Bl. Antonio Francesco Davide Ambrogio Rosmini-Serbati, IC, was born in Rovereto in 1797 and died in Stresa in 1855. He is most famous for founding the Institute of Charity, more commonly known as the Rosminians. He also spent a considerable amount of time as a political advisor to the Kingdom of Piedmont, and was considered for the position of Minister of the Interior of the States of the Church (essentially, the Papal State equivalent of Prime Minister) by Bl. Pius IX, although that didn't work out due to political troubles. In 1845, he published Filosofia del diritto, that is, The Philosophy of Right. I've wanted for a while to put up a series on this long and fascinating work, and there is no time like the present. (When I say the work is large, I mean very large -- I believe the first edition is something like 1700 pages. He opens the work with an epigraph from Plato's Laws that says that we should not seek brevity when writing laws, but seek the best.)
A key concern of Rosmini's in writing this work is to restore justice to its important role in discussions of law; this requires insisting on the foundational importance of the philosophy of Right, which is concerned with precisely this, being "the doctrine of first reason applied to jural justice", where jural justice is "justice rooted in rights" (p. 16). The philosophy of Right covers both natural rights and positive rights, and involves three elements: the theory of rational right (which establishes what rights are), the theory of positive laws (which is concerned with positive laws and their relations to rights), and the critique of positive laws (which is concerned with the relation between the theory of positive laws and actual positive laws). Because rights and laws organize society, the philosophy of Right has ties to political philosophy, providing it its ends, and when considered in precisely this aspect, can be called the philosophy of social justice. It also has ties to eudaimonology (concerned with happiness/fulfillment) and ethics, although it is distinct from each and links the two together. In his own work, Rosmini wants to avoid two extremes that he thinks most philosophers of Right have not managed to avoid: trying to stuff too many things into it, thus threatening its systematic unity, and trying to restrict it too far, thus threatening is universal applicability.
A right, according to Rosmini, is "a faculty which human beings have for doing or experiencing anything useful" that is "protected by the moral law which obliges others to respect this faculty" (p. 23); that is, it consists "in a eudaimonological faculty protected by the moral law" (p. 39). Rights in the philosophy of Right are therefore connected to duties in ethics or moral philosophy. A 'faculty' in this context means "a permission or authority proceeding from the jural law", that is, "action carried out under the safeguard of the law which forbids others to interfere with that action" (p. 41). 'Faculty' is the usual word used, but Rosmini suggests that 'governance' might be a better term for it, because it captures the notion of authority. Every right therefore involves a law that protects a kind of action, and a title, which is a fact that tells us that the law applies to a given case, through which we are entitled to the protection of the law. These titles can admit of different modes or modalities or modifications, and thus our rights can change over time to the extent that the titles anchoring them do. (This will be quite important later because Rosmini thinks that the function of civil society is to regulate these modalities to solve problems of justice that come from many different people coming together and potentially exercising their rights in ways that complicate the exercise of the rights of others.)
Rights in general are founded on the human person. This is inevitable because any acocunt of rights must trace back to an account of obligations, which is itself going to be concerned with what is in some sense necessary for the free action of persons. This kind of necessity arises when persons must act a certain way in order to preserve or increase their personal perfection, that is, their fulfillment specifically as a person. "If they do not follow this course of action, they lose something of their dignity, their integrity and their being. And their evil consists precisely in this loss." (p. 81) Thus obligation is the necessity of an action to avoid the loss of personal dignity, or the good appropriate to a person, where a person is "an intelligent subject, that is, a subject of such a nature that its good consists in adhering to objective entity taken in its fullness, and therefore in its order" (p. 81). That is to say, a person is an intelligent, volitional being whose completion consists in having the right kinds of objects for intellect and will, and obligations are the requirements for reaching this completion. Rights are based, then, not on the will of the legislator but on a sort of natural law inherent in persons, although Rosmini himself usually prefers to call it rational law. The first precept of this rational law is "'acknowledge beings according to their exigency' or in equivalent words, 'to acknowledge truth practically'" (p. 114). Duty and right are thus contrasted by the fact that duty arises from the objects of intellect and will, while right arises from the subject (cf. p. 148); this is why all rights have corresponding duties, but not all duties involve rights.
When freedom has the appropriate characteristics -- it involves the exercise of personal activity involving morally lawful good for the person who has it in such a way that others morally must not interfere with it -- it is a right, and can be called jural freedom. The moral duty that requires us not to interfere with it is called the jural duty (dovere giuridico). We can define jural duty more exactly as "that moral duty which obliges one person to leave intact and free some activity proper to another person" (p. 155), and this notion of 'what is proper to a person' is a fundamental key for understanding rights; having a right to things is intrinsically linked to their being proper to us as persons. An implication of this is that rights are always between persons, and heavily depend on the persons and their possible relationships with each other.
So much for rights in general. Given all of this it is possible to begin deriving specific rights. In doing so, Rosmini proposes four rules to keep us from confusing things that need to be kept clear:
(1) "To be certain that a right which has been made known to us exists in reality, we must first see whether it is complex. If it is, we must break it down and reduce it to simple rights. We must then demonstrated the existence of each of these" (p. 169).
(2) "The existence of a right is not rigorously demonstrated without the demonstration of the existence of each of its five constituents" (p. 170). These five constituents arise from the account of rights given above and are: (a) activity of a subject, (b) personhood, (c) goodness for the person, (d) lawfulness or moral licitness, (e) jural duty. On the basis of this rule we have to distinguish between rights and merely lawful activities.
(3) "If I have demonstrated that a moral duty to avoid impeding a given action does not exist in some human beings, I have not at the same time demonstrated that the action is not a true right relative to other human beign who have the moral duty to respect the action; I have simply demonstrated that the action is not a right reltive to those individuals alone in whom the duty does not exist" (p. 171). Some rights are indeed complete rights -- every other human being has a jural duty to respect them -- but others are more limited. That some rights are only rights relative to various groups of human beings does not make them any less rights.
(4) Rosmini recognizes that there are some kinds of things that are not rights but nonetheless sometimes must be treated as if they were for various practical reasons; he calls these presumed rights, and distinguishes them from true rights. Of these presumed rights he says, "Although I must consider certain things in others as if they were true rights, I could never consider the same things as rights in myself" (p. 172).
For instance, let's take the right to self-preservation, a widely recognized right. By rule (1), this is quite clearly going to have to be a complex right, and therefore will need to be broken down into simple rights, each of which needs its own account. By rule (2) we recognize that, whatever may be relevant to self-preservation as a good, the right has to be concerned with activities. These activities also, by the same rule, need to be morally licit -- there are many things you could do to preserve yourself that would violate all sorts of moral duties. Further, by the same rule again, it has to involve self-preservation in a way that is a good for the person whose life is preserved; this sense of 'good' is very broad, but it is not unlimited. Depending on the particular activities considered, we find by rule (3), that some of our simple rights involved in self-preservation may be rights relative to everyone, but others only relative to particular people for particular moral reasons. And by rule (4), we have to recognize that there are things that might be lumped in with self-preservation that, because of their close ties to the right, should generally be treated as if they were rights when dealing with others, but, as they are not rights, do not actually have any associated claim or entitlement to them -- we could not demand them for ourselves, for instance.
In order actually to derive specific rights, we need a general feature of activity that marks the kinds of activity that involve rights. This general feature Rosmini calls proprietà. This is the feature that relates to 'what is proper to a person'. There is no easy English word for this. We could render into English as 'property', but in English that tends to have the implication of physical possession, which is awkward when we talk about, e.g., rights spouses have with respect to each other because each spouse is proper to the other. Denis Cleary and Terence Watson translate it as 'ownership'; that is also somewhat awkward, but it is more acceptable. We recognize that the wife has rights with respect to her own husband, precisely because he is her own husband. 'Belonging' might sometimes work, but is probably too broad. In any case, I will keep using proprietà. In the sense that is relevant here, it is inherently concerned with something that is individual and not merely common, although we will see that societies that have sufficient unity can be relevantly 'individual'. In the specific sense required for the right, the individual and what is proper to the individual cannot be equal; they could, of course, be equal for some other purpose, but to say you have a right with respect to something is to say that it is adjoined to you as a person, and therefore is adjunct to your own independent personhood. It is, in a sense, a jural part of you.
Given the account so far, rights, and thus proprietà, always involve persons in some way. The jural freedom mentioned above, the governance people have with respect to what is their own, is therefore an attribute of proprietà, which "constitutes a sphere around the person in which the person is the centre" (p. 180), within which the person can do any lawful thing he pleases. This sphere of proprietà is where we find the title that is essential to rights. The law, in its most general form, is "Do no harm to persons by separating any part of themselves from themselves, that is, any part contained within the sphere of their [proprietà]" (p. 180), or perhaps more simply, "Respect that which belongs to others" (p. 193). Rosmini argues that this is a superior account of rights when compared with its major rival, the Kantian kind of theory that bases rights on the possibility of coexistence, which he thinks impoverished, in not covering enough, and only covering what it does in an abstract way.
With the principle for the derivation of rights in hand, proprietà, we can proceed actually to derive specific rights.
to be continued
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Antonio Rosmini, The Philosophy of Right, Volume I: The Essence of Right, Denis Cleary and Terence Watson, trs., Rosmini House (Durham: 1993).
