Any account of morality in which human rights are conceived of as one of its fundamental components is a Human Rights Theory. Such “human rights” are subjectively grounded, “finally traceable to one’s own subjectivity standing in isolation, or else to certain merely conventional and contractual … relationships in which one stands to other fundamentally monadic subjects.”[1] A Human Rights Theory may claim that a single right moral order can be constructed in which those rights are basic building blocks (as Nicholas Wolterstorff does);[2] it may conclude that there are different moral visions, each of which is coherent, that can be constructed depending on how human rights claims are evaluated;[3] or it may regard the various human rights as at least partially incompatible with one another and therefore their relationship as antagonistic.

Christian rights sceptics dispute the core claim of Human Rights Theory: they deny that human rights are one of the fundamental components of morality. Such a denial may mean that human rights have no place in either moral reasoning or legal argument (as Joan Lockwood O’Donovan has postulated),[4] it may mean that the proper place of human rights is in the courts (as Oliver O’Donovan would contend),[5] or it may simply mean that human rights are a secondary feature of morality (which appears to be John Milbank’s mature approach and which Nigel Biggar thinks is a possible, though dangerous, way of viewing matters).[6]

Although such denials are also likely to result in a rejection of novel or expansive rights claims, the rights sceptics nonetheless usually affirm the substance of established rights. John Milbank endorses the “fair trial, right to a defense, assumed innocence, habeas corpus, … good treatment of the convicted”,[7] freedom from torture (because people have been made in the image of God and should be treated charitably),[8] and freedom of religion and of association (because truth requires free consent),[9] as well as “rights to non-coercion in as many contexts as possible, rights to free speech, to security of ownership if this can be distributively legitimized, to community-securing of our health, [to] educational development, [and] to political participation”.[10]

Oliver O’Donovan commends the rule of law, freedom of speech and merciful judgment as fundamental to any justly ordered society,[11] and readily endorses the view that “a traveller should not be robbed and killed on a lonely road, … a poor widow should not be refused means of sustaining life, … a servant should not be treated as a disposable chattel, and so on”.[12]

Joan Lockwood O’Donovan thinks that welfare rights such as medical care, housing, employment, and voting opportunities can be endorsed and fully accounted for in terms of obligations, and without the language and conceptuality of property right.[13]

What rights sceptics object to is that such rights are grounded not in the natural law or in the wisdom of a community but instead in either the capacities of the human person or an account of human dignity which is in fact a trojan horse for a worldview in which self-respect and authenticity entail self-creation and ethical constructivism.

Christian rights sceptics object to Human Rights Theory because of the way in which this theory conceives of the relationship between our selves and the world, imagines the relationship between individuals and the community, treats the relationship between the Right and the Good, elevates choice into the only substantive value, and attempts to address all these questions without any weight-bearing reference to God.

The writings of the rights sceptics, Joan Lockwood O’Donovan, her husband Oliver O’Donovan and John Milbank are not easy for the non-specialist reader to engage with. Describing John Milbank’s position requires excavation. Milbank has a penchant for titles which are hyberbolic or gnomic, such as “Against Human Rights”, and combines these with notoriously difficult prose. Careful reading reveals that Milbank opposes subjectively grounded natural rights,[14] the primacy of individual rights over community relationships and collective identities, and the abandonment of the quest for the common good and the substitution of “a strictly policed and controlled series of procedures rather than a set of shared beliefs and specific practices.”[15] He nonetheless acknowledges that:

“Modern ‘rights talk’ may … often indicate, in false terminology, a true objective ius or linked elements of objectively appropriate claims and rights to active (and indeed creative) exercise of a certain role. Often when we speak of rights we are really indicating a more fundamental correlative duty – the duty of the State to provide free health care, for example, alone makes any sense of the right of all to this benefit. Similarly, we are often really indicating respective shares of ius within a relational context. The ‘rights’ of women, for example, if they are more than human rights in general, can only means the respective shares of objective ius which they should be able to receive, claim or exercise in relation to men and children.”[16]

Human Rights Theory’s Misunderstanding of the Relationship between our Selves and the World

The dominant conception of rights within Human Rights Theory is of rights as a species of property. One of the clearest statements of this conception comes from the great English philosopher of law, H.L.A. Hart. He wrote in a 1955 article:

Rights are typically conceived of as possessed or owned by or belonging to individuals and these expressions reflect the conception of moral rules as not only prescribing conduct but as forming a kind of moral property of individuals to which they are as individuals entitled; only when rules are conceived in this way can we speak of rights and wrongs as well as right and wrong actions.[17]

Rights are, in short, things which belong to me. As we saw in the blog post, “Who are Human Rights For?”, this idea is clearly present in the thought of John Locke. Locke’s theory of natural rights was built around the idea of property, which, for him, meant “that property which men have in their persons as well as goods”.[18] On Locke’s account of natural rights, my body is one thing among the many things I own, and with which I have a prima facie right to do with what I like. This leads to rights-holders regarding themselves as dominating both the things they own and also the bodies they inhabit. As Tina Beattie comments, Locke’s emphasis on property generates a theory of natural rights “which served the interests of a property-owning male elite bound to the state by the social contract”.[19]

Lockwood O’Donovan argues that proprietary thinking is present throughout the liberal contractarian political tradition running from Locke and Hobbes through Rousseau, Kant, and the apologists for the American and French Revolutions to contemporary thinkers such as John Rawls and Robert Nozick.[20]

In this tradition, which has supplied much of the ideological glue of contemporary liberal democracy …: behind the multitude of naturally self-governing individuals, whose sovereign collective will government serves, is a multitude of naturally self-owning individuals, each with a proprietary right over his/her spiritual and corporeal capabilities and acts, to dispose of them in whatever way he/she chooses. Although individuals are (obviously) not equal in their physical and spiritual resources, they are equal (so it is asserted) in their ownership of them: they are equal as proprietors. Self-proprietors are interested in maximizing their powers of self-disposal or self-determination, their freedom of choice; and they participate in political society as a contractual creation to achieve maximum freedom through the protection and provision for their rights. Believing in the equality of self-proprietors, individuals are not adverse to honouring the rights of others, but only as far as their prudential calculations allow, or the political contract which authorizes governmental action requires.[21]

For Lockwood O’Donovan, possessive individualism is not merely part of the conception of human rights in liberal contractarian thought but is an intrinsic feature of Human Rights Theory as such. In common with Michel Villey,[22] both she and Oliver O’Donovan trace it genealogically to the early fourteenth century thought of Marsiglio of Padua and William of Ockham. Milbank agrees with her account of its origins.[23] From the attempts of the Franciscans and their supporters to defend the Franciscans’ right to use goods necessary for their sustenance, Jean Gerson and his followers then developed the “concept of right in a voluntaristic, subjectivist, and proprietary direction. … [T]he individual’s claim-right to something was construed as a form of dominium. Thus, the individual was a moral proprietor (dominus) not only of what he actually possessed but also of what he demanded as an entitlement.”[24]

Joan Lockwood O’Donovan therefore claims that:

“the possession of [natural] rights [by individuals] is always proprietorship: all natural rights originate in property right, so that to reject property right is to reject natural or fundamental rights as such.  Indeed, the whole panoply of modern rights (including what are called “claim-rights”) has sprung historically from the attribution to humankind of two radical proprietary rights: firstly, an original or natural proprietary right over the non-human goods of creation, and secondarily, the person’s natural right to dispose of his own acts (i.e. his right of freedom), which came to be explicitly construed as a form of proprietorship.  From these radical proprietary rights has evolved the proprietary subject who seeks to dominate his moral and natural environments not only by protecting what he already possesses against any and every other possessor, but by demanding what he does not yet possess as an entitlement (i.e. a claim-right) that is entailed in his original proprietorship.”[25]

The combination of proprietorship with autonomous freedom in Human Rights Theory means that rights are thought of as “things which belong to me to do with as I want”. The result is that rights displace duty and obligation, God, and goods from the centre of moral reasoning they ought to occupy. Lockwood O’Donovan argues:

“First, the conceptuality of subjective rights is intrinsically juridical … Second, as a juridical conceptuality, subjective rights is intrinsically proprietary, casting legal relationships as relationships among self-owning, self-disposing, and self-protecting proprietors who can be harmed in their personal property and in the contractual arrangements attaching to it. Without the theologically problematic lynchpin of an original individual right of autonomous freedom (of which the other rights are derivative expressions), the legal usefulness of the conceptuality would be much curtailed. In many domains of public law, the concepts of duty and obligation would, I suspect, suffice. Third, both as a civic ethic and a legal framework, the humanist and voluntarist conceptuality of subjective rights displaces the centrality of the Trinitarian God – Father, Son, and Holy Spirit – as the original and on-going source and telos of human right, … Finally, the posited equality of human persons as bearers or possessors of rights drives toward an equality of social and legal treatment that constantly disregards the nature of the common goods to which they lay claim, whereas an ethos of obligation makes the inherent structure of each social good decisive for the treatment of individuals.”[26]

Lockwood O’Donovan argues that in grounding subjective rights in autonomous freedom and property right, Human Rights Theory is fundamentally mistaken. We do not belong to ourselves, we belong to Christ, and “receive all the good that we are, have, and do from him, as a ‘loan’.”  As we relate to others, we are to fulfil the demands of justice, not the demands of one another.  Justice is constructed not from the rights of individuals but from a matrix established by “God’s right … of divine, natural, and human laws or objective obligations that constitute the ordering justice of the political community.”[27] Justice is a matter of right order, not the summing of individual rights.

The ideas of gift and gift-exchange are leitmotivs in John Milbank’s theology.[28] This means that proprietorship is a wrong view of our relationship to our bodies and to the things we use. In starting “not from social recognition in accordance with natural equity, but rather from a natural pre-moral fact, such as the fact of self-ownership, or the contingent de facto circumstances of property ownership upon which legitimacy is then positively conferred”,[29] Human Rights Theory begins in the wrong place. This is true even of how we treat our own bodies: “if the body simply is our expressed self, … and not something we own, then the key characteristic of action is not ‘owned’ freedom but instead always-already transferred gift — which again must be socially judged for acceptability, as to whether it truly is gift and not rather social poison.”[30] In contrast to Human Rights Theory’s emphasis on proprietorship, the Torah gives priority to “the sundering of intra-human bonds’ over against ‘violation of private property rights”.[31]

Human Rights Theory’s Mistaken View of the Relationship between Individuals and the Community

Already we can see from the above discussion about proprietorship how rights sceptics contend that Human Rights Theory endorses an individualistic worldview, in which each person is entitled to claim as much from the community for themselves as their rights will allow, and in which relationships with other people can be picked up and discarded at will. The vehicle for this is the liberal fiction that all social order is a work of human choice or imagination.[32] This aspect of Human Rights Theory can be clearly seen in a letter written by Thomas Paine to Thomas Jefferson in 1789. In this letter, Paine talks about 20 people, who were strangers to each other, meeting in an empty country.  “Each would be a Sovereign in his own natural right.  His will would be his law, but his power … inadequate to his right”.[33] Paine then describes how such people would trade freedom for protection but without giving up their basic pre-social rights.  As Yuval Levin observes:

“This cogent description grounds rights in a highly individualistic understanding of the citizen. It sees social and political bonds as the products of individual choices driven by calculations of utility and need. … when an individual right cannot be exercised individually, citizens draw on the power of the state to put their rights into practice.  This power is not a gift of society; it is an entitlement … As Paine puts it in the Rights of Man, ‘society grants [the citizen] nothing.  Every man is a proprietor in society, and draws on the capital as a matter of right.”[34]

Paine’s writings are an eloquent expression of what Roger Scruton calls the “secular religion of human rights”, whose central creed is “that we owe the world nothing, and that the world owes everything to us.” As a result, “We kill in ourselves both piety and gratitude”.[35] Human rights are used to make individualistic claims in the name of ‘Me First’.  It is ‘my rights’ that matter, never mind the cost to the community of satisfying them.  It is ‘my rights’ that matter, never mind the fact that I have obligations to others.

Paine’s writings show how the declaration of the rights of the sovereign individual in the French Revolution was the inversion of the absolutist account of sovereignty exemplified by Louis XIV.[36]  The same perspective can also be found in the writings of John Locke.[37] Although Locke writes that “The public good is the rule and measure of all law-making”[38], his definition of the public good in his Second Treatise is simply “the good of every particular member of society”, i.e. “the summing of individual interests and not a collective good with its own independent status.”[39] For Locke, there is no common good other than the preservation of every individual’s “civil interests … life, liberty, health … of body; and the possession of outward things, such as money, lands, houses, furniture, and the like.”[40]

Atomised individuals are socially and economically defined as lone owners, lone choosers, and self-seekers.[41] For liberalism, “its ‘normal’ person is … the freely choosing and contracting autonomous thirty-one-year-old. But no human person is forever like this; it is rather only a moment in a coming to be and passing away.”[42] As we grow from childhood, through adulthood, and into old age, people are embedded naturally and through common bonds in ‘micro-social bodies’. Milbank argues that ‘governments should treat people not according to formal abstraction but as they are – in regions, metiers, local cultures, religious bodies, etc.’[43]

The individualism of Human Rights Theory is, according to Milbank, fundamentally mistaken. A human person is not an atomistic, self-sufficient sovereign individual, instead a human person is “only constituted through the series of relationships in which he stands. For it is the insertion of the individual in such a chain, extending to his link with God himself, which ensures the essential place of the individual within the whole …”[44] The origins of Human Rights Theory’s mistake can be traced back to Dun Scotus’s over-emphasis on God’s infinity and freedom at the expense of adequate reflection on God’s goodness and on the intra-trinitarian relations as constitutive of God’s essence,[45] together with Scotus’s substitution of the common good by contractually-agreed upon conventions.[46]

Human beings do not live in this world as autonomous individuals. “The community is the aboriginal fact from beginning to end … It is not as bearer of his own primitive pre-social or pre-political rights that the individual demands the respect of the community”.[47] No human being has the power or privilege of beginning with a tabula rasa or founding a civilisation with no antecedents. Each of us learns what it is to be a human being because of what we are taught and what we experience in a community. In Self, World and Time,[48] Oliver O’Donovan describes the task of moral reasoning as one of awakening to our situation, including to our interconnectedness and interdependence. Human Rights Theory rejects that inescapable reality in favour of the fiction of the social contract in which a group of adults gather together to reach an agreement about how a newly formed voluntary society is to be organised.

John Milbank endorses Werner Hammacher’s argument that “the possessive individualist construal of rights can never really suppress the anarchic agonism of its starting presupposition, whereby everyone is potentially an enemy to everyone else, with no positive construal of human collective or social identity”.[49] Oliver O’Donovan agrees that with the move from “Right” to “rights”, the unity and coherence of justice has been replaced by a plurality of rights, which are as such competitive.[50] One consequence is the paradox that alongside “the liberal definition of one’s own selfhood as a negative free ego” comes “the equally liberal potential reduction of all other selves to objects that might instrumentally serve one’s own egotistic needs”.[51]

Human Rights Theory inverts the relationship between the individual and the community. It places our responsibilities before our rights. At the heart of the moral codes of Judaism and Christianity lie the Ten Commandments: these are framed as a declaration of the obligations human beings owe to God and to one another, not as a declaration of the rights of the one true God and God’s worshippers.

Rights sceptics endorse the judgment of Edmund Burke that: “The place of every man determines his duty. … We have obligations to [hu]mankind at large, which are not in consequence of any voluntary pact.  They arise from the relation of man to man, and the relation of man to God, which relations are not matters of choice.”[52] They would agree with the assessment of Michael Schluter that: “We should think of each person not primarily as an individual, but as a member of a network of personal relationships.”[53] Justice therefore consists in “measuring the proper situation of persons and things in relation to each other.”[54]

Reciprocity is key to Milbank’s thinking.[55] “Neither the individual nor the social whole is absolute … [B]oth the individual and the social whole enjoy an equal primacy”.[56]

“right is only subjective right when it ceases to be a relational matter and becomes something grounded in an isolated individual capacity. And the problem here … is that such a right, precisely as non-relational, is infinite – we ascribe now a human right to adequate healthcare, but truly to fulfil that right to the maximum for each and every person would be impossible. This rights doctrine tells us nothing about how healthcare is to be justly allocated and provided, even though these are the really crucial issues.”[57]

Speaking on behalf of the rights sceptics, Oliver O’Donovan writes: “Individual human rights set apart from social right are destructive of society”.[58] The result of Human Rights Theory is that people come to see themselves as individuals, with the right to be free from pressure from other people, externally imposed obligations, and natural limitations. This leads, Joan Lockwood O’Donovan claims, to rights being asserted as demands, as claims by individuals, to the detriment of social institutions and society as a whole.  The logical conclusion, she argues, is that rights will be claimed to everything which can be the object of human desire and possession.  What gets squeezed out in the clamour for more and more rights are the shared goods of community. Common forms of life, in which values and virtues are nurtured and developed, are subjected to the solvent of inclusivity and thereby stripped of their distinctive content, their formative power, and the sense of place and belonging they offer.

Milbank dismisses the suggestion that Human Rights Theory can adequately accommodate group rights. “[L]iberalism is incorrigibly atomistic. Liberal recognition of group identity must always logically give way before the recognition of individual rights.”[59] This plays out through the application of claims made in the name of conscience of inclusivity which

“always tends to favour the plea of the individual against any form of perceived [group] ‘pressure’ – as for example the wearing of religious symbols at work, or the demands of a non-political corporate body that its members adhere to its regulations. Since most of our capacities are achieved through collaboration and association, the real effect of this is eventually to reduce even individual freedoms.”[60]

On Milbank’s account, Human Rights Theory is part of a “rigorously liberal perspective” which is incapable of tolerating dissenting groups

“because it does not think in terms of the different contributions of persons and groups to the organic whole. Instead, it thinks in terms of the direct relation of each and every individual to the whole as uniquely represented by the centre, and demands that every group treat each individual in abstraction as formally alike to all other individuals, because each individual is only to be regarded by the group with the gaze of the undifferentiated whole, which is the gaze of the absolutely sovereign state.”[61]

Thus, whereas the international human rights instruments were adopted after the Second World War in order to protect individuals against the actions of their own governments, the juridical logic of human rights claims has turned human rights into a vehicle by which individuals can insist that the state enforces their rights against other individuals and groups. John Milbank rejects the liberal model of the solitary individual and the unitary state in favour of a form of corporatism he labels “gothicism”, which draws on the mediaeval guilds and monasteries are examples of the institutions of civil society and the social groups which need to be reinvigorated.[62]

Rights sceptics would endorse the judgment of Aleksandr Solzhenitsyn, who wrote in 1976 that: “The defence of individual rights has reached such extremes as to make society as a whole defenceless. It is time to defend, not so much human rights, as human obligations.”[63]

Human Rights Theory’s Misarrangement of the Relationship between the Right and the Good

Human Rights Theory derives from Locke a subjectivist account of the Good.[64] Because the goods are now a matter of personal taste, societies are supposed to be bound together by respect of individuals’ rights. According to rights sceptics, such a manoeuvre does not succeed in evading the question of the Good. Oliver O’Donovan argues, following Augustine, that societies are bound together by their common objects of love.[65] For Milbank, that societies always coalesce around meta-narratives.  “[T]here is never any truly ‘neutral’, procedural ground … Something always rules, and this something is always substantive.”[66]

In Milbank’s view, a community is only a community if it is “aiming for a goal, that its collective character fosters desired ends.”[67] Secularism has succumbed prematurely to despairing “of the possibility of substantive agreement about the common good”.[68] He emphatically rejects John Rawls’ procedural political liberalism, with its fictional notion of basic isolated individuals pursuing their privatised and personalised goods.[69] There “can only be a just exchange where there are constantly re-negotiated and agreed upon standards concerning the human common good”.[70]

Where Human Rights Theory dominates public discourse, the result is that instead of a community engaging in conscious and collective deliberation about its understanding of the Good, an ersatz conception of the Good is generated by those rights claims that succeed in attracting the most corporate sponsorship or ‘likes’ on social media.[71]

For Joan Lockwood O’Donovan, value-pluralist human rights theories are “corrosive of political community” because of their “denial of a common moral universe in which shared spiritual as well as shared material goods mediate and determine the self-transcending of individual wills in their mutual relationships.”[72]

Instead, human goods are to be discerned within “the intelligible structures of their creaturely reality (on which the first two chapters of Genesis have always offered a crucial window). These comprise an order of universal human goods – physical, intellectual, and spiritual – and the patterns of right relationships of persons to God, to themselves, to one another, and to the non-human creation that they entail.”[73] The individualism of Human Rights Theory means that it starts from the wrong place, and fails to give sufficient weight to the inherent sociality of human life and of human goods.

In Milbank’s view, the result is that Human Rights Theory not only privatizes the Good, it destabilises rights themselves:

“Universal values of freedom, equality, solidarity and the will of the majority require transcendent finalities projecting notions of the genuinely good life, otherwise they are drained of their meaning by procedural process, or else they oscillate between the sovereign individual and the sovereign collective. Equally, they oscillate between obsession with imagined micro-differences of identity in the name of negative freedom, and the univocal rendering of all identities in the name of a formalistic equality as essentially the same.”[74]

Without a collective account of the Good, “foundational subjective rights, rejecting all essentialisms (even relatively ‘liberal’ ones) tend to foster irresolvable civil conflicts.”[75] Unless questions of the Good and of distributive justice are taken into account, “the clash of equally ‘absolute’ rights becomes non-adjudicable”.[76] So, for example, “rival claims over rights of the foetus and adult human beings allow of no dialectical mediation and no real debate. But this is precisely because of the mistaken framing of the debate in terms of subjective rights which are, by definition, unmediated and unmediable.”[77]

Without a shared account of the Good, “this notion of human rights clearly provides us with no practical ethical guidance. In reality it leads to a state of anarchy which is only ended by an authoritarian power which will arbitrarily promote one set of rights over another – liberal capitalist states the right of property; State socialist authorities the rights to food, health, work and culture.”[78]

Therefore, “in order to pursue justice, we must believe that the discovery and implementation of justice is objectively possible, … Legitimate government must govern and judge in the name of the good and not merely in the name of the people.”[79]

Human Rights Theory’s Misbestowed Importance on Choice

Because of its subjectivisation of the Good, Human Rights Theory makes individual, autonomous, choice the ultimate value. For Milbank, Human Rights Theory is one of the key intellectual underpinnings of the nihilistic triad of secularism, liberalism, and capitalism. By defining human beings as “pure individuals”, whose sole defining characteristic is the possession of “a free will. Not a will determined to a good …but a will to will”,[80] social norms are rejected or firstly reduced to negative duties of non-interference before being transmogrified into positive duties to affirm the choices of others.

By denying the existence or importance of God, secularism rejects “any extra-human or extra-natural norm”.[81] By refusing any evaluation, ranking, or hierarchy other than in monetary terms, capitalism has excluded virtue and repudiated substantive justice in favour of purely procedural mechanisms for managing self-interests.[82] “In the absence of collective standards, or even a collective search for standards, the only standard is a regulated agon according to formalised procedures.”[83]

This privileging of choice is present in liberal contractarian thinking from the start, and is explained by Yuval Levin (speaking of the thought of Thomas Paine):

“the natural equality of all human beings translates to complete political equality and therefore to a right to self-determination.  The formation of society was itself a choice made by free individuals, so the natural rights that people bring with them into society are rights to act as one chooses, free of coercion. … Politics, in this view, is fundamentally an arena for the exercise of choice, and our only real political obligations are to respect the freedoms and choices of others.”[84]

The privileging of choice is bound up with the conception of freedom as power.[85] Milbank denounces what Nicholas Lash calls “that ‘adolescent’ ideal of autonomy which interprets freedom as my power, my property, my private playground in which – no duties save that of not trespassing in other individuals’ nurseries – I may do my thing.’[86] Milbank and Pabst argue that the result of the triumph of ultra-liberalism is that ‘The notion of emancipation  has … become debased to mean liberation not simply from the prejudiced social exclusion of certain groups and from arbitrary inequalities, but also from almost and every restriction on individual choice.’[87] This absolutizing of choice leaves to decay and then actively seeks to destroy “all tacit constraints embedded in family, locality, and mediating institutions between the individual and the state …”[88] Liberalism has erred in going beyond the penultimate respect due to individual security and freedom of choice into making these supreme, unquestioned, unqualified values.[89]

The absolutizing of choice leads inevitably to the expansion of the arenas of choice, to the marketisation and commodification of everything that can be the object of human desire. Edmund Burke already foresaw that Human Rights Theory would be the vehicle through which such choices would be validated: “By having a right to every thing they want every thing.  Government is a contrivance of human wisdom to provide for human wants.”[90]

Following Edmund Burke’s cue, Joan Lockwood O’Donovan argues that:

“In a wholly secularized liberal democratic polity, where the only coherent public moral language is that of subjective rights, the only universally respected right will be that of freedom, understood as the sovereignty of the subject over his/her physical and moral world, that is, the subject’s emancipation from all externally imposed material and spiritual constraints on his/her freedom of choice. In such a polity, rights-claims are only limited by two horizons: the expanding horizon of technological ingenuity and the shrinking horizon of the public purse.”[91]

“[T]he inflationary logic of rights”[92] means that there is “an in principle infinitely expanding number of rights”.[93] A subjectivist concept of rights panders to the pursuit of individual self-interest, leading to a constant escalation of competing claims, expectations and demands. Far from providing a commonly agreed moral framework for the resolution of such claims, attempting to construct a legal system on the basis of subjective individual rights only increases conflict and undermines the ability of government to render just judgment or promote the common good.

Yet precisely because Human Rights Theory privileges the assertion of individual claims against collective goods and communal identities, the State is called upon more and more to adjudicate upon and to uphold such claims. Instead of protecting people against over-reaching by the State,

“the bio-political logic at the very heart of the atomistic liberal tradition redefines life as something that belongs to individuals as their own subjective possession. But since even self-ownership requires protection by the constitutional-legal system, which is ultimately upheld by the state, liberalism effectively grants the state power over life itself. That is why liberals have not hesitated to “modernise” marriage and liberalise both abortion and euthanasia. Thus, while, for liberalism, avoiding pain and maximising pleasure are seen as the best way of liberating the individual, in reality liberal utilitarianism hands over life to the forces of the state and the market, treating it as a commodity that can be traded or dispensed with without regard to its intrinsic worth.”[94]

Unless tempered by an antecedent shared conception of the Good, Milbank warns that “since in practice individual freedom of choice must always be limited, an appeal to ‘human rights’ as an unassailable norm will always mean in reality a covert allowance of specific freedoms for some and certain converse inhibitions of specific freedom for others for interested reasons of power-politics.”[95]

Moreover, choice is completely vacuous unless there is some qualitative content to what is chosen.[96] Choices only matter if some choices are better and others worse than others. True liberty is not “unfettered personal choice and freedom from constraint except the law and private conscience”, but “the self-release of people from debilitating passions and degrading choices, in favour of the more strenuous pursuit of human flourishing.”[97]

Human Rights Theory’s Misguided Agnosticism or Atheism about God

When the UK enacted its Human Rights Act in 1998, Francesca Klug published a book entitled Values for a Godless Age.[98] Rights sceptics challenge the intelligibility and coherence of the idea of inalienable and fundamental human rights if there is no God. They endorse the assessment of the atheist philosopher John Gray that: “human rights originated in monotheism – the belief that there’s only one God, who creates a single moral law for all human beings … For unless these rights are grounded in something beyond the human world, they can only be a human invention.”[99]

Milbank does not believe that the framing of human rights within natural law, as John Finnis and the other members of the New Natural Law school have done, is sufficiently theological to escape from the liberal paradigm.[100] If there is no God, then the notion of “liberal human rights … revolves in a futile circle: these rights are supposedly natural, yet inert uncreated nature has never heard of them. They only exist when the State proclaims them, yet the State alone cannot legitimate them, else they cease to be natural and so general and objective.”[101]

Natural rights without God are the creation of the State, with the result that:

“If these rights are “natural” (and follow from certain given facts regarded as prior to valuation) …, yet are only operative and recognized – and therefore existent – within the State, then the State assumes to itself a power over nature, a right even to define nature, and indeed defines itself by this power, and therefore secretly reserves to itself alone a supreme de facto right of pure nature prior to contract, by which in exceptional circumstances it may withdraw any right whatsoever.”[102]

John Milbank argues that “the belief in a ‘natural’ morality, essentially unaffected by religious belief, and shared in common with all humanity, goes along with a thoroughly unhistorical view of ethics.”[103] What Human Rights Theory offers is “an autonomous, secular reason” which operates as “the mechanism of individual and collective will to power”.[104] Only transcendence can uphold the relative worth of embodied life, self-expression, sexuality, aesthetic experience, and human political and other social communities over-against the void.[105]

Milbank is emphatic that, like every other approach which deletes God or brackets God out in theory or practice, Human Rights Theory is left “grounded literally in nothing”. [106]  As Philip Blond puts it, “secular accounts of reality fail to capture reality’s essential aspect, its dependence on and participation in God.”[107]

John Milbank, Oliver O’Donovan and Joan Lockwood O’Donovan all endorse Augustine’s now controversial thesis that there can be no right if the right of God is not recognised.[108] Milbank asserts that ‘… the ends sought by the civitas terrena are not merely limited, finite goods, they are those finite goods regarded without “referral” to the infinite good, and, in consequence, they are unconditionally bad ends.’[109]

If it is wrong to start with rights, where do we start and where are we going?

According to the rights sceptics whose views we have considered in this chapter, moral reasoning needs to start with reflection on the Good.[110] The intrinsic goodness of the goods within creation needs to be discerned and ordered subject to “the primacy of absolute good … grounded in something super-human”.[111] There needs to be  “a commitment to universally objective and transcendent standards of truth (however this be metaphysically understood) – even if these are never fully known and always deeply contested.”[112] Only if we reflect with God and shared goods in mind can we determine the right distribution of burdens and benefits.

Milbank and the O’Donovans agree that government as grounded in natural law[113] and eternal law.[114] In Milbank’s construal, the content of these laws is ‘fair distribution and generous assistance’,[115] common enjoyment of the goods of creation, fellowship, and the exchange of benefits. Justice requires just distribution of goods in accordance with shared valuations.[116]

Neither Milbank nor the O’Donovans think that natural law is enough. Milbank contends that:

“questions of right and wrong here have never been decidable merely in terms of what has been pre-given by (as it were) initial divine design.  Certainly, that must be ceaselessly attended to, but questions of right and wrong in these instances more ultimately require a discernment of teleology, and a ceaseless discrimination of what is good in itself”.’[117]

Whereas Oliver O’Donovan’s early work defended a robustly objective conception of created moral order,[118] in his later work, human goods are to be approached by reflecting on the self through the eyes of faith, the world through the eyes of love, and time through the eyes of hope.[119]

Human beings need to be understood as persons who are made in the image of God (which guarantees their dignity and freedom),[120] but who were made in and for community with one another. Our selves and our possessions are never ours to do with entirely as we please, but are always to be enjoyed within a framework of duties and obligations, and a calling to live virtuously.[121]

For O’Donovan, freedom is not the maximization of choice, but “the self-realization of the individual within social forms”.[122]  For Milbank and Pabst, “a substantive vision of true human flourishing [will affirm] that human beings … are all heroic cultural labourers, who work because they are guided by a vision of the further realisation of the Good.”[123]

This provides the context within which the Right can be discerned. For Lockwood O’Donovan, those Church Fathers and mediaeval theologians who did not make use of any concept of subjective natural rights are exemplars:

“God’s right established a matrix of divine, natural and human rights or objective obligations that determined the ordering justice of political community. Justice (iustitia) was synonymous with objective right (ius) – i.e. the objectively right action in any situation …”[124] 

For Milbank, by contrast, there were mediaeval thinkers whose conceptions of the rights of subject which “were not grounded in self-possession and therefore were not in any degree tending in the direction of ‘modern human rights’.”[125] Like Oliver O’Donovan, he would allow space for rights understood as derivative features of the moral order, the result of balancing out claims in deliberation on concrete instances.[126]

Nonetheless, there are significant differences between the prescriptions offered by John Milbank and Joan Lockwood O’Donovan. Milbank has set out an ambitious vision for postliberal society in The Politics of Virtue, which aims to give a thick account of the justice of ‘living together in agreement, rather than mere mutual toleration’.[127] The reason Milbank thinks that such a vision is necessary is because “freedom for all is only possible in a context of justice.  Likewise, justice, which depends upon common, yet not theoretically prescribable stands, is only possible in the context of agreement about common goods and values.”[128] Milbank emphasises that such a project will always be a work in progress: “universality cannot be valid as a claimed finished grasp of ultimate principles, but only as a very remote intuition of the shape of a global and cosmic community in which all differences are reconciled and mutually flourish.”[129]

Lockwood O’Donovan thinks that such projects are mistaken in principle:

“it is not the business of public judgment to render an extensive moral account of the various sets of relationships comprising our common life, arranging and detailing the obligations they entail; still less to provide a manual for attaining the social goods they embody. … [P]olitical judgment should not attempt to prescribe, nor aspire to effect, godly, righteous, and virtuous conduct, but to proscribe and seek to prevent only those graver violations of the moral law that threaten the precarious society of sinful human beings.”[130]

Lockwood O’Donovan’s preference is for Christian constitutional government, which her husband, Oliver O’Donovan has done so much to trace in The Desire of the Nations and The Ways of Judgment.

Nicholas Wolterstorff’s Response to the Rights Sceptics’ Challenges

The rights sceptics highlight features of contemporary rights talk which are problematic. They allege that any Human Rights Theory which treats subjective rights as natural or primary will be indelibly marked by these features. Possessive individualism, the prioritising of choice, and the downplaying of the quest for the Good, are all traced back in the genealogy into the ideas of John Locke and the mediaeval theologians who integrated God into their thought. Are they correct? In the space available, I will simply attempt to sketch the outlines of a possible answer, that offered by Nicholas Wolterstorff.

Wolterstorff has attempted the boldest contemporary Christian inherent rights theory.[131] In Justice: Rights and Wrongs, he sets out an account of rights which conceives of them as aspects of normative social relations[132] and grounds them in the worth which God bestows on human beings.[133] Wolterstorff has refined and expanded his account in his subsequent works Justice in Love,[134] The Mighty and the Almighty,[135] Understanding Liberal Democracy[136] and Journey Toward Justice.[137] His theological-philosophical argument in Justice: Rights and Wrongs places God at the centre of his human rights theory.  In Journey Toward Justice, Wolterstorff insists that “If a right is what I said it is – a normative social relationship, grounded in one’s worth or dignity, and consisting of a legitimate claim to the life-good of being treated a certain way –then it’s clear that the charge against rights-talk of expressing and abetting possessive individualism points to an abuse of the language rather than to something inherent in it.”[138] In chapter 14 of The Mighty and the Almighty, Wolterstorff shows how group rights can be accounted for within his theory. 

Wolterstorff’s answer to the charge that Human Rights Theory mistakenly places the Right prior to the Good has two different aspects. At the fundamental level he insists that “in the order of concepts … the good has priority over the right. One has rights to only a subset of all the good ways of being treated by others.”[139] Wolterstorff identifies that subset of goods by the following criterion:

“One has a right against someone to the life-good of their treating one a certain way just in case, were they to deprive one of that life-good, they would be treating one with less respect than befits one’s worth. … Someone’s rights are what respect for his or her worth requires.”[140]

In terms of what this theory implies for political arrangements, Wolterstorff denies that a society needs to have a comprehensive account of the Good. In Understanding Liberal Democracy, he develops an account of liberal democracy as a form of government in which citizens enjoy equal political voice, and which views the role of the state in protectionist terms.

“A protectionist understanding of the state views the fundamental task of the state as protecting citizens against the more serious forms of wrongdoing by their fellow citizens and views the state as limited by constitutional protections protecting citizens against certain fundamental ways of being wronged by the state.”[141]

Wolterstorff says that it was his experience of seeing white Christians in Apartheid South Africa use the language of charity to mute the demands of justice which led him to see the necessity to recognise the fundamental rights of the oppressed in order to establish true justice, fellowship, and peace. [142] His most powerful rhetorical accusation to the rights sceptics is that only if inherent rights are regarded as primary features of the moral order can the full humanity and worth of victims be recognised. Where Wolterstorff thinks that if someone has been wronged, their rights have been violated, O’Donovan thinks that a wrong “is an offence against the moral order governing relations among God’s creatures.”[143] Wolterstorff would respond that such an analysis does not treat the victim with enough respect. Wolterstorff’s concern is that, in attempting to protect communities from rights-inflation and the political process and accumulated wisdom from being subverted by courts making ideological pronouncements, rights sceptics risk overlooking the ways in which Human Rights Theory can keep our focus on victims and provide a vocabulary in which their needs and interests can be expressed and understood.

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[1] John Milbank, ‘Against Human Rights: Liberty in the Western Tradition’ (2012) Oxford Journal of Law and Religion, 214.

[2]  Nicholas Wolterstorff, Justice: Rights and Wrongs (Princeton: Princeton University Press, 2008), 35.

[3] Isaiah Berlin, Liberty: Incorporating Four Essays on Liberty (1969), ed. Henry Hardy (Oxford: Oxford University Press, 2002). John Milbank says in ‘Enclaves, or Where is the Church?’, at 349, “I agree with [Bernard] Williams that one cannot guarantee the compatibility of goods, yet unlike him feel that to go on having faith in this possibility is part of what it means to read the world as created. … The Christian good is … the equal necessity and compatibility of all goods.”

[4] In ‘Rights, Law and Political Community: A theological and historical perspective’, (2003) 20 Transformation, 38, Joan Lockwood O’Donovan was prepared to concede that the concept of rights could be a legitimate “secondary language of justice, subordinate to and continuous with that of law, in the sense of objective right and duty”, but the overwhelming direction of her thought is that the dangers of rights-talk far outweigh its utility in giving voice to aspects of justice.

[5] Oliver O’Donovan, The Desire of the Nations: Rediscovering the Roots of Political Theology (Cambridge: Cambridge University Press, 1996), 247-48. In ‘The Justice of Assignment and Subjective Rights in Grotius’, in Oliver O’Donovan and Joan Lockwood O’Donovan, Bonds of Imperfection: Christian Politics, Past and Present (Grand Rapids, MI: Eerdmans, 2004), 167-203, O’Donovan seems open to the possibility that subjective rights could be a secondary feature of the moral order if founded upon “a stronger and more decisive conception of objective primary right”: 202.

[6] Nigel Biggar, What’s Wrong With Rights? (Oxford: Oxford University Press, 2020), 324-34.

[7] John Milbank, The Future of Love: Essays in Political Theology (London: SCM, 2009), 244; Being Reconciled: Ontology and Pardon (London: Routledge, 2003), 5.

[8] Milbank, ‘The Gift of Ruling: Secularization and Political Authority’, (2004) 85 New Blackfriars 236.

[9] Milbank, ‘The Gift of Ruling’, 236-37; Milbank and Pabst, The Politics of Virtue: Post-Liberalism and the Human Future (London: Rowman & Littlefield, 2016), 352.

[10] Milbank, ‘The History of Natural Right’, Church Life Journal, 18 January 2019. Available online at https://churchlifejournal.nd.edu/articles/the-history-of-natural-right/.

[11] O’Donovan, Desire of the Nations, 250-51.

[12] Oliver O’Donovan, ‘The Language of Rights and Conceptual History’, (2009) 37 Journal of Religious Ethics 200.

[13] Joan Lockwood O’Donovan, ‘Rights, Law and Political Community’, 36.

[14] Milbank, ‘Against Human Rights’, 221.

[15] Milbank, ‘Religion and Secularity in Britain today’, , previously available online at http://www.publicspirit.org.uk/religion-and-secularity-in-britain-today/. Accessed 7 November 2016. Italics original.

[16] Milbank, ‘Against Human Rights’, 231.

[17] H.L.A. Hart, ‘Are There Any Natural Rights?, (1955) 64 Philosophical Review 182, emphasis original.

[18] John Locke, ‘The Second Treatise of Government’ (1689), paragraph 173 in John Locke, Political Writings (London: Penguin, 1993), 351. 

[19] Tina Beattie, ‘A fulfilment that is recognisable and yet unknown: Christian teleology and the end of human rights’, paper given to the Society for the Study of Theology, April 2008, available online at https://sites.google.com/site/tinabeattie/papers2.

[20] Milbank comments in similar terms on liberal contractarianism in his early article, ‘The Body By Love Possessed: Christianity and Late Capitalism in Britain’, (1986) 3 Modern Theology, 40.

[21] Joan O’Donovan, ‘Rights, Law and Political Community’, 30-38. This article is an accessible version of the detailed argument she makes in ‘Christian Platonism and Non-Proprietary Community’, in Oliver O’Donovan and Joan Lockwood O’Donovan, Bonds of Imperfection73-96.

[22] Michel Villey, La Formation de la pensée juridique moderne (Paris : PUF, 2006); Le Droit et les Droits de L’Homme (Paris: PUF, 1983). Oliver O’Donovan cites Villey in ‘Language of Rights’ at 197.

[23] Milbank, ‘Against Human Rights’, 217-29.

[24] Lockwood O’Donovan, ‘Rights, Law and Political Community’, 33; John Milbank, ‘The History of Natural Right’.

[25] Lockwood O’Donovan, ‘The Poverty of Christ and Non-Proprietary Community’, in A.J. Torrance and Michael Banner eds. The Doctrine of God and Theological Ethics (Edinburgh: T&T Clark, 2006), 192.

[26] Lockwood O’Donovan, ‘Human Freedom and Political Order: The Rule of Human Law Under Divine Law’, in Robert Heimburger ed., The Modern State and the Kingdom of God: Proceedings from a Conference held on 29 October 2011, Blackfriars, Oxford (Oxford: Las Casas Institute, 2012), 33.

[27] Joan Lockwood O’Donovan, ‘The Concept of Rights in Christian Moral Discourse’, in M. Cromartie ed. A Preserving Grace: Protestants, Catholics and Natural Law (Grand Rapids: Eerdmans, 1997), 145. 

[28] Milbank, The Future of Love, 250; Beyond Secular Order: The Representation of Being and the Representation of the People (Oxford: John Wiley & Sons Ltd, 2013).

[29] Milbank, ‘Against Human Rights’, 221.

[30] Milbank, ‘Against Human Rights’, 232.

[31] Milbank, Being Reconciled, 175.

[32] Milbank, ‘The Gift of Ruling’, 213.

[33] Yuval Levin, The Great Debate: Edmund Burke, Thomas Paine, and the Birth of Right and Left (New York: Basic Books: 2014), 93. 

[34] Levin, The Great Debate, 93-94.

[35] Scruton, “Regaining my Religion”, available online at https://matiane.wordpress.com/2020/05/06/regaining-my-religion-by-roger-scruton/. We express gratitude for things we acknowledge as gifts we have received from others. Gift is a central category for John Milbank’s theology: ‘Can a Gift be Given? Prolegomena to a Future Trinitarian Metaphysic’, (1995) Modern Theology 119-161; ‘The Gift of Ruling’, 221.

[36] Milbank, ‘Against Human Rights’, 204.

[37] In the discussion of John Locke which follows I am heavily indebted to John Perry, The Pretenses of Loyalty: Locke, Liberal Theory, and American Political Theology (Oxford: Oxford University Press, 2011), 119-120.

[38] John Locke, A Letter Concerning Toleration.

[39] Perry, The Pretenses of Loyalty, 119.

[40] Locke, A Letter Concerning Toleration.

[41] Milbank, The Future of Love, 244.

[42] Milbank, The Future of Love, 249, emphasis original.

[43] Milbank, The Future of Love, 248.

[44] Milbank, ‘Against Human Rights’, 218, italics original.

[45] Milbank, The Word Made Strange: Theology, Language, Culture (Oxford: Blackwell, 1997), 177.

[46] Milbank, ‘The Gift of Ruling’, 221, referring to Isiduro G. Manzano OFM, ‘Individuo y Sociedad en Duns Escoto’, in Antnonianium, Jan-March 2001 LXXVI. fasc. I, 43-79.

[47] O’Donovan, Desire of the Nations, 80.

[48] Oliver O’Donovan, Self, World, and Time: Ethics as Theology, volume 1 (Grand Rapids, MI: Eerdmans, 2013).

[49] Milbank, ‘The History of Natural Right’, referring to Werner Hammacher, ‘The Right Not to Use Rights’, in Hent de Vries and Lawrence E. Sullivan eds., Political Theologies: Public Religions in a Post-Secular World (New York: Fordham University Press, 2006), 671-90.

[50] O’Donovan, Desire of the Nations, 247-48.

[51] John Milbank, ‘Paul against Biopolitics’, (2008) 25 Theory, Culture and Society 125-72.

[52] Levin, The Great Debate, 101.

[53] Michael Schluter, ‘Three Relational Dimensions of Justice: Defining the Moral Order, Upholding the Moral Order and Putting Things Right’ in Paul Beaumont and Keith Wotherspoon eds., Christian Perspectives on Law and Relationism (Carlisle: Paternoster, 2000)’, 5. 

[54] Milbank, ‘Against Human Rights’, 216.

[55] Milbank, ‘Shari’a in the West’, 156.

[56] Milbank, ‘Shari’a in the West’, 157.

[57] Milbank, ‘Against Human Rights’, 221.

[58] Oliver O’Donovan, ‘The Language of Rights and Conceptual History’, 194.

[59] John Milbank, ‘Shari’a and the True Basis of Group Rights: Islam, the West, and Liberalism’, in Rex Ahdar and Nicholas Aroney eds., Shari’a in the West (Oxford: Oxford University Press, 2010).

[60] John Milbank, ‘The History of Natural Right’.

[61] Milbank, ‘Shari’a in the West’, 144.

[62] Milbank, The Word Made Strange, 276.

[63] Aleksandr Solzhenitsyn, Warning to the West (New York: Farrar, Straus and Giroux, 1976), 64.

[64] As to the complexities of Locke’s own approach to the Good, see David McIlroy, ‘The Reformation and Human Rights’, in John Duddington, ed., The Legal Legacy of the Reformation: Catholic and Protestant Approaches to Law (London: Routledge, 2023), 226-54.

[65] O’Donovan, Common Objects of Love: Moral Reflection and the Shaping of Community (Grand Rapids: Eerdmans, 2002).

[66] Milbank, ‘Shari’a in the West’, 146.

[67] Milbank, ‘Shari’a and the True Basis of Group Rights’, 143.

[68] Milbank, ‘Religion and Secularity in Britain today’.

[69] Milbank tweeted: “New Labour worshipped Rawls — a *minor* thinker duly trashed by the great George Grant and Michael Sandel. His liberalism is utterly incompatible with the Labour tradition that demands a shared vision as to the objective good, not formal agreement to differ.” (Twitter, 14 April 2023).

[70] Milbank, The Future of Love, 259.

[71] “[A]ll needs are constructed or refracted through complex signifying processes which direct and promote desire”: Milbank, The Word Made Strange, 27.

[72] Lockwood O’Donovan, ‘Rights, Law and Political Community’, 37, emphasis original.

[73] Joan Lockwood O’Donovan, ‘Human Freedom and Political Order’, 28.

[74] Milbank and Pabst, The Politics of Virtue, 362.

[75] Milbank, ‘Against Human Rights’, 214 footnote 23.

[76] Milbank and Pabst, The Politics of Virtue, 217.

[77] Milbank, ‘Against Human Rights’, 232.

[78] Milbank, ‘Against Human Rights’, 221.

[79] Milbank and Pabst, The Politics of Virtue, 208.

[80] Milbank, ‘The Gift of Ruling’, 213; Being Reconciled, 163.

[81] Milbank, ‘The Gift of Ruling’, 223.

[82] Milbank, Theology and Social Theory, 192, 197, ‘The Dignity of the Ancients and the Dignity of the Moderns’, in John Loughlin ed. Human Dignity in the Judaeo-Christian Tradition: Catholic, Orthodox, Anglican and Protestant Perspectives (London: Bloomsbury Academic, 2019), 173-192.

[83] Milbank, ‘The Gift of Ruling’, 223.

[84] Levin, The Great Debate, 91. 

[85] Milbank, Theology and Social Theory: Beyond Secular Reason (Oxford: Blackwell, 1993), 359.

[86] Nicholas Lash, ‘Not Exactly Politics or Power?’ (1992) 8 Modern Theology 359.

[87] John Milbank and Adrian Pabst, The Politics of Virtue, 13-14.

[88] Milbank, The Future of Love, 244.

[89] David McIlroy, ‘Infinite choice? Freeing ourselves from a cultural icon’ (2013) 22(3) Cambridge Papers; David Bentley Hart, Atheist Delusions: The Christian Revolution and its Fashionable Enemies (New Haven: Yale University Press, 2009), 105.

[90] Levin, The Great Debate, 110, italics original, quoting Edmund Burke, The Writings and Speeches of Edmund Burke. 12 vols. (Boston: Little, Brown, & Co., 1901), 8:110.

[91] Lockwood O’Donovan, ‘Rights, Law and Political Community’, 37.

[92] Lockwood O’Donovan, ‘Rights, Law and Political Community’, 37.

[93] Milbank, ‘Against Human Rights’, 221.

[94] Milbank and Pabst, The Politics of Virtue, 275.

[95] Milbank, The Future of Love, 246.

[96] Milbank, Theology and Social Theory, 238, 162; ‘Against Human Rights’, 224.

[97] Milbank and Pabst, The Politics of Virtue, 15.

[98] Francesca Klug, Values for a Godless age: the history of the Human Rights Act and its political and legal consequences (London: Penguin, 2000).

[99] John Gray, ‘A Point of View: Two cheers for human rights’, (27 December 2013). Available online at https://www.bbc.co.uk/news/magazine-25505393. Accessed 7 June 2023.

[100] John Milbank, ‘A Revisionist Account of Natural Law and Natural Right’, Church Life Journal, 6 December 2018. Available online at https://churchlifejournal.nd.edu/articles/a-revisionist-account-of-natural-law-and-natural-right/. He also accuses John Finnis of being mistaken in his claim that Aquinas had a subjective rights doctrine: ‘Against Human Rights’, 221.

[101] Milbank, ‘The Gift of Ruling’, 235.

[102] Milbank, Being Reconciled, 96.

[103] Milbank, Theology and Social Theory, 230.

[104] Lockwood O’Donovan, ‘The Christian Pedagogy and Ethics of Erasmus’, in Bonds Of Imperfection 121.

[105] ‘Introduction: Suspending the Material: The Turn of Radical Orthodoxy’ in John Milbank, Catherine Pickstock, and Graham Ward eds., Radical Orthodoxy: A New Theology (London: Routledge, 1999), 2-3.

[106] ‘Introduction’ in Radical Orthodoxy 3.

[107] Blond ‘Perception’ in Radical Orthodoxy 232.

[108] Oliver O’Donovan, ‘The Political Thought of City of God 19.’ Chapter 2 in Bonds of Imperfection: Christian Politics, Past and Present, , 48–72. This chapter is a revised version of ‘Augustine’s City of God XIX and Western Political Thought.’ (1987) 11 Dionysius 89–110.

[109] Theology and Social Theory 406.

[110] Milbank and Pabst, The Politics of Virtue, 335.

[111] Milbank, The Future of Love, 259; The Politics of Virtue, 15.

[112] Milbank and Pabst, The Politics of Virtue, 228.

[113] Milbank, The Future of Love, 246; O’Donovan, ‘Language of Rights’, 204.

[114] Milbank, The Future of Love, 249.

[115] Milbank, The Future of Love, 255.

[116] Milbank and Pabst, The Politics of Virtue, 360.

[117] Being Reconciled 4, 199.  See also ‘The Gift of Ruling’ 238.

[118] O’Donovan, Resurrection and Moral Order: An Outline for Evangelical Ethics (2^nd edn.; Leicester: Apollos, 1994).

[119] O’Donovan, Self, World, and Time, 103.

[120] Milbank, ‘The Gift of Ruling’, 237; ‘Against Human Rights’, 233.

[121] Milbank and Pabst, The Politics of Virtue, 210.

[122] O’Donovan, The Ways of Judgment, 69.

[123] Milbank and Pabst, The Politics of Virtue, 384.

[124] Lockwood O’Donovan, ‘Rights, Law and Political Community’, 31. The favourable reference to “rights” in the plural is rare in Lockwood O’Donovan’s writings. In ‘Human Freedom and Political Order”, Lockwood O’Donovan argued for the paradigmatic status of the criminal law, and therefore of third party enforcement of wrongs over assertion by victims of their rights in litigation.

[125] Milbank, ‘Against Human Rights’, 215.

[126] O’Donovan, ‘Language of Rights’, 195; John Milbank, ‘Enclaves, or Where is the Church?’ (1992) 73 New Blackfriars 343.

[127] Theology and Social Theory 331.

[128] Theology and Social Theory 244.

[129] Milbank, The Future of Love, 247.

[130] Lockwood O’Donovan, ‘Human Freedom and Political Order’, 32.

[131] Milbank engages with Nicholas Wolterstorff’s work in ‘Against Human Rights’, 209-219. Oliver O’Donovan does so in ‘Language of Rights’.

[132] Nicholas Wolterstorff, Justice: Rights and Wrongs, 4.

[133] Wolterstorff, Justice, 360.

[134] Nicholas Wolterstorff, Justice in Love (Grand Rapids: Eerdmans, 2011).

[135] Nicholas Wolterstorff, The Mighty and the Almighty: An Essay in Political Theology (Cambridge: Cambridge University Press, 2012).

[136] Nicholas Wolterstorff, Understanding Liberal Democracy: Essays in Political Philosophy (Oxford: Oxford University Press, 2012), ed. Terence Cuneo.

[137] Nicholas Wolterstorff, Journey toward Justice (Grand Rapids: Baker Academic, 2013).

[138] Wolterstorff, Journey toward Justice, 58.

[139] Wolterstorff, Justice, 87.

[140] Wolterstorff, Justice, 89.

[141] Wolterstorff, Understanding Liberal Democracy, 135, see also the essay ‘Do Christians Have Good Reasons for Supporting Liberal Democracy?’ at 305-328 in the same volume.

[142] Wolterstorff, Journey Toward Justice, 1-10.

[143] O’Donovan, ‘Language of Rights’, 199.