Key questions raised by the book:
1. Where do basic human rights come from? Do they come only from government or are they rooted in something that transcends government?
2. What is man? Is human nature fixed or does raw political power determine who is and is not a human being?
3. What is law? Is it merely the construct of jurists and lawmakers, or is it based on first principles of morals and justice?
Thesis of book:
If we can arbitrarily alter the definition of “man” to suit our preferences, and if nature provides no definition of a human being that we are obliged to respect, then we remove all claim to natural rights, including the right to an abortion.
Summary of the book:
Secular liberals insist that abortion is a fundamental human right the State should not infringe upon. Arkes simply wants to know where this alleged right to an abortion comes from. In other words, is it a natural right that springs from our nature as human beings or is it a positive (legal) right granted by government? If the latter, the abortion advocate cannot really complain that she is wronged if the State does not permit her to abort. After all, the same government that grants rights can take them away.
On the other hand, if the right to an abortion is a natural right—a right one has in virtue of being human—then the abortion-advocate had that right from the moment she came to be, that is, from conception! Thus, we are left with this amusing paradox: According to the logic of many abortion-advocates, unborn women do not have a right to life but they do have a right to an abortion! Absurd! In short, the defenders of abortion cannot tell us where rights come from or why anyone should have them. By advocating an alleged right to choose, they have talked themselves out of the very natural rights upon which their own freedoms are built.
Three Key Questions
#1: Where do basic (fundamental) rights come from?
The Founders and Lincoln answered that question by distinguishing natural human rights from merely legal ones. Natural rights are those rights that you have simply because you are human. They are grounded in your human nature and you have them from the moment you begin to exist. For example, you have a natural right not to be harmed without justification as well as a natural right not to be convicted of a crime without a fair trial. Government does not grant these basic rights. Rather, government’s role is to protect them. In contrast, legal (or positive) rights are those rights you can only acquire through accomplishment or maturity. These rights originate from the government and include the right to vote at your eighteenth birthday and a right to drive on your sixteenth. But your natural right to live was there all along. It comes to be when you come to be.
To cash this out further, I do not have a legal (positive) right to vote in the next Canadian election for the simple reason that I am not a Canadian citizen. But just because I lack the right to vote in Canada does not mean I lack the right to basic protections whenever I visit that country. Likewise, just because a fetus may not have the positive right to drive a car or vote in the next election does not mean he lacks the natural right not to be harmed without justification. Elective abortion unjustly robs the unborn of his or her natural right to life, as Arkes explains in an earlier book:
No one would suggest that a fetus could have a claim to fill the Chair of Logic at one of our universities; and we would not wish quite yet to seeks its advice on anything important; and we should probably not regard him as eligible to vote in any state other than Massachusetts. All of these rights and privileges would be inappropriate to the condition or attributes of the fetus. But nothing that renders him unqualified for these special rights would diminish in any way the most elementary right that could be claimed for any human being, or even for an animal: the right not to be killed without the rendering of reasons that satisfy the strict standards of “justification.”
The distinction between natural and legal rights underscored the famous Lincoln/Douglas debates. At issue was this question: Were the rights mentioned in the Declaration of Independence natural ones or were they merely the creation of positive law? Lincoln argued for the former: The claim “All men are created equal” meant that no man by nature is the ruler of another man in the way man by nature rules a dog. If the slave is a man, those same rights found in the Declaration (including the right to liberty) apply to him as they do the white man. In short, the slave was a human being with certain rights that spring from his nature and those rights hold across time and place. Because they are present whenever beings with a human nature are present, neither government nor popular opinion could legitimately deny them. Douglas took the latter position, suggesting that who was and was not a bearer of rights depended on popular sovereignty. Unlike Lincoln, he acknowledged no truths grounded in the nature of human beings that would hold across time and place. Instead, we only have those rights granted through positive law. Southern states did not count slaves as bearers of rights and that fact alone settled the matter.
But as Lincoln pointed out elsewhere, in their willingness to justify the enslaving of Blacks, Southerners were affably putting into place premises that would justify their own enslavement. In other words, the argument for slavery, in principle, could not be confined to Blacks, that in fact, it worked equally well to enslave Whites:
You say ‘A’ is white and ‘B’ is black. It is color, then: the lighter having the right to enslave the darker? Take care. By this rule, you are a slave to the first man you meet with a fairer skin than your own.Likewise, many arguments used to justify the taking of unborn human life work equally well, in principle, to justify killing people outside the womb. The right to kill unborn human beings cannot be confined to the womb. In short, the only way to account for human equality is to argue that humans are equal by nature, not function.
You do not mean color exactly — You mean the whites are intellectually the superiors of the blacks, and therefore have the right to enslave them? Take care again: By this rule you are to be a slave to the first man you meet with an intellect superior to your own.
But you say it is a question of interest, and, if you can make it your interest, you have the right to enslave another. Very well. And if he can make it his interest, he has the right to enslave you.
#2: What is man?
The academic Left insists that “natural” rights are nothing but an oppressive ideology because human nature is nothing but a fiction. “In the understanding of the post-modernists,” writes Arkes, “there is no objective nature of human beings, and no settled truths that arise from that nature: What we call human nature is socially constructed from one place to another according to the vagaries of local culture.”
Nevertheless, the very people who profess that there can be no moral truths that hold across cultures (because there is no human nature that holds across cultures) insist upon casting moral judgements across cultures. Radical feminists condemn wrongs done to women in foreign countries and take for granted that there really must be “women” out there, that is, beings with a certain ontological nature. Arkes concludes: “When we sum up these things, we arrive, as I say, at the most curious result: In the world of the Left on the campuses, there are ‘human rights’ to be vindicated all over the globe, but strictly speaking, there are no ‘humans,’ for there is no such thing as human nature. And because there are no moral truths, there are no ‘rights’ that are truly meaningful.”
Judges followed the lead of academic élites and removed from our law any fixed notion of what constitutes a “man” or human being. Power, raw political power, now determines who is and is not a human being with rights. For example, in Planned Parenthood v. Casey (1992), Justices O’Connor, Kennedy, and Souter announced (in their famous “mystery passage”) that, “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” That is, human nature is not fixed, but determined subjectively. But if that is true, there can be no fixed rights that arise from that nature, including a fixed right to an abortion. So why can’t a future Court just arbitrarily decide that women don’t have a right to an abortion? The Court didn’t say.
So what are left with? The Court has affirmed the right of a person to define his own concept of existence, the meaning of the universe, and the meaning of human life. But, writes Arkes, “was there any reality or truth attaching to him? And what was there about him that commanded the rest of us to respect these decisions he reached about himself and the universe?” Why can’t we just make him up to be someone who has no rights if that fits our own concept of meaning and human life? In short, the Court’s mystery passage assumes the very thing it denies: By demanding that we respect a person’s judgement about human life and the meaning of the universe, the Court assumes that the human being in question actually exists as a rational agent, whether my own concept of the universe admits him or not.
#3: What is law?
The first generation of American jurists understood two things forgotten by modern jurists. First, the purpose of government was not to create rights, but to secure ones that we already have by nature. Second, one cannot speak seriously of things that are truly rightful or of human rights in general without assuming moral realism (that is, the belief that right and wrong are real things, not merely constructs of human opinion or culture). Put simply, if moral truths do not exist as a foundation for law, then law itself becomes merely a system of raw political power accountable to no one. Modern jurists have forgotten what our Founders taught us about the relationship between law and morals. Now we are told that because human nature is socially constructed (rather than fixed), there can be no objective moral truths that spring from that nature. We often hear, for example, that society should confer a large degree of liberty by not legislating on controversial moral issues for which there is no consensus, especially if those issues incite deep division. Abortion, the argument goes, is a divisive and controversial issue. Therefore, it should be left to personal choice. But this view is itself controversial. Do we have a consensus that we should not legislate on controversial matters? Moreover, slavery and racism were controversial and divisive issues. Are we to conclude that it was wrong to legislate against them? The fact that people disagree is no reason to suppose that nobody is correct. There are still natural laws of morals and justice that apply.
1. Mark Levine, Men in Black: How the Supreme Court is Destroying America (Washington DC: Regency, 2005)
2. Hadley Arkes, First Things: An Inquiry into the First Principles of Morals and Justice (Princeton: Princeton University Press, 1986)
3. Francis J. Beckwith, Defending Life: A Moral and Legal Case Against Abortion Choice (Cambridge: Cambridge University Press, 2007)
*Portions of the above review adapted from my book, The Case for Life: Equipping Christians to Engage the Culture (Wheaton: Crossway, 2009)