I want to remark all too briefly on several very specific questions this book opens up for me, as a scholar of early Jewish and Christian writings whose recent work has focused on the way shifting protocols of biblical scholarship have operated within modernity’s quest to disclose and stabilize distinctions between “religion” and “secularity.”  In that particular mode, I want to consider the translation and mirroring at issue between the first (genealogical) and the second (theoretical) half of Wolterstorff’s book.

As readers will recall, the first half of the book gives us a kind of genealogy of human rights inasmuch as it counters a story we hear (interestingly, from avowedly theological and secularist authors alike) that ties rights talk to an incipient atomized individualism or an incipient secularism.  Against that story, Wolterstorff presents a lively counter-narrative in which the “birthright” of rights talk, its “title” as it were, is not alienated by being handed over to “secular moralists, who claim it as their own.”  Wolterstorff’s engagement with biblical literature (the implications of which are of interest to me here) allows him to push the moment of the birth of rights talk back, before the incipient atomism of the nominalist Ockham (and so on), not to mention the “secular” status of recent moralists.

The tour through biblical literature is therefore an important lynchpin for the genealogical portion of the book.  But it has an important part to play in the latter half as well.  One thing that interests me, in fact, is whether in the latter, theoretical part of the book the earlier references to biblical literature become all the more rhetorically potent when they are glossed or summarized simply as a “theistic” position.  For example, with implicit glossing of the sections about biblical literature as a “theistic” position or a “religious framework,” we easily forget something that is clear in the earlier sections specifically about biblical texts, all the loose ends, “problem” texts, and unsightly warts the old literature so obviously presents for the interests of the formal, universalizing, or theoretical later chapters.  And inasmuch as it is in these later chapters that we find revealed the “theistic” framing/grounding of human rights—in opposition to ungrounded and untenably unframed “secular” alternatives—this is a forgetfulness that seems to me very important.

I do not think the basic problem of translation (from biblical literature to “religious framework”) is news to the Wolterstorff of the first half, where we are told, essentially (though not very often!), that the genealogical union between history and theory is not seamless, that there is no “theory” in the biblical texts (which, I add once more, are nevertheless later to become glossed as a “theistic framework” for rights), or that some texts are indeed problematic for his efforts to find nascent rights talk in the Bible.  I am interested for now only in the implications of this line of thought (rather than the convincing interpretive justification—as Sheehan points out, at a theoretical level, who would care?).  So for now I’ll just agree rather dogmatically that, yes, there are problem texts here for Wolterstorff’s theistically grounded liberalism, but (more importantly) that these problem texts include the ones that early modern Monarchists theorized as the basis for their own political declarations that the Sovereign remains absolute, in a relation of exception or singular transcendence in relation to law. They include, we might say, all those texts that gave Wolterstorff’s earlier interlocutor, John Locke, something to challenge.

The early modern struggle to yield a Bible that spoke for or against the personal sovereignty of the monarch, or for or against a new regime of generic, procedural norms of the (later) Liberal or Whig state are delineated in an excellent article by Yvonne Sherwood, “The God of Abraham and Exceptional States, or the Early Modern Rise of the Whig/Liberal Bible.”  As Sherwood articulates, these purveyors of the (pre-liberal, as it were) Monarchic Bible were intrigued by God’s demand to Abraham for the sacrifice of his son (Genesis 22), by Jephthah’s power of life and death in relation to his daughter (Judges 11), and Judah’s inherited right to kill his daughter-in-law (Genesis 38).  But, I should also point out, they could have found other forms of contingency, other moments of exception to legal norms, in these texts as well.  Some exceptions are more violent, from the imagined genocide of outsiders—because they are outsiders—in Joshua, to God’s sending “lying spirits” to the prophets in order to lure troops to their doom in Kings or Chronicles, to God’s characteristic changes of heart and re-alignment of political allegiance in Samuel.  More pressingly for Wolterstorff’s genealogical project, I think, other non-procedural moments of exception are more to our liking, breaking the rules or shrewdly inventing new ones at just the right moment, from the redemptive tricksterism of Jacob to the powerfully subversive implications of the story of Ruth or Job, or even to the wonderful stories of Abraham or Moses talking God down from some act of vengeful mayhem for the good of the people.

In short, I agree with Wolterstorff that, while there is no theory in this extremely diverse array of biblical texts, readers may “nonetheless sense a certain rhetorical unity pervading the great bulk of these writings.”  We just disagree about what this narrative unity is.  What if we said that the “red thread” (so to speak) which unites these tales is not a “frame” guaranteeing rights but rather the clear and repeated indication that humanity is faced with traumatic contingency, surprise, and uncertainty, and that they are at times (for this very reason) subjects of remarkable, even Promethean moments of invention?

And it is in such a light that I found Wolterstorff’s Bible, of such central significance for his genealogy, to be both forgetful but also missing something we may need for any ongoing struggle to think seriously about justice.  His Bible (as it were) is forgetful in the sense that it elides the remarkable interpretive interventions (say, of Locke and others) to bind the sovereign Monarch God of the Bible to a managerial dispensatio (cf. Sherwood) of universal norms.  Why now naturalize such moments as if they were there all along?  Why not highlight them as crucial moments of invention or, indeed, supreme acts of faith?  (With either option, we already see how the alleged chasm separating the triumphal secularist narrative and Wolterstorff’s “theistic” counter-narrative here begins to slip away.)

And, secondly, isn’t this forgotten or elided moment of contest and translation (again, of the Bible into a “theistic framework”) also a crucial resource for us today in a way that is not expressed in Wolterstorff’s quest to find objective, universal human rights, indeed their “theistic frame”?  As I understand him, Wolterstorff does not make a virtue out of tales of sovereign contingency and change of rule he finds in biblical texts to the same degree that he wants to privilege the pre-existing and stable nature of human rights.  This theme runs throughout the book and it comes to define what a “religious framework” for rights is.  For example, Nygren must be wrong (that love not justice is the ultimate horizon) because forgiveness presupposes a calculable set of obligations that may be violated.  For Wolterstorff, ideas of universal rights always need to pre-exist action, which is to say that action is never really creative in this regard.  “It seems safe to infer that it was these ideas [WB, of imago dei, etc.] that lay behind Jesus’ practice of showing no partiality….”  Or, most strikingly to me (given, say, traditions of Kantian aesthetic judgment which Wolterstorff knows intimately): “The performance of juridical judgment, as an exercise of rectifying justice, presupposes the existence of a state of affairs of primary justice or injustice.”

In short (as he asserts against the secularist occasionally), rights do not emerge ex nihilo, without pre-existent ground.  But (and here is what we might find perennially useful in what has been excised from Wolterstorff’s Bible-become-”frame”) is this not just what we witness in all those exemplary struggles for justice that Wolterstorff (and we with him) finds so precious a legacy?  Can we not say that there was something radically inventive, properly speaking revolutionary (and perhaps “evental” in a sense that is more “messianic” than procedural-juridical), in these agenda setting declarations of respect-worthy freedom?  In either case, one gets what one pays for here.  The price Wolterstorff’s quest for frame and stable ground pays, I think, is that he must (as it were) naturalize or routinize these pivotal moments, as if such declarations of freedom or justice could have been made at any time from the age-old certainty of the “religious framework.”

In keeping with the anxieties of Wolterstorff’s epilogue, I do not know what will be more likely to betray the fragile alliances, friendships, and respects that constitute the world today, a lack of belief in the divine-as-guarantor of human rights (Wolterstorff’s “theism” and “framework”) or a forgetfulness of the ungroundedness and frailty, the delicately “miraculous” nature of these declarations that have emerged, as it were, ex nihilo.  But just here is the striking irony that Wolterstorff’s book presents to me.  His Bible (become “framework”) stands in stark contrast to recent “materialist” engagements with biblical texts (e.g., in Alain Badiou or Slavoj Žižek) inasmuch as the latter find in the ancient texts strangely contemporary explorations of justice in a world of contingency (in a strong sense), a world without stable ground or a “framework” that guarantees its moral distinctions.  The (pre-Lockean?) Bible is alive and well, interestingly, and among those who think, precisely, that God-as-”frame” or guarantor of rights, is long since dead.  More accurately, it is the death of the “frame” of the “theist” that has, paradoxically, rendered the ancient texts of interest once more.

At the very least, this paradox suggests that—whether facing the future with or without human rights (in Wolterstorff’s sense) is more truthful, or more dangerous (i.e., whatever the outcome of Wolterstorff’s gamble—and our own—on this matter)—the play of identities in every story of religion, the secular, and the Bible is much more elusive, contorted, and tricksterish than might at first be assumed.  Why not say, for example, that Wolterstorff’s “religious framework” or “theist” is the real secularist, whereas Alain Badiou’s (self-described) “atheist” reading of Paul is, because faithful to the sovereign contingency and lack of stable framework we observe in the biblical traditions, the faithful work of biblicism!

And (just to mention one reason among many) for helping us to see the paradox so clearly, and to fathom the kinds of political issues involved in our negotiation of it, we owe a debt of gratitude (in all the juridical ambiguity of this phrase) to Nicholas Wolterstorff’s passionate quest for justice.

But the wrangle is, of course, just prolegomena to a vaunted Christian move, one that has been a primal reflex of apologists for the past three centuries. For it turns out, not only is Christianity amenable to modern concepts of inherent rights, it has, since the beginning, been the main vehicle of their elaboration. And by the beginning, Wolterstorff means across the entire Scriptural tradition, from the Old Testament, in Isaiah’s impassioned pleas for justice, to the New, in Christ’s expansion of rights claims to the poor, the maimed, the lame, and the blind. Even here, though, I’m not sure how much I have at stake. Any modern agnostic, atheist, secularist, humanist, or what-have-you, would have no problem with discovering rights-talk (or even theory) in the Bible. After all, just because the Bible said it, doesn’t mean it’s a bad idea.

Now, though, we can see the expansion coming. Not satisfied with the discovery—pace MacIntyre—that the Bible is a source of rights, he needs to make the point—pace Martha Nussbaum—that it is the only source of rights from the ancient world, and then—pace “secularists” more generally—indeed the only source anywhere able to provide an account of human dignity sufficient to ground any modern concept of human rights.

Out the window it is with that so-called liberalism. Along with it, too, those inadequate secular accounts of human worth, from Kant to Dworkin, which only pretend to found modern concepts of universal human rights, while actually excluding from their magic circle those marginal figures most deserving protection, “those suffering from Alzheimer’s disease, those in a permanent coma, the severely brain-injured” and so on. Only the idea of “being loved by God” is adequate to assign all human beings dignity enough to distinguish them as bearers of rights (versus, say, dolphins—God just doesn’t love them that way). Christianity reigns triumphant, alpha and omega. She stands at the origins of the modern world, implicated in all of her virtues, and none of her sins. And look, there she is again at the end, binding up wounds and nursing us back to health. The cake just gets better each time you eat it, I guess.

Even two cakes don’t satisfy the Christian appetite, however, as the patient reader will discover. Christianity gets to reclaim her “birthright” from those who “lack the resources for safeguarding it,” sure, but even this is not enough. A coup de grace awaits, secreted away at the end of chapter 16, the final touch without which a good apology would not be complete. Here, our author concludes, the “theist” (whom are we kidding now?) finally gets to hoist those secular rascals on their own petards. Because, as Wolterstorff says, if you do believe in natural inherent human rights—and yet find yourself unable to ground these rights in a secular fashion—then you must, ipso facto, ground them in God. And lo! God has appeared, summoned into existence out of the very structure of belief itself. Anselm would be proud, I suspect. We are all Christians now.

Now, don’t get me wrong. This book conducts its arguments with sustained attention, and its labors over the concept of rights, I found, as a naïve and impatient reader of philosophical thought experiments, persuasive. It is also filled with compelling exegetical work on Scripture, an area that I know and enjoy much better. I could not quite see, however, how these two projects stood in relation to one another. I wonder, for example, if and how the Bible can yet be made the object of aggressive philosophical inquiry. The first step would seem to be an adequate hermeneutics. Certainly something more is needed than just a blanket affirmation that the Bible can be treated as a philosophical unity (for this, let me refer you to Spinoza). Without it, Wolterstorff’s shifts in register between philosophical critique and textual exegesis are startling. The most striking example, for me, comes as he moves from his treatment of the Stoics—where he indicts their eudaimonism as philosophically incoherent—to that of Augustine, whose ethics of love Wolterstorff stresses, while passing lightly over the saint’s rapturous yet (to me) morally horrifying visions of our world as one gigantic colony of punishment and pain. The “Church of Christ…persecutes in the spirit of love,” our Bishop of Hippo was wont to say, which does put this love-thing in a slightly different light.

Maybe these odd juxtapositions come with the territory, though. As a non-philosopher, I readily confess that I don’t know whether it is necessary to prove that “no human being has a price” in order to come up with an adequate pragmatics of inherent rights. More precisely, I don’t know whether the affirmation of pricelessness needs a foundation or not, or what a foundation would even look like if it were found.

Philosophical praxis has not always been foundationalist, for starters, whatever Heidegger might say. But even if it were, I can’t imagine that foundations can be magically conjured by assertion, let alone authoritative Scriptural citation. Call me a sneaky secularist—and you won’t be the first—but I don’t see how the proposition “God loves us” can do extended philosophical work without establishing the predicates of God (benevolence? justice?) in a consistent idiom. The predicate of existence—”God is”—seems especially important. Certainly the medievals thought so, and one would expect, in a book like this, some of those good Anselmian proofs at the outset, rather than the end, of the argument. Clearly the relationship between theology and philosophy—strained at best since Spinoza’s day—still needs to be worked out, and Wolterstorff’s book might be more widely understood as an effort to do this. But it won’t do simply to insist on “dialogic pluralism,” as if the very language in which we conduct foundational disputes were not the crucial problem itself.

Here is what I do know, as a historian: there simply has never been a universalism—whether Christian or Kantian—that did not have a limit-case where its sphere of application grew fuzzy, where the Alzheimer’s patient (or the Jew) might not be summoned up as its bad conscience. And these universalisms have managed to muddle along, doing much good and much evil, critiqued from within and without all along the way. So what’s the big deal? Why do we need these foundations at all?

Wolterstorff anticipates this mundane and ad hoc response. As his book winds down, he waxes both melancholy and apocalyptic about the future of the so-called “West” (so interesting how this figure always comes back in moments of prophecy). What must we in the West expect to happen, he asks, when “the religious framework that gave rise to our moral subculture of rights gradually erodes”? No surprise: the disaster that hides in the shadows is the same one that prophets have always seen. But here we can respond as Pierre Bayle did to the apologetic doomsayers of his day, that a well-ordered society of atheists might well be a virtuous one. Or maybe not. It all depends.

One thing seems certain to me, though. It won’t depend on a philosophically complete theory of universal human rights—across our globe, people have lived and died for millennia without this—but on the way people actually treat each other. And if it takes Christianity to persuade you that human beings should be treated with respect, then, by all means, embrace Anselm. But if not, then I doubt that Wolterstorff is going to convince you to change your mind, one way or another.

More seriously: Smith concedes that, on my understanding of rights, sociality is of the essence of rights; it takes two to have a right.  So I’m glad that’s no longer at issue.  What’s now at issue “is not whether rights are social, but how.”  Smith holds that to affirm natural inherent rights is to presuppose a conflictual, agonistic, social ontology.   To speak of such rights is to buy “into a social ontology that makes ‘against-ness’ essential to sociality.”

Well, if it is indeed the case that “the social ontology of rights talk generally assumes that, at bottom, the kind of relation between social entities is conflictual or competitive,” then I dissociate myself from that generality.  No guilt by association here; I don’t hang out with Hobbes.   The agonistic social ontology that Smith attributes to me is not mine.  To affirm natural inherent rights is not to presuppose such an ontology, nor does my account of such rights presuppose such an ontology.   Nothing Smith says shows anything to the contrary.

I hold that rights are correlative with obligations.  But to attribute obligations to a person, be they natural obligations or whatever, is not to presuppose a conflictual social ontology; I assume Smith agrees.  So how could attributing rights to a person presuppose such a social ontology?   Or am I mistaken in my assumption?  Does Smith think that attributing obligations to people does presuppose a conflictual social ontology?

My affirmation and account of rights do not presuppose that conflict is “essential to sociality.”  They presuppose instead that people have worth and dignity, and that there are ways of treating them that do and do not befit their dignity.   Of course there is a great deal of conflict in social relations; but conflict is not, on my view, “essential” to social relations.   And rights are components of social reality whether or not the situation is conflictual.   That’s because people have worth whether or not the situation is conflictual.  I do not agree with the dictum of Reinhold Niebuhr, that justice is only relevant in situations of conflict, not in situations of what he called “frictionless harmony.”  People have rights in situations of frictionless harmony.   Part of what makes a situation harmonious is that people are being treated by their fellows as they have a right to be treated.    And as to the fragment of a sentence from page 293 that Smith quotes, if you read the whole of the paragraph from which this fragment comes, it will be clear that I am not affirming that where no one is wronged, no one has rights.

Ah yes; but what about that little word “against” that I used?   Perhaps my affirmation and account of inherent rights does not presuppose a conflictual agonistic social ontology.  But the fact that I speak, in formulaic fashion, of having a right against someone, reveals that I do in fact subscribe to such an ontology.

It does nothing of the sort.  Since I do not accept an agonistic social ontology, my use of “against” cannot reveal that I do.  It no more reveals that I do than does Smith’s use of pugilistic metaphors reveal that he is a closet Hobbesian.  I never liked using the word “against” in this context.  But when writing the book, I couldn’t think of a good alternative in idiomatic English.  When talking about obligations, I regularly spoke of having an obligation toward someone.   It seemed to me non-idiomatic to speak of having a right toward someone.  I could have used “with respect to.”  But “with respect to” is one of the most bland and colorless terms in the English language.  I suppose I should have put up with its bland colorlessness and spoken of having a right with respect to someone.

It appears to me that some of those who embrace a right order conception of justice have an idée fixe that leads them to believe that anyone who affirms inherent rights must also embrace an agonistic social ontology.   They find it impossible to believe that I am not committed to such an ontology.  Wolterstorff has to be suffering from an inexplicable obtuseness on this point.  Either that, or he’s dissembling; he doesn’t have the guts to ‘fess up to his agonism.

Neither.  It’s true that many of those who affirm inherent rights embrace a conflictual social ontology.  I do not.  Compare: many of those who have affirmed a right order conception of justice have embraced an authoritarian and hierarchical picture of social reality.  I do not charge all the former with really doing the latter, no matter their protests.

The real issues lie elsewhere.  Do human beings have worth?  I hold that they do.  If they have worth, why isn’t that enough to give them the right to be treated in a way that befits their worth?  I hold that it is enough.   No conferral is needed in addition.

It does certainly seem, as Simone Chambers points out in “Do good philosophers make good citizens?“, that Dr. Wolterstorff ultimately asserts, rather than adequately demonstrates, that only theistic belief can guarantee human rights in perpetuity for all humans. Why? I think it is because he knows that there is ultimately no philosophical demonstration possible for such a conclusion. It is for the same reason, I think, that he asserts rather than argues for the inevitable failure of all secular groundings, past, present, and future, for human rights. I think the best explanation for Wolterstorff’s apparently “dialectically hostile” discourse in Justice: Rights and Wrongs is that we are dealing ultimately with a theological issue here, one with clear and arguable philosophical and political ramifications to be sure, but one that is, when all is said and done, theological. Theological judgments (and I mean revealed, not natural) can be defended by reason, of course, but they can’t be proven true. We can debate the political and philosophical ramifications of the affirmation that we are made in the image of God and that God loves all of us, but, in the end, we either affirm this or we do not. It’s a matter of choice and grace, not evidence and demonstration.

Also, I think for Wolterstorff it is an illusion to think that an overlapping consensus or, as Maritain called it, a “democratic charter,” can actually live up to its goal of ensuring a public commitment to and embodiment of liberal (Rawls) or Christian values in the absence of a shared intellectual tradition to ground, not just the abstract meaning of these values, but the appropriate ethos for the effective, authentic, and integral political and legal embodiment of these values. I think Alasdair MacIntyre has successfully demonstrated philosophically that such a project must fail. MacIntyre’s thought thus provides not only a fuller explanation of the inevitable failure of the secularist’s practical prescription of the overlapping consensus, a failure which Wolterstorff perhaps doesn’t explain successfully enough, but also the inevitable failure of any secular theory that would attempt to inform this practical prescription.

Here MacIntyre sums up what he considers the essential problem with the project of an “overlapping consensus.” He is critiquing Maritain’s “Democratic Charter”:

What Maritain wished to affirm was a modern version of Aquinas’ thesis that every human being has within him or herself a natural knowledge of divine law and hence of what every human being owes to every other human being. The plain pre-philosophical person is always a person of sufficient moral capacities. But what Maritain failed to reckon with adequately was the fact that in many cultures and notably in that of modernity plain persons are misled into giving moral expression to those capacities through assent to false philosophical theories. So it has been since the eighteenth century with assent to a conception of rights alien to and absent from Aquinas’ thought.

According to MacIntyre, Maritain’s democratic charter model (and Rawls’ model could be included) does not sufficiently account for the fact that while men may value and pursue goods without conscious deference to a particular philosophical theory or religious belief, they, nevertheless, possesses implicit and unconscious philosophical commitments that influence and condition the character and interpretation of that evaluation and pursuit. These commitments determine to some extent the character of behavior that is the conclusion of the practical reasoning that begins with the evaluation and pursuit of a particular good. Since rationality itself is a practice, the former inevitably takes the shape of the particular lived tradition of which it is a part. In practice, then, there is no rationality as such, but only particular rationalities informed by particular religious, philosophical, anthropological, and epistemological commitments that condition the manner in which that rationality is applied to practical questions. Therefore, with citizens divided in traditional allegiance, one should not expect rational agreement on practical matters of a moral nature, especially not on the foundational moral values of the political order. As MacIntyre argues in Whose Justice? Which Rationality?:

There is no way to engage with or to evaluate rationally the theses advanced in contemporary form by some particular tradition except in terms of which are framed with an eye to the specific character and history of that tradition on the one hand and the specific character and history of the particular individual or individuals on the other.

For MacIntyre, any “overlapping consensus” on moral goods that is to serve as the political foundation of a pluralistic and “dialectically open” regime is an illusion and cannot but fail. For we are “tradition-constituted, culturally dependent rational animals” who cannot effectively separate our beliefs from our values and the actions derived from them. Though the consenters in a pluralistic polity may share a common lexicon of “human rights” and “democratic values,” in reality, it is a house built on sand with a sinking foundation of entirely disparate understandings of that lexicon and radically disparate traditions of practical rationality: Thomist, Humean, Kantian, Rousseauian, Nietzchean, Deweyean, et. al. For MacIntyre, shared moral evaluation and understanding is impossible in the absence of a shared tradition of practical rationality, including a common reservoir of theological, philosophical, ethical, and anthropological concepts, and common virtues and goods attained in and through the various practices, especially the architectonic practice of politics, that constitute a shared tradition. Tracey Rowland describes MacIntyre’s position: “Macintyre’s analysis raises the question of whether there can be any such things as ‘universal values,’ understood not in a natural law sense, but rather…the idea that there is a set of values which are of general appeal across a range of traditions, including the Nietzschean, Thomist, and Liberal traditions.” MacIntyre again:

Abstract from the particular theses to be debated and evaluated from their contexts within traditions of enquiry and then attempt to debate and evaluate them in terms of their rational justifiability to any rational person, to individuals conceived as abstracted from their particularities of character, history, and circumstance, and you will thereby make the kind of rational dialogue which could move through argumentative evaluation to the rational acceptance of rejection of a tradition of enquiry effectively impossible. Yet it is just such abstraction in respect of both of the theses to be debated and the persons to be engaged in the debate which is enforced in the public forms of enquiry and debate in modern liberal culture, thus for the most part effectively precluding the voices of tradition outside liberalism from being heard.

But, let us suppose it is true that citizens belonging to the same narrative tradition would form a more unified, robust, stable and strong political order. Alas! The exigencies of the modern, pluralistic nation state preclude such narrative unity. Do we want forced conversions to our narrative of choice? We must, after all, consider the limitations of our “concrete historical ideal,” as Maritain would say, and accept that the fact of religious pluralism requires us to attempt, even if it seems impossible, the separation of the public, political sphere from the particularity of our traditions. Well, this is the question, isn’t it. Can such be done? Should we attempt the impossible just because “dialectical politeness” requires it? Is this what is necessary to be a good pluralist citizen? I think, in the absence of any convincing argument to the contrary, Wolterstorff is in his rights merely to affirm a negative answer, without having to marshal adequate “proof.” As it seems, there just ain’t any.

I’ll end by quoting MacIntyre. Early on in his career, MacIntyre articulated the dilemma of the Christian evangelist, such as Wolterstorff, in our secular pluralistic world:

The theologian begins from orthodoxy, but the orthodoxy which has been learnt from Kierkegaard and Barth becomes too easily a closed circle, in which believer speaks only to believer, in which all human content is concealed. Turning aside from this arid in-group theology, the most perceptive theologians wish to translate what they have to say to an atheistic world. But they are doomed to one of two failures. Either [a] they succeed in their translation: in which case what they find themselves saying has been turned into the atheism of their hearers. Or [b] they fail in their translation: in which case no one hears what they have to say but themselves.

Nicholas Wolterstorff’s calm, careful, humble response to my posts might make me look like an overly pugilistic polemicist.  But I think he’s just from a different school of pugilism.  (As a Canadian and long-time hockey player, I think pugilism is a great way to spend a Friday night, with beers afterward.) Wolterstorff is a careful student of the “bob and weave” school of philosophical polemics, turning ill-advised haymakers into merely glancing blows. I, on the other hand, tend to be a student of the George Foreman school of philosophical polemics (and frequent user of his grills to boot!): I’m easily sucked in by rope-a-dopes.  Why stop now?

While much of Wolterstorff’s response amounts to bob-and-weave, his reply helps to clarify some points.  But on other points, it feels like Wolterstorff has a slick cornerman who has applied copious amounts of Vaseline to help criticisms slip off his argument, deflecting them elsewhere.  In Foreman-like form, let me continue to flail on just two points.

First, with respect to my charge of a covert “individualism”: Wolterstorff hears this as if I was charging him with solipsism.  Thus, he makes the charge seem ludicrous by rightly pointing out that, in his account, rights are a “species of normative social relationships,” indeed, that “sociality is of the essence of rights.”  In short, an utterly lone entity would not bear any rights precisely because rights are a social property.  But the charge of “individualism” is not synonymous with solipsism.  What’s at issue is not whether rights are social, but how.  Or, perhaps less clumsily, my concern is not that Wolterstorff lacks a robust sense of sociality but rather that rights talk assumes a kind of sociality that is problematic.  At stake here, we might say, is the shape of his “social ontology.”

So the operative term in my critique is not just “individualism,” but the qualifier, “atomistic.”  The social ontology of rights talk generally assumes that, at bottom, the kind of relation between social entities is conflictual or competitive.  In short, if rights are taken to be the basic building block in our account of justice, Hobbes will never be far off.  I find this fundamentally conflictual or agonistic ontology to be implicit in the very way that Wolterstorff defines rights: X bears a right “against” Y.  Now, Wolterstorff might think it an over-reading to hear this “against” as anything other than a semantic formulation.  But many of the right order theorists he criticizes think there’s more at stake than that.  Such a semantic formulation bubbles up from the social ontology that rights talk assumes.  (And, incidentally, though I won’t further insist on these terms, I think this is what’s at stake in debates between individualists and communitarians.  An “individualist” is not guilty of solipsism, but of construing intersubjective relations as derivative, secondary, or artificial [and usually conflictual], whereas communitarians begin from an “organic” picture of intersubjective relations that doesn’t see conflict or competition as basic to these relations.  I continue to find John Ruskin and William Morris to be eloquent on these matters.)

This difference at the level of social ontology might explain why Wolterstorff and right order theorists sometimes seem to be talking past one another. I think Wolterstorff is correct that “right order” theories generally tell a declining narrative about the emergence of inherent-rights-talk.  But I think he misdiagnoses what concerns them about this.  It’s not just that rights are guilty by association with things like individualism and secularism; rather, right order theorists who are wary of making rights talk fundamental are concerned about the matrix of commitments that undergird such a picture of justice, viz., a Hobbesian construal of intersubjectivity which sees human relationships as, at bottom (or “naturally,” in Hobbes’ language), competitive and conflictual.  Thus rights-talk is consistently accompanied by “against-ness” (see Justice, pp. 7, 54, 94, 108, 176, and passim).

So it is true that the “disagreement between right order theorists and inherent rights theorists has to do with the deep structure of the moral order.”  But the right order theorist also thinks there’s an even deeper disagreement at the level of what I’m calling “social ontology.”  I don’t think you can make inherent rights the fulcrum of your account of justice without buying into a social ontology that makes “against-ness” essential to sociality.  (There are theological issues in the ballpark here, too, but I’ll bracket those here.  We should also attend to the core issues concerning the shape of the “normative context” for rights.  But that requires a level of technical, philosophical precision that I think is best pursued elsewhere.)

Second, with respect to Wolterstorff’s (lack of) direct engagement with MacIntyre and Hauerwas: Wolterstorff contends that he does not charge MacIntyre and Hauerwas with “hostility to justice and rights.”  Further, he “does not charge MacIntyre with hostility to justice,” nor does he charge Hauerwas with hostility to justice.  In terms of explicit criticisms, this is clearly the case.  But I invite other readers of the book to judge whether or not my suspicions are misplaced.  I’m not ready to relinquish my claims in this regard.  (I might note that a forthcoming review of the book by Daniel Bell in Pro Ecclesia will articulate similar concerns.)

It’s on this point that I think Wolterstorff’s bob-and-weave is most evident.  Let me note two bobs and a weave:

(a) Wolterstorff’s response claims that MacIntyre and Hauerwas were not his targets when he articulates concern about those who exhibit “hostility to justice and rights.”  Then who are the targets of this criticism?  Sometimes it feels as if Justice is battling some phantom menace.  Furthermore, if the upshot of the book is that, ultimately, only inherent rights can properly secure justice, and if MacIntyre and Hauerwas reject inherent rights (as they clearly do), then wouldn’t it follow that they don’t adequately or properly affirm justice?  Or let me put this another way: doesn’t Wolterstorff really think, at the end of the day, that right order theories of justice are unjust?

(b) I think Wolterstorff is being coy about the invocation of Hauerwas in the Nygren chapter.  If he doesn’t think there’s some connection between Hauerwas and Nygren—or at least some connection between Hauerwas and the errors of “agapism”—then why does the chapter open with this brief cameo by Hauerwas?  I’m not the one making the connection between Nygren and Hauerwas; it’s Wolterstorff’s opening of the chapter that seems to be making some connection.  So the burden is not on me to show that Hauerwas has significant things to say about love and justice; the burden is on Wolterstorff to explain why Hauerwas even appears in this chapter.  (There’s the additional issue of why one would be engaging Nygren now, since I can’t think of anyone signing up for his dichotomous paradigm. But again, I think Wolterstorff suspects some connections here that he doesn’t make explicit.)

(c) Finally, Wolterstorff extends an invitation: “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 invite Smith to point me toward that.”  No thank you, is my reply.  This generous invitation is covertly colonizing; it misses my point and MacIntyre’s disagreement.  I’m not at all suggesting that MacIntyre can, as a eudaimonist, provide the conceptual resources for justice as inherent rights.  The point is that he doesn’t want to.  For reasons, I think, not unlike the “social ontology” argument above, MacIntyre, Hauerwas, Milbank, and others refuse to see inherent rights as the basic building blocks of justice.  So I’m not disagreeing that MacIntyre is rightly associated with eudaimonism; nor am I disagreeing that eudaimonism cannot generate the conceptual resources for a theory of justice as inherent rights.  Rather, I’m arguing that the eudaimonist doesn’t want to frame justice in terms of rights.  So to fault the eudaimonist for not being able to generate an account of justice as inherent rights is not even a glancing blow; it misses MacIntyre altogether.

Wolterstorff’s way of framing the debate has loaded the deck in such a way that one has to play with “rights” cards.  At that point, the MacIntyrean eudaimonist will just refuse to play.  He won’t feel defeated (as Wolterstorff would interpret it) because he sees Wolterstorff as playing an entirely different game.

Alas, the bell.

I want to re-emphasize the structure of my discussion about secular accounts of human rights.  The project of trying to ground human rights is the project of trying to find what it is about human beings that gives each and every one a dignity sufficient for their possessing human rights.  I hold that Kantian-style accounts are entirely adequate for grounding the rights of those human beings who have the capacity to engage in rational action, the capacity to form, follow, and revise life-plans, or whatever.  There has been some discussion in the philosophical literature recently pointing out that persons have this capacity to different degrees, and that, consequently, this capacity does not secure equality of worth.  I do not see that this is a problem for the grounding of human rights; so long as everybody has a certain minimum of worth, that should be enough.

I observed in the book that all the “secular” accounts with which I am familiar are capacity accounts; and that any capacity account is confronted with the problem that there will always be some human beings who do not have the capacity.  (I observed that all extant imago dei accounts have the same problem,)  In Chapter 16 I myself then proposed a secular account that is not a capacity account.  Suppose one is willing to accept that there is human nature, whatever one’s ontology of the matter.  Then even the most severely impaired human being will have human nature.  Is perhaps the mere possession of human nature sufficient for grounding the necessary worth?

My guess is that people will divide in how they answer this question.  Think of human nature as rather like the design-plan for an automobile.  What would one say about an automobile whose design-plan was truly excellent but which, through various misfortunes, is now incurably inoperative?  Would one treasure this inoperative exemplar on account of its superb design-plan?  I would not.  But I would not be surprised to learn that others would.  By analogy, they would say that even the most impaired human being is of great worth just on account of possessing human nature.  And that would then be a secular account that, as they see it, is adequate.  This is in fact the account that Jonathan Kahn offers in passing in his response to my response to him; “possessing human nature” is enough, he says.

Apart from the capacities accounts and this human nature account, I don’t see any other secular accounts on the horizon. But who knows, another type altogether might turn up.  Chambers says that the Kantians must surely have an answer to the questions I raised concerning capacity accounts, since they have always regarded Kant’s capacity account as adequate for human beings in general.  (Allen Wood raises the issues without giving a definitive answer.)  I would like to learn how a successful Kantian account would go (it might prove to be a variant on the human nature account that I mentioned above).

Contrary to Chambers’ suspicions, I very much want there to be available not only an adequate theistic account but also an adequate secular account.  The melancholy character of my ruminations in the final chapter could then be dismissed as irrelevant.

Am I (perhaps) a good philosopher but a bad citizen, as Chambers’ title and subsequent discussion suggests?  I will leave it to others to answer both questions.  What I will say is that I join with all those who struggle for justice to the wronged, whatever their reasons or motivations.

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?”

I would suggest that we can see a kind of Reformed version of this project—a sort of “Whig Calvinism”—in the recent work of John Witte, Jr. and Nicholas Wolterstorff.  In particular, while much more needs to be said about Nicholas Wolterstorff’s Justice—including some properly philosophical engagements we’ll save for elsewhere—I’ll close my contribution to this symposium with some broad brush strokes by suggesting that Wolterstorff’s project can be seen as a powerful, persuasive version of a Whig Calvinism, which, instead of ending up with a neoconservativism, ends up with a theistic liberalism.  And I am interested in the way and extent to which this represents a contemporary articulation and extension of the Kuyperian project.  More specifically, I’m interested in how Wolterstorff’s Kuyperian “sensibility” manifests itself in his basic whiggish evaluation of liberal democracy (akin to Kuyper’s rather rosy, nineteenth-century affirmations of “progress”).  To what extent does this represent an assimilation of Reformed Protestantism to the paradigms of liberalism?  Or—to take Witte’s point—to what extent is the Reformed tradition actually a cause in the emergence of liberalism?  Witte and Wolterstorff offer powerful, erudite narratives that argue for just such a causal continuity.  But I think there’s room for disagreement and for the articulation of an alternative story.  If the Reformation was something like an Augustinian renewal movement within the church catholic, one has to wonder, for instance, how a thick, Augustinian understanding of freedom could be reconciled with the thinned-out, libertarian freedom of modernity.

Wolterstorff is out to tell the causal version of this story: the Hebrew and Christian Scriptures teach inherent rights, the church affirmed inherent rights, the Reformation recovered and expanded inherent rights, and modern liberal democracy universalized inherent rights (and stands in danger of losing a ground for them if it persists in its secularizing ways).  But with just a smidgen of a hermeneutics of suspicion, this story could be told quite differently—namely, that a late modern Calvinist, who has bought into a liberal model of justice as inherent rights, is now (surprise, surprise!) finding just such a model of justice in a selective, tilted reading of the Hebrew and Christian Scriptures—and that insofar at the Reformation plays a role in giving rise to this paradigm, it’s to blame, not praise.  (I don’t claim to have sufficiently marshaled the resources to actually pull off such an alternative account.  I only want to sketch what it might look like.)

In fact, I think we can locate this tension and these alternatives right in Wolterstorff’s corpus.  A full evaluation of Justice will have to read it against Until Justice and Peace Embrace.  And I would suggest that there is some tension between Wolterstorff’s vision of justice in Until Justice and Peace Embrace and Justice.  Indeed, one might even argue that his earlier model is a kind of “right order” theory of justice, and that his migration (in Justice) to inherent rights represents a shift in his thought.

On this score, it seems to me that Wolterstorff leaves us to read between the lines.  The best I’ve been able to come up with is this: it seems that he is skittish about right order theories (and by implication, eudaimonism) because they work with communitarian assumptions—and it seems that he is worried that communitarian frameworks tend to run roughshod over what individuals demand/require.  In this respect, I think Wolterstorff is inattentive to the extent to which he has absorbed the atomistic individualism of modern liberalism (and then read something like it back into the Scriptures). This is just another way of saying that I think Wolterstorff—in good Kuyperian fashion—has unwittingly been assimilated to regnant paradigms in liberal political thought and is now “baptizing” them with a theological story.  In short, I think Wolterstorff’s most fundamental (and thus un-interrogated) assumptions demonstrate just how the Kuyperian vision can so easily slide toward cultural assimilation.  But these are just suspicions—concerns about a “vibe” in his project.

Like Jonathon Kahn, I suspect that for secular thinkers, the great strength and clarity of the first three quarters of the book will be over-shadowed by the dismissal of secular thought at the end of the book.  Kahn calls these claims incendiary and polemical.  He argues that they undermine, perhaps destroy the possibility of a pluralist dialogue.  In effect he charges Wolsterstorff with being a bad citizen rather than a bad philosopher.  I want to pursue this idea. I want to engage the arguments at the end of the book from the point of view of their contribution to public discourse in a democracy. Kahn implies in his criticism of Wolterstorff that it should not matter where one finds convincing grounds for human rights; if we really care about bringing justice and equality into the world, we should embrace rather than attack all allies in this task. But it is not so easy to divide the philosopher from the citizen.

The first thing to note about Wolterstorff’s exclusionary argument is its extremely sweeping nature.  “It is impossible to develop a secular account of human dignity adequate for grounding human rights.” Even Wolterstorff seems to be taken aback by the extravagance of “impossible” and adds: “to speak more cautiously: given that, after many attempts, no one has succeeded in developing such an account, it seems unlikely that it can be done.”  The difference between the claims contained in these two sentences is one of kind, not degree. The implication of the first sentence is that one does not need to evaluate each secular attempt to ground human rights. All one needs to do is show that theism is a necessary condition of grounding human rights. The second sentence implies that one is open minded (if doubtful) on this question and will take a look.  While Wolterstorff claims to be pursuing the second strategy, the very thinness and brevity of the discussion of secular grounding leads one to suspect that he really believes the first.  But he never actually lays out what the necessary argument might be.  Even if we found Wolterstorff’s arguments on behalf of inherent human rights fully plausible on both exegetical and philosophical grounds, there is nothing in any of these arguments that make secular foundation eo ipso false.  In other words, there is no reason why someone might not find both Wolsterstorff and Kant persuasive on this question.  Some truths are mutually exclusive:  you cannot believe in the truth of God and deny his existence at the same time, although one can believe these things at different times, indeed within seconds. Wolterstorff’s account of the dignity inherent in God’s love and Kant’s account of the dignity inherent in the “capacity for normative self-government” (to borrow a phrase from Christine Korsgaard) are not mutually exclusive.  Nothing in what Wolterstorff has to say has convinced me that I must choose one or the other, although one suspects that that indeed is what Wolterstorff believes. Thus, although Wolterstorff appears to believe that no grounding works without God, he does not directly defend this proposition in the book.  Instead he approaches the question indirectly by trying to show that all attempts to do it without God have failed.  But to make this case he would need a much bigger book.

The discussion of secular philosophy is brief and almost perfunctory. The care for detail, especially exegetical detail, that characterizes the first three quarters of the book is absent in the discussion of secular philosophy.  This is particularly true for the sections on Kantianism, arguably the strongest contender to offer a secular defense of universal dignity.  Wolterstorff argues that because Kantians ground dignity on the capacity for rational action (or in the capacity to have purposes or to be autonomous, or to choose one’s life plans, or for normative self-government—there are many ways to articulate this idea), certain humans who fail to met this threshold, for example the severely impaired or Alzheimer’s sufferers, will fall outside the protection of human rights.  As David Johnston pointed out in his post, this is a tendentious reading of Kantianism.  One piece of evidence to support the tendentious nature of this reading is that not one single Kantian that I know has come to this conclusion.  Indeed, Kantians often defend their view precisely on the grounds that only deontology of this sort (as opposed to utilitarianism) can protect each and every human being no matter what empirical circumstance they find themselves in.  There is no assessment test in Kantian ethics. We are all human, including those who have lost the ability to exercise human capacities.  It is especially important in these cases that they be treated as ends and not means. Could all those Kantians have gotten Kant wrong? Are they kidding themselves? Will they eventually see that the framework does not coherently include the severely impaired and then be forced to concede that this group has no strong claim to the protection of rights?  The reason why this train of thought is important is that it seems that something along these lines must be going through Wolterstorff’s mind in making his second overarching claim. This is the claim that the future of human rights depends on keeping the theist foundation alive and well in our culture. Wolterstorff thinks that no matter what Kantians might say, the logic of the argument is clear and this means that universal human rights are at risk if we leave its grounding up to secular philosophy. This second part of Wolterstorff’s exclusionary claim is not, strictly speaking, a philosophical argument.  Instead, he is making a prediction about the course of public debate and cultural identity in the event (which he seems to think is inevitable) that we will see the true nature and limitations of secular groundings of human rights.  Is this a plausible claim?  Before answering this I want to switch to the question of citizenship because, as I argue below, highlighting the weaknesses of secular arguments and claiming that those weaknesses jeopardize the future of actual human rights are two different things.

Is it a violation of dialogic pluralism to articulate such a sweeping dismissal of secular moral philosophy?  If Wolterstorff was truly a practitioner of dialogic pluralism, should he have exercised epistemic restraint, as Khan implies? Did he really have to undermine secular philosophy in order to make his case? Presumably Wolterstorff believes what he says is true.  He really does think that secular philosophy cannot come up with a persuasive grounding.  Simply stating that secular philosophy is deeply flawed in this respect is not a violation of dialogic pluralism.  This is what philosophers do.  Impugning logic, questioning coherency, and identifying weak arguments is how the conversation proceeds and there is no reason why those activities should stop at the border between secular and theistic philosophy.  In the argument against Kantians, I think the claim must be bad philosophy, not bad citizen.  Perhaps bad philosophy is too strong; perhaps I will only say not enough philosophy. The charge that Kantians cannot really ground equal dignity is serious. It deserves more care and thought.  But Justice: Rights and Wrongs is already a big book with lots of very serious and careful argument, and I can understand that, at the end, it was not the time or place to launch into another such discussion. But this is an argument for perhaps leaving out the discussion of secular philosophy.

Perhaps one might argue that Justice: Rights and Wrongs is not simply a contribution to a conversation among philosophers.  It is also a contribution to a public dialogue about human rights and thus a conversation among citizens.  Here one might argue that because human rights are the sorts of things that are instituted and enforced by governments, we need to approach the conversation from the point of view of what we could agree upon, and not from the point of view of establishing what we think is the whole truth and nothing but the truth. But when asked by Kahn in his post why we need to bring up these deep philosophical differences between secularist and theist if we all just want to fight for human rights, Wolterstorff answered by drawing a pretty stark line between what he is doing and what human rights activists are doing:

[O]ne can certainly struggle for human rights without being able to offer a grounding for those rights; that is the situation of almost everyone who does struggle for human rights. And one can hold that every human being, no matter how impaired, has worth sufficient for grounding human rights even though one finds oneself at a loss to explain what gives them that worth. Nothing inconsistent in that. My worries are about the long haul. What if the secularists among us cannot give an account of what gives even severely impaired human beings an inviolable worth? What if only theist can give that account?

At first, Wolterstorff appears to be saying that we can ignore the question of foundations in practically oriented political conversations.  A secular Kantian and theist can work side by side to draft a bill of rights or a constitutional amendment without having to challenge each other on the deeper reasons why they believe in rights in the first place.  Wolterstorff appears, then, to be introducing something like the Habermasian distinction between the broad informal public sphere, that shapes and is shaped by culture, and the political sphere in which actual policy is worked out and implemented. We do not need to (and perhaps we ought not to) raise divisive questions where there is an overlapping consensus on human rights.  (Presumably this is not the case with regard to people who reject human rights as an appropriate vehicle for justice.) So if we do not need to set secular philosophy straight to pursue human rights in the short run, why make the arguments?  Wolterstorff answers, “for the long haul.”

There seem to be two ways to understand the long haul.  One follows the Habermasian model alluded to above.  Here one argues (and indeed, I would argue) that the theistic grounding of human rights is a rich source of meaning and truth and it would be a severe loss, perhaps even a disaster, if this source of support for human rights were deleted from our political culture.  Of course people who find the theist account persuasive will probably not find the secular accounts persuasive, and arguing why they do not find the secular accounts persuasive can also enrich the debate and keep these multiple sources alive. On this view, human rights are strengthened by the multiplicity of paths to get to them.  I do not have to agree with arguments I find implausible, nor do I have to refrain from explaining what it is that I find implausible about them, but I do have to refrain from dogmatism.  It seems to me that Wolterstorff’s argument borders on the dogmatic because, rather than saying he does not find the secular account persuasive, he says that secular accounts are not persuasive.  The long haul for Wolterstorff involves the certainty that secular arguments cannot and will never be able to properly sustain human rights.  It is the “never” that is problematic.  I see no grounds for making such a sweeping claim about the course of human thought and philosophy.  I see no reason why one would want to.  I especially do not see why one would want to if the overarching concern is with the protection of the impaired.

Wolterstorff is worried about a very particular set of potential public policies.  He is worried that secularists will somehow see that their arguments do not really include the severely impaired and, when they see this, the severely impaired will lose protection.  The argument makes a very strong link between deep truth claims and quite specific public policy. Wolterstorff is implying that the category of the severely impaired will become something like the category of the fetus.  Only the theist, and perhaps even only a theist who holds the view of God’s love that Wolterstorff articulates, can stay true to the proposition, “human beings, all of them, are irreducibly precious.” Forget about what secularists say, how they act, their stated convictions and moral commitments.  Their philosophy is bad, and therefore they will be unable to sustain the practice.  This is the deeply problematic assumption, for which no evidence is given, that underlies Wolterstorff’s claim that human rights depend on keeping theism alive and well.  This claim does not follow from the philosophical attack on secular arguments, which while I disagree with them, I find enhance rather than detract from the debate. The claim that only theism can sustain the practice and protection of human rights in the long haul is a stand-alone claim about the secularist’s moral commitments.  It assumes that the moral commitment to the principle that all humans have dignity will disappear if the philosopher cannot make the slam dunk case for it.  Thank goodness moral commitment does not work that way.

I think this passion—and this perception of the lack of concern for justice—is a significant part of the background to Justice: Rights and Wrongs.  And reading as charitably as I can, I think this passion—and the perception that arises from it—must be what explains some puzzling aspects of Wolterstorff’s book.  In particular, I note a couple of troublesome moves and habits in this project.

First, Wolterstorff (not unlike Jeff Stout) sometimes assumes that commitment to liberal democracy is the only way to care about justice; so a critique or rejection of the paradigms of liberal democracy or rights-talk is seen as a lack of concern for justice per se.  Thus when he sketches the influential narrative of MacIntyre and Hauerwas, he narrates it as “a hostility to justice and rights”—taking it to be the case that an opposition to rights talk is equivalent to an opposition to justice per se.  That seems clearly false to me (to adopt a Wolterstorffian locution!) unless one sets up the matter in a way that simply begs the question.  Or, to put this otherwise, Wolterstorff seems to assume that a rejection of “rights talk” must therefore be allied to some affirmation of the status quo.  Thus he tends to read MacIntyre, Hauerwas, and others—who are critical of rights talk—as if they are therefore apologists for the status quo (which is, we’d all admit, unjust).  But again, this clearly doesn’t follow.

In addition to somewhat begging the question, Wolterstorff I fear is targeting straw men. As noted in my first post, he is countering what he perceives to be a “hostility to justice and rights” in contemporary theological and philosophical quarters (Hauerwas, MacIntyre), as well as (I think) what he perceives to be a more broadly Christian aloofness with respect to issues of justice, particularly justice demanded by inherent rights.

This hostility to “justice and rights,” on Wolterstorff’s account, is rooted in and motivated by two (related) things: (1) a conception of justice as right order and (2) a narrative regarding the origin and emergence of “inherent rights,” which ties it to modern possessive individualism and Enlightenment conceptions of the polis. So he sets out to contest the narrative and the right order theories behind it.  Part I was thought to dispense with the narrative; Part II turns to the theoretical insufficiencies of right order theories of justice—which culminates in his critique of eudaimonism (which would require more careful, technical engagement than we can undertake here—I hope to do so elsewhere).

But why the fixation on “eudaimonism”?  I think we can make sense of his move in this way: eudaimonism is taken to be something like the general ethos of right order theories.  Therefore, pointing out the antithesis between eudaimonism and justice as rights is Wolterstorff’s way of pointing out what’s wrong with right order theories of justice.  But here again, I think there are two significant problems:

(1) This would make Part II an extended case of begging the question.  What motivates the project of Part II is Wolterstorff’s (correct) claim that “there is no theory of rights to be found in ancient ethical theory” coupled with his judgment that this “was no accident. The ancients conducted all their ethical theorizing within the framework of eudaimonism.  A theory of rights, so I contend, cannot be developed within that framework.” OK, maybe: but I don’t think that constitutes a critique.  It simply stipulates a conditional requirement: if one is going to develop a theory of justice as inherent rights, then eudaimonism is either inadequate to such a theory or, more strongly, incompatible.  But Wolterstorff does not provide sufficient warrant for the antecedent.  Instead, he assumes it in his critique.

(2) More significantly, Wolsterstorff exhibits a sly habit of substituting guilt-by-association for real, head-on arguments.  For instance (and most glaringly), chapter four opens with a brief alarmist reference to Hauerwas’s claim that “justice is a bad idea for Christians” and then mounts a devastating (and just) critique of Anders Nygren.  But what, exactly, does Hauerwas have to do with Nygren? It seems clear that in Wolterstorff’s mind, Hauerwas is offering us a warmed-over Nygrenism.  So he takes it that his critique of Nygren thus also dispatches with Hauerwas.  But Wolterstorff is very much mistaken in this regard; a critique of Nygren doesn’t even touch Hauerwas and is no substitute for a head-on engagement with Hauerwas.  (At least Stout actually reads Hauerwas and takes him seriously on his own terms.)  Wolterstorff seems to read Hauerwas as if he were a pietistic evangelical only concerned with “souls” and thus unconcerned with “justice.”  Thus Wolterstorff wryly (smugly?) notes that he does “not discern the ‘enthusiasm for justice and rights’ among contemporary Christians that Hauerwas claims to notice.”  But that is a caricature that fails to appreciate where Hauerwas makes such inflammatory claims.  Wolterstorff mistakenly allies Hauerwas to Nygren because he misplaces Hauerwas: Stanley’s target is liberal Methodists who confuse the Gospel with whatever currently constitutes the platform of the Democratic party, whereas Wolterstorff is reacting, I think, to the a-political quietism of evangelicals and/or the selective “law and order” focus of the Religious Right.

I think one sees a similar move going on in Part II: the multi-chapter critique of eudaimonism—which really boils down to a critique of Stoicism—is prefaced with a brief but significant reference to MacIntyre: “There are important contemporary eudaimonists; Alasdair MacIntyre comes to mind.” Wolterstorff then goes on to say that since all “contemporary” eudaimonists acknowledge their debts to ancient eudaimonism, Wolterstorff will just focus on ancient eudaimonism.  Again, we get a guilt-by-association dispatching rather than a head-on engagement: Wolterstorff takes it that his critique of Stoicism (and more cursorily, Peripatetic eudaimonism) just constitutes a critique of MacIntyre.  But again, I think Wolterstorff’s chosen targets don’t hit his intended targets.