“Because human beings contain such a bewildering variety of contradictory desires, impulses, intuitions, and habits,” Hilditch continues, “it’s possible to infer just about anything one might care to from our nature.” Humans exhibit a great range of behaviors, he notes, from the noble to the appalling, all of it “natural.” “Our nature supplies us with a kaleidoscopic array of facts about ourselves and the world around us; all accessible to reason and none obviously more prescriptive of our political institutions than any other.”
If Hilditch’s critique of the classical‐liberal project and the American vision in particular is not stewed in moral relativism, it is at least grounded in naïve empiricism. Take his claim, for example, that because “most human beings at most times and in most places in world history” have not thought of natural rights as we do, “this means that [rights] cannot be thought of as ‘naturally discoverable’ in our nature in the same way language or the appetite for food is.” No serious philosopher would go about discovering the nature, foundation, and scope of our rights in that way. One would ask instead what rights are, how they differ analytically, linguistically, and operationally from other moral notions, whether there are rights, what it means to say that there are, what the truth‐conditions of such claims are, how one demonstrates them, and, from answers to such questions, what rights we do and do not have. In short, one would reason.
But even the implications Hilditch draws from his armchair empiricism are faulty. To be sure, it’s easy to claim a right and thus to find disagreement about what rights we have; and rights can easily be created, withdrawn, or ignored through political, legal, or brute force, as the world makes clear. But that empirical evidence is irrelevant to the question of whether we have natural or moral rights: Again, one does not go about addressing that question by comparing conditions around the world. Yet even if we did, we would, through extrapolation (reasoning), reach two distinct conclusions. First, despite Hilditch’s “kaleidoscopic array of facts,” however various the cultural and political arrangements of a society may be, certain fundamental “rights” would be evident, even if not called rights and even if severely limited, absent which the society would simply not function: some form of property, contract, familial arrangement, redress for wrongs, and due process. The variety of such arrangements in evidence notwithstanding, those “basics” are found everywhere, and they are the building blocks of a general theory of rights.
Second, even in highly repressive societies — even in North Korea, as closed and repressive a society as can be imagined — people try to flee, because they know that things are not right there: They know they have rights, natural rights. Those who doubt the universality of basic human rights need only ask victims deprived of them. Ask a Chinese citizen about to be arbitrarily shot after an unfair trial; ask the torture victim if this is not a fate universally undeserved. But even in free societies, the simplest of examples informs us that rights are inherent, for when someone interferes with us, the “natural” response is to object, even if tacitly, to demand a justification, to assert no right to interfere, and thus, by implication, to claim a right to be free from the interference. Yes, in the world, as Hilditch says, human rights may be “radically contingent in historical terms.” In human nature they’re not contingent. They’re in our DNA.
Hilditch’s historicism, aimed at unseating the traditional, reason‐based case for human nature and natural rights and at showing instead that the “entire” ideological edifice of classical liberalism rests “exclusively” on Christian foundations, has led him, ironically, to focus on non‐Western societies rather than on the individuals in those societies. Thus, by failing to take notice of the often tacit, inchoate right‐claims of those individuals, repressed as they may be by their social or political regimes, he slights the very thing that explains, he will argue, our Western respect for rights: the individual. We turn briefly, then, to his affirmative argument.
Hilditch draws largely on Larry Siedentop’s Inventing the Individual: The Origins of Western Liberalism (2014), which treats Christianity as “the cradle of the rights tradition in the West.” As he notes, Siedentop disputes the claim that the Founders’ idea of human nature “is something ‘obvious’ or ‘inevitable,’ something guaranteed by things outside ourselves rather than by historical convictions and struggles.” Precisely what Siedentop means there is less than clear. He seems to be pitting the Anglo‐American justification of liberalism, based on “things outside ourselves” (universal reason, apparently), against the Continental explanation of liberalism’s origins in a history of “convictions and struggles,” origins that better “guarantee” that outcome, he avers, than pure reason. If that is what he means, that final point is hardly self‐evident; for reason, constant and universal, when properly institutionalized, is surely a better guarantee of liberty than history, which taken alone not only does not justify but often evolves in directions that cannot be justified. Here again, we see explanation treated as justification.
Nevertheless, history is Hilditch’s main focus. Thus, he goes on to trace how history evolved in the direction of individual equality by contrasting the ancient Greek conception of natural inequality, a hierarchical world of “everything in its place,” with “the modern political emphasis on the many ways in which individuals are equal to one another.” Reviving his earlier critique of “natural,” he asks why the former should be considered any less “natural” than the latter. When it comes to politics, he argues that the real civilizational shift “began not, according to Siedentop, with the isolated machinations of unaided reason, but with the advent of Pauline Christianity.”
Without question, the rise of Christianity was a factor in the evolution of European thought about what we’ve come to call the human condition, broadly understood. But it was hardly the only factor, much less the “exclusive” foundation for liberalism’s “entire ideological edifice,” as Hilditch claims. In fact, well before the birth of Christ, after the demise of the Greek city‐states in which ethics was a function of politics, we find the Stoics invoking our capacity for reason as undergirding human equality and moral universality, ideas that found their way through Roman Stoics such as Seneca the Younger into the jus gentium, described later by the Roman jurist Gaius in the Institutes as “that law which natural reason established among all mankind.” And the Old Testament too has a clear conception of the individual, of our duty to others, and hence of the rights of others.
But it was the much later, 500‐year evolution of the English common law, especially after John Locke recast it in 1690 as a theory of natural rights, that more directly influenced the Founders than the Continental developments that concluded, on Siedentop and Hilditch’s telling, with “the Catholic canon lawyers of the Middle Ages.” Christianity was certainly in the background as the common law developed. But the law’s origins trace to the third quarter of the twelfth century when Henry II established a system of circuit courts and a central appellate court to hear complaints brought by one subject against another and, later on, against the Crown, all in the name of the subject’s rights, reflected in property and contract. Consulting reason, custom, and often what they knew of Roman law, judges “discovered” rights as they decided cases brought before them, crafting over time a body of positive law — common‐law rights and obligations. It’s important to see, however, that it was their character as reasoned decisions that marked these rulings not simply as positive but as higher or natural law, with a universal character about it. As the eminent legal historian Edward S. Corwin put it in his classic Harvard Law Review essays on “The ‘Higher Law’ Background of American Constitutional Law,” “the notion that the common law embodied right reason furnished from the 14th century its chief claim to be regarded as higher law.”
There is nary a mention of this law in Hilditch’s account. Instead, our attention is directed away from “unaided reason” and to medieval canon law as the exclusive source of our liberties. That is a large overstatement. And a misstatement too, for it was through reasoning, in fits and starts for sure, that the canon lawyers reduced Christian dogma to political principle — principle that others too discovered quite apart from Christian dogma. Yet for Hilditch, the moral intuitions undergirding our unalienable rights are not natural, “apprehended by naked reason, but cultural artifacts bequeathed to us by 2,000 years of Christian history.”
Toward the end of his essay, Hilditch returns to the report of the State Department’s Commission on Unalienable Rights, which laments, he notes, “the fact that ‘the core principles on which nearly all nations once agreed are now threatened by a competing vision in which’ the rights of the individual are being ‘radically subordinated in the name of development or other social and economic objectives.’” Hilditch then contends that “these complaints make sense when one understands that the Western understanding of human rights is predicated on one particular and historically contingent idea of what it is to be human: that of the Christian religion. There is furthermore no evidence that this particular notion of rights will outlive the faith that birthed it.”
We see there, finally, what animates Hilditch — and prompts his essay. Thus, understandably, he concludes that what he views as our “borrowed capital” from the Middle Ages