justice:

The fine texture: A response to Smith

posted by Nicholas Wolterstorff

<br />I will respond here to the three postings on The Immanent Frame by James K. A. Smith concerning my Justice: Rights and Wrongs.

Two preliminary points. I hold that rights and wrongs are manifested in the fine texture of our lives; I wanted the focus of my discussion in the book to be on this fine texture. It was for that reason that, rather than starting with those “big things” that are human rights, I resolved to discuss such rights at the tail end. It is now clear to me that the book is an abject failure in this regard. Most readers, or at least most readers who write about it, regard my discussion of human rights as culminating my discussion rather than bringing up the tail end.

Second, a philosopher friend of mine who read through the book told me that, though there were some passages that annoyed secularists like himself, he thought that I had better expect that it would be Christians who would be most annoyed. Time will tell.

Running throughout Smith’s three postings is the suggestion that my opposition to right order theories of justice is that I associate those with communitarianism, and that I am instead an individualist. In his third posting he says that “Wolterstorff is inattentive to the extent to which he has absorbed the atomistic individualism of modern liberalism.”

I don’t have a good grip on what are “communitarian assumptions.” I have found myself more bewildered than enlightened by the debate between those who identify themselves as communitarians and those whom they identify as individualists. But insofar as I do understand the communitarian position, my distinction between a right order conception of justice and an inherent rights conception has nothing to do with the communitarian/anti-communitarian debate. One might be a right order theorist and be either a communitarian or anti-communitarian. It all depends on what one thinks a rightly ordered society would look like.

The disagreement between right order theorists and inherent rights theorists has to do with the deep structure of the moral order. The inherent rights theorist holds that possessing a certain worth is sufficient to give one corresponding rights. The right order theorist denies this; some additional “conferral” has to take place. Nothing in that about communitarianism or individualism. And it is not my view that right order accounts are one and all “story relative”; it is not on that account that I am opposed to them. Plato’s right order account was certainly not story-relative.

To pick up the issue from the other end: I am at a loss to understand why Smith thinks that I have “absorbed the atomistic individualism of modern liberalism”—why he thinks that I am a “Whig Calvinist.” I hold that rights are a species of normative social relationships; sociality is of the essence of rights. A right is a right to the good of being treated a certain way by one’s fellows or by some social entity. I hold that social entities of various sorts have rights, and that, conversely, they are quite capable of violating the rights of you and me. I furthermore hold that rights are grounded in what respect for worth requires; rights are not, in my view, protectors of autonomy. So where is the individualism? And note that Smith skips over the fact, demonstrated incontrovertibly by Brian Tierney and Charles Reid, that in the canon laws of the twelfth century there was already a full-blown conceptual recognition of natural rights. Had those canon lawyers “absorbed the atomistic individualism of modern liberalism”?

I have skimmed my book to find where I charge MacIntyre and Hauerwas with “hostility to justice and rights.” Thus far, I have come up empty handed. On page 1 of the book I distinguish between those writers who are hostile to both justice and rights, and those who, pulling justice and rights apart, are hostile to inherent rights but not to justice. I do not charge MacIntyre with hostility to justice; he is not hostile to justice. I did say that in After Virtue he is hostile to natural rights; I have no idea how anybody could read what he says there otherwise. (It appears to me that in recent writings he has softened his opposition, maybe even given it up.) Nor do I anywhere charge Hauerwas with hostility to justice. What I did say is that he dislikes rights talk. And as to his well-known comment, “Justice is a bad idea for Christians,” I suggested that we adopt a charitable reading of the comment, on which he does not mean what the sentence means.

Thus I am surprised by the comment that I exhibit “a sly habit of substituting guilt-by-association for real, head-on arguments.” It is my standing policy to treat with honor all those whom I discuss. I did not say or suggest that underlying Hauerwas’ position was his embrace of Nygren’s agapism. What I did say was that I regard Nygren as having developed more profoundly and influentially than anyone else a view of love (agape) according to which justice becomes problematic; that’s why, when I wanted to engage the most powerful opposition to my view, I turned to Nygren and not to Hauerwas. I am open to Smith showing me that I was mistaken, and that Hauerwas has things to say about love and justice that are just as probing as the things Nygren says. Is there in Hauerwas somewhere a vigorous and articulate account and defense of justice? If so, I invite Smith to point me toward it.

Had I been discussing present-day attitudes toward liberal democracy, I might well have followed Stout in devoting a full chapter to Hauerwas’ views on the matters—but that was not my topic. And in any case, Stout has done a fine job of that. Let me add here that I do not regard a rejection of rights talk as “affirmation of the status quo.” I do not regard Hauerwas, for example, as affirming the status quo.

If some present-day eudaimonist, MacIntyre included, has developed a version of eudaimonism that provides the conceptual resources for an account of justice as inherent rights, I also invite Smith to point me toward that. (One will not find them in MacIntyre’s recent book, Dependent Rational Animals.) I think it was hardly idiosyncratic on my part to regard the articulation of eudaimonism by the ancient philosophers as canonical; all the present-day eudaimonists that I have read do the same. And as to the reason for my “fixation” on eudaimonism, it was not that I regard eudaimonism as the “general ethos of right order theories.” It was the following: I had argued that Hebrew and Christian scripture assume the existence of natural rights and provide the fundamental conceptual material for developing an account of such rights. I wanted to know whether the same could be said for the ethical framework shared by almost all of the ancient Greek and Roman theorists. My conclusion was that, to the contrary, an account of natural rights requires breaking with eudaimonism. On this point, too, I am open to being shown mistaken.

As to Smith’s claim that I simply beg the question against justice as right order theories, let me observe that in my chapter on divine command theories of obligation and in the penultimate chapter on implications and applications, I show why, in my judgment, right order theories that appeal to a contract do not work, and why those that appeal to a divinely issued matrix of obligations do not work. So I don’t understand why Smith thinks that I beg the question against right order theories. Admittedly I did not engage Plato’s account, in which an appeal is made to Forms; if I had thought that that account enjoyed any popularity today, I would have dealt with it.

Last, in my reflections in my final chapter I was not, contrary to what Smith suggests, talking about secularism. I was talking about secularization. And as I indicated, by “secularization” I did not mean anything subtle or complicated; I just meant loss of belief in God. If there is no extant adequate secular account of human rights in general, only an adequate theistic account, what, I asked, might we expect to happen over the long haul to our treatment of severely impaired human beings should it prove to be the case that belief in God erodes?

And as for my argument that there is no extant adequate secular grounding of human rights in general, I like the way Ron Kuipers puts the issue in his response to Smith; I wish I had put it that way myself. “How do we need to understand the world and human beings so that we don’t permit ourselves to treat others (including non-human others) instrumentally or as superfluous?”

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One Response to “The fine texture: A response to Smith”

  1. avatar Jon Rowe says:

    And note that Smith skips over the fact, demonstrated incontrovertibly by Brian Tierney and Charles Reid, that in the canon laws of the twelfth century there was already a full-blown conceptual recognition of natural rights. Had those canon lawyers “absorbed the atomistic individualism of modern liberalism”? [Bold mine.]

    Nope. Sorry, the word “incontrovertibly” is an error. The verdict is still out on Tierney’s claim. Robert Kraynak of Colgate for one disputes Tierney’s thesis. And he’s not alone.

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