Sunday, February 26, 2006

Do we live under law, or do we possess rights?

The main tool in the modern Western legal world's toolkit is the right, which is a quasi-possession of the human. Locke and Kant were the most original developers of this theory in books, and the Americans set it in motion in politics. It has spread throughout the world.

But it aint necessarily so. Before natural rights was natural law. This is not just a matter of semantics. While one can express many ideas using either type of language--"I have a natural right not to be murdered" vs. "it is against natural law to murder"--they reflect very different worldviews.
  • In natural rights, the subject takes precedence; in natural law, the object is primary.
  • In natural rights, one may assert the right; in natural law, I am under the law.
  • In natural rights the actor is an autonomous agent with a tool he can use for his freedom, usually even alienating the right (Locke had to develop the idea of inalienability to protect his three basic rights); in natural law the actor is a participant in a larger order into which his autonomy must be joined to form a community.
These issues have been summarized often by the philosophical question: which is prior, the right or the good? Says Rawls in Political Liberalism:
We should not attempt to give form to our life by first looking at the good independently defined...For the self is prior to the ends which are affirmed by it...We should then reverse the relation between the right and the good proposed by teleological doctrines and view the right as prior.
Rawls's quintessential reason for this assertion of the self through its right to choose is to avoid metaphysical wars. The most obvious, and historically consequential, of these struggles were the religious civil wars of 16th and 17th century Europe which created the modern state. According to Jeffrey Stout, a modern historian of liberalism, the plethora of religions that sprung up in the wake of these wars produced appeals to incompatible metaphysical authorities--theories of the good--that could not be resolved rationally (or, to use Rawls's catchword, reasonably). The secularized state arose to keep peace between the warring factions.

This is what Rawls means when he says that liberal principles of justice should be
political and not metaphysical: they should be fundamentally pluralistic, avoiding any conception of the good, whether utilitarian, Marxist, Christian, or whatnot. Those particular philosophies then can find full expression inside of a tolerant liberalism.

But is liberalism truly neutral? I think not: in fact, Rawls has smuggled modern atomistic individualism into his premises just as cleverly as he did with his veil of ignorance argument.
Is the self prior to the ends that are affirmed by it?

If the self is the beginning, then rights and the right to choose are critical for autonomy and Rawls's lexically prior goods. But what if the
location of the self is fundamentally intertwined with its moral topography? What if identity must take place within a horizon of framework-definitions, without which we are disoriented--the more severe the lack, the more severe the pathology? One can rephrase this: Is autonomy a good for its own sake, or is autonomy only meaningful when used to pursue the good that is self-constituting?

There are two extremes in the relation between the self and the good. Nietzsche, always at one extreme of
some spectrum or other, here says that the self creates the good; Rawls would perhaps be surprised to discover his ancestors. Plato claims that the good life is the hegemonic dominance of reason over desire so as to acquire self-mastery and merge the self into the good. Aristotle's writings, always following the mean, have been interpreted by MacIntyre as involving a complex feedback of the self and the good in what MacIntyre has called the "quest." I find that this describes my life pretty well.

I'll try to summarize this. Who do we owe our ultimate loyalty to? To the state, or one's own understanding of the good? Let's say I am a Christian or a family-man or a Marxist. If I believe that God or my family or the proletariat
constitutes me in some sense, then I do not choose those goods as an autonomous self: I recognize them, and in doing so, recognize myself. In doing so, I live under the law. The self under that law can then go on to assert rights. But there can be no mistaking which is epistemically prior, the law or the right.

And what, then, of metaphysical wars? I'll tackle this sometime soon; but to start, I think the traditional story told by Stout is backwards. More later.


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