A Secular Theory of Natural Law

ed from reference to an individual person, the puzzle of human responsibility is lodged within the notion of justice. Hence, the title of my book, Oedipus at Fenway Park. If Oedipus's fate was, as we think, unjust, why is it just that Roger Clemens gets to play for the Red Sox (as it then was) rather than some young man who desperately wants to play in the major leagues but has a bad pitching arm, never makes a base hit, and bobbles the ball in the field-all of which he tries ceaselessly to overcome. Our response is peremptory: Clemens just is a better ball player. He is Roger Clemens, and being Roger Clemens, the person that he is, he deserves to play for the team. But isn't that like the Greek answer to the fate of Oedipus-he is Oedipus-an answer that we reject out of hand? Nor can the two cases be distinguished because baseball is only a game. Try telling 18. See Philip Shenon, Weicker and Education Chief in Sharp Clash, N.Y. Times, Apr. 17, 1985, at B4; The Philosopher and the Handicapped, N.Y. Times, Apr. 18, 1985, at A26; Stephen Engleberg, Two Aides Quit Education Dept. in Dispute Over Views on Disabled, N.Y. Times, Apr. 19, 1985, at A19; Handicapping Education, Newsweek, Apr. 29, 1985, at 33. 19. See Weinreb, OAFP, supra note 1, at 51-55. 2294 [Vol. 72 2004] A SECULAR THEORY OF NATURAL LAW that to the young man-or, one might add, to all those Red Sox fans who waited out those extra innings last October. But, in any case, just the same argument might be made across the river, where the question is not who plays for the Red Sox but who is admitted to Harvard. That, we all agree, is not a game, or not only a game. z° In this way, the antinomy of freedom and cause is reflected in the antinomy of desert and entitlement. The former reflects the individual, autonomous actor, responsible and incurring desert. Entitlement reflects the just background order that alone gives meaning to individual responsibility and desert. And rights are the means by which we make the distinction.1 To say that a person has a right to do, or to be, something is to say that he is responsible for what he does or is. Nothing more. That, and only that, is the source and explanation of the facticity of rights. Having a right to do something does not mean that one will do it or ought to do it. More often than not, the assertion of a right suggests that perhaps one ought not act in that way. A right to do something is also, necessarily, a right not to do it; for if one did not have a right not to do it, there would be no point in saying that one has a right to do it. Rights constitute our autonomous selves. Having a right, one is responsible for its exercise (or nonexercise). Not having a right, one is subject to the causal order of nature or, as we usually think of it, to a humanly imposed constraint; one is not responsible and does not incur desert. The normative natural order is the order in which we, as natural beings, are also bearers of rights and exercise responsibility. 2 That is a lot to swallow. Let me elaborate and add some footnotes. I am speaking of rights as attributes of a person simply as a person, not as American or British, professor or student, member of this club or that. That is, since all human beings are persons and all persons are human beings, I am speaking of human or, as they used to be called, natural rights. In any more particular role, as an American or professor or club member, a person may be granted additional rights, or not granted additional rights that others are granted, for instrumental reasons. If additional rights are granted, then within the bounds of and according to the terms of the community that grants them, a person is responsible for what he does. To say that one has a right is not necessarily to say that the right is honored, and if it is not, within that community a person is not responsible for the consequence in question. To say that a person does not have a right is not necessarily to say that he lacks the power; and if he exercises the power, he will be subject to blame for acting without right. But if a person does exercise the power, albeit without right, it demonstrates that he has the right to liberty that enables him to do so. So a thief, 20. Id. at 66-73. 21. See Weinreb, NL&J, supra note 1, at 184-223. 22. Weinreb, OAFP, supra note 1, at 74-100. 2295