The Foundation of Rights in Popes John Paul II and Benedict XVI from the Perspective of the Gift

38 Pages Posted: 21 Mar 2013

Date Written: 2012

Abstract

The question of the foundation of rights is approached from the perspective of a tension between the individual and, on the one hand, something that claims to bind him “from above” in the manner of what has been traditionally called “law” and, on the other hand, someone “over and against” whom he exercises a claim to what is “his own by right.” In each there is an existential tension between a free individual who is “his own” and a claim to bind him. The essay will take “right” to mean a legitimate or justified claim grounded in ownership in the strict and proper sense of the word.

The theoretical justification of the grounding relation proposes a conceptual articulation of a central element entailed by a metaphysics of “right:” the nature of a gift in a development of traditional “natural law." Accordingly, the essay draws on the personalism of the current Pope and his predecessor.

In the first section, the essay deals with the subjective foundations of rights from the perspective of the gift, focusing on the concepts of ownership, experience, self-possession and the free-personal center.

In a second section, it deals with the possible “dialectic” of these concepts. Each can be understood as one of two mutually exclusive meanings according to the way that their “reference” is one of the two possible existential actualizations or exercises in personal acts. Each will have one of two existentially contrary meanings according to whether the individual performs personal acts for his own sake or for the sake of another. The concept of “ownership,” for example, will mean one thing in the context of acts “for my own sake” and the opposite in the case of acts “for the sake of the other.” Each concept will be an accurate and adequate grasp of a real experience that can serve as evidence for each of two opposed and ultimately irreconcilable theories of “right.”

The third section will deal with the objective foundations of right to include the structure of the gift, with its complementary moments of receiving and giving as key to understanding the objective bond it establishes, one in which the subjects of a reciprocal giving and receiving of the gift of self come to “belong” to each other.

The nature of the gift should open the field of “rights” to an analysis of the ways a personal being can be “bound” to others, in the mode of “yours” and/or in the mode of “mine.” The conclusion will reflect briefly on the way a hermeneutics of the gift can bring to light a personalist dimension not taken into account in traditional natural law theories.

Suggested Citation

Fedoryka, Damian P., The Foundation of Rights in Popes John Paul II and Benedict XVI from the Perspective of the Gift (2012). Ave Maria Law Review, Vol. 11, No. 1, p. 65, 2012, Available at SSRN: https://ssrn.com/abstract=2235773

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