An Image of the City, Part III: Jures Hominis

Father D’Arcy will forgive me if I take one example from his book, which exactly illustrates what I mean. He, being a trained philosopher, is naturally trained to put up with philosophers. Also, being a trained priest, he is naturally accustomed, not only to suffer fools gladly, but (what is sometimes even harder) to suffer clever people gladly. The consequence is that he can write calmly and even blandly sentences like these. ‘A certain likeness can be detected between the aim and method of St Thomas and those of Hegel. There are, however, also remarkable differences. For St Thomas it is impossible that contradictories should exist together, and … a thing must first be, to be intelligible.’

Let the man in the street be forgiven, if he adds that the ‘remarkable difference’ seems to him to be that St Thomas was sane and Hegel was mad. The moron refuses to admit that Hegel can both exist and not exist; or that it can be possible to understand Hegel, if there is no Hegel to understand.

—G. K. Chesterton, St Thomas Aquinas: The Dumb Ox

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As I mentioned in my last, I was surprised to learn (years ago) that the notion of a hierarchy of rights is not a standard element of most versions of human rights theory. To me, this seems like a baffling omission, because it’s so obvious that there are cases where one person’s rights clash with another’s. If, for the sake of argument, a severely dehydrated man could only stave off death by stealing a drink from Lady Marchmain’s fountain, which takes precedence: the landowner’s right to property or the dehydrated man’s right to life? If they are equal, there’s literally no right answer.

The common-sense answer is that obviously a man’s right to live outweighs Lady Marchmain’s proprietary use of her fountain. I think the common-sense answer is entirely correct, but it wants to be worked out into a coherent system.

Remember that negative rights are essentially rights against being interfered with, while positive rights incur obligations in others. The right to life is a negative right, and pretty much means the right to not be killed; the right to health care is a positive right, obliging those who can care for others’ health to do so for those who need it (obviously, this is not a thorough explanation). The principles I use to work out the system are these:

1. If exercising right A necessarily requires a person to enjoy right B, then B is the more fundamental of the two—or, to switch metaphors, right B is higher in the hierarchy. Another way of saying this is that B conditions A, i.e. creates the conditions necessary for A’s existence and/or enjoyment.

2. If exercising right A in practice requires some other thing B (which may be another right, a resource, or something else), then this entails a positive right to B. For example, humans need water to live, so if there is a negative right to life, then there is a positive right to adequate water.

3. The more a given right is conditioned by other rights, the lower it will be in the hierarchy; the less conditioned it is, the higher it will be.

So, what are the baseline rights we can plug into this system? What is their hierarchy among themselves? And, with respect to both questions, why?

At first I thought that principle 1 meant the right to life was the most basic of all rights, but as I’ve continued thinking it out, I have revised that belief. The morass of genocides in the twentieth century teach us with crystal clarity that recognition of other human beings as human, tautological though it sounds, is the bulwark upon which the right to life itself depends. It is that mutual recognition that conditions all other rights, including the right to live; for if a given person doesn’t really count as human, then every other right of theirs can be violated; or rather, violating their rights stops being a real thing, because they lack the context of human dignity in which those rights exist. Everything from the three-fifths rule to the Holocaust to ‘eliminating Down Syndrome’ depends on this refusal to deal honestly with the fact that every other human being is, precisely, a human being.

Therefore, I have made bold to classify what I call the right to recognition as elementary. All other rights are related to it, one way or another. If humans are not first of all human, in the long run, nothing else is going to matter.

The more I tried to think about rights in some structured pattern, the more the rights that the Western tradition usually enumerates seemed to coälesce into three groups, one surrounding this right to recognition, and the other two surrounding the right to live and to do things with one’s life; systems or families or rights, as it were. Being a former Classicist and a show-off, I shall give these systems Latin names to distinguish them from the individual rights they imply, and shall use said Latin names both for clarity (kind of) and to avoid having to type the word right over and over and over and over, especially since in some contexts it would be confusing.

The systems of rights are these:

I. Jus Agnitioni, the right to recognition. This means recognizing the fact that a person is a person, and that fact intrinsically means they have the same dignity as every other person. It undergirds the other two rights, and also implies things like a right to equality before the law, a right to autonomy and privacy, and so forth.

II. Jus Vitæ, the right to live. This, since it conditions every right except the jus agnitioni, is the second-nearest to the zenith, and comes from and realizes it.

III. Jus Factioni, the right to activity. This one is easier to express concisely in Latin than in English—though come to think of it, the Jeffersonian phrase ‘pursuit of happiness,’ if you give happiness the Aristotelianized meaning of eudaimonia, isn’t far off. The jus factioni springs from and details the jus agnitioni and jus vitæ; it embraces things like education, work, and marriage, the stuff that we do with the recognition and life at our disposal.

It is not coïncidental that these families of fundamental rights are three in number, nor that the first is rooted in being, the second is ‘the life of men,’ and the third proceeds from the first two. I expected—although I did not foresee this pattern specifically—that the rights proper to humanity would take a trinitarian form, because man is the image of God.

Outlining the further implications of these rights, to the best of my ability, will be the subject of my next.

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