Escribe Tracy Rowland en "The Case against the Marriage of Natural Law and Natural Rights"

p. 85 A question then arises, even if Western culture underwent a ‘Trinitarian tectonic shift’, even if Franciscan nominalism and all of its consequences were to be undone, even if the idea that the human person has been created in the image of God were to find popular appeal, should ‘rights’ be baptised and subsequently married to the natural law tradition?

An argument can be made that this question should be answered in the negative. First, because as K. R. Minogue observed: ‘a world in which all duties were precisely the reflection of rights would be an accountant’s world, a place with no room for the higher reaches of moral experience and for what theologians call “works of supererogation”’.68 There is always something abstract and disconnected from the concrete world of complex social realities about the tradition of natural rights. Secondly, in the Anglosphere, an alternative to the Rights jurisprudence exists in the Common Law tradition. The Common Law developed in a historical context where individuals were not monadic entities but members of communities with a complex network of relationships and social responsibilities and entitlements. The Common Law tradition was built on a synthesis of the best legal ideas that Roman, Greek, Hebraic, and Christian thought had to offer. It was formed out of the elements specifically endorsed by Benedict XVI in his Bundestag Address. This tradition was a bulwark against tyranny long before the arrival of Thomas Hobbes. As Milbank and Pabst have argued:

Liberals cannot pretend to have invented values such as freedom, equality, toleration (well known to the late antique period, for example), individual rights, constitutionalism, mixed and balanced government, the rule of law, limits on both state and market power, fair detention, fair trial, right to defence, habeas corpus, good treatment of the convicted, trial by peers, need of proof for guilt and requirements for restitution, reparation and rehabilitation of offenders.69

These ideas, they emphasize, are all of Greco-Roman or Germanic law or Christian provenance. They existed and can easily continue to exist within the Common Law tradition without recourse to the tradition of natural rights. It was the Common Law tradition, supplemented by the principles of Equity, that the great English jurist Sir Thomas More knew and practiced. Gregory Wolfe described More’s conception of the Common Law in the following passage:

For the lawyer Thomas More, law was like literature: it was a cultural artefact that depends on a long interpretative tradition to capture elusive truths. Law accumulates meaning – connects to its sacred source – the way a literary tradition does, through the play of interpretation within a shared universe of meaning. New laws cannot abrogate the tradition to invent out of whole cloth simply because one wants to exercise power.70

Unlike Bills of Rights that enumerate rights attached to individuals, the Common Law presupposes that human persons live in communities, that human life is relational, and that conflicts arise for adjudication when a clash of claims occur that needs to be resolved with reference to some higher common good. An illustration of this difference is found in the case of Miller v Jackson where Lord Denning was called to make a judgement about the conflicting interests of a village cricket club and a property owner whose house was built on the edge of the cricket oval.71 Lord Denning held in favour of the cricket club on the grounds that the game of cricket brings the old men and the young men of the village together; that the old men would be lonely without the company of the young men, and the young men might get themselves into all manner of trouble if they were not focused on something wholesome like sport. Lord Denning also noted that, before the house was built on the edge of the oval, the cricket field was surrounded by grazing cattle and ‘the animals did not mind the cricket’. This case and thousands of others in the Common Law reports illustrate the complex nature of legal disputes in our cities and villages, and the ‘interpretative tradition’ that was used to resolve them for centuries before the current enthusiasm for statutes enumerating rights. As Milbank and Pabst acutely observed: ‘at the heart of liberal self-undoing lies the primacy of the economic and the political over the social and thus the subordination of both social bonds and civic ties to the abstract standards of law and contract’.72 Social bonds and civic ties revolve primarily around mediating institutions such as the family and cultural, educational, and sports associations, not around the machinery of the state and abstract concepts. One of the virtues of the Common Law system is that its judges enjoy the flexibility to take the interests of such mediating institutions into account. The practice of the Common Law is not an accountant’s practice.

Chief Justice Peter Quinlan of the Supreme Court of Western Australia has argued that the process of

pitting one ‘right’ against another as the principal mechanism for determining the appropriateness (or indeed validity) of a given law, may very well stifle the ‘culture’ required to produce a common understanding of what is ‘good’. In this respect, a ‘human rights culture’ might not be the same thing as a ‘just culture’ because it is not merely incidentally adversarial (which our legal system must, at least on occasion, be) but has an adversarial post at its very centre.73

p. 87 Justice Quinlan’s comments, made in 2010, sound even more prescient over a decade later with Western juridical and political cultures becoming ever more agonistic. While those who drafted the Universal Declaration were setting out the rights of individuals against the State and doing so in the shadow of the powerful abuse of State power by Nazi Germany and the Soviet Union, the present proponents of chartered rights in the Anglosphere are seeking something quite different. They wish to create rights that individuals may use against other individuals. The Common Law presupposed a common good, while Bills of Rights attach to individuals abstracted from their social bonds and communal life and presuppose something like Hobbes’s original violence rather than the Christian original peace.

Joan O’Donovan rhetorically asks why Christian thinkers have been so willing to ‘adopt a child of such questionable parentage as the concept of human rights’? She concedes that theologians who express reservations about the adoption run the risk of ‘being taken for complacent pietists or atavistic romantics’. Nonetheless, she suggests that ‘there are enough signs about today of social anomie, moral confusion, and ideological fatigue to suggest that the risk is worth taking’.74 As scholars increasingly search for alternatives to the liberal tradition and speak of a post-liberal future, within the Anglosphere at least, the Common Law tradition may present itself as a viable alternative to statutes of ‘rights’, affirming as it does, the significance of mediating institutions, above the desires of the socially isolated, abstract individual.

68 K. R. Minogue, Ideas and Ideologies: Human Rights (Melbourne: Edward Arnold Publishing, 1978), 18.

69 John Milbank and Adrian Pabst, Politics as Virtue: Post-Liberalism and the Human Future (London: Rowman and Littlefield, 2016), 29.

70 Gregory Wolfe, The Operation of Grace: Further Essays on Art, Faith and Mystery (Cambridge: Lutterworth Press,

2016), 136.

71 Miller v. Jackson [1977] QB 966.

72 Milbank and Pabst, Politics as Virtue, 58.

73 Peter Quinlan, ‘The Human Rights Delusion: A Defence of the Narrative Tradition of the Common Law’ (2010) 5

University of Notre Dame Australia Law Review 69.

74 O’Donovan, ‘Historical Prolegomena’, 56.