I was talking with a friend about Nicholas Wolterstorff’s contemporary classic Justice: Rights and Wrongs, especially Wolterstorff’s argument that only Christian moral philosophy can give a proper grounding to human rights.

As I recall, Wolterstorff has to defend his front and flank: on the one hand, his liberal and/or secular readers hold an almost pious belief in the concept of human rights and so find it insulting to suggest that rights need a “grounding”; on the other hand, his conservative and/or pious Christian critics are wont to harbor skepticism about the very use of “rights” talk in doing moral philosophy, where alternate concepts such as love, humility, obedience, and self-sacrifice do more of the heavy lifting.

Alasdair MacIntyre is an example of the latter sort. MacIntyre is certainly a Christian, although he is inconsistently or only idiosyncratically conservative. More to the point, he is with Roger Scruton and Leo Strauss in being a critic of rights talk.

My friend asked for an example of his criticism of ‘rights’, so here goes. The place to look is in After Virtue, Chapter 5 (“Why the Enlightenment Project of Justifying Morality Had to Fail”) and 6 (“Consequences of the Failure of the Project.”) I’ll give a quick overview of After Virtue’s argument and explain the criticism of rights talk in that context.

The Structure of After Virtue

After Virtue has three main parts: a deconstruction and critique of modern morality, a central disjunction, and a reconstruction and defense of virtue ethics.

1. The first part has a few chapters of prologue about modern moral philosophy’s state of disrepair (chapters 1-3) followed by a long deconstructive argument (in chapters 4-8).
2. The second part is a single turning point (chapter 9) which poses the question: ‘Nietzsche or Aristotle?’, i.e., virtue or moral nihilism?
3. The third part is a long constructive argument (chapters 10-17) giving the historical roots and contemporary fruits of the concept of virtue which demonstrate the need and benefit of restoring that concept to primacy of place in modern moral discourse.

What the Criticism is Not

I say all this to make it clear why MacIntyre rejects rights talk in After Virtue. By the time we get to chapter 9, every other moral alternative besides classical virtue and moral nihilism has (in 1-8) been debunked, including the so-called objective morality of human rights.

By criticizing rights talk, we should refrain from jumping to the stupid conclusion that MacIntyre is criticizing morality itself or endorsing moral nihilism. Very clearly, in context, he is trying to show that there is only one foundation upon which morality can survive. Right or wrong, his criticism of rights talk is a criticism of a particular vehicle for understanding morality – a vehicle that is precious to Enlightenment and post-Enlightenment thinkers but which, he alleges, is not up to the task which they put it to.

The Failure of the Enlightenment

At the beginning of chapter 6, MacIntyre summarizes what failed in the Enlightenment. In a word, the Enlightenment tried to jettison telos from morality.

On the one hand the individual moral agent, freed from hierarchy and teleology, conceives of himself and is conceived of by moral philosophers as sovereign in his moral authority. On the other hand the inherited, if partially transformed rules of morality have to be found some new status, deprived as they have been of their older teleological character and their even more ancient categorical character as expressions of an ultimately divine law. (62)

The question becomes how to justify new moral rules without appealing to the point of those rules nor the categorical authority of a God or gods that deliver those rules.

“Pleasure”, a psychological category, was one way of justifying these new rules. (MacIntyre provides a robust history and criticism of classical utilitarianism on pages 62-66)

Rights in Gerwith

“Rights” talk, a legal category, is another strategy for justifying these new, baseless, ungrounded moral rules. He uses Gerwith’s Reason and Morality as a test case. MacIntyre paraphrses Gerwith’s first premise by saying that, “Every rational agent has to recognize a certain measure of freedom and well-being as prerequisites for his exercise of rational agency. Therefore each rational agent must will, if he is to will at all, that he possess that measure of these goods.”

Gerwith jumps from this (true) premise that each rational agent needs certain things to the (doubtful) premise that each person has a right – a justified claim on others – to these goods. Where did the rights come on?

MacIntyre admits the local, legal meaning of the word ‘rights’:

…the possession of rights … presuppose… the existence of a socially established set of rules. Such sets of rules only come into existence at particular historical periods under particular social circumstances. They are in no way universal features of the human condition. (67)

In other words, “rights” are legal realities in a particular civil polity. “Human rights” might be a western European phenomenon, but they are not human (where is the Bolivian Camda’s understanding of their human rights?)

Furthermore, legal rights are usually negative: my “right to life” is a justified claim against you harming me, i.e., You may not harm me. MacIntyre is suspicious of positive rights: my “right to work” is a claim that you must… what? give me a job? He says:

By ‘rights’ I do not mean those rights conferred by positive law or custom on specified classes of person; I mean those rights which are alleged to belong to human beings as such and which are cited as a reason for holding that people ought not to be interfered with in their pursuit of life, liberty and happiness. They are the rights which were spoken of in the eighteenth century as natural rights or as the rights of man. Charactistically in that century they were defined negatively, precisely as rights not to be interfered with. But sometimes in that century and much more often in our own positive rights- rights to due process, to education or to employment are examplesare added to the list. (69)

So what exactly is the criticism and the argument?

MacIntyre’s Criticism of “Human Rights” Talk

MacIntyre’s famous or perhaps infamous quotation (69) is this:

“…there are no such rights, and belief in them is one with belief in witches and in unicorns.”

His arguments for this claim are as follows:

1. “The best reason for asserting so bluntly that there are no such rights is indeed of precisely the same type as the best reason which we possess for asserting that there are no witches and the best reason which we possess for asserting that there are no unicorns: every attempt to give good reasons for believing that there are such rights has failed.”
2. The eighteenth-century philosophical defenders of natural rights sometimes suggest that the assertions which state that men possess them are self-evident truths; but we know that there are no self-evident truths” (69)
3. “Twentieth-century moral philosophers have sometimes appealed to their and our intuitions; but one’of the things that we ought to have learned from the history of moral philosophy is that the introduction of the word ‘intuition’ by a moral philosopher is always a signal that something has gone badly wrong with an argument.” (69)
4. “[Rights talk] purport to provide us with an objective and impersonal criterion, but they do not. And for this reason alone there would have to be a gap between their purported meaning and the uses to which they are actually put.” (70)
5. “It would of course be a little odd that there should be such rights attaching to human beings simply qua human beings in light of the fact, which I alluded to in my discussion of Gewirth’s argument, that there is no expression in any ancient or medieval language correctly translated by our expression ‘a right’ until near the close of the middle ages: the concept lacks any means of expression in Hebrew, Greek, Latin or Arabic, classical or medieval, before about 1400, let alone in Old English, or in Japanese even as late as the mid-nineteenth century. From this it does not of course follow that there are no natural or human rights; it only follows that no one could have known that there were.” (69)

To summarize: The belief in human rights, apart from a particular civil order, is simply asserted confidently but without grounding. Pre-modern people either didn’t have human rights or didn’t know they did because they didn’t talk about it. Appeals to the “self-evidence” of human rights or moral “intuitions” about the same are baseless.

It makes sense why Wolterstorff would feel the need to give a grounding!