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5— Rights and Reason
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Conflict Dissolution

And yet, while the concept of rights grows out of conflict, it is simultaneously a mode of conflict resolution. Rights are, after all, the primary means by which a victory is claimed, claimed as the absolute subordination of the loser to the winner. "The function of a legal right," Carl Wellman has written, is to give "legal priority to the desires and decisions of one party over those of the other."[47] What allows the concept of rights to resolve conflict, then, is an adversarial grammar that not only divides the world but also expunges it in that division, dispelling its shadows and nuances in the light of two blindingly unambiguous terms: "reason" and "unreason," "right" and "no right." Such a grammar brings together two contending parties only to demolish one of them, hollowing out its features and emptying out its contents, in order to grant full justification, full validity, to the claim of the victor. Rights flourish on an "illusion of absoluteness," Mary Ann Glendon suggests.[48] And what they render most absolute of all is the concept of justice, affirmed now in its dream of objective adequation, its dream of a world exactly equal to the verdict it sees fit to pronounce. So the particular brand of "conflict resolution" achieved by rights might more accurately be called "conflict dissolution," for the world being described, the world being instituted through their agency is a world in which the losing claim does not even amount to a claim, in which the triumph of the winner is the triumph of Reason itself, the fit between the two being perfect, leaving behind no regret and no residue.

This conflict dissolution, the reduction of every conflict into a non-conflict, the reduction of every opposing claim into a nonclaim, thus confers on the concept of rights not just a coercive authority but what appears to be a moral authority, making it "morally legitimate for one human being to determine by his choice how another should act."[49] The triumph of rights is, above all, an epistemological triumph, one that confers reality on one claim, one body of evidence and one line of reasoning, over that of its opponent. And the undoing of the losing


claim, the erasure of its evidence and the dismissal of its reasoning, is perhaps the necessary basis for the authority granted the right holder, an authority which, to be seen as moral authority, must appear to issue not from the successful demolition of its opponent, but from a Reason immanent in the nature of things.

It is this conflict dissolution—the most bitterly partisan, most bitterly divisive use of it—that we are witnessing now on both sides of that most partisan, most divisive of debates, the debate over abortion: a debate conducted, predictably, in the language of rights, with each side claiming full moral authority for itself, full validity on its side, as if what is at stake is solely and exclusively the woman's right to choose, solely and exclusively the fetus's right to life. That absolute claim of reason must entail, again on both sides, an absolute attribution of unreason to the claim of one's opponents, preempting their very contestatory ground, to the point where the debate itself might begin to look like a nondebate, a debate whose verdict is nothing if not objectively self-evident. This is why, for those who are pro-life, the fetus's mother is so often a nonissue, and why, for those who are pro-choice, the fetus is so often a nonbeing. It is this preemptive dissolution of conflict which troubles Laurence Tribe, who, in spite of his staunch support for abortion, cannot nonetheless agree with the Court's decision in Roe v. Wade to "rank the rights of the mother categorically over those of the fetus, and to deny the humanity of the fetus."[50] And it is this preemptive dissolution of conflict which troubles Catherine MacKinnon, who has argued, emphatically and courageously, that "the abortion choice must be legally available and must be women's, but not because the fetus is not a form of life ."[51]

In any case, the preemptive logic of rights is such that even philosophers who are their advocates have been struck by their ability to make and unmake the world, their ability to sanction not only an adversarial map of reality but also an absolute verdict, an absolute assignment of reason, and an absolute allocation of freedom. As Joel Feinberg puts it, "If Nip has a claim-right against Tuck, Tuck is bound and Nip is free. Nip not only has a right, but he can choose whether or not to exercise it, whether to claim it, whether to register complaints upon its infringement, even whether to release Tuck from his duty, and forget the whole thing."[52] Focusing even more tellingly on this absolutism of rights, H. L. A. Hart suggests that a right is best expressed through "the figure of a bond," a bond which, significantly, is


"not that of two persons bound by a chain, but of one person bound, the other end of the chain lying in the hands of another to use if he chooses."[53]

If only to protect herself, then, if only to free herself from the "chain" which others will use absolutely, and use absolutely to bind her, Edna must insist that "nobody has any right," that the enthralling chain lies in no other hands but her own. The propositions "Edna has a right" and "nobody has any right" operate, then, not as a contradiction, and not even as two alternative accounts of rights, but as the two faces of a single principle. What is crucial for the right holder, it seems, is not so much self-fashioning as negative attribution, the refashioning of one's adversary from a potential right holder into a nonclaimant, perhaps even a nonentity. Still, this making of a "nobody," while psychologically understandable and perhaps even pragmatically enforceable, is not so rationally justifiable. How does one explain the nonexistence of rights in others, when one does claim a right for oneself? How can one stand up for the integrity of one right rather than that of another, when their domains of entitlement overlap and neither can enjoy a discrete identity? Or, to put the question even more broadly, how can one turn the concept of rights from an absolute concept, whose authority rests on a premise of universal applicability, into a relative concept, whose claim is conditional, presumptive, and therefore disputable?

This contradiction-between a universalist premise and a particularist enforcement—is one that has haunted the concept of rights since the seventeenth century, one that, according to Roberto Unger, resulted from the synthesis of a "theology of transcendence" and an "interest group pluralism" which attended the genesis of the concept, and one that "had vitiated it from the start."[54] There are conflicting grammars at work here, conflicting grammars sedimented out of a historically divided genealogy. The Critical Legal Studies movement, not surprisingly, has seized upon this uneasy synthesis as a focal point in its critique of rights. More tradition-minded thinkers, too, have struggled to cope with the contradiction. For some of them, the notion of "prima facie rights" seems initially to be the answer. These are rights which are more or less provisional, which remain sovereign while left to themselves but can be overridden should a superior right intervene. Clearly, this is one way to acknowledge the possible conflict among rights, invalidating some without abandoning the con-


cept wholesale. However, as we might imagine, such a solution is not without its hazards. Indeed, the very notion of prima facie rights is vexing to some theorists, who see in it more damage than benefit. For Herbert Morris, prima facie rights amount to a kind of epistemological lie, a denial of rights under the pretense that no rights exist. Such a lie, such a summary transformation of a right holder into a nonclaimant, must end up undermining the very moral ontology which makes rights intelligible:

It is seriously misleading to turn all justifiable infringements into noninfringements by saying that the right is only prima facie , as if we have, in concluding that we should not accord a man his rights, made out a case that he had none. To use the language of prima facie rights misleads, for it suggests that a presumption of the existence of a right has been overcome in these cases where all that can be said is that the presumption in favor of according a man his rights has been overcome.[55]

Joel Feinberg, finding prima facie rights equally objectionable, has also argued against the concept, on the ground that rights "are not something that one has only at specific moments, only to lose, regain, and lose again as circumstances shift. Rights are themselves property , things we own, and from which we may not even temporarily be dispossessed."[56] True to his conception of rights as "moral furniture," Feinberg is mostly worried here about the sanctity of property, worried that a single instance of infraction might make all infractions justifiable. In any case, for both him and Morris, prima facie rights threaten the very integrity of rights, because in making rights provisional rather than absolute, situational rather than universal, they also eliminate any hope for a foundational authority, any hope for a transcendent arbiter. To make all rights prima facie is to recognize that their domain is a domain of overlapping entitlement rather than a domain of discrete proprietorship. It is also to recognize that commensurability is a judicial hope rather than a natural order, that two legitimate claims might fall on the same object, and that there might not be anything like full adequation in the settlement of disputes, anything like an integral Reason disclosable through adjudication. One might argue, with Martha Minow and others, that this qualified approach to rights is probably the best way to salvage the concept.[57] But, understandably, it is not an intellectual price everyone is willing to pay.

Against this background, The Awakening might be seen as an at-


tempt—wonderfully audacious, but perhaps also self-mocking from the outset—not to pay that intellectual price. Indeed, this seems to me to be the very burden of its subjectivist discourse, a discourse so impervious to the claims of others that it might even be said to have resolved, however momentarily, the vexing contradiction between the moral absolutism that the concept of rights inherits and the operative relativism that it dictates. What Chopin experiments with is a strategy of conflict dissolution that, I suggest, is something like the cognitive obverse of prima facie rights. For if prima facie rights arise out of the reluctant acknowledgment on the part of political philosophers that the domain of rights is the domain of incommensurate claims—and therefore the domain of imperfect resolutions—The Awakening labors to dispense with that acknowledgment, to ward off its unwelcome shadow. What the novel offers, then, at its most exhilarating and most utopian, is thus an image of rights-without-conflict, an image of rights as blissfully freestanding, blissfully free from any danger of overlap and any danger of fuzzy entitlement.

It is this fantasy of discreteness which suspends that fearful preposition, the preposition "against," making Edna (if only for a brief moment) simply a holder of rights, a holder rather than a claimant. Imagining rights as being somehow intransitive, somehow divorced from the "chain" which usually accompanies them, the novel also imagines Edna as intransitive, as divorced from the recipients of her actions, so that those actions now seem pertinent only to herself, without consequence for others and apparently not directed against others. Because her rights by definition do not interfere with anyone else's, because "nobody has any right" whenever and wherever she does, there is no danger that her exercise of rights might infringe on the rights of anyone and no danger that her actions might hurt anyone. The positive and the negative correlatives of rights are here symmetrical only by inversion, only by virtue of what the symmetry represses. The assumption of rights empties out the possibility of infringement, so that the very substance of rights might be said to reside in the latter's absence.

What The Awakening asks us to imagine, then, however briefly and however abortively, is a world in which the moral agent can indeed live by "the Light of [her] own Reason" and honor "the dictates of [her] own conscience," as Locke counsels, and can do so without abuse to others, without infringing upon their rights, without violat-


ing the contours of their being. Such a fantasy does not last, for in Edna we see, with fatal clarity, the danger that the "Light of one's own Reason" can run into, its inadequacy as the ground of commensurability with others and indeed its inadequacy as the ground of continuity within itself. Since Edna's reason is indistinguishable from whim, a self such as hers

can have no rational history in its transitions from one state of moral commitment to another. Inner conflicts are for it necessarily . . . the confrontation of one contingent arbitrariness by another. It is a self with no given continuities, save those of the body which is its bearer and of the memory which to the best of its ability gathers in its past.[58]

I take this passage from Alasdair Maclntyre, from his account of the "emotivist self," not only because it uncannily describes the corporeal and mnemonic life that makes up Edna Pontellier but also because, in highlighting the frailty of that self as the seat of reason, it dramatizes what I take to be the central problem of moral subjectivism: namely, the contradiction between one's own reason and a reason not so heavily personalized, the contradiction between a reason possessed by oneself and a reason shareable with others. Taking Edna as a not so remote descendent of the Lockean moral subject, I want to explore not her comfortable sojourn in "bureaucratic individualism" (Maclntyre's emphasis), but her disturbing placement in any theory of justice, both in the larger political sense of what constitutes a legitimate ground for entitlement and in the narrower legal sense of what constitutes a legitimate basis for adjudication. In a world where private judgment is morally prior, how might that judgment be itself adjudged? To what extent can such judgments be taken as the ontological ground for rights, the ontological ground for claims against others? Can a foundation for justice ever be derived from the light of one's own Reason? What epistemology can suffice as the epistemology for a human community?

Living by the light of her own reason, Edna decides one Tuesday, her weekly reception day, not to stay at home to receive callers. Living by the light of her own reason, she decides not to entertain the wives and daughters of her husband's business associates, not to put herself among the human furniture assembled for that purpose: "a light-colored mulatto boy, in dress coat and bearing a diminutive silver tray for the reception of cards," and a "maid, in white fluted cap,


offer[ing] the callers liqueur, coffee, or chocolate, as they might desire" (66). There is something exhilarating about Edna's decision, but there is also something troubling about her rationale. "I simply felt like going out, and I went out" (66), she tells her husband. Edna does not meet her husband in confrontation, but neither does she meet him in apology. Indeed, it is her ability to sidestep both—her ability to sidestep any possibility of conflict by sidestepping any acknowledgment of conflict—that marks her new beginning as a discrete holder of rights, someone whose actions have reference only to herself. It is not entirely fortuitous that a few chapters later Edna should be found reading Emerson, reading him until "she grew sleepy" (96), for it is Emerson, of course, who has prescribed, in "Self-Reliance," just such a course of action as Edna would eventually adopt: "I shun father and mother and wife and brother when my genius calls me. I would write on the lintels of the door-post, Whim . I hope it is somewhat better than whim at last, but we cannot spend the day in explanation. Expect me not to show cause why I seek or why I exclude company."[59]

Emerson is the most immediate authority for Edna, but a more general authority might be said to be the entire liberal tradition itself, a tradition of moral subjectivism, as I have tried to argue. If The Awakening is any indication, that tradition, so strikingly exemplified here, would also seem to be caught in a profound sense of crisis, a profound unease about its relation to anything that might be called a commensurate (or at least communicable) Reason, a reason not uniquely one's own but intelligible to others. Chopin, from that perspective, must be seen not only as an heir to Emerson but as a deeply troubled one. For Emerson had used the word "whim" with confidence, confident that "it is somewhat better than whim," confident, as he also said in "Self-Reliance," that "to believe your own thought, to believe that what is true for you in your private heart is true for all men."[60] That confidence is starkly absent in Chopin. Indeed, Edna's whim is just that and no better than that: whim. It speaks only of her impulse, her caprice, her desire to be unencumbered, but opens outward to no broader frame of reference. The light of one's own reason has become what "I simply felt like." And so, what is true for Edna in her private heart is not and cannot be true for anyone else. It is certainly not true for her husband, who, bewildered by her new conduct, can think of no reason for it except possibly that her mind has gone momentarily


astray. "I don't know what ails her," he complains when he goes so far as to consult Dr. Mandelet, the family doctor. "She doesn't act well. She's odd, she's not like herself. I can't make her out" (86).

Nor does Edna want to be "made out" by anyone. Her thoughts and actions are indeed private to her now, but private in a way that would have horrified not only Emerson but Warren and Brandeis as well. For her privacy here is not at all a designated sphere of immunity, not at all the legal recognition of a protected right, but an ontological condition inhering in the very fact of her being, making her oblique to others, unintelligible to others, the light of her reason offering no illumination to theirs. If moral subjectivism ever since the seventeenth century has been in danger of disintegrating into a "mere" subjectivism, in Edna we see that danger materialized with a vengeance. What is dramatized in The Awakening , then, what erupts not in spite of but because of its dissolution of conflict, is something like an epistemological crisis, in which the voice of subjectivism is allowed to speak both on behalf of its heroine and in testimony against her, its language of rights being intoned both as a felt necessity and as a relational hazard, both as an ontological given and, in the end, as an ontological nightmare.

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5— Rights and Reason
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