of individual rights at the expense of cultural interaction, or we maintain the
authority of the collective over the individual. Private rights entail the assertion of
personal autonomy, but they ignore the other half of the concept of autonomy –
public autonomy:
from a normative point of view, the integrity of the individual legal person cannot
be guaranteed without protecting the intersubjectively shared experiences and
life contexts in which the person has been socialized and has formed his or her
identity. The identity of the individual is interwoven with collective identities and
can be stabilized only in a cultural network that cannot be appropriated as private
property any more than the mother tongue itself can be.
(Habermas, 1994: 129)
The implication of Habermas’s argument is that universal human rights are, contrary
to Rawls’s theory, grounded in human autonomy, but that human autonomy itself
has a collective dimension which must take into account cultural interpretations of
human rights. Legality is central to the realisation of human rights, and Habermas’s
theory of law bears some resemblance to Fuller’s: law is not reducible to the assertion
of will – people are not simply subjects of law – but the formation of law is a
discursive process. The legal realisation of human rights will inevitably involve ‘local
interpretation’ – for example, Muslim societies will interpret human rights differently
to Western societies – but human beings are bound together through discourse, and
discourse presupposes a conception of the human agent as autonomous.Natural rights (Finnis)
We touched on Finnis’s work in our discussion of legal moralism in Chapter 2
(Freedom). Finnis is a leading contemporary interpreter and defender of the
Aristotelian–Thomist tradition of natural law. Although he devotes only one chapter
(of 13) of his book Natural Law and Natural Rights(1980) explicitly to human
rights, he argues that ‘right’ is central to his entire argument, and it is important
to understand the relationship between the singular ‘right’ and the plural ‘rights’.
The plural results from ‘reporting and asserting the requirements or other
implications of a relationship of justice from the point of view of the person(s) who
benefit(s) fromthat relationship’ (Finnis, 1980: 205, his emphasis). Surveying the
development of the concept of right from its classical antecedent jus, Finnis notes
that for Thomas Aquinas (1225–74) jusmeant ‘the fair’ or ‘fairness’. Relationships
of justice – who is owed what – are secondary. By 1610 the Spanish Jesuit writer
Francisco Suarez has reversed the priority and defines jusin terms of a moral power
which each person possesses, and this way of thinking about justice is developed a
short time later by Hugo Grotius: jus is essentially something a person has – it is
a power (Finnis, 1980: 206–7). What we see is the development of rights from right.
For Finnis, this takes a damaging turn in the work of Hobbes, who argues that a
person has rights in the state of nature – that is, a situation in which there is no
state, or political authority: since nobody is compelled to do anything each is free.
The state for Hobbes is the rational outcome of the exercise of these ‘natural rights’.
But since nobody has any duties in the state of nature – for example, nobody is416 Part 4 Contemporary ideas