With the collapse of libertarianism, we await a restatement of conservatism for our times, shorn of aprioristic theories of natural law.
It has lately become common to think that liberalism as a political theory is in crisis, but in fact the notion is nothing new. Liberalism has been, or has been thought to be, in crisis virtually from the moment of its origin. While various focal points might be identified, because liberalism is at its center a political theory of rights, a crisis in our understanding of rights must lie at or near the center of the problem.
Let’s start not with any of the big-name liberal political theorists, but with a figure who impressed the rights issue upon the popular imagination with a clarity and simplicity no mere intellectual could rival. Credit for this achievement goes to Detective Harry Callahan, as played by Clint Eastwood in the 1971 movie that made his character at once an American hero and anti-hero. At a crucial moment, Dirty Harry, through clenched teeth and squinty eyes, responds to a district attorney’s objection to the interrogation methods he has applied to the suspect in a particularly vile crime. Says Harry: “Well, I’m all broken up about that man’s rights.”
There, tersely expressed, is our crisis about rights. Detective Callahan said more than he knew. In his own way, he really was broken up about rights. In related ways, so are we. Our understanding of them is fractured, and at least in part due to that fracturing, we see an increasing disdain for rights, in different sectors of the population in their different ways—a disdain indicative of a certain kinship, like it or not, with Clint Eastwood’s flinty detective.
The Turbulent History of Rights
The career of the idea of rights has been a rollercoaster ride: a sharp rise followed by a steep plunge, then another sharp rise—but this one featuring some harrowing turns, raising riders’ fears that the car at any moment might go hurtling off the rails.
The sharp initial rise came in the 18th century. Although historians of political thought (notably Brian Tierney, Richard Tuck and, with a different emphasis, Michael Zuckert) have traced the origins of rights language deep in the Middle Ages, the idea of rights appeared on the political scene in a sudden burst of glory in the revolutions in America and France. The underlying political philosophy is best epitomized in the American Declaration of Independence, but the larger significance of this turn of events is perhaps best captured in the Gettysburg Address, wherein Abraham Lincoln implicitly characterized the United States as the Moses of nations, a new nation that would convey a new moral law to humankind. Thus was conceived the natural rights republic.
Even as the ink was drying on the Declaration, however, powerful lines of criticism were forming. The first was theoretical: The idea of natural rights lacked a solid philosophic foundation, argued later modern thinkers, because the new science of nature rendered untenable any claim of a grounding in nature for moral principles. David Hume, radicalizing a strand of argument supplied by John Locke, the preeminent natural rights philosopher, set the critique in motion with his observation that no Ought-proposition can be inferred from an Is-proposition.
Further lines of criticism, practical and moral in character, are also traceable to a current of modern philosophy. We can assess the truth of a given moral proposition, Niccolò Machiavelli contends, not by that proposition’s correspondence to the intrinsic natures of things, but only by that proposition’s effects. It follows that rights can only be rights if they produce the right results. Rights properly understood—whether they are claimed to be natural rights, or properties of all humankind, or only civil or political rights that are conferred with membership in a given political society—must produce beneficial outcomes for the entire class of those said to possess them.
One version of this reasoning is Detective Harry Callahan’s. For Harry, rights can only be rights if they enable the good guys to prevail; to the degree that a given rights-claim shields bad guys from the proper consequences of their badness, the claim cannot hold. Another version, eliciting greater sympathy among academics, traces to Jean-Jacques Rousseau and Karl Marx as well as to American Progressivism, and yet is remarkably similar to Harry’s. Natural rights as affirmed by classical, Lockean liberals cannot be real rights, according to this critique, since they yield the wrong results by enabling other classes of bad guys (propertied elites, capitalists, robber barons, malefactors of great wealth) to dominate various classes of innocent little guys (proletarians, laborers, would-be entrepreneurs, the average and forgotten man). Natural rights are said to be democratic and universal only by abstraction. John Dewey complained that “our institutions, democratic in form, tend to favor in substance a privileged plutocracy.”
Over time, this charge of the partiality of purportedly natural rights issued in a still more radical and sweeping objection: The rights doctrine in its classic form is worse than oligarchic, it is altogether nihilistic. Natural rights, so called, cannot be real rights, now because they are destructive of civic obligation and are in the most profound sense dehumanizing. The representative bearer of these rights, the “bourgeois” who repelled first Rousseau and then Friedrich Nietzsche, was denounced as not only selfish and exploitative but as the very exemplar of moral decline—the figure who made security and comfort the overriding human priorities and thus portended the disappearance of genuine virtue or nobility from human civilization.
The Present Crisis
Battered by these objections, the rights idea plunged into disuse for a time. Its second rise came after and consequent to World War II, as the enormity of the atrocities perpetrated above all by Germany persuaded world leaders to recommit to the securing of rights as a primary end of government. That is to say, the postwar revitalization of the rights idea as “human rights” was a reaction to an urgently felt practical need. It did not come pursuant to a theoretically satisfying response to the objections the idea originally elicited. Although the numerous human rights conventions adopted in the postwar era by the United Nations embody attempts to address the main practical (social democratic) line of critique cited above, these attempts rendered the rights idea far more problematic, both theoretically and practically, than was previously the case.
The problem of theoretical foundations is greatly exacerbated in the human rights conventions. The Universal Declaration of Human Rights (1948), as French philosopher and UDHR drafter Jacques Maritain acknowledged, represents a “practical agreement among men who are theoretically opposed to one another.” The patchwork solution was to ground human rights in a concept of human dignity, which we see in the Declaration’s Article 22: “Everyone . . . is entitled to realization . . . of the economic, social, and cultural rights indispensable for [one’s] dignity and the free development of [one’s] personality.”
The entire enterprise depends, then, on the idea of human dignity, which the Declaration fails to clarify or substantiate. This failing, as Michael Zuckert has observed, poses “a serious hindrance to identifying what follows from or is properly implied by such dignity.”
From this primary difficulty, a second closely follows: If we lack a clear understanding as to why anyone is entitled to any rights, we must also lack a clear idea as to which rights are properly ours. If all have rights to goods deemed indispensable to their dignity and to the free development of their individual personalities, and if dignity and personality are conceived of as indefinite—thus as indefinitely malleable—then the result must be the removal of any limiting principle in the specification of human rights. Human rights must become capable of endless proliferation. So we find in the 1948 Universal Declaration, in addition to the civil and political rights entailed by the original natural rights idea, an array of “economic, social and cultural rights” including, among others, proclaimed rights to work, to just remuneration, to rest and leisure, to social security, to marriage, to education, and to participation in cultural life.
If these, why not a host of others? In subsequent conventions, United Nations agencies have declared human rights to such basic goods as food, water, clothing, housing, health, and peace, along with more specialized goods including child care, Internet access, publicly funded higher education, protection against climate change, internationally assisted economic development, and more.
The trouble with all this is summarized in an observation by Thomas Hobbes: Where everyone has a right to everything, there can be no justice. Rights-claims cannot proliferate indefinitely without at some point becoming self-negating. The conflict among proclaimed rights in the realm of political economy has long been evident, and today’s familiar controversies on campus and in the courts, pitting the rights of speech, religious freedom, and association against identity-group recognition and claims of invidious discrimination, all provide additional corroboration of this point.
These conflicts expose a contradiction at the core of the lately ascendant ideas about rights. As demands for rights expand and intensify, and as the house consequently divides more sharply and angrily, a rights-claimant is shown ever more clearly to be a divided self, at once radically autonomous and radically dependent.
In one aspect, the self-as-autonomous aspires to be radically free—a self comprehensively dissociated and unencumbered, rootless, formless, natureless, indefinitely self-creating, and in the end a creature of present impulse or idiosyncrasy (a caricature of Socrates’s caricature of the democratic man in Plato’s Republic). Yet in the other aspect, the self-as-entitled to all the goods requisite to freedom so conceived, appears as utterly needy and dependent on society, both for material support and, still more problematically, for psychic affirmation. In the fractured logic of human rights claims as they have developed since the close of the Second World War, an ethic of entitlement yields aggressive assertions of identity and demands that that identity be recognized, even as an ethic of autonomy dissolves the stability and continuity of self upon which the very possibility of identity depends.
It Was Not Doomed from the Beginning
Surveying, from our present position, the troubled historical trajectory of the rights idea, we may be tempted to conclude, with some prominent conservatives, that the present deformation of rights was fated from the beginning. It is a temptation we should resist. That the rights idea proved susceptible to partisan distortions does not negate the soundness of the original idea. Such distortions are inevitable in the course of political life; the causes of faction are sewn in the nature of man. As America’s Founders repeatedly observed, the most wisely founded of republican orders nonetheless require frequent recurrence to their fundamental principles.
The Founders were astute political thinkers, well capable of identifying weaknesses in the argument for natural rights. They were strong proponents of natural rights and no less firm in their rejection of doctrines of conventionalism, of low and narrow egoism, and of radical human autonomy. They saw no incompatibility but instead a salutary interdependence between natural rights and civic and moral virtue.
It is possible, in the final analysis, that they were mistaken in these convictions. Yet it is incumbent upon conservatives more than anyone to conserve all the worth in our inheritance that can be conserved. If we are to judge the rights idea by its effects, let us take a fair view of those effects. The natural rights republic that the Founders bequeathed us has yielded not only material prosperity but also liberty and a record of recurrent, spirited defenses of it, including hard-earned triumphs over some of the worst tyrannies in human history. It behooves us not to renounce that inheritance rashly but instead to consider their arguments with the greatest care, anew.
 This essay is adapted from the author’s presentation on a May 23, 2019 panel, “Launching Liberalism: Liberalism’s Foundations and Our Current Political Crises,” which was part of an event at Notre Dame University held in tribute to Professor Michael Zuckert on the occasion of his retirement. An expanded version of the argument may be found here.