What is a right? It seems to me that the way the word is typically used signifies an entitlement an individual person has. An entitlement, that is something that is due to me. So, there seems to be in the notion of the ‘right’ itself an element of justice. This is borne out more clearly by the German ‘recht’ which depending on context means a right, or justice, or correctness; coincidence or not, this bears a deep truth. For if a right is something I am entitled to, it requires that it be given to me, or at least my possession of it be respected. If justice is rendering to another that which is his due, it follows of necessity that rights fall under its aegis. As for correctness, if I may stretch the sense of ‘recht’ a little, justice reflects the correct order of being in human relations, and thus the very being of a human, the social creature. So, a right is indeed an entitlement, but as a reality, it is subordinate to justice. They cannot be in conflict, no more than a healthy organ can be in conflict with the body, but rather the idea of right is a part of justice itself.
So it is that Simone Weil says that “the concept of obligations takes precedence over that of rights, which are subordinate and relative to it”.[1] How could it be otherwise? Obligations are the basic stuff of justice. You owe an obligation to me. I then have a right to it being fulfilled. Thus appears your duty to render my right. Every person’s rights exist, therefore, because of the obligations which precede them. Obligations, when lived, give rise to duties and rights. Throw me on a deserted island, barren and lifeless, and let me assert my rights: that will not get me anywhere, because there is no one to whom I owe a duty, nor anyone who is duty-bound to me. The proclamation of rights rings hollow without obligations being acknowledged and established first; establish justice, and rights are a natural consequence. Indeed, there can be no long continuance of rights without obligations. Rights are the fruit of the tree of justice.
Establishment: that is an interesting word. Why should I use it? It seems to signify something of historicity. But rights, do these not have a connection to obligations and therefore to justice? And is not justice objective? Is not justice rooted in stable human nature, as apprehended by human reason, that very reason which is a reflection of objective logos, reason, in the world? How then can rights be conditioned by historicity? This is an important query, but the fact that rights are conditioned by historicity is a certainty which it would be very foolish to deny. The Universal Declaration of Human Rights itself contains this tension, when it proclaims inalienable human rights and holds that the reason for its proclamation is the “disregard and contempt” for them exercised in history. It is obvious that what the drafters had in mind was the barbarity of their times in two World Wars, particularly the Second, with its attended genocidal atrocities. Where injustice reigned, the fruits of justice were destroyed.
The Declaration sought to establish these fruits. However, fruits do not lie suspended in air, they hang from a tree. The Declaration gets the relationship between obligations and rights wrong. In its very first sentence it posits that rights precede obligations. But I must not be so hasty in assessing its error. Let’s examine the question of the historicity of rights further. Simone Weil says that the notion of rights “appears when obligation descends into the realm of fact, and therefore always takes into account to some extent states of affairs and particular situations”.[2] This is true of all claims of rights. The English Bill of Rights reflects the concerns of Englishmen in the late 17th century. The American Bill of Rights, descended from the English Bill, reflects the concerns of Americans following the ratification of the Constitution. In a similar vein, though positing rights of a different character, the Universal Declaration, reflects the concerns of many peoples following the universal cataclysms of half a century. Obligations become embodied, and rights appear to correspond to duties. These rights and duties as established among us, in so far as they exist in a lived reality and because lived reality is linear and therefore historical, cannot but be conditioned in some way by “states of affairs and particular situations”.
Rights and duties can only be properly understood in this way. Divorced from the stable, I may say eternal obligations which precede them, they are simply nonsensical. Weil goes some way in recognising this. These words reflect only a difference of perspective, or as she calls it, “opinion”. “Their relationship is that of object and subject”.[3] As a subject, on his own, a person has duties even concerning himself inasmuch as, though he be alone, he never exists isolated from reality and its innate structure – logic – of obligations, of justice. The other has only claims against him, rights. Likewise, he only has rights in relation to the other. Indeed, there is also a duty in justice to fulfil these rights. Obligation, however, is more on the side of duty than of right because it requires that justice be done, whereas rights are simply a sub-concept of justice. Being creatures and thus utterly dependant on ultimate Reality, it is in our nature for obligation to precede any claims of our own; this Reality itself has a right in relation to us, that we do justice. Thus, human obligation, even in abstract, precedes human right.
Furthermore, man is by definition a social and political animal, and therefore he by definition exists with obligation inscribed on him first. If this were not so, and his rights came first, he would be a free-floating atom, and these rights would themselves be unprotected. As it is, man is born into the givenness of a human society, among human relations, in a web of obligations wherefrom his rights spring. This givenness, as I have said earlier, is a historical givenness and therefore any attempt to establish rights must first consider the historical circumstances in which it exists. It must consider how far justice, that is the satisfaction of obligations, has been achieved. Necessarily, this must be imperfect because then rights would not be disregarded. Nevertheless, it must be carefully considered what social, cultural, religious, and institutional means – both at the private and State levels – exist for the establishment of obligations (for that is the end of society) and how far they achieve this, and where the defect lies. It is in remedying the defect in justice that securing rights will be most effectual. Imposing rights from above without remedying the defect of justice will result in abject failure, and even deeper entrenchment of injustice. Consider the utter and humiliating failure to emancipate women in Afghanistan, moreover by those alien to that society, without considering the entrenched injustices at all levels. The alien intrusion worsened the attempt, which was itself handicapped by the methodology of saying rights exist without establishing justice first. This is like bringing a man who has lived in the dark his whole life into the scorching noon-day sun. You will hurt him, and he will desire the darkness again.
Weil herself cites the attempt in France during its Revolution which “started from the notion of rights” in absolute terms.[4] Whereas, rights by the way they are recognised historically, even if they may have an absoluteness in essence, exist relative to their circumstances. The recognition of rights can only happen with the incremental development of a society in justice, which, being historical, is not guaranteed. Might this be frustrating? For some, perhaps. But it is no less true for it. Justice, the eternal obligation, the cement of society, the first consideration of law, is always the first principle. It always ought to rule, because it is the first demand of human nature’s social being. The notion of rights, inasmuch as it is in essence secondary as a mode of assertion, with all the attendant associations of contention,[5] must be subordinate to it so that rights can be effectually secured. Weil thought that the confusion we have elaborated on which occurred during the French Revolution was responsible for many of the political and social confusions of her day. This is not surprising.
Where right is treated only as abstract, only as universal, only as that of the human person it admits of no tempering whilst justice is more perfectly achieved in society. It bursts out in destructive passions and loses itself in the process, as the experience of France amply shows in the Terror, the dissolution of lawful government with continual convulsions crowned, finally, by Napoleon’s tyranny. As Burke said, “Against these their ‘rights of men’ let no government look for security in the length of its continuance, or in the justice and lenity of its administration”.[6] In Weil’s own day, the French people and consequently also their State had become exhausted, with an atomistic, purely abstract, and rights-based constitution, uprooted from its historical inheritance, which alone allows incremental achievement of justice in the polity; a constitution uprooted from the very notion of the social fabric. It is little wonder that it, with the State and the whole nation collapsed in on itself.
We must disabuse ourselves of the idea that rights are a solution to the ills of our polities. They are but the consequences of obligations. We must look higher than individual rights. We must look at human nature itself anew, with fresh eyes, with the gaudy spectacles of antiquated philosophers removed. And human nature shows itself to be social, and in it obligation holds primacy. Rights exist, certainly, but as an element of justice. Furthermore, human nature, precisely because it is social, is historically conditioned. Thus, we are presented with the acorn of a solution to many difficulties of our time: a recognition of the historical givenness of our condition, an appreciation of it, with the task of not indeed fossilising it, but establishing justice ever more certainly in it. This justice itself requires that we look to our given historical condition and make the most of it, because we cannot contradict our nature nor break the golden chain in which we are a link, without breaking the chain of our polity itself. And if we do that foolish thing, if we break the chain, there will no rights left to defend. Yet, the exaltation of rights isolated from obligations itself achieves this effect.
[1] Simone Weil, The Need for Roots (Ros Schwarts trans., Penguin Books, 2023) 3
[2] ibid
[3] Ibid
[4] Ibid, 4
[5] Simone Weil, La personne et la sacré in Kate Kirkpatrick, Introduction, ibid, xiii
[6] Edmund Burke, Reflections on the Revolution in France (J. Dodsley, 1790) 86
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