The term “right” is too often abused. Proponents of causes frequently cast them as “rights” issues to elicit sympathy. Thus, there has been talk of the right to “safe, pleasurable and satisfying sex”; the right to offend religious feelings; the right to same-sex “marriage”; the right of a salutatorian to thrash her school and the valedictorian in a welcome address; the right of a yaya to eat the same meals as her employer in a posh resort, the right of a married person to remarry…
In Roman Law, the concepts of “right” and “justice” were linked. The Institutes of Justinian defined “justice” as “constans et perpetua voluntas ius suum cuique tribuendi.” This definition of “justice” is often translated as “the set and constant purpose which gives to every man his due” or as “the perpetual and constant desire to give to each his own.” This, in turn, raises the question of the basis for assigning or appropriating things as one’s own. Thus, classical thinkers conceptualized the distinction between ius naturale, or those which originate from nature, and ius positivum, or those which come from consensus.
Medieval thinkers later developed the idea of “right” as existing within the context of the web of relationships to which human beings are subject in the community. Thus, persons enjoy rights and bear duties under a divinely preestablished just societal order.
The Enlightenment shifted the focus of the concept of “right.” During the Enlightenment, “right” was understood as the liberty enjoyed by autonomous human beings living in the state of nature, “liberty” meaning the untrammeled license to do what one wants. As this would obviously degenerate into chaos, according to the Enlightenment thinkers people entered into a social contract. Individual Enlightenment thinkers formulated their own versions of the social-contract theory with their own particular nuances, but the gist of it is that people entered into a social contract to agree on what rights to give up to the government to maximize individual liberties.
Notably, Enlightenment thought recognized inherent human nature as the basis of rights. The advances that Enlightenment thought led to—most particularly the modern nation state governed by a constitution that establishes separation of powers and the bill of rights—must be acknowledged.
Nevertheless, the Enlightenment discourse on rights has flaws, such as identifying individual autonomy as the basis of personhood. This undermines the dignity of those who may have less autonomy—such as children both born and unborn, the elderly, or the infirm—but who are no less human. Related to this is the concept of human nature as nothing more than untrammeled liberty with no reference to norms—such as tradition, morality, or nature—to guide the exercise of this liberty. There is also the issue of what would happen when rights of several individuals clash with each other. The Enlightenment answer to the chaos that will ensue from this is the social contract. Still, the social contract is merely an agreement on what liberties shall be given up to the government and what shall be retained by citizens. Questions on the basis for deciding what liberties to give up or to retain, or the end toward which citizens should exercise their liberty, remain unanswered.
Contemporary discourse on rights is based heavily on Enlightenment ideals, strengths and flaws alike. This matters, because it matters that the philosophies that justify recognizing “rights” simply to grant the liberty to do what one wants—such as the right to divorce and remarry, for example—are the same philosophies that contributed to the bloodbaths of the late 19th century and the 20th century. A society with absolute discretion to legislate rights can do so regardless of whether or not the so-called rights legislated promote the common good.
This is not to say we must turn back the clock, jettison the Enlightenment theories of rights together with the major achievements premised on such theories, and return to the age of feudalism or the age of absolute monarchy.
It does caution us, however, against uncritically dismissing old notions of rights as antiquated and embracing Enlightenment notions of rights as progressive, an error which C.S. Lewis called “chronological snobbery.”
More importantly, it means that the current discourse on rights must be improved. We must come up with better reasons for recognizing rights than social consensus, giving people the freedom to do what they want, or sentimental pity for the people who will be deprived of the so-called right if it is not recognized. Citing the Constitution as the basis for the right one is invoking is perfectly valid. But in interpreting the Constitution, the reasons behind the rights it grants must be kept in mind.
It must also be remembered that the Constitution developed within specific philosophical and historical contexts. It is true, for example, that the Philippine Constitution was heavily influenced by the US Constitution, which was, in turn, influenced by Enlightenment principles, among others. It is also true that the Philippine Constitution espouses notions such as the “common good,” which has a specific meaning derived from classical philosophy. Given the principle of constitutional interpretation that the various parts of the Constitution must be harmonized with each other, the liberties granted by the Constitution must be exercised and protected with a view to promoting the common good.
We want a society that upholds rights. But we can only achieve this with a correct notion of “rights.”
Cristina A. Montes graduated from the Master en Derecho de la Globalizacion e Integracion Social program of the Universidad de Navarra in Spain. She also holds bachelor’s degrees in laws and in humanities (specializing in philosophy) from the University of the Philippines and the University of Asia and the Pacific, respectively.
Originally published at Inquirer.net.