Dr Adrian Pabst, Senior Lecturer in Politics, School of Politics and IR, University of Kent; Visiting Professor, Institut d'Etudes Politiques de Lille (Sciences Po), specially for wpfdc.org
Since the 1990s, the promotion of liberal democracy and universal human rights has been the hallmark of the West. Of course this tradition can be traced to the Wilsonian idealism of the early twentieth century and US leadership of the ‘free world’ after World War Two. But the Iron Curtain limited the global scope of the Western mission. Following the implosion of the Soviet bloc and the end of various authoritarian regimes across the world (including the former Yugoslavia, South Africa, Indonesia and a number of Latin American countries), the forward march of the Western liberal rights discourse appeared to be inexorable.
During this brief age of multilateralism, much of the European Union’s success and appeal rested on its ability to “syndicate its legislation and values across the world” . Whether in terms of accession, partnership agreements or trade accords, the EU seemed to mutate from a political dwarf into a new normative power.
Two decades or so later, the human rights situation may have improved both nationally and globally in certain respects – greater individual freedoms, equality legislation and some more scrutiny of governments and state agencies. However, serious abuses by both democratic and authoritarian regimes are not confined to foreign war and civil conflict but extend to the prison system and immigration policy. All this raise fundamental questions about the meaning and effectiveness of liberal human rights to uphold the dignity of the person and promote the flourishing of individual, communities and society as a whole.
1. Two rival traditions of natural law and individual rights
Paradoxically, the affirmation of individual natural rights reinforces rather than mitigates the absolute power of the central sovereign. The reason is that even seemingly inalienable individual rights like the right to ownership or the power to delegate power to the ruler are ultimately alienable because property may be sold and delegation is irreversible.
Crucially, this is because rights are always already defined in terms of subjective right (ius), independently of the right use (usus) and objective purpose or finality (finis). By contrast, alternative approaches link individual rights to mutual obligations and thereby put the emphasis on reciprocal relationality rather than unilateral substance. This more mutualist account of rights is connected with the idea of a substantive, just order that is upheld and perfected by good government and the exercise of justice in which people can continuously participate through different forms of assent – as I will argue in greater detail in my next essay.
For now, the focus is on the difference between rival conceptions of individual rights and the corresponding models of political rule. The origins of the dominant modern legal theory that centres on individual, subjective rights and the primacy of national states and transnational markets over all other institutions can be traced to the work of late thirteenth- and fourteenth-century thinkers John Duns Scotus and William of Ockham. Compared with ancient, patristic and medieval accounts, their theories marked a decisive shift from objective ius to subjective ius, as Michel Villey and his followers have documented against Leo Strauss and his disciples who claimed that this happened only with Thomas Hobbes in the sixteenth .
This genealogical point matters, as it indicates that the modern emphasis on individual and national self-interest is the result of an arbitrary shift within traditions of thought and practice – a shift that ultimately underpins the secular realism of modern IR theory.
So what is at stake in late medieval and early modern debates? Thinkers such as Scotus, Ockham and later Hobbes and Locke accentuated the sovereign right and power of both the individual and the collective. This tradition continued with other modern thinkers like Kant, Rousseau, J.S. Mill and more recently John Rawls.
By contrast, according to ancient and late medieval figures such as Aristotle, Augustine or Aquinas, natural right is invested personally in each human being but denotes not so much a subjective entitlement as an objectively ‘fair pattern of relationships’. In this sense, ius is owned in that each person has a proper ‘share’ in the distribution of things. Such a conception was developed by thinkers who defended an alternative vision of modernity such as Meister Eckhart, Nicolas of Cusa, the Cambridge Platonists, early German and English Romantics like Schlegel or Wandsworth as well as nineteenth- and twentieth-century figures, including Søren Kierkegaard, Vladimir Solovyov, Sergey Bulgakov, Gabriel Marcel or Jacques Maritain.
2. The problematic foundations of individual, subjective rights
Nor is this an obscure historical debate. On the contrary, the fundamental difference between individual, subjective and reciprocal, objective rights gave rise to two different models of politics and international relations. The first is centred on the sovereign will and power of either the individual or the collective (or both at once) who are bound together by the abstract ties of entitlements and contracts. By contrast, the second emphasises real, reciprocal relations among more mutually oriented person and communities who form bonds of association within as well as across national boundaries.
Such a reading also suggests that the dominant modern system of individual, subjective rights guaranteed by national states and exercised within transnational markets (which Scotus, Ockham, Hobbes and Locked helped shape) was merely one among several possible models and that it is neither necessary nor normative. Instead, we can envision an alternative system that shifts the emphasis towards more objective, reciprocal rights and an international society of nations and peoples – that is variously more republican, secular or more monarchical, religious in outlook (about which more in my next essay).
For much of Franciscan thought starting with St. Bonaventure, individual rights are subjectively grounded in the sense that their meaning derives “not from social recognition in accordance with natural equity, but rather from a natural pre-moral fact, such as the fact of selfownership, or the contingent de facto circumstance of property ownership upon which legitimacy is then positively conferred” . Instead of being objective reciprocal rights linked to mutual obligation, individual rights become purely subjective when they are no longer relational but are thought to be grounded in the sole capacity of the isolated individual.
And since isolated individuals end up clashing with one another on account of rival interests and conflictual claims to subjective rights, this requires the intervention either of the absolute will of a voluntarist God or of the omnipotent sovereign – or both at once (as with the early modern idea of monarchical absolutism by divine right, which transferred God’s absolute power to that of the sovereign). In other words, the notion of the divine right of kings was an early modern innovation that departed from the patristic and medieval opposition to the sacralisation of secular power.
Here one can see the modern emphasis on voluntarism and individualism that rests on Scotus’ univocity of being which allow a perfect rational grasp of immanent finite realities separate from their transcendent infinite origin and end in the creative being of God – a separation of natural immanence from supernatural transcendence that underpins the dominant strands of modern thought (from Descartes via Kant to contemporary liberals such as Isaiah Berlin or John Rawls).
Far from being an abstract academic matter, this is linked to practices and institutions. The Franciscan legal theory of Scotus, Ockham and their followers implies that only the individual right to property is inalienable to the ruler, not the people’s power of election. The reasoning is that it is the ruler’s duty to protect subjective property and contractual rights. However, this raises the crucial question about whether and to what extent free subjects may alienate to the central sovereign their original, natural right to self-protection.
The modern social contract theory (of which Franciscan thought was one of the main antecedents) makes the point that individuals trade their alienable right to self-protection for their inalienable right to ownership. But the dialectic between natural right and social alienability ends up in upward spiral of central state power. The reason is that the ruler accrues sole prerogatives. And, as the ultimate guarantor of security and property, he can also suspend individual rights in the name of upholding the very order that purports to secure them.
Why? Because in a ‘state of nature’ in which individuals are pitted against each other (whether the Fall or Hobbes’ pessimistic vision), private freedom and property require an alien enforcer. Franciscan legal theory also reinforces the absolutist tendency of his theologically founded political theory. The power of the absolutist monarch is itself irrevocable for just the same reason that individual right is inalienable.
For the sake of public order and security, all has been taken into the ruler’s dominium (both political and economic), and the constitutional-legal order now derives from his own self-propriety – not from the sovereignty of the persons, households and city-states that together constitute the political realm. Notions of legitimate rule and public morality are henceforth defined in nominalist and voluntarist terms that sidestep any questions of substantive unity or normative purpose beyond defending the power of the sovereign from both internal and external threats.
3. Individual, subjective rights and the fusion of political absolutism with cultural relativism
The excursus into the history of thought was necessary to explain the foundational differences between two rival traditions of natural law and individual rights. In this light, we can say that modern human rights discourse rests on the assumption that individual and inalienable rights are natural and universal. Linked to this is the assertion that only appeals to universal human rights can protect against both tyrannical power and cultural justifications of violence such as imagined ethnic supremacy or sectarian religious intolerance. But on closer examination these claims can be exposed as myths that masks a much more sinister reality – the complicit collusion of political absolutism and cultural relativism.
Since the US Declaration of Independence and the French Revolution, the two most basic rights are freedom of choice and the right to the quest for happiness. But in exercising their individual inalienable right to freedom of choice and to the pursuit of pleasure, people necessarily alienate or surrender to the state and the market original natural rights like self-protection or self-sustenance.
Paradoxically, supposedly inalienable rights to individual freedom and personal property support an absolutist regime to which everyone delegates sovereignty precisely because such a regime secures those rights against any internal or external threat – whether perceived or real. This logic is exemplified by the absolute power of Thomas Hobbes’ Leviathan, which underpins the idea of fully sovereign modern states wherein ‘bare individuals’ are subordinate to centralised authority.
Likewise, the inalienable right to self-ownership (as defended by John Locke) is paradoxically compatible with any actual form of bondage on the marketplace – as Domenico Losurdo’s seminal book Liberalism: A Counter-History documents. Indeed, the idea that the body and the mind are matters of private possession legitimates the free production and trade of all goods and services, including violent computer games and pornography – provided there is consent.
But to equate individual freedom of choice with personal consent merely begs the question, since both are grounded in the idea of sovereign will – whether individual or collective. Either way, where there is only volition (and no substantive shared norms or moral codes), conflicts are arbitrated either by the power of the state (and the market) – as for militant atheists – or by references to absolute divine will – as for religious fanatics. So militant atheism and religious fundamentalism are merely two variants of the same absolutist politics.
Similarly, appeals to human rights are entirely compatible with cultural relativism. Either secular state guarantees to protect the freedom of conscience present little more than tolerating belief or religious faith as a matter of private taste and personal opinion – void of any universal validity or significance. In that case, the exercise of individual of sovereign will – backed by absolute state-market power – produces what Cardinal Ratzinger shortly before his election as Pope Benedict XVI so aptly described as the “dictatorship of relativism that does not recognize anything as definitive and whose ultimate goal consists solely of one’s own ego and desires”.
Or else the secular state enforces its own norms and standards upon all groups and belief systems. In that case, the liberal promise of equality amounts to little more than the secular imposition of sameness – forcing UK-based Catholic adoption agency to promote adoption for homosexual couples or face closure (as ultimately happened) and the wilful redefinition of marriage, as I have argued in one of my previous columns. In either case, human rights discourse is unable to recognise religions in their own right or grant them their proper autonomy.
The fundamental problem with modern human rights discourse is that it reduces all rights to subjective rights granted to, and exercised, by freely choosing individuals – an entirely circular logic that brackets questions about the source of rights and practical ethical guidance for their exercise.
Whether by themselves or in conjunction with liberal democracy, individual, subjective rights cannot guarantee freedom or prosperity. On the contrary, they risk subordinating citizens to the combined power of the global ‘market-state’ and become instruments of both oppression and exploitation. Instead of appealing to abstract formal standards that can be instrumentalised or manipulated by will, the alternative is to build institutions and foster practices that can uphold the dignity of the person and promote the flourishing of individuals, communities and society at large – both nationally and globally.
 Mark Leonard and Richard Gowen, “Global Europe. Implementing the European Security Strategy,” Foreign Policy Centre, London, 2004, p. 10, available online at http://fpc.org.uk/fsblob/187.pdf.
 Michel Villey, La formation de la pensée juridique moderne (Paris: PUF, 2006); idem., Le droit et les droits de l’homme (Paris: PUF, 1983); For overview of the debate, see Francis Oakley, Natural Law, Laws of Nature, Natural Rights: Continuity and Discontinuity in the History of Ideas (New York: Continuum, 2005), pp. 87-109.
 John Milbank, ‘Against Human Rights’, Oxford Journal of Law and Religion (January 2012), pp. 1-32, quote at p. 19.