarian liberals’. (I take these examples from Alasdair MacIntyre, After Virtue, pp. 7 ff.) The overall point is that where there is an incommensurability over rights claims, there is a difficult if not insurmountable challenge of resolving the conflicts which arise from such incommensurability.
In considering the genealogy of the concept of rights, Alasdair MacIntyre notes that such a concept ‘lacks any means of expression in Hebrew, Greek, Latin or Arabic, classical or medieval, before about 1400’ (After Virtue, p. 69). Of course, an absence of a means to express the concept of rights does not prove an absence of it as a concept, let alone its use in practice. This objection is one which is offered by Ronald Dworkin. (See his Taking Rights Seriously (Cambridge: Harvard University Press, 1978), esp. Ch. 2, ‘Justice and Rights’.) An argument from silence must remain silent, Dworkin might say. MacIntyre responds to this line of reasoning by arguing that while a lack of expression of the existence of, say, unicorns does not strictly preclude the possibility of their existence, it would nevertheless be absurd to hold that they exist; likewise, the concept and practice of rights may have existed, but the stark lack of historical evidence seems to suggest otherwise, even without strictly precluding the possibility thereof.
The upshot for MacIntyre is this: that, by framing the discussions of human freedom and justice – the twin cornerstones of a just society – in terms of mere rights, the modern turn has brought about a deep ‘moral incommensurability’ in virtue of which the modern understanding of morality is not only misleading but hopelessly so. For, a rights-based view of morality, which is not only incompatible with but indeed incommensurate with a virtues-based morality, lacks any basis for grounding an understanding of objective human teleology without which there could be no sense of genuine human freedom; nor could there be an objective foundation for justice since there is no genuine human freedom. That is, there is no human-way-of-being in virtue of which to measure acts as just or unjust. Justice entails freedom; and freedom entails the capacity to be one way or another; and for freedom to be truly free there must be a human-way-of-being, a standard against which one is considered free or not. Without this ‘human good’ or telos, there can only be conflicting ‘rights’. What is needed instead is an articulation of the human good perhaps in terms of the imago Dei – image of God – found in the resources of Christian theology (see my previous posts, beginning here).