Theorizing on Liberalism and Liberal Rights
As I write this book a global pandemic is sweeping everything before it, aggravating an already tense geopolitical situation. The rise of post-modern conservatism from 2010 onwards convinced some authors that liberalism had âfailedâ and we were moving towards a new, post-liberal future. What they really meant in many cases was back to a nostalgized pre-liberal epoch, with various forms of soft-authoritarianism backing up a homogenizing unified morality or shared identity. The COVID 19 crisis has done a great deal to undermine these reactionary efforts, but the political left has thus far been unable to present any meaningful vision of an alternative to liberalism-really neoliberalism-despite the close call of democratic socialists like Bernie Sanders. The reason, I believe, is that for a very long time now academic and intellectual progressives have been entirely enamoured with critical theories who seek to undermine and expose the limitations of liberalism and which are inherently skeptical of any efforts to put forward systematic alternatives. A Critical Legal Examination of Liberalism and Liberal Rights, as the title suggests, is sympathetic to these efforts. This is because liberalism does indeed have limitations; some of the most obvious of which come to the fore when we look at rights discourse. Many liberals have doubled down on these limitations by aligning with the forces of reaction and inegalitarian hierarchies to insulate the power of capital from democratic pressures; that is more or less the story of neoliberal political economy in the late twentieth century when I grew up.
But limitations shouldnât lead us to the over-zealous conclusion that liberalism has failed, or needs to be discarded wholesale. Instead my book argues that we need to rethink the potential of liberalism and liberal rights to be employed for more radical purposes. Showing this will require a lengthy dive into liberal history, which will be followed by an analysis of its limitations as highlighted by a variety of critics. After looking at this history, the book will move onto presenting a more progressive model of rights justified by an appeal to securing human dignity for all. This model of rights emphasizes the importance of both self and democratic authorship, at the level of the state and the workplace, and the need to ensure everyone is equally capable of living a rich life unless there a very compelling reasons justifying inequalities.
My position is that this argument is not some dramatic break with liberalism, but radical in the classical sense of the Latin radix, meaning root. The arguments for democracy and equality we see today have deep roots indeed in the liberal tradition, which at its best acknowledged the moral equality of all persons and demanded they be entitled to freedom from state coercion and even various forms of ideological heteronomy. Unfortunately it never went all the way in pursuing this insight, permitting tremendous inequities and unfreedom for a variety of reasons the book will unpack. Many of its limitations were enshrined and calcified in liberal law, which made it all the more difficult to push past their false necessity and establish the conditions for a more just society. As such the book concludes with a few sketches on how an alternative to liberal legalism can be conceived which would marry to the model of human dignity and rights argued for throughout the book. This will provide some resources on how to think of a genuinely post-liberal future that carries the best of liberalism forward towards a more dignified state of affairs.
The Global Origins of Rights Discourse
The conceit that rights discourse got its start purely in the Western world has increasingly been challenged both by critical legal scholars and a host of anthropologists, historians, and other commentators. The efforts of these figures have been directed towards showing that the idea or ideal of rights in fact developed in many different parts of the globe at various different times throughout history. Their revelations and arguments are not just intended to serve as a historical corrective to inaccurate and self-serving Occidental-centric narratives. Scholars like Amartya Sen and Jack Donnelly invoke the global origins of rights discourse to provide normative support for the idea of rights as a whole.1 By suggesting that rights emerged within many cultures, the hope is to legitimate them by appealing something like a global âoverlapping consensus.â It is also to undermine the arguments of despotic critics eager to insist they arenât beholden to human rights standards since rights are alien concepts wrongfully exported by force onto unwilling parts of the world. If rights genuinely emerged from a variety of backgrounds, that may give them a moral force which would be lacking were they to have been little more than the invention of seventeenth century liberals eager to protect their property while happily indulging in the slave trade.2
Jack Donnelly is perhaps the most prominent scholar associated with the argument that rights discourse has a universalistic basis. In his classic book Universal Human Rights in Theory and In Practice he points to many of the antecedents to modern human rights codes which emerged in a variety of different countries outside the Western states.3 Perhaps the most prominent are the edicts of the Buddhist Emperor Ashoka, which laid out rights for prisoners and placed restrictions on severe punishments, encouraged religious tolerance, and even emphasized the importance of respect for animals. Sen makes similar points in his books Development as Freedom and The Idea of Justice, when he describes how the religious injunctions of Hinduism manifested many of the same moral principles as one finds in contemporary human rights codes.4 Religious scholars from the Vatican and the Islamic world have often pointed to antecedents to human rights codes from within their own faith traditions. The monotheistic faiths stressed the rights human beings enjoy as the favored creation of the transcendent God, an idea which was still present in the work of Locke through the American founding fathers. And indeed, this argument finds expression in many of the Islamic declarations on human rights which have emerged since the mid-twentieth century.
Professor Lo Chung-Shu claims that, though there is no strict translation of the term ârightsâ into Mandarin this does not mean the Chinese had no conception of human rights. Shu argues that the Confucian tradition stresses the right of people to revolt against rulers who do not look after their interests, while also stressing the adoption of a âsympathetic attitudeâ towards the rights of others.5 And Oritsegbubemi Oyowe stresses that, despite the protestations of relativist critics, one can draw on the formidable history of African philosophy to find a justification for rights. Saying that, there remain considerable difficulties in reconciling the collectivist orientation of much African thinking with the individualist emphasis of rights discourse.6
Taken together these examples do make a compelling case that even if what we (post) moderns might recognize as rights discourse in the technical, lawyerly sense isnât an eternal and universal feature of human life, the idea of rights finds enough cross-cultural support to potentially be legitimated through an overlapping consensus. Interesting as such a possibility might be, it is ultimately not the purpose of this book to defend the historical universalism of rights discourse. This is in part because even if one could demonstrate that different cultural and religious traditions have or at least could agree on the existence of rights that does not resolve a key problem; the determination of which specific rights would be respected and protected.. Such questions, in the twenty-first century, are of course controversial. While governments as diverse as Saudi Arabia and Sweden profess to respect human rights, the form this respect takes is obviously very different. More important still even if one could identify certain rights as enjoying some sort of universal acknowledgment, that doesnât in and of itself make them morally compelling. It could simply be the case that many people have been wrong in a variety of contexts.
Here I will make a crucial distinction between the potentially universal idea of human rights, and the universality of liberal rights more specifically. Until recently, the two have been conflated without significant analysis which in turn helped generate the critique that human rights concepts were little more than a Western effort to justify the imposition of Western norms and laws on other cultures. If the arguments of figures like Donnelly and Oyowe are true, and some concept of human rights is embedded in a variety of cultural and legal constructs, then the challenge isnât so much with insisting that different cultures accept a system of universal rights, but rather that in recent history the West has insisted that other cultures accept liberal rights concepts even if liberalism was foreign to them This charge has some weight to it.7 Later, I will argue that neoliberalism effected just this kind of top-down enforcement of a limited set of liberal rights upon communities, which often led-intentionally or otherwise-to corrosive and undemocratic results. But before engaging in such analysis I will discuss the origins of liberal conceptions of rights more generally, starting in the natural law tradition and moving forward through the European Enlightenment. This will help the reader to grasp the historical and ideological specificity of liberal rights discourse.
Rights Discourse in Natural Law and the Renaissance
The discourse of liberal rights got its major start in the writings of natural law and Renaissance theorists. Ancient Greek and Roman authors no doubt played a substantial role in formulating many of the political and metaphysical concepts through which notions of civic participation, representation, and tyranny are formulated. These were undoubtedly crucial to the development of liberalism generally and liberal rights specifically. Indeed the impact of such thinkers can be seen in the voluminous citations of the Ancients and Scholastics by figures like Grotius, Locke, and of course the American founding fathers during the constitutional convention. However, as Strauss and other critics point out, it is crucial to not conflate the liberties of the Ancients and medieval scholars with those of the moderns.8 And indeed, modern natural law and rights theorists are often quite insistent on differentiating themselves from their auspicious predecessors. This indicates not only an intellectual shift crucial for the emergence of liberalism, but represents a more practical response to the limitations of classical and medieval discourses which stressed the importance of personal virtue and civic or religious engagement as a basis for political life. Liberal theorists were typically rather skeptical of this emphasis, as showcased by Madisonâs tart remarks about Socratic goodness in Federalist 55:
The truth is, that in all cases a certain number at least seems to be necessary to secure the benefits of free consultation and discussion, and to guard against too easy a combination for improper purposes. As on the other hand, the number ought at most to be kept within a certain limit, in order to avoid the confusion and intemperance of a multitude. In all very numerous assemblies, of whatever characters composed, passion never fails to wrest the specter from reason. Had every Athenian citizen been a Socrates; every Athenian assembly would still have been a mob.9
Early modern natural rights theorists imbibed much the same political realism, and formulated theoretical positions which were more appropriate to the transformative but also chaotic tempo of the period. Many seemed to agree with Machiavelliâs elegant satire of ancient reasoning; that suggesting politics is a place for the good is foolish, since virtuous people will be surrounded by so many who are not so. But they rarely descended into the harder edged formulations of realism found ...