Professor of theology at Oxford and an Anglican priest, Nigel Biggar is a practitioner of the religion he believes underlies what he calls rights-fundamentalism:
Behind rights-fundamentalism appears to be a secularised version of biblical religion. On the one hand, shining with hope for the ultimate and universal triumph of justice, there is the admirable commitment to the cause of the disadvantaged and the injured, which was so pronounced in the tradition of the Hebrew prophets, to which Jesus belonged. On the other hand, believing neither in God, nor the world-to-come, nor the sin that lies in here rather than over there, it displays an impatient, utopian rigidity that refuses to compromise with facts, acknowledge the inevitability of risk and reckon with tragedy.
Yet when Biggar argues for a more modest role for rights than that promoted by many judges and lawyers, he aims to do so without relying on any specifically Christian beliefs or values. For Biggar, rights are grounded in “natural morality”. They may vary in content according to changing circumstances, and they are rarely absolute. But since the basic human goods are universal, so are principles of justice.
It is a rigorously reasoned argument, and yet not wholly convincing. Biggar succeeds brilliantly in deflating the inordinate claims made for rights today. His account of morality, however, relies heavily on values inherited from monotheism. It is not only Biggar that faces this difficulty. Secular liberals strain every nerve to persuade others and themselves that their way of living is best for all of humankind. But while some goods and evils may be humanly universal, they do not prescribe only one way of life as right or just for everyone. When monotheism has been left behind, a certain relativism follows inexorably. Many of the values that monotheists and secular humanists insist are quintessentially human are, in fact, those of a distinctively liberal way of life.
Much of Biggar’s work has been to do with the moral dilemmas involved in taking human life. In Aiming to Kill: The Ethics of Suicide and Euthanasia (2004) and In Defence of War (2013), he rejects any approach that invokes supposedly absolute principles. Instead, he asks what best promotes human flourishing on balance. There is
a body of ethical principles that are objective or real, in the sense that, rather than being the whimsical creatures of human desire or choice, they precede and structure them. In other words, belief in natural morality is a form of moral realism (as in “reality”). The objective or real principles of morality are the various elements or “goods” of human flourishing…
Solutions cannot be found simply by asking what human rights demand. A long process of investigation and reasoning is needed. The proper place for human rights is at the end of moral inquiry, if at all, not the beginning.
Biggar pursues the same non-absolutist approach in What’s Wrong with Rights?. Four chapters examine sceptical critiques of natural rights, including Jeremy Bentham’s utilitarian dismissal of them as “nonsense upon stilts”. Edmund Burke rejected the abstract rights invoked in the French Revolution while believing that some rights go with being human and have concrete meaning in specific historical contexts – a position Biggar identifies as close to his own.
Biggar argues against any right to physician-assisted suicide, chiefly on the grounds that once it has been normalised the value ascribed to life will be dangerously reduced, particularly for weak and vulnerable people. If such a right is nevertheless created, its scope and limits should be defined by elected legislators, not unaccountable judges: “It seems both ethically and politically presumptuous for a court… to assume the authority to decide the matter.” He considers whether torture can ever be justified, concluding that, though there may be rare and extreme cases where it is morally permissible, the practice is “intrinsically wrong”.
At the same time, he criticises the European Court of Human Rights for extending peacetime rights on to the battlefield. Along with being a profound study in moral and political philosophy, this is also a devastating and highly topical attack on the belief that ethical dilemmas can be resolved by “an oligarchy of judges” expanding existing rights and conjuring up new ones.
Over the past two decades, Biggar has produced a body of work of the highest intellectual quality, which has made him one of the leading living Western ethicists. But it is not this work that has given him an unexpected and (one suspects) unwanted celebrity. As the leader of a project on “Ethics and Empire” at Oxford, he has been attacked and demonised as an apologist for imperialism. Perhaps he was surprised by the hostility that has been directed at him. If so, he need not have been. As with the evangelical faith in rights that possesses much of the judiciary, the view of empire that governs educated opinion is a species of fundamentalism.
Anyone with a sense of historical and moral proportion knows that empires are not all equally evil. In the Congo Free State, a territory owned in the late 19th century by King Leopold of Belgium, around a quarter of the population died from hunger, disease, slave labour and genocidal murder. Leopold’s offshoot of imperial power cannot sensibly be ranked as being on an ethical par with the empire of the Habsburgs, which protected minorities more effectively than the nation-states that replaced it. Nor is it clear that national self-determination is always better than imperial rule. Even where nationalism claims to be civic in nature there are always questions about who belongs in a nation, and in the Habsburg case, the move to self-government was accompanied by violent ethnic cleansing. No one type of state is right or best everywhere.
A part of What’s Wrong with Rights? is a history of the ideas lying behind human rights. The chief sources of the claim that all human beings possess natural rights are in medieval and early modern Christian conceptions of a state of nature:
This could be the mythical condition of Adam, or the historical conditions of the original habitation of terra nova, or anarchy, or lawless war. Whichever it is, the principles of God-given natural morality still obtain.
However it is interpreted, a state of nature is a myth, but it has some interesting real-world analogies. In the work of Thomas Hobbes (1588-1679), it refers to a condition before society existed, which Hobbes thought would be “a war of all against all” – a ruthless, all-pervading struggle for survival. Biggar cites Hobbes on many occasions, always disapprovingly. Like many Christian thinkers, he takes a dim view of the famously pessimistic philosopher, regarding him as an exponent of an amoral individualism in which the supreme good is self-preservation.
Hobbes is a pivotal figure in Biggar’s argument because, while nominally professing Christian belief, he reveals how our understanding of ethics and politics must change when monotheism has been abandoned. There never was a time when human beings lived outside society. But societies regularly break down, and Hobbes’s vital insight is that when this happens, justice and injustice – lacking any divine ground or sanctions – no longer exist. Human rights are human constructions.
As Biggar observes, the postwar interest in human rights came about as a result of the struggle against Nazism. The seminal work of the period was Jacques Maritain’s The Rights of Man and Natural Law (1943), in which the French Catholic convert declared there were rights that “exist neither by the state nor for the state and which are outside the sphere of the state”, grounded in a “direct relationship with the absolute” and “the pursuit of the eternal good”. Maritain recognised that rights had been interpreted in different ways at various points in history, but he believed their origins lay beyond history or any particular society, and indeed beyond the natural world. He was one of the most prominent thinkers championing rights when the Universal Declaration of Human Rights was adopted by the UN General Assembly in 1948. The question is whether such rights can be sustained without the religious beliefs that supported them at that time.
Here Biggar and secular rights advocates are in the same leaking boat. He writes: “I am a moral realist because I am a Christian… believing that a single, internally coherent, benevolent, divine intelligence is the ground of all that is.” His reference to an “internally coherent” deity is telling. Following the Christian tradition, Biggar believes that while conflicts are endemic in a fallen world, the true human good is essentially harmonious. If we restrict ourselves to known facts this is at best doubtful. Not only do human beings pursue conflicting goods, they have conflicting ideas of the good life itself. When the sufferings of those who wish to end their lives are weighed against the risks to vulnerable people of legalising physician-assisted suicide, how is the right balance struck? Biggar rejects any utilitarian calculus, but puts nothing in its place. (My own view, as a supporter of voluntary euthanasia, is that the suffering it would prevent outweighs the risks, but the real question is whether human life has a transcendental value beyond what it is worth for actually existing human beings, as Biggar believes and I do not.)
[see also: Covid and confronting our own mortality]
Worse, it is not clear what to put on the scales. Some influential views of the good life do not include values that Biggar is convinced are generically human. Human equality is not denied only by “Aristotle, Nietzsche and the Nazis”, as he seems to think. It is absent from contemporary theories of meritocracy, in which human beings are valued not for themselves but for their marketable attributes. This is a repellent view, but not obviously irrational.
Along with other believers in objective morality, Biggar appeals to convergences between cultures. A visit to Hong Kong in 2013, he writes, “revealed that two civilisations, which had developed quite independently of each other for millennia, have produced ethics of war that share many of the same principles”. No doubt such similarities exist, but so too do profound differences. Biggar rejects torture not just on account of its harmful effects, but because it is intrinsically wrong. That is not how it was regarded in classical Greece, Rome or medieval Christendom, where it was accepted as unproblematic. This is not an attitude confined to the distant past; many modern revolutionaries have regarded the practice as morally neutral or positively desirable when it served their utopian ends.
Rather than being a universally accepted norm, the prohibition of torture is one of a cluster of norms that defined the societies that emerged in post-Reformation Europe. Others included freedom of inquiry and the practice of toleration. These were not uniquely Western values – toleration was actively promoted in Buddhist India, for example – but together they framed a form of life that survived the assaults of Nazism and other totalitarian movements, which has only now begun to falter. It is a way of life that could be defended as embodying one kind of human flourishing. Instead it is under attack from intellectual movements that promote relativism in an extreme form while condemning their own societies with fundamentalist passion.
Ways of life come to an end for a number of reasons. They can be wiped out by repression and genocide, or rendered unviable by technology or economic change. The regimes that protect them may lose power in wars and revolutions. In some cases, though, they die from exhaustion or boredom. The moderately liberal way of life Biggar defends may be one of these cases. There are many who find its freedoms uncomfortable and resent the discipline required for dispassionate inquiry. Emotional self-expression is more exciting. Like all the others humans have invented, liberal societies are whimsical creatures of desire and choice.
What’s Wrong with Rights?
Oxford University Press, 384pp, £30
This article appears in the 25 Nov 2020 issue of the New Statesman, The last days of Trump