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5— Rights and Reason
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Moral Subjectivism: Hobbes and Locke

Glendon (as noted) is not the only one to have taken on this formidable target. Still, to gauge the force of her critique, it is helpful to recall the tremendous ethical weight that has coalesced around the concept of rights since the seventeenth century, an ethical weight that in turn has helped to anchor something like the moral ontology of liberal justice. The work of Ronald Dworkin is representative here. For Dworkin, any theory of justice worth its name—any theory of justice that aspires to be a general principle—must be based on an antecedent "deep theory" of rights. Rights are foundational to justice, Dworkin argues: foundational, because they "are not simply the product of deliberate legislation or explicit social custom, but are independent grounds for judging legislation and custom."[8] Rights, in other words, belong to a moral order at once higher and deeper than positive law, higher and deeper than customary practice. Themselves underived from human institutions, they define a more basic sphere of sanctity, at once predating the social order and overriding it if necessary. Dworkin thus insists that rights are "natural ," that they are rooted in humanity rather than society, and that to infringe upon a right is to infringe upon the humanness of that person: it "means treating a man as less than a man."[9]

This moral priority of rights—the sense that they are humanly immanent rather than socially designated—is even more striking in the work of Joel Feinberg. Our very conception of humanity, our idea about "what it is to be a human being," Feinberg argues, would have been unintelligible without an antecedent concept of rights. Indeed, according to him, "our respect for persons may simply be respect


for their rights."[10] Feinberg is speaking for himself, of course, in his strong claim, his belief in a perfect fit, a perfect coextension or correspondence between rights and humanness. His weaker claim, however—about the immanence of rights—has been an important feature of English political thought since the seventeenth century. What follows from this immanence is what we might call a sequential ordering of two domains, the moral and the political, the former being understood not only as ontologically prior but prior in such a way as to be vested exclusively in the private subject, vested in him in contradistinction to his political obligations. The claim of rights, in other words, is understood to issue from the natural man. Growing out of his humanness, and out of the morality immanent in that humanness, it puts the moral subject at the origin of any polity.

In Hobbes, this presumption about an antecedent moral domain—and its antecedent placement within the natural man—thus made it possible to think of politics as a secondary, auxiliary order, founded on contractual obligation, and founded very much as a sequel to the phenomenon of natural rights. The monarchical despotism that Hobbes championed was thus eminently amoral. Its justification must be derived, then, from a prior morality, a morality inhering in the consent of those who voluntarily agreed to its terms, those who voluntarily entered into contract. Hobbesian morality thus had its home not in the realm of politics but in the realm of private judgment, private volition. What was "moral" was what was judged moral by those who consented to it; it had meaning only for those consenting judges.

Morality, then, was not only individually vested in Hobbes, it was also individually constructed. This individual construction, in turn, gave rise to a radically subjectivized definition of the good. "Aristotle hath well defined good as that which all men desire," Hobbes said. "But, since different men desire and shun different things, there must need be many things that are good to some and evil to others. . . . Therefore one cannot speak of something as being simply good ; since whatsoever is good, is good for someone or other. . . . For the nature of good and evil follows from the nature of circumstances."[11] Hobbes's syntax of morality—"whatever is good, is good for someone or other"—thus constructed the moral predicate as a conditional predicate: appended to, dependent on, and limited by a "someone" who validated it and gave it meaning. And, since it was this "some-


one" who was vested with the Hobbesian natural right—a right not only individually held but also individually interpreted—the claim of rights was necessarily a subjective claim, a claim constituted by the judgment of some particular person. Its primacy signaled "the incorporation of a subjectivist ethos" into political theory and "open[ed] the way for the emotivist revolution in ethics," as Ian Shapiro has persuasively argued.[12]

In Locke, this moral subjectivism became nothing less than an epistemology: a highly elaborate (and highly influential) theory about the grounds for private knowledge, the grounds for private judgment. Fashioned out of the Protestant theology of voluntarism, this subjectivist epistemology would in turn lay the groundwork for some of the most enduring features of modern liberalism.[13] What followed from it, in fact, was nothing less than the central tenets of liberalism, toleration and consent. Since Locke believed that moral knowledge was autonomously achievable by every individual, that every private judgment reflected this knowledge, he also accorded political priority to such judgment, arguing that it should always be given institutional sanction.[14] Each of us has the capacity for reflexive knowledge, Locke said, and, through it, each of us becomes the best judge of our own actions:

We have a power to . . . examine, view, and judge, of the good or evil of what we are going to do; and when, upon due Examination , we have judg'd, we have done our duty, all that can, or ought to do, in pursuit of our happiness; and 'tis not a fault, but a perfection of our nature to desire, will, and act according to the last result of a fair Examination .[15]

Moral knowledge, for Locke, was subjectively attainable and subjectively demonstrable. It was this subjective ground for knowledge which made "liberty of conscience" not just a psychological theory, and not just a religious doctrine, but above all a political credo, the founding tenet of liberalism. "Every man is put under a necessity, by his constitution as an intelligent being, to be determined in willing by his own thought and judgment what is best for him to do," Locke said.[16] And, since each man is the best judge of his own welfare, the "consent" of each must be the sole ground for the legitimacy of any political order.

It was this epistemology—this presumption about the private


grounds for knowledge, private grounds for judgment—that lay at the heart of A Letter Concerning Toleration (1689). "The care of Souls cannot belong to the Civil Magistrate," Locke wrote, for "true religion consists in the inward and full perswasion of the mind," and no one should be "put under a necessity to quit the Light of their own Reason, and oppose the Dictates of their own Consciences." As for the church, Locke thought that it should be treated as no more than a secular institution, which is to say, as "a voluntary Society of Men, joining themselves together of their own accord." As such, the church should be granted the "fundamental and immutable Right of a spontaneous society," but not the right to compel any belief, not the right to coerce the conscience of any citizen, so that "all the Rights and Franchises that belong to him as a Man, or as a Denison, are inviolably to be preserved for him."[17]

A Letter Concerning Toleration was not strictly about rights, but its epistemology, its cognitive environment, was one in which the concept of rights was entirely at home.[18] Indeed, as its repeated appearance here suggests, "rights" was crucial to Locke as a kind of notational point of transit: a word which would allow him to inscribe both his key tenets, toleration and consent, and to stipulate a reciprocal relation between the two. Toleration was understood, that is, as a species of right, a right of immunity extended by the state to its citizen, while consent was understood as a right reciprocating it, a right of legitimacy extended by the citizen to the state. The concept of rights thus institutionalized the moral claim of the subjective, guaranteeing its political expression, even as it individualized the ground of consent, moralizing its operative term.

And yet, to the extent that moral judgment and political consent were not fully symmetrical—to the extent that the "Light of one's own Reason" might not shine equally brightly as a reason of state—the concept of rights was also haunted from the outset by a kind of epistemological predicament, a dangerous lack of fit between its two operating terms. Committed, on the one hand, to the moral priority of private judgment, and, on the other hand, to the political need for consensual legitimacy, the idea of "rights" would seem to be torn by a divided allegiance from its very inception. Locke himself recognized the problem, and, in his cautious endorsement of "majority rule," he would seem to be suggesting a solution of sorts, a way to circumvent that divided allegiance:


For when any number of men have, by the consent of every individual, made a community, they have thereby made that community one body, with a power to act as one body, which is only by the will and determination of the majority[,] . . . and so every one is bound by that consent to be concluded by the majority. . . . [T]he act of the majority passes for the act of the whole and, of course, determines, as having by the law of nature and reason the power of the whole.[19]

Majority rule was one way by which the subjective could be conditionally bound to the collective, one way by which the moral claim of private judgment could be honored even in its breach. And yet the very need for such a concept would also suggest that the "Light of one's own Reason" had ceased to be a foundational concept, had ceased to be the adequate ground for a political community. Indeed, at the heart of Lockean liberalism is an epistemological crisis, a wavering definition of "Reason," wavering, we might say, between two operating agencies and two operating locales: between Reason as it is individually embodied and Reason as it is collectively manifested, between Reason as it inheres in the judgment of particular individuals and Reason as it inheres in the political will of a community.

With no guarantee of universality, no guarantee of a rational ground for agreement, moral subjectivism is thus always in danger of becoming a "mere" subjectivism, a subjectivism with no referential ground other than what is apprehended by itself. Indeed, to the extent that toleration is premised on the legitimate existence of rational dis -agreement—the legitimate noncoincidence between one's own reason and the reason of others—Lockean reason itself would seem to be infinitely divisible and infinitely relativized by those divisions, to the point where one's own reason might turn out to bear no resemblance to the reason of others. Reason, so divided and so relativized, must seem an argument against itself: an argument against its presumed transcendence, its supposed status as the ground of commensurability, its much-lauded ability to settle disputes. Seen not as an integral entity or unifier, but as something possibly fractured and possibly incomplete, reason would seem to constitute human beings not as consensual subjects, but as contending ones. And human differences, issuing from such a divided constitution, might turn out never to be reconcilable, never to fall within the domain of rational settlement. Reason, for Locke then, would seem always to be hovering on the verge of a principled concession: a concession to the limits of its ad-


judicative scope, a concession to the limits of its integrity, instrumentality, absoluteness.

In the three hundred years following Locke, it is the language of rights which makes this concession unnecessary and, to some extent, unthinkable. For if rights begin as a conflictual mode, it is simultaneously a mode of conflict resolution, one which operates, we might add, not only by awarding one side with an undisputed victory, but also by awarding it with an undisputed claim to reason. The universe of rights is thus a "concessionless" universe, in which conflict is understood only to be a kind of epiphenomenon, resolvable by reason—and resolvable above all by imagining reason as a discrete, absolute entity, discretely and absolutely assignable to one side, the side with "rights." If the concept of rights grew out of an epistemology of moral subjectivism, as I have tried to argue, it is also compelled by the very terms of its operation to disavow that genesis, or rather, to rewrite it and to rename it, so that the triumph of the right holder is never anything other than the triumph of sole and objective truth. And so, the adversarial language so crucial to rights turns out to be a language incapable of anything other than a categorical verdict, one that divides the adversaries into those with "reason" and those with "no reason," absolute winners and absolute losers. It is perhaps inevitable then that in the recent debate over liberalism, it is the concept of "rights" that is once again being adduced by both sides, adduced as the trumping claim, the most invincible of forensic weapons. A defender of the welfare state like John Rawls, for example, can do so by invoking rights as a "deontological" (that is, nonutilitarian) order of justification.[20] Conversely, a defender of the minimal state like Robert Nozick can invoke the same concept, only to argue that, because "individuals have rights" that are absolute, an "extensive state will violate persons' rights not to be forced to do certain things, and is unjustified."[21]

The language of rights has indeed "saturated" our public life, as Mary Ann Glendon charges, so much so that its invocation in most political debates now seems as reflexive as it is obligatory. And yet, as Alasdair MacIntyre has reminded us, the availability of such a language (let alone its preeminence) is a relatively recent phenomenon. The concept of rights, according to him, had no means of expression in Hebrew, Greek, Latin, Old English, classical and medieval Arabic,


or in Japanese even as late as the mid-nineteenth century.[22] And indeed, even in a political culture increasingly defining itself through the concept of rights, there has always existed a countertradition whose exponents have tried, under various banners, to uncover the contradictions (or predicaments) of this concept.

Writing in 1640, Hobbes's infamous but not altogether undiscerning critic, Sir Robert Filmer, argued that the natural rights theory was untenable because it imagined human beings to be free, to be unencumbered and unobligated, in a way that no actual human beings could ever be. "I cannot understand," he wrote, "how this right of nature can be conceived without imagining a company of men at the very first to have been all created together without any dependency one of another, or as mushroom (fungorum more ) they all on a sudden were sprung out of the earth without any obligation one to another."[23] Filmer was speaking, of course, from the vantage point of monarchical absolutism, but his objection to Hobbes's mushroomlike individuals would be echoed, two and a half centuries later and from quite a different place on the political spectrum, by none other than Emile Durkheim. "One can exercise a real right," Durkheim said, "only by thinking one is alone in the world, without reference to other men." Rights do "not lead wills to move toward common ends, but merely [make] things gravitate around wills in orderly fashion." For that reason, a society founded upon rights "will resemble an immense constellation where each star moves in its orbit without concern for the movements of neighboring stars."[24] Still more recently, J. G. A. Pocock, in his sponsorship of classical republicanism, has linked the concept of rights to the "law-centered paradigm" of liberal culture, an adversarial culture. In such a culture, the citizen is "defined not by his actions and virtues, but by his rights to and in things," a "negative citizenship" which can lead only to an "extra-civic" and "ego-centered" form of life.[25] Meanwhile, for Roberto Unger and others associated with Critical Legal Studies, the language of rights is chiefly responsible for the "antinomies" in "liberal psychology" as well as in "liberal political theory," antinomies not only "fatal to its hope of solving the problems of freedom and public order" but also generative of "basic and insoluble paradoxes" in its "accounts of experience."[26]

And so, the language of rights, as natural and immanent as it has


now become, can appear quite otherwise to its critics. My own argument is very much inspired by these critics. Like them, I am skeptical about the foundationalist claim made on behalf of rights, skeptical about the alleged fit between rights and humanness. I am skeptical, most of all, about its epistemology, skeptical about its description of the world through an adversarial grammar that constructs its subjects not only as opponents, but as opponents bearing discretely judgeable sets of claims and having discretely judgeable relations to Reason. Such a grammar can resolve conflict only by a verdict of "total justice,"[27] only by resolving the world into a residueless language: a syntax of uncompromising and all-liquidating absolutes. Airtight and all too legible, such a syntax virtually invites its own abuse. And, at its most abused, it will lend itself to a moral subjectivism which, triumphant under its dispensation, will also rewrite its victory as objective truth, rewrite its name as the name of Reason.

Still, as troubling as that syntax is, what concerns me here is not so much its formal properties, but rather the circumstances which set it into motion: the circumstances which enlist its descriptive and adjudicative capacities and stretch those capacities, either to the point of illegibility or, as is more often the case, to the point of super legibility. In reconstructing those circumstances, I hope to fashion something other than a purely logical critique based solely on the internal consistency or adequacy of its object. I want to acknowledge, rather, both the historical need for the language of rights and some of the abuses it has historically authorized. To take both into account, the language of rights is most fruitfully studied, I argue, as a historical semantics , a language invoked always within a genealogy of conflict, an inherited web of tyrannies and injuries, and a language whose human meanings must matter as much as its logical coherence.

This is what Patricia Williams has in mind when, against the inherited tyrannies and injuries of black history, she makes a case for the continual vitality, and indeed the continual necessity, of the language of rights:

For the historically disempowered, the conferring of rights is symbolic of all the denied aspects of their humanity: rights imply a respect that places one in the referential range of self and others, that elevates one's status from human body to social being. For blacks, then, the attainment of rights signifies the respectful behavior, the collective responsibility, properly owed by a society to one of its own.[28]


Williams's emphasis on the special relation of rights to black history forcefully reminds us that the language of rights is above all a semantic structure, sedimented into being by its many invocations, given meaning by its many contexts of use. At the same time, this semantic particularity—its construction by a particular social group, with meanings unique to that group—must remind us as well of its non-foundational character and the danger of any foundationalist claims made on its behalf. In what follows, I want to keep this double perspective alive, paying attention both to the experiential need for rights and to the possible dangers of their deployment. The language of rights, then, will appear both as an inflected structure of meaning and as a vexed negotiation with a syntactic form. It will both speak in its own voice, on its own terms, and speak in its own despite, in a theater too large to be entirely its own and in full view of the consequences—intended or not, foreseen or not—of its grammar of justice.

While this double perspective is, to some degree, my own experiment within this chapter, it is also an experiment—carried out with great aplomb, if not always with the happiest conclusion—within the nineteenth-century novel itself. For it is here that the language of rights is most often seen from both inside and out: as an inflected structure of meaning and as a vexed negotiation with a syntactic form. Here, on the one hand, the language of rights is intimately rehearsed: as a way of life, a set of felt necessities and compulsions, and a set of meanings subjectively elaborated and subjectively ascertained. But here too, on the other hand, this language is cruelly put on display: its descriptive and adjudicative properties sharply tested, tested in their operative effect and in the shape of the world they prescribe and project. Moral subjectivism is both reality and "reality" in the novel, both naturalized in its self-evidence and exhibited in quotation marks. The image of justice that emerges, then, out of this simultaneous immersion and perspective, is also an image less than perfectly rationalized, one that invites, if nothing else, a reading that supplements it, a reading that ponders its "reality" as well as the losses and residues entailed by its naturalization.

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5— Rights and Reason
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