Beyond a Rights-based Culture and Legal System
As a law student, I am constantly conflicted by the law’s simultaneous relativity and proposition to serve an objective notion of justice. I see a multitude of arguments. I sense there is a right answer out there … but the answer comes from the Catholic understanding of the human person, not the law itself. One particular problem is my inability to believe in rights as a philosophical principle. I mean, I understand that rights comprise the basis of our legal system as the constitution and boundaries of our freedom as individuals. But I just do not believe that rights truly define the scope of our free will, nor should they define the fulfillment of our personhood.
In the midst of making small talk with an older and wiser law student, I accidentally let slip that I did not believe in rights. The older and wiser law school student was explaining the idea of “entrenched rights,” that is, if Congress were to grant and society were to operate according to a right for a long enough period of time, the right could not be repealed by merely passing a law. For instance, it would be incomprehensible to deny a person the right to vote or enter a business based on race, even if a law would purportedly repeal that right.
Instinctually, it feels correct. There is something fundamentally wrong about racial discrimination. A law could not change that fact. And though laws do construct the ways in which we function in society, framing our rights to do things and to have others refrain from doing things towards us, the laws themselves do not give true meaning to the nature of existence. Rather, life pre-exists the law, and life is given by God as a gift—nothing that we have a “right” to. It is only when the law recognizes and protects the gift of our human dignity as children of God does the law shine as a beacon of hope, or a righteous cultural construction.
Many law students view the positive aspects of that cultural construction when they feel that rights align with their contemporary sense of justice. But if only the law and our cultural norms determine the scope of our personal worth and freedom, even seemingly impenetrable and logical norms like anti-discrimination cannot be absolute. Despite being characterized by virtuous notions of justice, many legal rights, such as the right to abortion and euthanasia, express the competitive and destructive nature of a rights-focused regime. A woman has a right to reproductive justice; the unborn does not. The dying has a right to end her anguish by choosing to end her life; her family has no right to sharing her life. The victim’s family has a right to justice enforceable by the State’s death penalty; the convicted has no right to mercy.
There is no doubt that legislators and voters formed these rights with the intention of alleviating suffering. It does feel unjust when a woman faces motherhood in a working world unaccommodating to her and her child’s needs. It does feel unjust to watch a relative in seemingly unending pain. It does feel unjust to be the victim of a senseless act of violence. Life is full of suffering—but it is fundamentally a gift. We do not possess it any more than we possess fictitious rights. Yet Christ transforms our suffering to enter into the ultimate gift of union with him in eternal life.
Instead of seeking to remedy the burdens of perceived injustice, rights should seek to protect life itself for what it truly is: abundant and vulnerable. The “right to life” seeks to prevent true injustice. As do basic human rights, such as domestic anti-discrimination laws and the right to be free from persecution in international law. When the language of rights reflects the objective dignity of human life and is unwilling to compromise its worth at the expense of other rights marked by the vicissitudes of culture—like the freedom to do what we will with our bodies, or the state’s administration of criminal justice through life incarceration or death—we glimpse true justice.
But the flaw in rights-language that ultimately evokes my doubt in rights’ viability is a misplaced sense of entitlement to culturally constructed values of freedom and justice as if they were founded on objective principles. A right need not be entrenched in legal and cultural norms to have force beyond the letter of the law. A right need only reflect the truth of our personhood as a gift and as full of dignity—an eternal truth not dependent on time—to last.
I am so grateful to have studied at Notre Dame, surrounded by brilliant people (many of whom were on the Rover) who were searching for the truth. Although my undergraduate studies and faith make for awkward social conversations in law school and truly challenge my understanding of law, I would not have it any other way. I take hope in the fact that justice does search for truth, and the law is full of potential to be truly just. And of course, I am consoled by hope in the cross.
Madeline Roe Flores is a 2013 Notre Dame alumna and a second year law student at Tulane University. She can be contacted at firstname.lastname@example.org.