Natural Rights and Human Vulnerability - Aquina, MacIntyre and Rawls

North American Philosophical Publications
Natural Rights and Human Vulnerability: Aquinas, Macintyre, and Rawls

Author(s): Kristin Shrader-Frechette
Source: Public Affairs Quarterly, Vol. 16, No. 2 (Apr., 2002), pp. 99-124
Published by: University of Illinois Press on behalf of North American Philosophical Publications
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Public Affairs Quarterly
Volume16, Number2, April2002
NATURAL RIGHTS AND

HUMAN VULNERABILITY:
AQUINAS, MACINTYRE, AND RAWLS
KristinShrader-Frechette
Thursday, August 17, 2000, Afghanistan's then-Taliban

government shutdownbakeriesrunbywidows.CitingIslamiclaw,
thegovernment said womenwerenotallowed to workin thebakeries,
startedbytheUN WorldFood Program.Payingthewidows' salaries,the
UN grouphad subsidizedthepriceof thebreadand sold it to thepoor.
Althoughvirtuallyall the750,000 residentsof Kabul,Afghanistan, rely
on internationalrelief aid to survive,the 28,000 widows and their
childrenare thepoorestof thepoor.Theyhave been destitutesince the
early 1990's whenmanyof the husbandswere killed in a bitterwar.
When officialscame to close one bakery,a widow wailed: "Give me
poisonandgivemyfivechildrenpoison,thenwe willdie quicklyinstead
ofa slow deathfromstarvingandshame."Whenittookoverin 1996,the
Talibangovernment orderedall girls' schoolsclosed and all womenout
of the workforce.UN representatives hoped thatthe femalebakers,
employees of relief would
organizations, be an exception.Theywerenot.1
I. Overview
Whatresourcescan moralphilosophersbringto protectvulnerable
people like theAfghanwidows?In his 1999 book,DependentRational
Animals,AlasdairMaclntyrecriticizeswhathe says is a flagrantdefi-
ciency of western moral philosophy: its inattention to human
vulnerability.Maclntyrebeginshis volumeby noting:
we humanbeingsare vulnerable to manykindsof affliction. . . . How
we cope is onlyin smallpartup to us. It is mostoftento othersthat
we owe oursurvival, letaloneourflourishing, as we encounter bodily
illness and injury,inadequatenutrition, mentaldefectand distur-
bance,and humanaggressionand neglect.2
99

100 PUBLIC AFFAIRS QUARTERLY
Maclntyre'swordssuggestthathis philosophywill offersomenormsto

protectvictimslike theAfghanwidows.But does it? This essay argues
that,despiteMaclntyre'sgood intentions, his ethics- like othersthat
-
denynaturalrights is unlikelyto help significantly protectthe most
vulnerablepeople in theworld.
AlthoughMaclntyre's1999bookfocuseson humanvulnerability and
the need forprotection, it does notappeal to humanrights,one of the
traditionalways thatpowerlesspeople have soughtrelieffromoppres-
sion. And exceptfora briefparagraphin AmyGutmann'sremarkson
AfterVirtue*no one has evaluatedanyofMaclntyre'sarguments against
Jefferson, Rawls, and otherproponentsof the human-rights tradition.
ContinuingwhereGutmannended in 1985, thispaperfocuseson four
tasks. (1) It summarizesMaclntyre'sfourmain arguments againstthe
human-rights tradition.I call these,respectively,the"Witch Argument,"
the "Taboo Argument," the "CommonalityArgument," and the "Pri-
macyArgument."(2) It summarizesGutmann'scriticismsof the first
two arguments,whichappearedin AfterVirtue,and it extendsthese
criticismsto additionalpoints.(3) Focusingon the two remainingar-
guments,formulatedin 1990s papers, the essay shows that these
argumentsfail because theybeg the question; misrepresent or ignore
theworkof variousphilosophers(like Aquinas and Rawls) whocounter
them;and inconsistently rejectthe conceptsof conscienceand reason
thatare centralto Maclntyre'sown espoused Thomisttraditions.Fi-
nally(4) thepaperarguesthat,contrary to his 1999 volume,Maclntyre
likely is unableto providephilosophicalresourcesto protectvulnerable
people because he has no strongethicalconcepts,likelyto be accepted,
thatare able to take theplace of thehumanrightshe rejectsto do the
workof protecting people.
The pointof thispaperis neitherto defenda specifictheoryof hu-
manrightsnorto show thata rightsaccountis superiorto some other
account, like that of obligations.Rather,the point is that,because
Maclntyre'sethicsfocuseson tradition-dependent norms,because there
is a 400-year-oldhuman-rights tradition,and because thattraditionap-
pears to include Maclntyre'srequisiteinstitutions andpractices,he bears
the burdenof proofforrejectingrightsand formakinggood on his
1999 claim to protectvulnerablepeople. The pointis notthatan ethics
of rightsis thebestethicsbutthatMaclntyrefailsto undermine human
rights because he gives an inadequate account of their foundations.
Avoidingsimplistictalkof "eithervirtuetheoryor rightstheory,""ei-
thercommunitarianism or liberalism,"the paper argues not thatone
oughtto replaceMaclntyre'saccountbutthat,because of internalflaws
in his ethicaltheory, one also mayneedto modifyitby includingsome-
thinglike humanrightsin orderto protectvulnerablepeople.

NATURAL RIGHTS AND HUMAN VULNERABILITY 101
II. MacIntyre's Account of Human Rights
Maclntyreclaims that"the truthis plain: thereare no such rights,

and belief in themis one withbelief in witchesand in unicorns.. . .
Naturalor humanrightsthenare fictions?4He writes:
By "rights"I do not mean those rightsconferredby positive law or

custom [legal rights]on specified classes of person; I mean those
rightswhichare alleged to belong to humanbeingsas such and which
are cited as a reason for holding thatpeople ought not to be inter-
feredwithin theirpursuitof life,liberty,and happiness.They are the
rightswhichwere spokenof in theeighteenth centuryas naturalrights
or the rightsof man.. . . The expression"humanrights"is now com-
monerthaneitherof the eighteenth-century expressions.But whether
or
negative positive and however named theyare supposed to attach
equally to all individuals.5
Denyingthereare humanrights,naturalrights,or rightsof man,in

the sense of positiveor negativeprotections, Maclntyreconcludesthat
thereareno "fundamental andinalienable"protections thatbelongequally
to all humanbeingsas humanbeings,althoughhe says thereare legal
rights, rightswhoseenforcement
"institutionalized is sanctionedbylaw."6
Given the moralframework he adopts in AfterVirtue,MacIntyre's
rejectionof humanrightsis a consequenceofhis beliefthatsocietyhas
losttheAristotelian andThomisticmoralityof thepast,theonlymoral-
ity that(for him) could groundrights.Maclntyreclaims thatwhen
Enlightenment philosophers,such as Hume, supplantedthe medieval
philosophers,"thelanguageof moralitypassed froma stateof orderto
a stateof disorder."7He says thatonce Enlightenment philosophersde-
tached moralityfrom"the teleological scheme of God, freedom,and
happiness,"8 thereis no nontheologicalmoralitythatis defensible:"De-
tachmorality fromthatframework andyouwillno longerhavemorality."
Rather,"you will have merelyformsof expressionforan emotivistself
whichlackingthe guidanceof the [theological]contextin whichthey
were originallyat home has lost its linguisticas well as its practical
way in the world."9For Maclntyre,one of the "consequencesof the
failureof theEnlightenment Project,"and of the"specificallyemotivist
culture"in whichhe says we live, is the failureto justifyany concept
of naturalor humanrights.10
Maclntyrearguesthat,because fourchangescame aboutin the"older
conceptionof 'jus,'" fromAquinas, thattransformed it intothe more
modern,Enlightenment notionof "right"and "rights,"the conceptof
humanor naturalrightsis no longervalid. He claims it has lost its
theologicaland teleologicalgrounding,and thereremainsonly a con-
cept of legal rights.First,therewas a movefroma "teleologicalorder

... at once created and commanded by God," to the notion of rightsas

justified by theirbeing self-evident or by theirarising fromutilitarian
or contractariannotions. Second, rightswere taken "to attach to indi-
viduals, qua individuals, and not to individuals qua members of a
particularcommunity."Third, such rightsdefined "a standpointheld to
be more fundamentalthan any provided by participationin or member-
ship in social groups." Fourth,rightsbecame "secular and nontheological
. . . [and were said to] outweigh any claims which do appeal to theo-
logical considerations."11
Despite his denial of human rights,neverthelessMaclntyre maintains
thattheologyprovides groundsforcondemningpracticessuch as slavery:
the only adequate groundfor a secular non-theologicalcondemna-

tionof slaveryas such would be an appeal to naturalrightsand since
we have the best of reasons for believing that thereare no natural
rights,theneitherthe condemnationof slaveryas such can be justi-
fied theologicallyor it cannot be justified.12
Maclntyre believes that because the concept of human rights has lost
the theistic institutionsand communityin which it was defined, only
theology is now able to justify the protectionsthatalleged rightsmight
offer.As he puts it, "My negative attitudetowards defenses of natural
rightsstems not only fromthe fact that the argumentsadvanced so far
are all unsound but also from the fact that they provide very bad and
too often ineffectivereasons for reforminglaws in order to extend the
institutionalizedprotectionof rights."13
Let us examine Maclntyre's four,
more specific, arguments against human rights and attemptto assess
them. I call them "the Witch Argument,""the Taboo Argument,""the
Commonality Argument,"and "the Primacy Argument."
III. MacIntyre's Witch and Taboo Arguments
Because Gutmanndiscussed brieflytheWitch and Taboo Arguments,

although she did not use the labels employed here, and because philoso-
phers have been discussing AfterVirtue,in which theyappeared, forthe
last sixteen years, thereis no need to treatthemin detail. As it appeared
in AfterVirtue,Maclntyre formulatedthe Witch Argumentas follows:
The best reason for assertingso bluntlythatthereare no such [hu-

man] rightsis indeed of precisely the same type as the best reason
whichwe possess forassertingthatthereare no witchesand the best
reason whichwe possess for assertingthatthereare no unicorns:ev-
ery attemptto give good reasons for believing that there are such
rightshas failed.14

Gutmannnotesthatthisargument relieson a falseanalogy:although

"witch"explanationscompetedwithphysicsexplanationsand lost out
in the competition, rightsexplanationsdo not compete,in any sense,
withphysicsexplanationsorproposedlaws ofnature.15 Thus,ifGutmann
is right,whenMaclntyrealleges thatreasonsforrejectingrightsare "of
preciselythesame type"as thoseforrejectingwitches,he uses an argu-
mentbased on a categorymistake.
Anotherdifficultywith the WitchArgument,not mentionedby
Gutmann,is thatMaclntyreclaims neitherrightsnorwitchesexistbe-
cause "everyattemptto give good reasonsfor[them]has failed."16 By
virtueof thisclaim,Maclntyrefalls victimto an appeals to ignorance,
allegingthatfailureto provesomething is sufficient to disproveit. Just
as one wouldnothave said in 1900 thatthereare no neutrinos, because
to
everyattempt give good reasonsfor them had failed, so also it is not
sufficient forMaclntyreto claim that there are no rights because every
attemptto give good reasons forthemhas failed. Not only does this
responsediscountfutureattempts, but also it presupposesthatMacln-
tyre has evaluatedall the most relevant attempts in thepast.Because he
has not,Maclntyrehas yetto deliveron his verylargepromissory note.
For example,he needsto showwhyRawls's attempts to give good rea-
sons forhumanrightshave failedand notdiscussonlytheeasier cases,
such as thatof Nozick. Moreover,because Maclntyreclaims thatLeo
XIH's papal encyclicalAeterniPatrisis the"seminaltext"on whichhis
own versionof Thomismis based,17he also needs to show whyneo-
Thomistic and papal accounts of human rights, accounts within
Maclntyre'sown tradition, have failed.(See thelaterdiscussionof the
CommonalityArgument.)He needs to explain, forexample, why he
thinksLeo XIII is wrongin arguingthathumanrightsare especially
neededto defendthepoorand badlyoffand whyJohnPaul II is wrong
to say both thatacceptinghumanrightsis necessaryto the common
good and thatdenyingthemwould impoverishour conceptionof the
humanperson.18
Maclntyre'ssecondor TabooArgument also appearsin AfterVirtue}9
In it Maclntyrealleges thereare no humanrightsbecause thereare no
establishedrulesor practicesgoverning them.Maclntyrerepeatshis ear-
lierclaimthat"naturalorhumanrights thenarefictions,"20 andhe suggests
thatnaturalrightsdo notexistbecause,likethePolynesianswhousedthe
word"taboo"to mean"prohibited," withoutunderstanding anything else
about it, we use the word"right"to mean "moraltrump,"but without
understanding anything else aboutit. He says thatbecause we have lost
thehistoryand social context - therulesand practice - forbothwords,
"taboo" and "humanright,"theyare unintelligible fictions.21

But have we lost thehistoryand social context,therulesand prac-

tices, associated withthe word"rights"?As Gutmannpointsout, our
societal practices- of strivingforequalityof educationalopportunity,
forcareersopen to talent,and forpunishment conditionalon intent-
showbothourcommitment to defendinghumanrightsand thatwe have
practicesto supportthem.Moreover,as Gutmannnotes,on Maclntyre's
contextualist view,thereis morereasonhistoricallyto believein a lib-
eral politics of rightsthanin an Aristotelianpoliticsof the common
good. One reason is thatthe Aristotelianmethodof discoveringthe
good by inquiringinto the social meaningof roles is of littlehelp in
today's societywheremostroles are not attachedto a single good.23
Insteadshe says it is morereasonableto say thatmanydifferent social
practicessupport moral beliefsin rights.
ContinuingGutmann'sline of reasoning,one also mightarguethat
people knowthe historicrightsstrugglesof blacks,women,gays,and
children.Theyknowwhatit was to pass the 1964 Civil RightsAct and
thenineteenth amendment givingwomentherightto vote.Anotherpoint,
not mentionedby Gutmann,is thathistoricaltraditions,institutions,
and practicesalso reveal severalthingsabout rights.These traditions
have established,forinstance,thatthereare different typesof rights,
forexample,positive/negative, weak/strong,primafacie/ultima facie,
and so on. And accordingto the human-rights tradition,thejustifica-
tory burden of proof is on the potential rights violator. Various
institutionsalso operationalizerightsthroughspecific proceduralor
legal constraints.Traditionhas shownthattheseconstraints havea prac-
tical value, forall people, as a warningto potentialviolators:"don't
treadon me." But if someor all oftheseinstitutionalpracticesand rules
are partof thehuman-rights thenwe do understand
tradition, something
abouthumanrights,contrary to Maclntyre'sclaim. And if so, thenthe
Taboo Argument is questionable,on Maclntyre'sown terms,because he
takesno accountof thesepractice-based foundationsforrightsclaims.
IV. The Commonality Argument
Underlying boththe 1984Witchand Taboo Arguments is one that,so

far,has not been discussed by Maclntyre'scommentators. It appearsin
his 1991 and laterarticleson rights.I call it "the Commonality Argu-
ment."It consistsoffoursteps:(A) "Rationaldebateovertheapplication
of moral. . . concepts,requiresthattherebe somestandard, independent
of thedesires,preferences, and will of thecontending parties,to which
appealcan be made."23 But,saysMaclntyre, (B) "in theabsenceofsucha
standard,[thereis] ... no way of evaluatingas betteror worsereasons
forjudgingand acting[andno way] ... to function as a genuinelyratio-

nal agent."24 Yet,Maclntyrecontinues,(C) humanrightscannotprovide

part of such a sharedrationalstandardbecause rightsproponents have
been unableto refutetheirrivals.He says theyhave been unableto jus-
tifyrightson groundsof self evidence,utility,or contractarianism.25
Moreover, saysMaclntyre, becausethereis no commonality amongrights
claims,(D) because thereis "an absenceof anysharedcriterion foriden-
tifying what particularrights thereare and what the content of each
particular rightis,"26 there are no naturalor human rights.
Let us considereach step of Maclntyre'sCommonality Argument:
(A) the standardclaim, (B) the evaluationclaim, (C) the refutation
claim,and (D) thecontentclaim. His firstpremises,(A) and (B), about
theneed foran independent standardand thedependenceof evaluation
on such a standard,seem arguablycorrect.What about premise(C),
thathuman-rights proponentshave notbeen able to refutetheirrivals
and to show that such rightsare based on self-evidence,utility,or
contractarian considerations? Even if Maclntyreis correctaboutrights
proponents, premise(C) falls victimto thelogical fallacyof appeal to
ignorance,assumingthathumanrightsdo notexistifrightsproponents
have notbeen able to refutetheiropponents.Even if Maclntyreis cor-
rectabout rightsproponents'failures,it would establish,at best,that
thestatusof rightsis uncertain.
But are human-rights proponentsunable to refutetheiropponents?
To answerthisquestion,considerthreecases, all of whichMaclntyre
discusses in his work:thatof Thomistswho followAquinas, thatof
JohnRawls, and thatof Thomas Jefferson. Evaluationof these three
cases seemsto suggestthatMaclntyreis wrongin (C), in assertingrights
proponentscannotdefendtheirpositions.The case of Aquinas and his
followersis especially importantbecause Maclntyreclaims to be a
Thomistwho followspapal teachingson ethicsand theology;27 because
Maclntyredefendshis ownethicsin termsof Thomisttraditions, rules,
andpractices;28 andbecauseMaclntyreassertsthatonlyreligiousauthor-
itycan groundethics.29For all thesereasons,Maclntyreis committed
to a Thomisticaccountof ethics.But can a Thomistdefendhumanor
naturalrights?Accordingto Aquinas,"the preceptsof naturallaw are
. . . self-evident.... All the inclinationsof any partswhatsoeverof
humannature... in so faras theyare ruledby reason,belongto the
naturallaw."30Note thatalthoughAquinas says thepreceptsof natural
law are self-evident, Maclntyrenotonly denies thathumanrightsare
self evidentbut,contrary to Aquinas,claims that"statements of moral
. . .
truth are never . . . self evident."31
Maclntyrelikewisecontradicts
otherspokespersonsforhumanrightswho are membersof his own
avowed Thomistictradition.Pope Leo XIII, on whomMaclntyresaid

he based his accountof Thomism,32 arguesthathumannatureendows

people with liberty,that liberty confers humandignity,and thatthis
dignity confers naturalor human rights.33Variouspopes(Leo XIII, John
Paul II, and JohnXXIII) also claim thathumanrightsfollowfromthe
dignityand equalityof humans.34 They say humanrightsare essential
to, and thetestof,thecommongood.35Thus,eithertherightsclaims of
theseThomisticauthorities are correct,in whichcase Maclntyreerrsin
assertingpremise(C). Or the rightsclaims (of the Thomisticethical
and religiousauthoritiesMaclntyreaccepts)are incorrect in whichcase
be
premise(C) may correct, but it is unclearwhetherMaclntyre'sethics
is genuinelyThomist.In eithercase, Maclntyre'stheoryis in trouble.
Both his premise(C) and his avowed Thomistauthoritiescannotbe
correct.Moreover,if Maclntyrebelieves thathuman-rights proponent
Leo XIII cannotanswerhis opponents,thenwhydoes Maclntyreclaim
(note 18 earlier)thatLeo XIII's articulationof Thomistis thebasis for
Maclntyre'sownphilosophy?Maclntyreaddressesnoneoftheseissues.
Whataboutrightsproponent JohnRawls? Does Maclntyreshowthat
premise(C) is correct,in part,because Rawls is unableto answerhis
opponents? Ifone returnsto severalearlierarticlesofMaclntyre, in which
he discussesJohnRawls,it does notseemthatMaclntyre adequatelyde-
fendshis premise(C) withrespectto Rawls. ConsiderfirstMaclntyre's
claimsaboutRawls's contractarian accountof rightsandjustice:
Let us concedethatbehindsucha veil of ignorance it wouldindeed
be rationalto adoptjust suchprinciplesas Rawls formulated. The
questionstillremains:whentheveil of ignoranceis removedand I
knowwhattherelevantsocial and psychological factsare,whatra-
tional groundsdo I have forcontinuing to give myallegianceto
thoseprinciples,moreespeciallyto theprinciple thatenjoinsequal-
ityin basicliberties?
. . . Weneedthereforesomeotherkindofreason
fortakingRawls's firstprincipleof justiceto override,and to con-
tinue to override,any calculationsof utilityor assessmentsof
good.... I can see no basisfromwhichsuchan overriding character
couldbe derivedshortof somefull-fledged theoryof naturalrights.36
In dismissingRawls's contractarianaccount,Maclntyreignoresthespe-
cificsof Rawls's theoryand insteadasks therhetoricalquestion:"when
theveil ofignoranceis removed. . . whatrationalgroundsdo I have?"37
Rawls's answeris thatalthoughhe abstractsfromparticularhumans'
characteristics,behindtheveil of ignorance,he does notabstractfrom
humans'sharedcharacteristics.As a result,he uses humans'sharedchar-
acteristics to reason to principles that "accommodate our firmest
convictions,"38forexample,about the freedomto choose a good life.
Using detailed deductive arguments, Rawls also spendsmuchof part2
of A Theoryof Justiceshowingthathis two principlesare consistent

with"ourconsideredjudgmentsofjustice."39 YetMaclntyre'srhetorical
questionignores both these Rawlsian lines ofjustification.Rawls has a
moral-constructivist position according to which reasonable people,
followinghis carefully-argued, step-by-step moves fromthe original
position,mightfindgroundsforassentingto his two principlesofjus-
tice. Rawls does not deduce natural rightsfroma few particular
principles,as Maclntyreseemsto suggest,butinsteadshowshow many
considerations revealthecoherenceof his view.40 Moreover,in lengthy
and carefully-argued sectionsin ChapterThreeofhis TheoryofJustice,
Rawls shows both whyutilitarianconsiderationscannotoverridehis
firstprinciple,and how he movesfroma thintheoryof thegood, to the
two principlesof justice, to a thicktheoryof the good.41Instead of
carefullyaddressingany of these Rawlsian analyses,pointby point,
Maclntyremerelysays: "I can see no basis fromwhichsuchan overrid-
ing charactercould be derivedshortof some fully-fledged theoryof
naturalrights."42 Afterignoringthe specific steps of Rawls's moral
constructivism, Maclntyreseems to beg thequestionagainsthim.
Maclntyre'squestion-begging attackon Rawls is disconcertingfor
at least two reasons. One reason is thatMaclntyrealleges thatonly
naturalor humanrightscould groundRawls's theory.This assumption
is problematicbecause Maclntyredoes not argue whyalternativesto
rights,such as obligations,are unable to providesuch a grounding.
Maclntyre'sattackon Rawls also is troublingbecause he presupposes
thatonlyan externalreligiousauthority couldprovidean adequatefoun-
dationforthecategoricalcharacterof moralclaims,likethoseofrights.
Maclntyreasserts,forexample,whensomeonesays "I have a rightso
to act," he can onlyrespond:"I do not knowhow to makewhathe or
she has just said intelligible,if thereis no appeal to some institution-
allyestablishedrules,"43a rulethatis categoricalonlyinsofaras itreports
"the contentsof the universallaw commandedby God."44Maclntyre
thusbelieves thatonlythe"externalauthority of traditional[medieval,
theistic]morality" providesauthoritative ethical becausejudg-
precepts,45
mentsnotreporting "thecontentsof the universallaw commandedby
God" are merely"formsof expressionof an emotivistself,"judgments
lackingany"undebatablemeaning."46 Not onlydoes Maclntyregive no
reasonthattheologyprovidestheonlyauthoritative, non-emotive ground-
ingforethicalprecepts,likethoseofrights,butalso he begs thequestion
thatgroundingethicsrequiresan externalauthority, God, ratherthan
theinternalauthority of one's own rationaldeliberations, forexample,
through Rawlsian moral constructivism. In begging thisinternal-exter-
nal question,Maclntyreagain seems to beg thequestionagainstRawls
and thusfails to showRawls's case forhumanrightserrs.

Maclntyrealso attemptsto defendpremise(C) of his Commonality

Argument byresponding to ThomasJefferson's claimthat"anyonehas a
naturalrightto do thatwhichno one else has a rightto preventhimfrom
doingorto interfere withhis doing."47
In arguingagainstJefferson,Mac-
lntyrehas twolines of attack.First,he says thatJefferson's
argument
presupposesthe applicabilityof the idiomof naturalrights,and hence
cannotbe used to establish it. If it is once conceded thathis idiom
does indeed have application,thenthis is in particularcases a pow-
erfulformof argument.But whetheror not thatidiom has application
is just whatis at issue.48
This firstcounterargument of Maclntyre'sseems questionablebe-

cause Jefferson does not presuppose,but defends,the applicabilityof
the idiomof naturalrightsby appealingto humannature,naturallaw,
God, and reason.In a varietyof works,Jefferson arguesthatby birth
and by nature,humanshave rightssuch as liberty.As Jefferson wrote
(letterto JohnEppes, September11, 1813), "Our childrenare born
free.. . . That freedomis the giftof nature.... As he [thechild] was
neverthe propertyof his father,so whenadult he is, sui generis,en-
titledhimselfto the use of his own limbs and the fruitsof his own
exertions."49 Jefferson'sreasoningappearsto be that,because children
are born freeand cannotbe the propertyof someone,thereforethey
have therightsto do whateverno one has rightsto prevent.Similarly
Jefferson says, in the "Purposeand AcademicProgramfortheUniver-
sity Virginia"(1818), thatpeople arenaturally
of freefrom"all arbitrary
and unnecessaryrestraint" and thereforeare "freeto do whateverdoes
not violate the equal rightsof another."50 Inalienablehumanrightsto
life,liberty,and the pursuitof happinessare notonlyevidentthrough
commonsense and the laws of nature,says Jefferson, but also "en-
dowedbytheirCreator," as he saysin "TheDeclarationofIndependence"
(1776).51Nevertheless,Jefferson does notmake eithertheism,or rec-
ognition that these human rightscome fromGod, a necessarycondition
fortheirpossession.Insteadhe says thathumanrightsare foundin the
laws of nature,"engravedon our hearts"(Jefferson'sletterto John
Cartwright, June5, 1824); thathumanrightssuch as libertyare "our
birthright" ("Declarationof TakingUp Arms,"July6, 1775); thatbe-
cause these rights are ours by nature, "inherent,"they also are
"unalienable"(Jefferson's letterto JohnCartwright, June5, 1824),rights
whichGod and ourown natures"have givenequallyand independently
to all" ("A SummaryView of the Rightsof BritishAmerica,"1774).52
WhenJefferson asserts,repeatedly, thatwe are "a freepeople,"he makes
clear he is "assertingtherightsof humannature,"notwhatis a "gift"of
a magistrate. He makesclear thattheserightsand theiraccompanying

principlesof rightand wrong"are legible to everyreader"("A Sum-

maryView of theRightsof BritishAmerica,"1774), preciselybecause
theynotonlycome fromtheCreatorbutalso are "principlesof human-
ity"knownthrough reasonand"dictatesofcommonsense"("Declaration
of TakingUp Arms,"July6, 1775).53Indeed,Jefferson even speaks of
the "aboriginalinhabitantsof thesecountries"[the UnitedStates] as
possessing"thefacultiesand therightsof men,"including"libertyand
independence" (Second InauguralAddress,March4, 1805). He notesthat
a ploughmanas well as a professor, indeed"all humanbeings,"because
oftheirreason,consciences,andbirthrights, are adeptat moraljudgment
(Jefferson's letterto PeterCarr,August10, 1787).54For all theserea-
sons,humanrightsarenotsomething Jefferson presupposes, as Maclntyre
suggests. And if not,then Maclntyre's firstcounterargument againstJef-
fersonfailsbecause he has notaddressedJefferson's specificarguments.
Maclntyre's second attack on Jeffersonian naturalrightsis that
Jefferson's "argument requires,as thetheoryof naturalrightsmustre-
quire if its conclusionis to have practicalcontent,thatnaturalrights
havea certainunspecifiedoverriding character.Butnothingin thenega-
tive argumentgoes any way towards establishing this overriding
character."55 Maclntyre'ssecondargument also seemsquestionable,both
it
because ignores some of Jefferson'sown claims and because it con-
fusesprimafacie and ultimafacie rights.As just discussed,Jefferson
believedthathumanrightswereoverriding, in thesense of inalienable,
precisely because they derive from human natureand all humansare
bornwiththem.Theycannotbe overridden, in thesense of beingtaken
away, because one cannot override what one has by virtueof one's na-
ture,and Jefferson's words make thispointquite clear.
Jeffersonian natural-rightsclaimsalso overridemoralassertionsin a
second sense: theyoughtnot be ignored.People musttake theminto
account.Because Jefferson arguesnaturalrightsare nota gift,no one
can ignorethemor choose whetherto considerthem.Hence Jefferson's
natural-rights claims override,bothin the sense of being inalienable
because they derive fromnature,and in the sense of notbeing able to
be ignoredbecause theyare nota giftor mereconvention.
There is a sense in whichsome naturalrightsdo not override,of
course,and thisis thesense in which,because everyonehas primafacie
rightsclaims thatmay conflict,someone's ultimafacie rightsclaims
mayneedto takeprecedence.Butwhichultimafacie rightsclaimsover-
rideis a matterof situation-specific analysisand notsomething thatcan
alwaysbe decidedahead of timeby algorithm or fiat.Because it cannot
alwaysbe decidedahead of time,by algorithm or fiat,Maclntyreerrsif
he faultsJefferson forfailingto establishthe ultimafacie overriding

1 10 PUBLIC AFFAIRS QUARTERLY
character of human-rightsclaims, because this cannot be established

independent of a specific situation. Hence Maclntyre may be asking
Jeffersonto do the impossible in defending his rightsclaims. Instead,
Jeffersoncan only say that everyone has prima facie rightsto life, for
example. In the wartime situation in which British soldiers attempted
to enforce England's denial of many human rightsof colonists, Jeffer-
son admitted that the colonists had rights to kill the British soldiers,
and thus thattheirultimafacie rightsclaims overrode those of the Brit-
ish soldiers. In some specific cases of conflict one person's ultimafacie
natural rightsmighthave to take precedence, but this cannot be deter-
mined ahead of time, independent of the specifics of the situation, as
Maclntyre seems to require. Nor does it establish, as Maclntyre appears
to believe, that there are no prima facie natural rights,which is pre-
sumably Maclntyre's position. Instead, the required situation-specific
analysis merely illustrates that prima facie natural rights are not the
same as ultimafacie naturalrights.As Aquinas noted, "as to the proper
conclusions of the practical reason, neitheris the truthor rectitudethe
same for all, nor,where it is the same, is it equally known by all. ... It
may happen in a particularcase ... for instance [thatmoral principles]
. . . will be found to fail the more, according as we descend furtherinto
detail."56It appears thatMaclntyrehas not shown thatJeffersonian natural
rights do not exist but only that if one confuses prima facie and ultima
facie rightsclaims, then this confusion presents an obstacle for under-
standing natural rights.
Although there is no time to discuss the argumentsof other rights
theorists,the preceding discussion of the rightsclaims of Thomists, of
JohnRawls, and of Thomas Jeffersonsuggests that Maclntyre has not
obviously shown that human rights proponents err. And if not, then
Maclntyre's premise (C), that human rights proponentshave not been
able to defend their claims, also is doubtful.
What about Maclntyre's premise (D), that there is no shared crite-
rion for the content of human rights?Maclntyre defends this claim by
alleging that any appeal to natural rights
is always going to be as a matterof fact selective and ad hoc. A
certainlack of principlewill appear in theiruse as it has fromthe
beginning.. . . Robespierredid not invoke for the black revolution-
aries of Haiti the rightsof man thathe invokedforFrenchmen;and so
in thattheatreof theabsurd,theUnitedNations,humanrightsare the
idiom alike of the good, the bad, and the ugly.57
Likewise Maclntyre claims "belief in natural rightshas turnedout to

be compatible with slaving-owning, with massacring and stealing their

land fromthose who were settledin NorthAmericabeforethe first

Europeanssettledhere,and withsome varietiesof imperialism."58
As formulatedby Maclntyre,his premise(D) appears to be that,
because people have appealedto rightsin ad hoc ways,therefore there
is no sharedconceptof humanrights.However,Maclntyreerrsin as-
sumingthatconflictor misbehavioramongrightsclaimantsmeansthat
rightshave no sharedcontent.To denythiscontentbecause ofdisagree-
mentor errorwould be to committhe logical fallacyof appeal to the
people: assumingthatpeople's sayinga thingmakesit so. And if so,
thenMaclntyre'smaligningUN attempts, evenflawedattempts, to guar-
anteehumanrights, does notshowthatsuchrightsdo notexist.Maclntyre
seems to have confuseda concept(humanrights)withits application.
He also seems to have assumedthat,if a conceptis legitimate,thenit
alwaysis correctlyapplied.But thisassumptionis obviouslyfalse. Be-
sides, if Maclntyrebelieves that the concept has no non-arbitrary
meaning,thenone reasonableway forhim to establishhis claim (D)
would be to evaluatecriticallythespecificrightsconceptespousedby
the "moralauthority" thatMaclntyreembraces,thatof the Thomistic
and RomanCatholicpopes.59If Maclntyreanalyzestheconceptof hu-
man rightsespoused by the "moralauthority" he acceptsand defends,
as alreadynotedin discussionof premise(C), it is notclear thathe can
consistentlybothfollowthis authorityand assertpremise(D), which
denies any sharedcontentin rightsclaims.
Moreover,in assertingpremise(D), Maclntyreseemsto forgetthat,
if ad hoc and selectiveappearsto a moralconcept,humanrights,in-
validatethe concept,thenvariousad hoc and selectiveappeals to the
conceptsof God and naturallaw also could invalidatetheseconcepts,
bothof whichMaclntyreaccepts.60If one holdsMaclntyre to themeth-
odologicalcriterionhe uses inpremise(D), thatad hoc appealsinvalidate
a concept,thenmuchof his own theoryseems undercutby it. Hence
eitherpremise(D) is acceptable,in whichcase Maclntyreundercuts his
own theoreticalappeals to God and to naturallaw- or premise(D) is
notacceptable,in whichcase his Commonality Argument fails.
V. The Primacy Argument

The othermain argumentof Maclntyreagainsthumanrightsalso
employssome of the same claims againstRawls as the Commonality
Argument. WhatI call Maclntyre's"PrimacyArgument" is notthatthere
are no humanrights,as such, but thatthereare no good reasons for
believingthatjustice and humanrightsoughtto have primacyoverthe
good. This argument appearsin Maclntyre'sreviewof Rawls's book,A
Theoryof Justice,and in his laterpaper on naturalrights.Maclntyre

prefaceshis argumentby saying thathe has "fourmoreparticulardoubts"

about Rawls's book that he wants to discuss:
The firstof these[doubts]concernsthe way in whichjustice seems to

be assigneda certainprimacyover otherhumangoods. The agentsin
theinitialsituationare made by Rawls to accept thefactthattheyare
to agree in theirconceptionof justice, but to disagree in theircon-
ceptionof othergoods. . . . But whyshould we accept this?Mightwe
not ratherask first,"Whatis the good forman?" and only thendecide
whatjustice would be in a societywheremenmightrealize thatgood?
Rawls simplylays it down thatjustice has a certainprimacy.61
Maclntyre's answer to his rhetoricalquestion, about the primacyRawls

gives to justice, was discussed earlier, in connection with premise (C)
of the CommonalityArgument.Maclntyre's response (to his rhetorical
question about Rawls) fails both because it appeals to ignorance and
because it ignores Rawls's specific moral-constructivistarguments.As
already discussed, Maclntyre admits that although
it would indeed be rational to adopt just such principles as Rawls
formulates, if we were behinda veil of ignorance.... We need there-
fore some otherkind of reason for takingRawls's firstprincipleof
justice to provide,and to continue to override,any calculations of
utilityor assessmentsof good. ... I can see no basis fromwhichsuch
an overridingcharactercould be derivedshortof some fullyfledged
theoryof naturalrights.62
As thus formulated,Maclntyre's Primacy Argumenthas at least five
questionable elements. First, Maclntyre questions Rawls's grounds for
giving primacy to the principles of justice when one is not behind the
veil of ignorance, and he accuses Rawls merelyof laying "it down that
justice has a certain primacy."Despite Maclntyre's accusing Rawls of
beggingthequestion of thisprimacy,he neverpreciselyaddresses Rawls's
own rationale, as noted in the earlier discussion of the Commonality
Argument.It is one thing to ignore Rawls's arguments,but even more
troublingfor Maclntyre to accuse Rawls of begging the question after
he ignores Rawls's arguments.
A second problem in Maclntyre's Primacy Argumentis that it ap-
pears implicitlyto sanction the tyrannyof the majority.Maclntyre says
(in the material just quoted) that only natural rights could justify al-
lowing Rawls's principles to override considerations of utilityand the
good. Yet consideration of Maclntyre's theory makes it clear that he
rejects all naturalor humanrights,thatis, all non-theologically-grounded
rights,63as suggested in earlier discussion of the Commonality Argu-
ment. Therefore, for those without a theistic framework,it logically
follows that Maclntyre believes considerations of utility or the good

overridejustice. But such overridescould lead to the tyrannyof the

majorityand to greatwrongsagainstvulnerableminorities.Maclntyre
neitheraddressesthesepossiblenegativeconsequencesofhis viewsnor
does he explainwhyhe believes onlytheisticethicscould providethe
justice-override.
A thirdproblemwithMaclntyre'sPrimacyArgument also arisesfrom
his admissionthat,withoutan appeal to theologicallygroundednatural
or humanrights,considerationsof the good or utilitycould override
justice and rights.Given this admission,Maclntyreowes the readera
justificationforwhyhe thinksonlytheisticethicssuccessfullyprohib-
its eitherinjusticeor using humansas means to some end. As noted
earlier,even the medievalauthorities, acceptedby Maclntyre,did not
thinktheismwas necessaryto deriveor to knownaturallaw. Even Mac-
lntyreadmitsthat"mostmedievalproponents ofthis[divinelyrevealed,
teleologicalethics]scheme did of course believe thatit was itselfpart
of God's revelation,but also a discoveryof reasonand rationallyde-
fensible."64 And as notedearlier,even thepopes derivednaturalrights
froma naturalhumandignity.But if so, thenMaclntyreneeds to ex-
plain why,even fora non-theist, some utilityor good can be important
enough to override justice, natural law, and basic rightsto life and
bodily security.On none of these pointsdoes Maclntyreprovideany
explanation.He again appearsbothto beg thequestionand to puthim-
self at odds withtheverymoralauthoritieswhoseethicsand theology
he claimsto accept.
A fourthproblemwithMaclntyre'sPrimacyArgument is thathe ig-
norestheauthorities, withinhis ownespousedThomistictradition, who
answerhis questionabouttheprimacy good, namely,"Might not
of we
ratherask first,'Whatis thegood forman?' and onlythendecide what
justice would be in a society wheremen mightrealize thatgood?".
Whatreasonsare there,fromMaclntyre'sown Thomistictradition,to
doubtMaclntyre'ssuggestionthatthe good has primacyoverjustice
and rights?One reason fordoubtis thatMaclntyre'sAristotelianand
Thomistictraditions, as well as Rawls's account,do notappearto sepa-
ratethegood fromjustice (includingrights),as Maclntyredoes, in his
either-or way.Aquinas,forexample,says that"good menare so called
chiefly from theirjustice."65He also notesthat,"if we speak of legal
justice, it is evident thatit standsforemost amongall themoralvirtues,
foras muchas thecommongood transcendstheindividualgood of one
person.. . . 'The mostexcellentof the virtueswould seem to be jus-
tice'. . . . Othervirtuesare commendablein respectof thesole good of
thevirtuouspersonhimself,whereasjustice is praiseworthy in respect
of ... thegood of anotherperson."66 Thus,forAquinas,justice is part
of whatmakesthingsgood. It is notsomething opposedto thegood, as

Maclntyreseemsto suggest.Also, contrary to Maclntyre'sprimacytalk,

as Rawls recognized,one needsa theoryofjusticebothto definepartof
thegood and to act as a checkon misconceptions of thegood.
A fifthproblemwithMaclntyre'sPrimacyArgument is thatit could
be usedto sanctioninjustices.Apartfromwhether Maclntyre errsin sug-
gesting that the good has primacyover justice, his suggestion is
questionableon practicalethicalgrounds:"thegood" could be quitedif-
ferentif an autocrat,ratherthana democrat,definedit. It also is not
clearthatone does notneeda safetynet,likethatprovidedby naturalor
humanrights,to help act as a checkon misrepresentations of thegood,
like themisrepresentation discussedat thebeginningof thispaper.The
Taliban,theformer religiousgovernment ofAfghanistan, in threatening
thelivesofwidowsandtheirchildren, obviouslymisrepresented thegood.
Besides,evena numberofrepresentatives ofMaclntyre'sownThomistic
religiousand philosophicaltraditions sometimeserroneously have given
primacy to their accounts of the good, over basic human rightsto life.
Some popes may have given primacyto the good of appeasingHitler
overtherightsto lifeof Jews.Some SouthAmericanbishopsappearto
have given primacyto the good of coexistingwithdictatorsover the
rightsto life of those murderedby the dictators.Because of possible
human-rights abuses, it is importantto call attentionto the fact that
Maclntyre'semphasison "the good" over "the right,"in the Primacy
Argument, seemsbothpracticallydangerousas well as inconsistent with
claimsby leadersin Maclntyre'sownavowedtraditions.
VI. Why a MacIntyrean Should Hesitate to

Reject Human Rights
Wheredo Maclntyre's argumentsagainsthumanrights leavehim?They
appearto leave himin a positionin whichhe is less able to protectvul-
nerablepeople because he no longerhas the full resourcesof moral
philosophyto assisthim.He has said thatonlya "rationalmoraltheol-
ogy" can supportclaimsthatprotectotherhumanbeingsagainstabuses
suchas slavery;thatnaturalor humanrightscannotservethisfunction;
and thathumanor naturalrightscannotproviderationalgroundsfor
protectingothers,becausetheyincludeneithertheteleologicalnotionof
the ultimatehumangood, God, nor appeals to moral authority, as "a
rationalmoraltheologyrequires."67 Even if thispositionof Maclntyre's
is correct,it entailsthatmoraltheology,butnotmoralphilosophy,cur-
rentlyis possible. Even if Maclntyrehas provedhis position,it thus
appearsthatMaclntyre has provedtoo much.He appearsto haverejected
not onlyhumanrightsbut also all moralphilosophy, and therefore all
nontheological, philosophicalargumentsforprotectingvulnerablepeople.

A secondreasonthatMaclntyreappearsunableto protectvulnerable
people is thathe admitsthathis theologically-based
ethics,focusingon
divinelaw, will appearoppressiveto manypeople. Perhapsvulnerable
people, like the Afghanwidows,will findMaclntyre'sethicsoppres-
sive. Afterall, he warnsthatmembersof thistheisticcommunity
will have to exclude and prohibit a variety of types of activity.... It
[the prohibition] will appear as negative and oppressive, a barrier to
a variety of claims to liberty and choice. Such a conception of law
. . . [has a] justification [that] can ultimately only be spelled out, as
Aquinas spelled it out, in theological terms. So that not only will
those who upheld the authorityof the rules which this type of justice
requires appear to resist the acknowledgment of what a variety of
groups in contemporary society suppose to be their rights, but they
will be seen to do so for theological reasons. . . . This type of justice
and this type of law will once again inevitably appear to many both
negative and obscurantist. ... To replace the rhetoric and idiom of
rights by one of law, justice, and a community ordered ideologically
to a substantive conception of the ultimate human good will be ines-
capably to incur incomprehension and hostility.68
WhetherMaclntyre'sclaims above succeed or not,theyleave people

witha threatening choice: accept moraltheologyor abandonhope of
moraljustificationand protection. Maclntyre'swords,whichhe admits
are barriersto libertyand choice,seem to leave roomforMuslimfun-
damentalists to stoneto deathwomenwhodo notweartheveil, and for
Christianfundamentalists to kill abortiondoctors,both actingin the
nameof a theologically-grounded conceptof thegood, and bothviolat-
ing human rights.
In response,Maclntyrewould claim his theologicalethics do not
condonesuchacts. Indeed,he says "I am in agreementwithmanyofthe
substantivemoral claims by naturalrightstheorists,but in disagree-
mentwiththeirway ofdefending theseclaims.No one oughteverto be
treatedin a waythatis inconsistent withthepreceptsof thenaturallaw
. . . [but]I do notthinkthat,used in thisway [in termsof naturallaw],
theconceptof 'a right'adds anything to whatis beingclaimed."69
AlthoughMaclntyrechampions vulnerablepeople and wishesto pro-
tectthem,his good intentions, appeals to naturallaw withouthuman
rights,may not be enough. One reason is thatMaclntyreadmitsthat
proponentsof his theorywould "resist. . rights... fortheological
.
reasons."Thus for Maclntyre,no rationalappeal, against misguided
theologicalethics,seems possible. And if not, vulnerablepeople are
likelyto be hurt.
A thirdreasonMaclntyreappearsunableto protectvulnerablepeople,
givenhis rejectionof thehuman-rights is thathis 1999 book,
tradition,

DependentRationalAnimals,appearsto rejectthedemocraticstateas a
way to enforceprotections.
Maclntyreassertsthat
The nation-state. . . generatestotalitarianand otherevils. . . . The
modernnation-state,in whateverguise, is a dangerousand unman-
ageable institution,
presenting itself,on theone handas a bureaucratic
supplierof goods and services, which is always about to, but never
actually does, give its client value for money,and on the otheras a
repositoryof sacred values, which fromtime to time invitesone to
lay down one's life on its behalf.... It is like being asked to die for
the telephonecompany.Sometimesof course thereare evils only to
be resistedby ad hoc participationin some particularenterprisesof
some nation-state:in resistingHitlerand Stalin most notably.And it
is prudentto pay one's taxes.70
Maclntyre also claims that

The modernstate . . . presentsitselfas the guardianof our values . . .
but the shared public goods of the modernnation-stateare not the
commongoods of a genuine nation-widecommunity,and when the
nation-statemasquerades as the guardian of such a commongood,
the outcomeis bound to be eitherludicrousor disastrousor both.. . .
In a modernlarge-scale nation-stateno such collectivityis possible
and the pretensethatit is is always an ideological disguise forsinis-
ter realities.71
If the moderndemocratic state is as sinister,ludicrous, or ineffectiveas

Maclntyresays it is, thenpeople would seem to need as muchof a
safetynet(somethinglikehumanrights)as possible.The moretroubled
thedemocraticstateis, theless able it is to protectthosein need.Espe-
cially because Maclntyresays membersof the democraticnation-state
cannotsharea commonconceptionof thegood (see theprecedingquo-
tation),theywould seem to have greaterneed fora sharedconception
of humanrights.Otherwise,withouteithera shared good or shared
humanrights,Maclntyreseemsto abandonvulnerablepeopleto irratio-
nalityandmisery. Afterall, in a Maclntyrean state,absentofbothhuman
rights and a shared conception of the good, a powerfulgroupcould
enforceits aberrantconceptionof thegood on thenationstate,just as
theGermanNazis did andjust as Islamic terrorists do.72
Also, if Maclntyrebelieves thedemocraticnation-state is seriously
flawed,thenit is not clear whyhe offersit as necessaryto protectus
againsta Hitleror a Stalin,as he says in theearlierclaims. How could
it be effective,if he is rightabout its flaws?Maclntyredevastatingly
criticizes,thensuggestswe ignore,democraticinstitutions, butthenhe
seemsto expectthemto springup, throughsome civic "MiracleGrow,"
whenwe need them.

A fourthreason Maclntyre's theory appears unable to protect vul-

nerable people is thathe not only denigrate the modern nation state, as
a protector,but the family as well. He writes:
Neitherthe modernnation-statenor the modernfamilycan supply

the kind of political and social association thatis needed. . . . Nei-
therthe state nor the familythen is the formof association whose
common good is to be both served and sustained by the virtuesof
acknowledged dependence. It must instead be some formof local
communitywithin which the activities of families, workplaces,
schools, clinics, clubs dedicated to debate, and clubs dedicated to
games and sports,and religiouscongregationsmay all finda place.73
Such criticisms of the nation and family are puzzling, given that
Maclntyre is quite generous in his praise of animal-human relation-
ships. In his 1999 book, for example, afterhe says nonhuman animals
"share" with humans some of the same "reasons for action," he speaks
sentimentallyabout animals and humans who form"relationships" and
pursue "the same" goods.74Maclntyre claims that
whatwe meanby "goods" in sayingthisis preciselythesame, whether
we are speakingof humanor dolphinor gorilla.. . . Membersof some
other species are no more merelyresponsive to the inputs of their
senses thanwe are. . . . Whenwe speak of dolphinsflourishing or ...
or
gorillas flourishing ... humansflourishing. . . these are examples
not of analogical, but of univocal predication."75
He also says human animals are "dependent as the infantdolphin or the

infant gorilla are dependent" and that "we owe to parents, especially
mothers,to aunts, grandparents. . . that care fromconception through
. . .childhood thatdolphins also owe to elders who provide . . . care."76
It seems extravagantforMaclntyre to claim thathuman children are
"dependent as" infantdolphins or gorillas, or that we humans owe our
parentsonly "thatcare" thatdolphins and some otheranimals owe their
elders. If this is Maclntyre's conception of familylife and parent-child
relationships, it could explain why he believes that the modern family
cannot supply the kind of association needed to sustain and transmitthe
virtues.77More importantly,if Maclntyre assimilates human and animal
needs, such thathe alleges humans owe other humans only "that care"
dolphins owe other dolphins, then it seems likely that the gravest hu-
man needs mightreceive littleattentionin Maclntyre's world. He appears
to have minimized what humans owe other humans, particularlywhat
humans owe other,vulnerable humans.
Admittedly,in his latest book, Maclntyre wants to emphasize the
resemblances or continuitybetween nonhuman and human animals, in
order to develop his Aristotelianmetaphysical biology. And admittedly,

theconcernin thissectionof thepaper,aboutMaclntyre'ssentimental

discussion of elephants,dolphins,dogs, cats, chimpanzees,gorillas,
horses,and othernonhumananimals,is notthatMaclntyrehas theani-
mal-continuity pointwrong.(He maybe wrongin his continuity point,
because he dismissescomplexargumentsby Stitch,Searle, Davidson,
and othersin onlythreepages, and he does so mainlywithmereasser-
tions.But thatis nottheissue here.)Rather,thepointis thatMaclntyre
uses the alleged animal-human continuityin a way thatsuggestshis
affective andphilosophicalpriorities aresomewhatskewed.Hitlerwaxed
sentimental aboutanimalsbutkilledJews,gypsies,and leftists.Macln-
tyrespendsat least halfof his 1999 book givingdetailedanimalcase
studiesand arguingthathumanforgetfulness of our animalnatureis a
majorreasonforour notacknowledgingtheaffliction and dependence
of humans.Yet nowherein a book- alleged to discuss the causes of
humanvulnerability - does he give a singlecase studyof humansuffer-
or
ing,dependence, deprivation.Instead,Maclntyreleaves thesetopics
to singlesentencesor abstractdiscusses,all withouteithercitationsor
specifics.Thus Maclntyre'sdiscussionof vulnerability is remarkable
forwhatitexcludes(humancase studies)as well as forwhatit includes
(repeated,detailedcase studiesof nonhumananimals).
Maclntyreobviouslydoes notmeanto glorifynonhumananimalbe-
haviorand animal-human relationships, whilehe denigratesor ignores
humanrelationships. as
Afterall, notedearlier,he says he is "in agree-
mentwithmanyof thesubstantivemoralclaimsmadeby naturalrights
theorists, butin disagreement withtheirwayofdefending theseclaims"
(see note70). Nevertheless, Maclntyre's virtual silence about human-
caused suffering - suchas war,repression,prejudice,poormedicalcare,
and starvation - coupledwithhis emphasison theanimalnatureof vul-
nerability and his denigration of the family and the nation, are
worrisome.Moreover,Maclntyre'smisgivingsaboutthefamilyand the
democraticstatesuggestthathis theorieswould notsupportprotecting
victimsof familyor state abuse, both because Maclntyreexpects so
littleof familiesand democraciesand because his theologicalappeals
are unlikelyto persuadethose who do not sharehis theism.Afterall,
Maclntyrevirtuallydefinesfamiliesand nationaldemocraticinstitu-
tions in termsof their shortcomings.As a result, it appears that
Maclntyre's"theologically based" naturallaw could lead to abuse,abuse
like thatpracticedagainsttheAfghanwidows,eventhoughhe does not
intendthisconsequence.Attheleast,manyof Maclntyre'sclaimsabout
democraticstates,animals,thefamily,and so on, raise questionsabout
his ethical prioritiesand beliefs.And thatis the point.Human-rights
violatorsoftenare unconsciousof theirbiases. People easily can get
theirprioritieswrong,especially in a Maclntyreansystemwithouta

safetynetlikehumanrights.In fact,Maclntyrehimselfseemsto gethis

prioritiessomewhatwrongwhenhe claims,in the PrimacyArgument:
"But whyshould we accept this [primacyof justice]?" Mightwe not
ratherask first,"Whatis thegood forman?"and onlythendecide what
justicewouldbe in a societywheremenmightrealize thatgood?78Any-
one who does not realize that justice should take priority,over
theologicalclaims about the good, arguablymay have his priorities
wrong.Talibanofficials,who gave priorityto theirtheologicalconcep-
tionof good, overjustice, have theirprioritieswrong.And Maclntyre
has his prioritieswrongbecause such appeals to religiousauthority,
on
Maclntyre'sown admission,leave littleroomforrationalhumancor-
rection,as in thecase of theAfghanwidows.In a societywithslightly
skewedor onlytheologically-based ethicalpriorities, powerlessand si-
lent people mightnot always receive the protectionthey deserve.
Especiallywhenreligiousauthoritiessay theyhave no humanrights.
VII. An Objection
What mightMaclntyrerespondto the previous criticismsof his

theory'sabilityto help protectvulnerablepeople?Verylikelyhe would
pointoutthat,in his 1999 book,Maclntyreexplicitlysays humanneeds
shouldtrumpall otherconsiderations.Obviouslya need-basedethics
wouldprotectvulnerablepeople,he mightsay. Maclntyresays,forex-
ample,that"We can set in advanceno limitto thosepossible needs . . .
unconditional care forthehumanbeingas such,whatevertheoutcome
... is thekindof care thatwe in turnnow owe or will owe" and that
"whatI am called upon to give has no predetermined limitsand may
greatly exceed what I have received."79
WouldsuchclaimsofMaclntyre helpprotectvulnerablepeople?Even
if Maclntyreideally were rightin such assertions,it would be impos-
sible to followsuch a demandingmoralrequirement of "unconditional
care."Yetobviouslythereoughttobe limitstothelegitimateneedclaims
of others,limitsset by thecommongood, by dutiesto others,by law,
by moreprimary relationships, and so on. In notrecognizingsuch lim-
its,Maclntyre seems to have openeda door forabuse, forignoringhis
Aristotelian "proportionality." In short,Maclntyreseems to allow need
claims to trumpjustice. And if needs trumpjustice, thenthe justice
claims of vulnerablepeople mightnotbe recognizedin a Maclntyrean
world.Besides, Maclntyreowes us an explanationas to how he can
criticizeGauthier'saccountof preferences or wants,forthe way they
run,rough-shod, over the good when, in his 1999 volume,Maclntyre
himself allows his "needs" claims to run,roughshod, over both the
good and rights.80 Moreover,Maclntyre'sposition is arguablymore

questionablethanthatofGauthier, point.What-
at leaston thisparticular
ever theirfaults,at least Gauthierand social-choicetheoristshave an
accountof ethics thatis clear and operationalizablevia preferences.
Maclntyre'saccount,however,seemsopen to human-rights abuses pre-
cisely because it is not clear, preciselybecause of his "needs trump,"
because of his giving primacyto utilityand good (over rights),and
because of his providingno wayto operationalizeor testneedsclaims.
Moreover,it is notclear how Maclntyrecan arguebothfortheprimacy
of needs claims and forthe primacyof thegood. Satisfactionof needs
claims obviouslydoes notalways lead to thegood.
VIII. Conclusion
Whatdo the previousconsiderationssuggest?Despite Maclntyre's
good intentions and his stateddesireto protectthevulnerable,his ethi-
cal theoryappears too weak, incomplete,and question-begging to do
thejob he intends.First,althoughMaclntyrerejectsnaturalor human
rights,he does notgive an adequateaccountof theirfoundations, even
fromwithintheThomisticand RomanCatholictraditionshe claims to
accept.Second,althougha completeevaluation - ofwhether Maclntyre's
ethicsgenuinelycan protectthevulnerableandthepowerless- requires
examininghis views in moredetail,Maclntyre'smisgivingsaboutthe
family,thenation,and democracyare troubling. Theysuggestthateven
he believes thesethreeinstitutions cannotprotectpeople who need it
most,especially in the absence of a traditionof humanrights.Third,
althoughthe paper argues thattwo of Maclntyre'smajor arguments
againstthehuman-rights traditionare flawed,thisrationalanalysisof
Maclntyre's criticisms of rightsadmittedly maynot give adequate at-
tentionto the lived traditionsand practicesthathe emphasizesin his
philosophy. Afterall, it could be thatthelived traditionsand practices
of virtuouspeople, withina local community, could help protectvul-
nerablepeople. But would they?To answerthisquestion,it mightbe
good to engagein a Maclntyreanthoughtexperiment.
Let us begin our thoughtexperiment by accepting,forpurposesof
the experiment, Maclntyre's claim thathis theologicaltradition"sur-
vives in a muchless fragmented, muchless distortedformin thelives
of certaincommunitiesthatare tied stronglyto theirpast, that"the
oldermoraltraditionis discerniblein theUnitedStates and elsewhere
among,forexample,some Catholic Irish,some OrthodoxGreeksand
some Jewsof an Orthodoxpersuasion,all of themcommunitiesthat
inherittheirmoral traditionnot only throughtheirreligion,but also
fromthestructure of thepeasantvillagesand households."82 If Macln-
tyreis correctin thisclaim,thenpeople readingthisessay oughtto be

willingto choose- as partof thethoughtexperiment - to live eitherin

an IrishCatholicvillageor in an OrthodoxJewishhousehold.But each
participantin the experimentmustaccept the followingstipulation.
Anyonewho chooses the Irish community mustgo to a Catholic vil-
lage, as theonlygay Protestant in a Maclntyreantownwhosecitizens
denyall naturalor humanrights.And anyonewho chooses the Ortho-
doxJewishhouseholdmustgo toa Maclntyrean society,devoidofnatural
or humanrights,as an intellectually giftedfemale marriedto a some-
what dim man whose insecuritiesdrive him to spouse abuse. Once
everyonehas lived in eitherthought-experiment fora year,everyone
should answer a question: "Would you ratherlive in a traditional
Maclntyreanworld?Or in a Maclntyreanworld thatalso recognized
naturalor humanrights?"WhatwouldtheAfghanwidowssay?
ofNotreDame
University
NOTES
Thanks to Alasdair Maclntyre for his helpful comments on an earlier draft.

Thanks also to Phil Quinn, David Solomon, and Paul Weithmanfor discussions
of previous drafts,and to Rev. David Burrell,C.S.C.; Fred Freddoso; Rev. John
Jenkins,C.S.C.; and Phil Sloan for discussion of Aquinas's argumentsand
previous drafts.
1. "Citing Islamic Law, Taliban Shut Bakeries That Aided Widows," New
York Times (Thursday, August 17, 2000), p. All.
2. Alasdair Maclntyre, Dependent Rational Animals (Chicago: Open Court,
1999), p. 1: hereaftercited as DRA.
3. Amy Gutmann, "CommunitarianCritics of Liberalism," Philosophy and
Public Affairs,vol. 14 (1985), p. 316; hereaftercited as AG.
4. Alasdair Maclntyre, After Virtue (Notre Dame, Indiana: University of
Notre Dame Press, 1984), p. 69; hereaftercited as AV.
5. Maclntyre, AV, pp. 68-69.
6. A. Maclntyre,"Community,Law, and the Idiom and Rhetoricof Rights,"
Listening, vol. 26 (1991), p. 104; hereaftercited as CLR. For Maclntyre's
acceptance of legal rights, see the quote in the previous endnote and A.
Maclntyre, "Personal Communication to K. S. Shrader-Frechette,Letter of
October 11, 2001," p. 2; hereaftercited as Maclntyre,PC.
7. Maclntyre,AV, p. 11.
8. Maclntyre,AV, pp. 22, 56, 54.
9. Maclntyre,AV, pp. 56, 60.

AV, pp. 22, 62.

10. Maclntyre,
11. Maclntyre,CLR, pp. 103-105.
12. A. Maclntyre,Are There Any Natural Rights? (Brunswick,Maine:
cited as NR.
BowdoinCollege, 1983); hereafter
PC, p. 2.
13. Maclntyre,
14. Maclntyre,
AV, p. 69.
15. Gutmann,AG, pp. 314-315.
16. Maclntyre, PC, p. 2.
AV, p. 69; Maclntyre,
17. A. Maclntyre,Three Rival Versionsof Moral Enquiry(NotreDame,
Indiana:Universityof NotreDame Press,1990), p. 2; hereaftercitedas TRV.
18. Leo XIII, Pius X, BenedictXV, and Pius XI, The Pope and thePeople:
Select Letterand Addresseson Social Questions(London: Catholic Truth
cited as: PL. JohnPaul II, "On Social
Society,1950), pp. 153-154; hereafter
Concern"(Washington,D.C.: US Catholic Conferences,1987), pp. 25, 63;
hereaftercitedas JP-87.
19. Maclntyre,AV, pp. 110-113.
AV, p. 69.
20. Maclntyre,
21. Maclntyre,AV, pp. 111-113.
22. Gutmann,AG, pp. 315-316.
NR.
CLR, p. 97; see also pp. 96-110 and Maclntyre,
23. Maclntyre,
CLR, p. 97.
24. Maclntyre,
25. Maclntyre,CLR, pp. 103-104.
CLR, p. 104.
26. Maclntyre,
TRV, p. 2.
27. Maclntyre,
28. Maclntyre,TRV.
29. Maclntyre,
AV, pp. 60-68. See note62.
30. Thomas Aquinas, Summa Theologiae, trans. English Dominican
Province, <http://www.newadvent.org/summary/3058 12,htm> (New York:
BenzingerBrothers,
1996), la Ilae, q. 94, art.2; citedas ST.
hereafter
31. Maclntyre,NR, pp. 13-15.
32. Maclntyre, TRV, p. 2.
33. Leo XIII et al.,PL, pp.70, 153-154.See also JohnPaulII, JP-87,pp.25, 63.
34. Leo XIII et al., PL, p. 70; JohnPaul II, JP-87,p. 43; JohnXXIII, On
RecentDevelopments of theSocial Questionin theLightof ChristianTeaching
[Mater et Magistral, (Vatican City, TipiografiaPoliglota, 1961), p. 48;
citedas MM.
hereafter
35. JohnPaul II, JP-79,p. 63.
36. Maclntyre,
NR, pp. 7-8.


38. JohnRawls, A Theoryof Justice(Cambridge,Massachusetts:Harvard
citedas Rawls.
Press,1971), p. 20; hereafter
University
39. Rawls,p. 152.
40. Rawls,pp. 21, 579.
41. Rawls, pp. 395-399.
NR, pp. 13-15.
43. Maclntyre,
AV, p. 60.
44. Maclntyre,
AV, p. 68.
45. Maclntyre,
46. Maclntyre,AV, p. 60.
47. Maclntyre,NR, p. 16.
49. Thomas Jefferson, The Writingsof ThomasJefferson, ed. AndrewA.
Lipscomband AlbertE. Bergh(Washington, D.C.: ThomasJeffersonMemorial
TJ.
citedas Jefferson,
Association,1905), vol. 13, p. 357; hereafter
50. ThomasJefferson, ThomasJefferson: ed. John
A Selectionof Writings,
S. Pancake (New York: Barron'sEducationalSeries, 1976), p. 231; hereafter
citedas Jefferson
Selections;Jefferson, TJ,vol. 13, p. 357.
Selections,p. 74.
51. Jefferson
52. Jefferson TJ,vol. 13, p. 357.
Selections,pp. 108, 73, 110, 49; Jefferson,
Selections,pp. 50, 55, 60, 61, 67.
53. Jefferson
54. Jefferson TJ,vol. 13, p. 357.
Selections,pp. 153, 223; Jefferson,
56. Aquinas,ST, la Ilae, q. 94, art.4.
NR, p. 19.
57. Maclntyre,
PC, p. 2.
58. Maclntyre,
NR, p. 20.
53. Maclntyre,
60. PhillipR. Sloan,"FromNaturalLaw to Evolutionary Ethics,"in Biology
and the Foundationof Ethics, eds. Jane Maienscheinand Michael Ruse
(Cambridge:CambridgeUniversity cited as NLEE.
Press, 1999); hereafter
61. A Maclntyre, "Justice:New Theoryand Some Old Questions,"in Boston
Law Review,vol. 52 (1972), pp. 330-334; hereafter
University citedas RR.
NR, pp. 9-10.
62. Maclntyre,
CLR, pp. 96, 101, 103, 106-9; NR, pp. 3-4, 15, 19-21; AV,
63. Maclntyre,
pp. 60-68.
AV, p. 53; NR, p. 16.
64. Maclntyre,

65. Aquinas,ST, Ila Ilae, q. 58, art.3.

66. Aquinas,ST, Ha Ilae, q. 58, art.12.
67. Maclntyre, NR, pp. 20-21; see also pp. 3-4, 15; AV, pp. 60-68; CLR,
pp. 96, 101, 103, 106-109.
68. Maclntyre, CLR, pp. 108-109.
69. Maclntyre,
PC, pp. 2-3.
70. A. Maclntyre,"A PartialResponseto My Critics,"in AfterMaclntyre,
ed. JohnHortonand Susan Mendus(NotreDame, Indiana:University of Notre
Dame Press,1994),p. 303; hereafter
citedas AM.
71. Maclntyre,
DRA, p. 132.
72. Maclntyre,AM, pp. 302-303.
73. Maclntyre,
DRA, pp. 19, 135.
74. Maclntyre,
DRA, pp. 56, 62; see p. 47.
75. Maclntyre,
DRA, pp. 61, 60, 64-65.
76. Maclntyre,
DRA, pp. 71, 82.
77. Maclntyre,
DRA, p. 9.
78. Maclntyre,
RR, p. 233.
DRA, pp. 100, 12
79. Maclntyre,
80. Maclntyre,
DRA.
81. Maclntyre,
AV, p. 252.


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