Norms Of Liberty: A Perfectionist Basis For Non-Perfectionist Politics

NORMS OF LIBERTY

A PERFECTIONIST BASIS FOR NON-PERFECTIONIST POLITICS

Norms of Liberty

DOUGLAS B. RASMUSSEN

AND

THE PENNSYLVANIA STATE UNIVERSITY PRESS

.

DOUGLAS J. DEN UYL

UNIVERSITY PARK, PENNSYLVANIA

Library of Congress Cataloging-in-Publication Data Rasmussen, Douglas B., 1948– . Norms of liberty : a perfectionist basis for non-perfectionist politics / by Douglas B. Rasmussen and Douglas J. Den Uyl. p. cm. Includes bibliographical references and index. ISBN 0-271-02700-2 (cloth : alk. paper) ISBN 0-271-02701-0 (pbk. : alk. paper) 1. Liberty. 2. Liberalism. 3. Natural law. 4. Political science—Philosophy. I. Den Uyl, Douglas J., 1950– . II. Title. JC585.R37 2005 323.44⬘01—dc22 2004028281 Copyright 䉷 2005 The Pennsylvania State University All rights reserved Printed in the United States of America Published by The Pennsylvania State University Press, University Park, PA 16802-1003 The Pennsylvania State University Press is a member of the Association of American University Presses. It is the policy of The Pennsylvania State University Press to use acid-free paper. Publications on uncoated stock satisfy the minimum requirements of American National Standard for Information Sciences—Permanence of Paper for Printed Library Material, ANSI Z39.48–1992.

The American notion [is] that the end of government is liberty, not happiness, or prosperity, or power, or the preservation of an historic inheritance, or the adaptation of national law to national character, or the progress of enlightenment and the promotion of virtue; [and] that the private individual should not feel the pressure of public authority, and should direct his life by the influences that are within him, not around him. —lord acton,

the anglo-american tradition of liberty

Contents

Analytic Contents Preface xiii

ix

part one: liberalism and the political order 1 2 3 4 5

Liberalism in Crisis 5 Liberalism and Ethics 18 Liberalism’s Past and Precedents 42 Why Individual Rights? Rights as Metanormative Principles The Natural Right to Private Property 97

part two: a new deep structure for liberalism 6 7 8 9

Individualistic Perfectionism 111 Defending Individualistic Perfectionism 153 Natural Law and the Common Good 184 Self-Ownership 206

part three: defending liberalism 10 Communitarian and Conservative Critics 225 11 The Structure of the Argument for Individual Rights 265 12 Defending Individualistic Non-Perfectionist Politics 284 Epilogue: From Metanorms to Metaphysics Index 347

340

76

Analytic Contents

Preface

xiii

part one: liberalism and the political order 1 2

3

4

5

Liberalism in Crisis 5 Liberalism and Ethics 18 The Good and the Right 22 The Socialization of Ethics 28 The Metanormative Solution 33 Liberalism’s Past and Precedents 42 The Nature of Liberalism 44 Natural Rights 62 Why Individual Rights? Rights as Metanormative Principles 76 The Basic Right to Liberty 76 Rights as Metanormative Principles 78 Human Flourishing—Objective but Plural 79 Human Flourishing—Profoundly Social 81 Requirements for Metanormativity 83 Justifying the Political/Legal Order 84 Human Flourishing—A Self-Directed Activity 86 Self-Direction as the Basis for Metanormativity 88 Protecting the Possibility of Self-Direction Among Others 89 Understanding Individual Rights 91 Why Individual Rights Trump 92 A Major Objection Considered 94 The Natural Right to Private Property 97

x

analytic contents

part two: a new deep structure for liberalism 6

7

8

9

Individualistic Perfectionism 111 A Cautionary Note and a Brief Discussion of Method and Metaphysical Context 115 An Outline of a Neo-Aristotelian Version of Perfectionist Ethics 127 1. Objective 127 2. Inclusive 129 3. Individualized 132 4. Agent-Relative 134 5. Self-Directed 138 6. Social 141 The Role of Practical Wisdom 143 Defending Individualistic Perfectionism 153 Universality and Agent-Relativity 153 Objectivity and Individuality 156 Agent-Neutrality and Practical Reason 158 Justice and Human Flourishing 160 Desires and Self-Direction 163 The Function Argument 167 Pluralism and Human Flourishing 170 The Role of Moral Virtue 171 Considering John Gray’s Dismissal of Perfectionism 173 Natural Law and the Common Good 184 New and Traditional Natural Law Theory 185 Natural Law and the Common Good of the Political Community 197 Self-Ownership 206

part three: defending liberalism 10 Communitarian and Conservative Critics 225 The Challenge of Communitarianism 225 The Challenge of Pluralistic Communitarianism 244 The Challenge of Natural Law Conservatism 251 The Challenge of Eudaimonic Conservatism 257 11 The Structure of the Argument for Individual Rights 265 Individual Rights as Metanormative Principles 265

analytic contents

xi

From Human Flourishing to the Natural Right to Liberty 268 Section I: Human Flourishing: Individualized and Profoundly Social 269 Section II: Liberalism’s Problem 271 Section III: Finding an Ethical Basis for Metanormative Principles 273 A. Self-Perfection, Constituent Goods and Virtues, and Money 273 B. Practical Wisdom, Practical Reason, and SelfDirection 275 C. Self-Direction as the Basis for Metanormativity 277 Section IV: Individual Rights: Protecting the Possibility of SelfDirection Among Others 279 Section V: Justifying the Political/Legal Order: The Question of Legitimacy 282 12 Defending Individualistic Non-Perfectionist Politics 284 The Metanormative Dilemma 286 Once Again, Why Respect Rights? 288 Conceding Rights 292 A Worry About Neo-Aristotelianism and Rights 294 Rawls, Justice, and Metanormativity: Are There Other Metanormative Principles Than Rights? 296 Is the Concept of ‘‘Metanormative Principles’’ Really Necessary? 301 Making Self-Direction Possible for the Extremely Poor 303 Bonded Flourisher Argument 311 The Need for Agent-Neutral Values 313 The Absent Telos 317 Agent-Centeredness 319 The Acceptability Problem 322 Metanorms Are Biased 323 The Issue of Symbolism 327 Self-Sufficiency 330 What if Men Were Angels? 333 Conclusion 338 Epilogue: From Metanorms to Metaphysics Index 347

340

Preface In the early 1980s Alasdair MacIntyre argued that philosophy, and indeed Western culture, faced a fundamental alternative: Nietzsche or Aristotle. If understood in terms of essentials, we accept MacIntyre’s claim regarding the fundamentality of this alternative. Further, we, like MacIntyre, but for mostly different reasons, choose Aristotle. We think that the resources of the Aristotelian tradition are crucial to avoiding the numerous pitfalls and intellectual dead-ends that we have inherited from modern philosophy. Yet, unlike MacIntyre, who has from After Virtue to Dependent Rational Animals assumed that if one chooses Aristotle then one must also reject modern political philosophy, especially liberalism, we hold that there is value in the modern approach to political philosophy and that there is at least a version of neo-Aristotelian ethics and a version of liberalism that are compatible. Moreover, we hold not only that such compatibility is possible, but that this version of liberalism—that is, a natural rights classical liberalism—is best understood and defended by an ethics of Aristotelian inspiration. We argued for this thesis in our earlier work, Liberty and Nature: An Aristotelian Defense of Liberal Order (1991), and we have since then in various essays and a small monograph, Liberalism Defended: The Challenge of Post-Modernity (1997), developed this argument further. We believe our current work to be both the mature expression of this thesis and our best statement to date of the argument for it. We indeed make many aspects of our earlier argument clearer and more precise. Yet we also expand an idea noted, but not fully developed, in those earlier works—namely, that neither the unique nature of liberalism nor the true character of political philosophy can be appreciated until it is understood that liberalism is a political philosophy of metanorms and that political philosophy should, contrary to what most Ancients and Medievals thought, give a central place to metanorms as well. In this work we spend much time explaining the ethical typology of ‘‘metanormative principles’’ and showing their importance for political philosophy. We argue that the key to understanding the fundamental character of, and need for, metanormative principles is found in an account

xiv

preface

of neo-Aristotelian ethics, which we call ‘‘individualistic perfectionism.’’ According to this account, human flourishing—the term for perfection (and virtuous activity) in Aristotelian ethics—is something real, but it is at the same time highly individualized, agent-relative, inclusive, self-directed, and profoundly social. These features of human flourishing generate a problem that cannot be reduced to those of normative ethics. It is the unique problem of the political and legal order that requires the existence of ethical principles that seek not to guide human conduct in moral activity, but rather to regulate conduct so that conditions might be obtained where moral action can take place. Such principles are metanormative principles, and we label this problem ‘‘liberalism’s problem.’’ We do so because liberalism has been, by and large, the only political tradition whose principles are consistent with an appreciation of this philosophical insight and because a pluralism of the forms of human flourishing points to liberalism as the appropriate solution to the political problem of integrated diversity. We explain liberalism’s problem in detail and show that it is a basic problem of political philosophy and one that in various forms has been the concern of many modern political philosophers. Briefly stated, liberalism’s problem asks: What are the principles by which to establish a political and legal order whose structure will allow for the possibility that different individuals might be able to flourish and realize virtue in very different ways? We argue that the key to solving liberalism’s problem is the protection of the possibility of self-direction, since self-direction is the common critical element in all the concrete forms of human flourishing. We use this insight as the basis for our claim that the basic, negative, natural right to liberty is, together with its corollary rights of life and property, a metanormative principle, because it protects the possibility of self-direction in a social context. We further argue that such concepts as ‘‘social justice’’ and ‘‘the common good of the political community’’ are, as normally understood, not metanormative principles and that no ethical principles associated with these concepts, nor any other ethical principles, for that matter, can claim priority over the basic right to liberty as a metanormative principle. Overall, we defend, then, what we call ‘‘liberalism’s basic tenet’’—namely, that protecting liberty, as understood in terms of basic negative rights, should be the paramount aim of the political and legal order. Since our argument for this understanding and defense of liberalism is conceptual rather than historical, and since our approach is original, we should note some of the considerations that have shaped our argument. By

preface

xv

making these considerations explicit we hope to assist the reader in navigating this work’s theoretical waters. First, although we regard the presentation and defense of the basic structure of our argument as necessary to make our argument clear and persuasive—indeed, Chapter 11 is devoted entirely to the presentation of our argument’s basic structure—we do not think this is sufficient. We think it is also necessary for us to compare and contrast our approach to, and defense of, liberalism with more traditional ones. Further, since our version of human flourishing belongs to the natural law tradition, we also make an effort to compare our version with that found in both traditional and new descriptions of natural law ethics. It is our hope that these comparisons will enable the reader to appreciate better our account and defense of both liberalism and individualistic perfectionism. Second, the implications of what we are arguing are a critical means of understanding our argument, and in the diverse arena of competing positions in political philosophy, we can only differentiate ourselves at times by showing how we cannot be reduced to one of the competitors already in that arena and can meet the objections posed by others. Thus, we not only engage in comparisons, we consider how our argument fares against criticisms launched from other perspectives. The danger in this approach is repetition, since the basic insights of our argument recur when we engage in comparisons, meet criticisms, and defend liberalism. We have striven, of course, to eliminate all needless repetition. Third, we do not consider either ethics or political philosophy to be enterprises that can be conducted apart from philosophical anthropology. Thus, we think it is perfectly legitimate to note the superiority of one account of human nature as compared to another when evaluating ethical and political theories. Further, we believe that once philosophers acknowledge the importance of philosophical anthropology, they are already knocking on the metaphysical and epistemological door. In this work, we do not, of course, walk through this door, but we do note some of the furniture that can be seen through its opening, for example, moderate essentialism and natural teleology. Thus, unlike the dominant philosophical fashions of the last century, we do not regard it a philosophical virtue to advance arguments in ethics and political philosophy as if the existence of deeper commitments can be denied, ignored, or at least not called to mind. Such commitments are crucial to the interpretative context of arguments in ethics and political philosophy, and if they are not made explicit, then they may be supplied by others, often with disastrous results for the intelligibility

xvi

preface

of these arguments. And if those commitments are not supplied, political philosophy will simply rest on a kind of irreconcilable intuitionism. Either way, to ignore these deeper commitments accomplishes very little for philosophical understanding or the advancement of knowledge. Yet, it should be acknowledged that laying all of one’s intellectual cards on the table has a price. Since not everything can be done in a single work, and since there are always more issues to be explored, a defense of these deeper commitments, though called to mind, must remain less than fully developed. Nevertheless, we have tried either to provide the reader with reasons for thinking our deeper commitments plausible or to point to places where this is done. The example of MacIntyre with which we opened is instructive here in that, to his credit, he has over the last twenty years come to recognize fully the importance of these deeper issues when doing ethics and political philosophy. ‘‘Deeper issues’’ calls to mind philosophy, and philosophy concerns the perennial. In this work, despite its political focus, we pursue the philosophical. We are thus not paying that much attention to current ideological wars, political conflicts, or what is fashionable or politically correct. We expect that elements of what follows here will appeal to, but also repel, members of the ‘‘left’’ and the ‘‘right,’’ not to mention the always prevalent ‘‘middle.’’ What we have to say may indeed be too radical for them. If this is so, then all we can say is simply ‘‘so be it.’’ We are trying to get at the truth regarding some very important issues in political philosophy, and what matters most for us as philosophers is not how to win the next election, change the culture, influence friends in high places, or appeal to intellectual fashion. Rather, what matters most is whether or not we make a contribution to understanding the issues we have chosen to examine. The ways in which our views may have currency in debates of the moment seems to us not the sort of thing to which we, as philosophers, are particularly well suited. Since Plato went to Syracuse, the hubris of philosophers has been the belief that they can serve well as political consultants. Consultant is not a role to which we aspire. Second, precisely because we aspire to do some philosophy, this is not a book for one’s coffee table. Yet, this work is not just addressed to the professional philosopher. We believe anyone who is seriously interested in the central and basic issues of political philosophy will find this work accessible. We thus offer the following recommendations to the reader. If the reader is not particularly interested in all of the philosophical details of our view and would simply like to learn about our account of liberalism’s crisis, how

preface

xvii

our approach to liberalism is distinguished from that of others, and in what our defense of liberalism generally consists, then reading the first five chapters of this book—Part I—should suffice. If the reader is interested in a fuller understanding of what we call the new deep structure of liberalism, that is, ‘‘individualistic perfectionism,’’ then we suggest that the reader tackle as well Part II, namely, Chapters 6 through 9. Finally, if the reader would like to see how we respond to criticisms of liberalism that are of a communitarian and conservative bent and to those of a more analytical nature, then the reader should continue all the way through Part III of the book, Chapters 10 through 12. The reader will also find there what the overall logical structure of our argument for individual rights looks like. Finally, we suggest a look at the epilogue if for no other reason than it will give the reader some insights into how we approach and conceive that most wonderful and difficult of intellectual enterprises—that is, philosophy. There are many people who we should thank for assisting us. First, for inspiration, support, and helpful conversations there are Leonard Liggio, Tibor R. Machan, Eric Mack, and Fred D. Miller Jr. Second, there are Randy Barnett, Roger Bissell, Robert Campbell, Raimondo Cubeddu, Stephen Davies, Paul Gaffney, Jacques Garello, Pierre Garello, Bertrand Lemennicier, Emmanuel Martin, Chris Sciabarra, and Aeon Skoble for advice and criticism on early drafts. Third, there is Ruth Abbey for reading and commenting very helpfully on a later version of the manuscript. Fourth, there is Jonathan Jacobs, who not only read and helpfully commented on many versions of the entire manuscript but whose probing questions forced us to clarify many important issues as well. Fifth, we have very special thanks for Elaine Sternberg, whose penetrating commentary on early and late drafts and intense concern for conceptual clarity helped us to improve our argument. Sixth, there is Fred D. Miller Jr. again as well as Timothy Fuller for excellent comments on the final draft. Seventh, there are Elizabeth Hiestand and Jennifer M. G. Smith for their thorough and alert copyediting. Finally, there is Sandy Thatcher, director of Pennsylvania State University Press, for his support and interest in this project and his excellent staff for their first-rate editorial assistance. There are also some institutions that we should thank for their support: the Earhart Foundation; the Social Philosophy and Policy Center at Bowling Green State University; the Mount Pe´lerin Society; Universite´ Panthe´on-Assas (Paris II); Universite´ d’Ete´ de la Nouvelle Economie (Aix-enProvence); Liberty Fund; Bellarmine University; and St. John’s University. Dispersed throughout this book is material that is adapted from chapters

xviii

preface

or essays we have previously authored jointly or singly. Except where noted, this material has been substantially revised and/or significantly expanded. For permission to use previously published material, we are grateful to a number of editors and publishers. These materials are: ‘‘The Natural Right to Private Property,’’ in Liberty and Nature: An Aristotelian Defense of Liberal Order (La Salle, Ill.: Open Court, 1991), 115–28; ‘‘Reply to Critics,’’ Reason Papers 18 (Fall 1993): 115–32; ‘‘Reclaiming Liberalism,’’ The Thomist 58 (January 1994): 109–19; ‘‘Rights as Metanormative Principles’’ and ‘‘Community versus Liberty?’’ in Liberty for the Twenty-First Century, ed. Tibor R. Machan and Douglas B. Rasmussen (Lanham, Md.: Rowman & Littlefield, 1995), 59–75 and 259–87; ‘‘Liberalism Defended: The Challenge of Post-Modernity,’’ in Classical Liberalism and Civil Society, vol. 7 of The John Locke Series in Classical Liberal Political Economy, The Shaftesbury Papers, ed. Charles K. Rowley (Fairfax, Va.: The Locke Institute, 1997), 9-1–9-81; ‘‘Human Flourishing and the Appeal to Human Nature,’’ Social Philosophy & Policy 16, no. 1 (Winter 1999): 1–43; ‘‘Liberalism and Virtue,’’ in Public Morality, Civic Virtue, and the Problem of Modern Liberalism, ed. T. William Boxx and Gary M. Quinlivan (Grand Rapids, Mich.: William B. Eerdmans, 2000), 58–88; ‘‘Ethical Individualism, Natural Law, and the Primacy of Natural Rights,’’ Social Philosophy & Policy 18, no. 1 (Winter 2001): 34–69; ‘‘Why Individual Rights?’’ Reprinted from Individual Rights Reconsidered: Are the Truths of the U.S. Declaration of Independence Lasting? ed. Tibor R. Machan, 113–37, with the permission of the publisher, Hoover Institution Press. Copyright 2001 by the Board of Trustees of the Leland Stanford Junior University; and ‘‘Self-Ownership,’’ The Good Society 12, no. 3 (2003): 50–57. Finally, we would like to dedicate this book to our parents—Ethan and Maxine Rasmussen and Robert and Andrea Den Uyl. They taught us not what to believe and value, but what it means to make beliefs and values one’s own.

Part One liberalism and the political order Le terme de ‘‘libe´ralisme’’ est une beau terme, puisqu’il se re´fe`re a` la liberte´, mais il est malheureusement devenu ambigu a` notre e´poque. [The term ‘‘liberalism’’ is a beautiful term, since it refers to liberty, but it unfortunately became ambiguous to our era.] —pascal salin, Libe´ ralisme

Not only are most critics mistaken when it comes to understanding what liberalism is, but so indeed are most proponents, and this failure lies at the heart of liberalism’s difficulties. We describe this error, as well as its source, in detail in Chapter 1, where we begin with a discussion of liberalism’s crisis. In Chapter 2 we discuss the problems that result from this error. In both of these chapters we suggest what we take to be the solution to the question of what liberalism is and note that this solution requires rethinking the supposed foundations of liberalism. We call this solution ‘‘the metanormative solution.’’ In Chapter 3 we illuminate the chief similarities and differences between our suggested solution and the views of some important thinkers from the legacy of liberalism, and in Chapter 4 we offer the contours of our argument for this solution. In that chapter we note that individual rights are a historical inheritance of liberalism that we do not wish to abandon. But we argue that these rights must be construed as ‘‘metanormative principles’’ and that as such these principles do not address the standard concerns of normative ethics, but rather the problem of how to find an ethical basis for the overall political/legal structure of society. We call this problem ‘‘liberalism’s problem,’’ and we seek to show how this problem has its roots, legitimacy, and solution in the needs and requirements of human nature as

................. 11426$

PRT1

08-10-05 09:12:27

PS

PAGE 1

understood from our theoretical perspective, which we describe as ‘‘neo-Aristotelian individualistic perfectionism.’’ That perspective also informs our discussion in Chapter 5, the final chapter of Part I. Having given some conception of what a right looks like in a properly grounded liberal theory, we move on in Chapter 5 to discuss one of the central rights in classical liberal theory, the right to property. Our neo-Aristotelian framework helps frame an understanding of the nature of that right and the very meaning of property in a social/political context. However, the usual deep structure associated with this right, namely, self-ownership, is treated in Part II. This is partly because this second part of the book is devoted to a more detailed and sustained account of the deep structure that undergirds our conception of liberalism. But the separation is also a deliberate way of saying that we do not believe that the right to property is a function of the right to selfownership, at least not in the way the right to self-ownership is usually used in the liberal tradition. We do not, in other words, proceed by first establishing a right to self-ownership and then deriving the right to property from that more basic right. It is not that we regard such a view as mistaken so much as that we believe it simply glosses over, or assumes, a certain understanding of basic principles that, when articulated, either shows how that approach is oversimplified or shows that the real work is being done elsewhere. Thus we can have a right to, and conception of, private property as the liberal tradition has always supposed without having to commit ourselves to the usual ‘‘Lockean’’ derivation of it. With a conception of private property rights we then have the basic tools we need to have a liberalism. We then go on to elaborate the substance of our argument, and in Part III to consider communitarian and conservative criticisms of liberalism, detail the components of our argument for individual rights, and respond to objections to that argument. Overall in this book, we seek through our account of individualistic perfectionism to rescue political liberalism from its current crisis by providing it with a new deep structure. Our aim is to provide a justification for both liberalism’s understanding of the central problem of political philosophy—what we have called

................. 11426$

PRT1

08-10-05 09:12:33

PS

PAGE 2

‘‘liberalism’s problem’’—and its most principled of solutions to that problem—that is, individual rights. In making this argument not only do we seek to understand and defend liberalism, but we also seek to provide insight as to what political philosophy most properly is. Ultimately, we seek to justify the norms that make liberty the norm for the political/legal order.

Chapter One liberalism in crisis

Liberalism—and the intellectual heritage that gave it birth (the Enlightenment)—are now openly and respectably attacked by such thinkers as Alasdair MacIntyre and Alan Bloom. Liberalism is also being vigorously defended by such thinkers as David Gauthier, Ronald Dworkin, James Buchanan, and F. A. Hayek—not to mention the seminal works of [John] Rawls and [Robert] Nozick. Although many of these thinkers differ significantly from each other, they all share a concern over the prospects of liberalism. This can be said without even defining what liberalism is, for the term often remains undefined, and part of the debate about liberalism is certainly connected with debate over what it means. —douglas b. rasmussen and douglas j. den uyl, liberty and nature: an aristotelian defense of liberal order

We made the observation in this epigraph over a decade ago,1 and if we are any judge of what has occurred in the intellectual world since, the nature and defense of liberalism is an even more pressing issue. Indeed, in a recent work, Liberalism Defended: The Challenge of Post-Modernity, we began by asking: Why bother about liberalism? In recent times it has been pejoratively called the ‘‘L’’ word. And even though the 60’s generation now taking the reins of power may still see something idealistic in liberalism, the rest of us know that more government is not the answer to our problems. It may even cause many of them. The country, especially the young, has turned more conservative politically—especially when it comes to economic matters. Liberalism, then, seems out of step politically. That also appears to be the case 1. Douglas B. Rasmussen and Douglas J. Den Uyl, Liberty and Nature: An Aristotelian Defense of Liberal Order (La Salle, Ill.: Open Court, 1991), xiii.

6

liberalism and the political order

intellectually. True, thinkers such as John Rawls have spawned whole intellectual industries that defend various versions of the welfare state; but one gets the sense that these efforts are more along the lines of propping up a crumbling edifice than of laying out a new direction. Why bother, then, with liberalism?2 Clearly, both the title and tone of Liberalism Defended indicated that we did not believe that the ‘‘crisis of liberalism’’ had abated, even when, as in the second statement, liberalism is understood in the modern American way. Perhaps it is fair to say that in the years from our opening statement to the one just cited to the post-9/11 world of today, the vitality of liberalism as a political and theoretical doctrine has continually dissipated. The scavengers have multiplied around liberalism’s almost lifeless carcass, but any efforts to revive it seem weak and ineffectual. Yet because there is no compelling alternative to liberalism being offered, liberalism manages to hang on. The crisis, therefore, continues. The literature in political philosophy is replete with ruminations on the crisis of liberalism. The political left has always been with us as a source of criticism of liberalism, but the crisis of liberalism has arisen largely because traditional leftist sources are not the only, or even the principal, basis of criticism. From these newer perspectives the forms of criticism of liberalism fall into three main types: first, there are criticisms that see the essential character of liberalism as the political expression of principles derived from the Enlightenment. The failures of the Enlightenment are thus the failures of liberalism, so criticisms of the Enlightenment are also criticisms of liberalism. In this camp we find thinkers such as John Gray, Charles Taylor, and Alasdair MacIntyre. Second, there are more directly political criticisms of liberalism, which usually carry the label ‘‘communitarian’’ with them. The aforementioned thinkers qualify here as well, but Michael Sandel and Roberto Unger come to mind in addition. These thinkers mainly attack the individual-rightsbased orientation of liberalism in favor of community procedures. At the foundational level the autonomous rights-bearing individual is rejected and replaced with individuals more fully formed by, and integrated with, the communities in which they live and act.3 Indeed, liberalism is accused of 2. Douglas B. Rasmussen and Douglas J. Den Uyl, Liberalism Defended: The Challenge of Post-Modernity (Cheltenham, UK, and Northampton, Mass.: Edward Elgar, 1997), 1. 3. In Communitarianism and Individualism, ed. Shlomo Avineri and Avner de-Shalit (Oxford: Oxford University Press, 1992), 12–50, essays by Michael Sandel, ‘‘The Procedural

liberalism in crisis

7

directly undermining communities as well as being inadequate to their formation. Finally, there are a host of ‘‘conservative’’ sources of criticism of liberalism ranging from natural law theorists, to ‘‘Strausseans,’’ to so-called Southern agrarians. While all three of these forms of criticism share in the rejection of liberalism’s alleged adherence to atomism, instrumentalism, individualism, neutralism, subjectivism, skepticism, and the like, the sources of the criticisms or levels at which they are pitched are different. With respect to some of these groups, the fall of communism has allowed forces within the political right to assert themselves against classical liberals with whom they had always been uneasy bedfellows—sharing perhaps only their anticommunism. It is fashionable today among all of these groups to take the crisis to the point of proclaiming the very death of liberalism to be the political expression of a failed Enlightenment project. It is not just that the Enlightenment is thought to be open to some objections, but also that it is a movement that has failed completely and now reached its end. Liberalism is seen, therefore, as an outmoded political philosophy based upon principles that are at best naive, but mostly just false and pernicious. The doctrine of universal natural or human rights, for example, is said to be an Enlightenment abstraction that undermines the importance of community by ignoring the specific forms of connectedness that constitute our actual social being. Indeed, an excessive individualism is said to be the inevitable and final culmination of a highly abstracted commitment to ‘‘individual autonomy’’ defended in the early stages of liberalism. The abstract universalistic commitment generates in practice an unqualified liberty that gives the individual the ‘‘right’’ to be concerned only with him- or herself. The effect is not only an excessive individualism, but also a tendency toward subjectivism and skepticism—subjectivism because the individual appears to be the sole determinant of value, and skepticism because no one seems able to say what is good for everyone, what the common good might be, or even what the good is. The response to this has ranged from repackaged forms of socialism to certain types of conservatism that never were very comfortable being linked to liberalism. They all share in positing ‘‘society’’ as the basic unit of analysis and the determinate of every important principle in ethics and politics. Republic,’’ and Charles Taylor, ‘‘Atomism,’’ are helpful introductions to these criticisms of liberalism.

8

liberalism and the political order

The crisis of liberalism will thus have ethics as its battleground. Traditional battlegrounds—primarily the economic (for example, impoverishment of workers, prosperity, socialist workability)—have either been settled or are taking a back seat.4 And because issues of ethics always bring one to larger issues, the crisis of liberalism must be seen as part of a larger crisis, one that goes well beyond moral and political philosophy. It is a crisis that pertains not only to the Enlightenment and its project of using reason to unlock nature’s secrets, but also to the Hellenic roots of Western civilization. In those roots are the basic questions of the very meaning of human life: Can the good and the true be distinguished from the ancestral and the communal? Can there be a study of first things? Does the study of first things matter to human affairs? What does it mean to be human and to live a truly human life? These seemingly abstract and strictly philosophical issues arise because ethics is not just about what we should do, but why we should be doing it and what its meaning is for the larger context of human existence. As a consequence, we will often link, if only suggestively, our discussions of political and ethical issues to larger metaphysical and epistemological contexts that are informing our approach to politics and ethics. For now, however, we will concern ourselves with the forces in ethical and political philosophy that are responsible for liberalism’s continuing crisis. Clearly, one of the reasons for the crisis of liberalism, if not its decline, in academic political philosophy has been the ascendancy of communitarianism. Communitarianism is a postliberal political view. It is opposed in various ways to liberalism’s division of ethics into two languages: a language of liberty for dealing with issues in the political/legal order, and a language of personal morality for dealing with issues in the nonpolitical order—that is, for choices concerning oneself, family, friends, and acquaintances. Communitarianism holds that this division is not philosophically justifiable and cannot be maintained sociologically and culturally. Communitarianism is, for the most part, a collection of diverse views from various sources that appear to be in conflict, in one way or another, with liberalism.5 Whatever unity there is to be found in communitarian 4. This is not to suggest that economic issues are no longer important. Regulation and tariff restrictions remain vital issues, as does immigration. Our point is rather that the battleground for liberal theory as a theoretical framework will center on ethical and metaethical issues. 5. See the following works: Markate Daly, ed., Communitarianism: A New Public Ethics (Belmont, Calif.: Wadsworth Publishing, 1994); Stephen Mulhall and Adam Swift, eds., Liberals and Communitarians (Oxford: Blackwell, 1992); C. F. Delaney, ed., The Liberalism-Communitarianism Debate: Liberty and Community Values (Lanham, Md.: Rowman & Littlefield, 1994); Avineri and de-Shalit, Communitarianism and Individualism; Daniel Bell, Communitarianism and Its Critics (Oxford: Clarendon Press, 1993); Amitai Etzioni, The Spirit of Community: Rights, Respon-

liberalism in crisis

9

thought comes, however, from its opposition to the proposition that liberty is the political value to be achieved and maintained before any other. That achieving and maintaining liberty should be the central and primary concern of the political/legal order is liberalism’s basic tenet, and it is this proposition that communitarianism has sought to defeat. What has provided communitarianism with its particular meaning and force and made it interesting in the last few years, however, has been the argumentative strategy it has used against liberalism’s basic tenet. Communitarianism has included under its banner a set of claims that we shall label ‘‘neo-Aristotelian.’’ These are as follows: that human beings are naturally social; that ethical relativism is an inadequate moral theory; that practical reasoning is not merely instrumental and is crucial to ethics; that the abstract universalism of ethical rationalism fails to recognize the role of the particular and contingent (for example, particular customs or traditions that happen to accrue to specific communities) in determining proper conduct; that abstract universal norms are of only limited use in guiding ethical conduct that relies upon situated norms and practices; that impersonal or agent-neutral moral theory can neither ground nor motivate moral conduct; that liberty cannot be defined or understood without an ethical commitment; that any theory of rights capable of motivating human conduct must ultimately be based on a conception of the human good rather than simply being a matter of right; and that rights are not ethically fundamental. Communitarianism has, then, sought to show that liberalism is neither sibilities, and the Communitarian Agenda (New York: Crown Publishers, 1993); and Etzioni, ed., Rights and the Common Good: The Communitarian Perspective (New York: St. Martin’s Press, 1995). See also, most recently, Amitai Etzioni, Andrew Volmert, and Elanit Rothschild, The Communitarian Reader: Beyond the Essentials (Lanham, Md.: Rowman & Littlefield, 2004). Much of the inspiration for our understanding of communitarianism comes from the books listed above and from the following works: Charles Taylor, Philosophy and The Human Sciences: Philosophical Papers 2 (Cambridge: Cambridge University Press, 1985); Taylor, Sources of the Self: The Making of Modern Identity (Cambridge, Mass.: Harvard University Press, 1989); Taylor, ‘‘Cross Purposes: The Liberal-Communitarian Debate,’’ in Liberalism and the Moral Life, ed. Nancy L. Rosenblum (Cambridge, Mass.: Harvard University Press, 1989), 159–82; Alasdair MacIntyre, After Virtue: A Study in Moral Theory, 2nd ed. (Notre Dame, Ind.: University of Notre Dame Press, 1984); MacIntyre, Whose Justice? Which Rationality? (Notre Dame, Ind.: University of Notre Dame Press, 1988); MacIntyre, Three Rival Versions Of Moral Enquiry (Notre Dame, Ind.: University of Notre Dame Press, 1990); Michael J. Sandel, Liberalism and the Limits of Justice (Cambridge: Cambridge University Press, 1982); Sandel, ed., Liberalism and its Critics (Oxford: Blackwell, 1984); and Sandel, Democracy’s Discontent: America in Search of a Public Philosophy (Cambridge, Mass.: Belknap Press of Harvard University Press, 1996). It should be noted that not all of these authors consider their philosophy to be ‘‘communitarian,’’ even though their philosophy is described as such by the works in the previous paragraph. Finally, mention should be made of Steven Lukes’s helpful book, Individualism (Oxford: Basil Blackwell, 1973).

10

liberalism and the political order

philosophically justifiable nor socially and culturally viable, because it is incompatible with these neo-Aristotelian claims. Communitarianism has argued that because liberalism’s fundamental tenet requires rejecting these claims, this tenet is false. In other words, the argumentative strategy of the communitarians has been what logicians call modus tollens. If P, then Q; not-Q; therefore not-P. If one is to hold that liberty should be the central and primary concern of the political/legal order (P), then these neo-Aristotelian claims are false (Q). Yet these neo-Aristotelian claims are true (not-Q). Therefore, it is not true that liberty should be the central and primary concern of the political/legal order (not-P). We contend that the first premise of the communitarian argument is not true, however. Liberalism does not require holding that these neo-Aristotelian claims are false. Though there have been liberal theorists who have denied them, it is not the case that these claims must be regarded as false in order to maintain liberalism’s fundamental tenet. There are some liberal theorists, including ourselves, who accept every one of these claims as true. Indeed, they can even be used in making the case for the political centrality and primacy of liberty. Accordingly, one feature of our project will be to show that the argumentative strategy of communitarianism does not succeed; but another will be to show that these neo-Aristotelian claims support, and in reality require, accepting liberalism’s basic tenet. We shall discuss this latter point in greater detail shortly. There are, of course, different versions of liberalism, and some do not hold liberty to be as central and primary a value for the political order as others. Contemporary American liberalism has sought to modify its emphasis on liberty by bringing other values into the political order, especially when dealing with economic issues.6 Such modifications do not satisfy the communitarian, however; for even liberalism in its American form accepts, when it comes to matters not directly concerned with economic life, the division of ethics into a language of liberty for the political order and a language of personal morality for the nonpolitical order. It is this 6. It is tempting to suggest that liberals do not bring in other values but rather just broaden the meaning of liberty. So, for example, we might demand charity (or justice) of people because it is argued that the liberty of those in need is less than of those not in need. The welfare transfers are a means of expanding, or at least equalizing, liberty for all. This approach, even if sound, does not address the problem mentioned in the next paragraph about the two forms of speaking about value. But in its own right, either this approach implies the diminishment of charity (or justice or some other value) because it is really, after all, a form of liberty, or these liberals are actually doing what we claim—importing other values besides liberty into the picture.

liberalism in crisis

11

division at its very foundation that communitarianism rejects, for it is seen as destroying the ethical language of our culture and thus the institutions upon which a just and decent political community depends. For these reasons and others, liberalism is said to undermine its own principles, to have lost any strong claims to universal validity, to subvert moral life, and to foster injustice and inhumanity. It is no longer possible, then, to defend a type of liberalism as if we all agreed that liberalism is generally the correct political framework. To defend a type of liberalism, whether it is classical or modern welfare-state liberalism, inevitably draws one to the deeper general issues about the very foundations of liberalism. It is for these reasons that we have chosen to retain the word ‘‘liberalism’’ rather than use ‘‘classical liberalism’’ or ‘‘libertarianism,’’ even though these are the types of liberalisms closest to what we regard as defensible. For although we consider the ordinary or modern form of ‘‘liberalism,’’ as that term is used in the United States, to be a perversion of liberalism proper, it still holds to many of the tenets of liberalism—namely, that political power is not something due anyone by natural right, that progress is possible, that the individual is the basic social unit, that people should have the freedom to pursue their own conceptions of the good life, and that the political/legal order should be limited to protecting individuals in the pursuit of their own conceptions of the good life. These and other principles are a part of the very nature of political liberalism, and it is these very principles that are being questioned today. In examining the basic structure of liberalism we shall concentrate on ethical issues. This makes sense because the legitimacy of the liberal order is precisely what is at issue. Moreover, Alasdair MacIntyre, among other theorists, has claimed that liberalism feeds on continual debate about its own principles to the effect that it ends up undermining its own legitimacy.7 MacIntyre claims that liberalism must do so because it decides questions of public policy by tallying and weighing preferences about what is right or good. Yet, since liberalism presents itself as being officially neutral among rival conceptions of what is right or good (which many people today think is an impossible political ideal), it has no basis upon which to claim that its own values are superior. Furthermore, the effect of neutrality is to trivialize all matters of substance, since in practice all issues are reduced to preferences. Substantive moral values thereby have no more inherent worth than the most minor of policy issues. If this is a tendency in liberalism, it is 7. See MacIntyre, After Virtue, chaps. 2–9.

12

liberalism and the political order

certainly necessary for us to devote much of our attention to basic ethical issues, if the legitimacy of liberalism is to be secured. It may very well be that recent criticisms of liberalism have recognized a crack in which to insert a wedge. One assumption, however, goes unchallenged by defenders and critics alike: that liberalism is locked into its traditional ways of understanding itself. Liberalism is regarded as having, in other words, no capacity to move beyond traditional modern sources of support and be linked to either pre- or postmodern thought. Liberalism is on the defensive because it is presumed unable to incorporate anything not already found within its own frame of reference. It is precisely here that we believe one should bother about liberalism’s foundations, for we intend to bring some ‘‘outside’’ elements to bear on this debate. Indeed, this brings us to one of the central paradoxes—what might be called the ‘‘structural paradox’’—that is a consequence of our forthcoming argument. The paradox is as follows: liberalism appears to have its own deep structure, but in fact it must import that structure from elsewhere. If liberalism has difficulties, in other words, it is either because it has imported the wrong deep structure or because it believes it can rely upon itself for that structure. So, as we have already indicated, we would agree with some critics of liberalism that certain apparent features of Enlightenment philosophy—particularly those that involve rejecting those neo-Aristotelian claims about community, ethical truth, and sociability noted previously—have been used to undergird liberalism and that these features are now contributing to its crisis. Equally problematic is the current tendency to see liberalism as a complete ethical system with a philosophy of life and a metaethical framework. To believe that liberalism need only look to itself to be understood, or to address ethical questions, is a tempting but unworkable and often disastrous strategy. It is unworkable because liberalism is a political philosophy and thus broader frameworks and values will get imported anyway. It is best to be clear about them up front and distinguish them from the political philosophy they encourage or support. The strategy is disastrous for liberalism because, as a political philosophy, liberalism is severely underdetermined when it comes to most of the important questions of ethics and moral philosophy. With little more to offer than variations on the theme of toleration or cooperation, liberalism may indeed encourage the very narrow, instrumental, and minimalistic understandings of values and ethical life of which it is accused. For toleration does not lend much richness to the ethical landscape,8 so that other 8. We analyze and criticize this and other communitarian claims in Chapter 10.

liberalism in crisis

13

values are either ignored or given instrumental service. In this way the strategy is self-defeating for liberalism because it serves to distance liberalism from ethics, thus conceding the moral high ground to critics who charge liberalism with the impoverishment of ethics. Since it is difficult to avoid smuggling in broader frameworks anyway (as our paradox suggests), minimalism (the view that there are only a very few moral truths, dealing exclusively with matters of social cooperation) and skepticism (the view that no one is likely to be in possession of a moral truth) have typically been imported to defend liberalism.9 Combined, they imply that the value of liberty is inversely proportional to the robustness of one’s ethical framework. The less we can say about what the good is, for example, the easier it will be to argue that people should be left alone to find their own conception of it. As attractive as such an approach may appear to be, its effect is the one just noted—conceding the ethical case to liberalism’s opponents. If we are correct about the current crisis of liberalism, liberalism desperately needs an alternative framework. Our contention is that liberalism is both defensible and capable of being enriched by intellectual traditions other than the ones usually brought to it. Our defense of liberalism is a defense in terms not usually associated with liberal teachings. We believe the politics of liberalism can be supported with 9. Richard A. Epstein’s most recent work, Skepticism and Freedom: A Modern Case for Classical Liberalism (Chicago and London: University of Chicago Press, 2003), seems to be a sophisticated example of this line of argument. Though Epstein is certainly correct to reject an a prioristic and deductivist version of natural law that has a one-size-fits-all approach to moral obligation, and though he is also correct to admit that some moral judgments about the shape of political institutions are better than others, he nonetheless endorses a skepticism that is troubling. He describes the virtues of moral skepticism as twofold: it ‘‘refuses to claim that any person knows the intensity and preferences of other individuals . . . [and] it uses that systematic ignorance to shape a set of legal rules that maximizes the overall sphere on human choice’’ (9). How such systematic ignorance shows that the shape of a set of legal rules ought to maximize the sphere on human choice or even what, in the face of such skepticism, it means to ‘‘maximize the sphere on human choice’’ we do not pretend to know. It seems to us that Epstein has a deep ethical commitment to protecting human choice above almost everything else. Yet if this is so, he seems to be playing right into the hands of liberalism’s critics, because their complaint against liberalism is that in ethics we are concerned not so much with humans choosing, but with humans choosing rightly. Thus, the challenge to liberalism is to answer two questions: (1) What it is that makes human choice, and the actions that flow from it, most worthy of legal protection? and (2) How is it determined what choices ought to be protected and what choices ought to be prohibited? Skepticism is not well-suited for answering these questions; and appealing, as Epstein also does in Principles for a Free Society: Reconciling Individual Liberty with the Common Good (New York: Basic Books, 1998), to Hume’s important insight that limited self-interest in a world of scarcity shapes political organization does not suffice either. In this case, we find morality reduced almost entirely to issues of social cooperation. This too plays into hands of the critics who claim that liberalism leads to an impoverishment of ethics.

14

liberalism and the political order

an Aristotelian framework, at least one broadly conceived. We also argue that this framework is the best one for supporting liberalism. In this respect two questions are being addressed: Can liberalism be supported by an alternative framework, and is that account defensible? To make the case, we address some basic issues concerning the interface of ethics and politics. Since our approach is not generally manifested in the actual doctrines of some of the most prominent liberal thinkers, our case in this regard is primarily conceptual rather than one derived from specific historical examples. As we have noted elsewhere,10 the possible frameworks within which to consider the theoretical relationship between morality and politics can be represented as follows in Figure 1: Figure 1

Approaches to Ethics and Politics

Ancient Ethics

Ancient Ethics

Ancient Politics

Modern Politics

(Plato and Aristotle)

(Spinoza)

Modern Ethics

Modern Ethics

Ancient Politics

Modern Politics

(Rousseau)

(Locke, Kant, Mill)

Ancient ethical theory is characterized by the centrality of virtue and the idea that the central problem of the moral life is to understand the good and to achieve it. It often speaks in the language of ‘‘flourishing’’ or ‘‘selfperfection.’’ Ancient political theory would have the promotion of virtue or the promotion of the good as its central goal. Modern ethical theory, by contrast, is defined in terms of the relationships or obligations one has to others. Modern political theory, therefore, is concerned with the scope of individual liberty, because our obligations have something to do with the nature and scope of the liberties we shall enjoy. 10. Rasmussen and Den Uyl, Liberty and Nature, 222–23.

liberalism in crisis

15

Liberals have typically fallen into the bottom right quadrant of this scheme. Our approach, by contrast, is to give an account of liberal politics from the base of ancient ethics: to fit ourselves within the top right quadrant. We believe that not only can liberalism find a home in that quadrant, but also that it is most suited to that quadrant and is less defensible elsewhere. The quadrant in which we position ourselves, then, suggests that our claim about the distinctiveness of politics and morality comes from the standpoint of a robust moral framework—in this case a neo-Aristotelian ethics. Indeed, we claim further that the political posture of liberalism is consistent with, and in fact presupposes, that robustness. In other words, we contend that there is and ought to be a perfectionist basis for non-perfectionist politics. Unlike much of liberalism, which, as we just mentioned, defends its politics by resorting to either moral minimalism or moral skepticism, we employ a distinction between normative and metanormative principles. The latter are most directly tied to politics and concern principles that establish the political/legal conditions under which full moral conduct can take place. We do not need to minimize the moral universe to support liberalism, nor do we need to ground morality in sentiment or contracts, as much of traditional liberalism has done, to generate a liberal politics. Of course, our position is not simply that we need not resort to traditional doctrines in defense of liberalism, but also that those doctrines create their own unfortunate paradoxes, which we examine in Chapters 2 and 3. We reject the claim, then, that liberalism is necessarily connected to moral minimalism or skepticism. The connection between liberalism and ethical minimalism and skepticism has been the inheritance of the bottom right quadrant, combining modern ethical theory and modern political theory. The reasons for this are complex and beyond the scope of this project.11 The main figures identified with that quadrant certainly would not regard themselves as minimalists and skeptics. Still, the ethical legacy with which liberalism has left us—at least chronologically—seems to be one of minimalism and skepticism. Yet liberal minimalists and skeptics must ironically be included among those who accept the management of moral conduct as a legitimate function of politics and as a starting point of political theory— that is, those defenders of liberalism must be lumped together with those who reject liberalism in the name of establishing a more direct or isomorphic connection between morality and politics. 11. The closing paragraph of this chapter suggests where we believe one needs to go to address this issue.

16

liberalism and the political order

Before going any further with this last point, however, we should be very clear about whom we regard as seeing political theory as so closely linked or identified. We are not simply speaking of those who want to connect morality and politics in a conservative way—for example, who wish to promote ‘‘family values’’ or ‘‘decency’’—but just as equally those whose agenda is ‘‘liberal’’ or leftist and who wish to foster moral values of a more egalitarian or politically correct nature. The question of the degree to which politics is to be concerned with any moral values—whether values like antipornography on the one hand or gender equality on the other—is a matter we carefully examine in the chapters to follow. That is to say, we examine and defend the principle to be used in making such decisions about connecting politics to moral concerns. Suffice it to say here, in anticipation of our argument, that the programs of moral reform of neither the right nor the left survive after our analysis. By the same token, it is even more important to note that those liberals who do not compromise liberalism’s basic tenet but nonetheless seek to defend this tenet through either moral minimalism or skepticism are very much like their critics in seeing politics as defining moral conduct. There is a paradox of unanimity here, for despite the apparent difference between defenders and critics of liberalism, both seem to accept the notion that one’s politics and ethics ought to be uniform in scope and substance— namely, both sides end up directly linking morality and politics. Values outside their core values are left up to the individual, but the idea that the political is a vehicle for promoting and securing the moral is left untouched.12 Thus, liberals of almost every stripe and their critics often differ only with respect to the degree or level of morality to be made the subject of political action or control. They do not diverge in seeing politics as being essentially concerned with determining the scope and essence of moral conduct. Again, liberty and morality are inversely proportional for both critics and defenders alike precisely because politics, as it has been conceived since Plato, is the effective institutionalization of what is ethical. In our view, as a consequence, both sides fail to grasp the essential uniqueness of liberalism 12. We are not claiming that adherents to the respective liberal camps assert that there is not a difference between politics and morality, though often they fail to recognize the connection in their own cases. Politics and morality may differ because it can be argued that there are practical limitations to what the state or politics may do. But given those limitations, these liberal theorists do not reject the idea that politics can have and should have some significant role to play in encouraging and developing moral conduct.

liberalism in crisis

17

as a political theory—namely, its divestment of substantive morality from politics. Statecraft is not soulcraft; politics is not suited ‘‘to make men moral.’’ Once one abandons the idea that politics is institutionalized ethics, it becomes possible to say that the value of liberty is directly proportional to the robustness of one’s ethics. One more thing needs to be added before we close this sketch of our approach. One of the hidden assumptions of contemporary political theorizing and philosophy that we reject—which has a bearing on the structural paradox mentioned above—is the idea that political philosophy can be considered apart from other areas of philosophy beyond the ethical and political, such as metaphysics.13 There are two matters to consider here: whether and to what degree there may be some connection to nonpolitical foundations and whether or not the current malaise of liberalism is in some way a function of this philosophical specialization. It should be clear from these opening remarks that we are not sympathetic to any radical separation of political theory from broader philosophical foundations. Yet ‘‘foundationalism’’ is itself a contemporary topic of dispute. Be that as it may, we do address some elements of our own foundations in Part II, and point to those foundations throughout. Describing ourselves as neo-Aristotelians already suggests certain commitments in metaphysical and epistemological matters. Although the question of the connection between political philosophy and other areas of philosophical theory is not discussed directly in Part II, what we do say gives some indication of how we see the connection. More important, there is the question of whether liberalism’s crisis is due to a lack of connection to wider philosophical matters, or whether it actually has such connections but that the ones liberalism has are the wrong ones. Perhaps the philosophical foundations liberalism does have provide the illusion that liberalism need not consider foundational connections when looking to its own defense! If that is liberalism’s difficulty or illusion, it is not ours. We look toward the broader and deeper perspectives. We believe, in the end, that if there was a time when political theory in general, and liberalism in particular, could ignore such connections, that time has passed.

13. While certainly coming from a different perspective than our own, Jean Hampton also attacks this trend in ‘‘Should Political Philosophy Be Done without Metaphysics?’’ in Delaney, The Liberalism-Communitarianism Debate, 151–87.

Chapter Two liberalism and ethics

He who renders to each his own through fear of the gallows is constrained in his action by another’s command and threat of punishment, and cannot be called a just man. But he who renders to each his own through awareness of the true principle of law and its necessity, is acting steadfastly and at his own will, not another’s, and so he is rightly termed a just man. —benedict de spinoza, tractatus theologico-politicus

There is an ambivalence in liberalism with respect to ethics. On the one hand, the traditional role of ethics as exhortation to appropriate conduct seems anathema to liberalism. Leo Strauss has noticed, for example, that ‘‘the soul of modern development, one may say, is a peculiar realism, consisting in the notion that moral principles and the appeal to moral principles—preaching, sermonizing—are ineffectual. And therefore that one has to seek a substitute for moral principles which would be more efficacious than ineffectual preaching.’’1 The point Strauss makes here is a feature of the broader effort by early modern political thinkers to treat ‘‘men as they are’’ rather than ‘‘as they ought to be.’’2 To have a social system that ‘‘works’’ means that we must discover the basic forces that operate in sociThis chapter is taken with slight, but important, modifications from ‘‘Liberalism Defended: The Challenge of Post-Modernity,’’ in Classical Liberalism and Civil Society, vol. 7 of the John Locke Series in Classical Liberal Political Economy, The Shaftesbury Papers, ed. Charles K. Rowley (Fairfax, Va.: The Locke Institute, 1997), 9-5 – 9-22. 1. Leo Strauss, ‘‘Progress or Return,’’ in The Rebirth of Classical Political Rationalism: An Introduction to the Thought of Leo Strauss, ed. Thomas Pangle (Chicago: University of Chicago Press, 1988), 242. 2. Spinoza, for example, is explicit about this: ‘‘[Philosophers] conceive men, not as they are, but as they would like them to be. The result is that they have generally written satire instead of ethics, and have never conceived a political system which can be applied in practice; but have produced either obvious fantasies, or schemes that could only have been put into effect in Utopia, or the poets’ golden age, where, of course, there was no need of them at all’’ (Tractatus Politicus, chap. I, 1).

liberalism and ethics

19

ety and utilize them to effectuate the outcomes we desire. The distance, therefore, between the prescriptive and the descriptive—that is, between the norms that should be followed and what actually describes our dispositions—must not be too great, if we are to have workable principles. Schemes that run contrary to basic inclinations or rudimentary social forces will be doomed from the outset. Ethical prescriptions, especially demanding ones, are therefore of dubious social utility. Indeed, as the history of liberalism unfolds, increasing attention is devoted not to ethics but to what we would today describe as ‘‘social science,’’ culminating perhaps in the science of economics.3 From this science (and others) it seems evident that ethical exhortations are rather weak tools in comparison to such forces as monetary incentives when it comes to encouraging behavior on either an individual or social level. It is perhaps no accident, then, that many of the fathers of liberalism were also the fathers of economics. But the moral side was not completely ignored by early liberals. Freedom of thought and speech, along with toleration, were central features of the doctrines of early liberals. Moreover, peace, social order, material wellbeing, and the benefits that flow from any realization of these values (e.g., the alleviation of poverty, ignorance, and disease) were certainly also a part of the value structure of the roots of liberalism. In addition, the language of liberalism was, and still is, framed in terms of rights—hardly a concept devoid of moral connotations. It could be argued, consequently, that as interested as liberals were in social science, they were equally as adamant about the moral justification and propriety of the liberal order. Nevertheless, in liberal theory the descriptive and prescriptive (social science and normative ethics) seem to have a peculiar relation to one another. It has never been clear which one is to dominate, yet neither seems quite able to survive on its own and still express the nature of liberalism. The descriptive needs the prescriptive to support the notion that the conclusions of social science should have a bearing on public policy. To show that free markets make us wealthier is not in itself an argument for moving in that direction socially and politically. The prescriptive needs the descriptive to present itself as realistic. Liberalism has not historically been a form of idealism or utopianism. It has prided itself on workable solutions to social problems—solutions that take into account what human beings are really 3. This is also what we believe Spinoza was after, despite the use of the term ‘‘ethics’’ in the passage cited in note 2. That is, Spinoza wanted to replace what we might call normative political theory with social science.

20

liberalism and the political order

like and what motivates them. Even when it aspires to goals not yet realized in society, it has always argued for and pursued those goals in the name of what is actually achievable. Moralizing seems to be of little help in discerning the realistic. Moreover, since liberalism seems to differentiate itself from other social orders by not trying to direct individuals toward some particular and socially uniform conception of the good, it would seem to have less need of moral exhortation, and only then in addition to other, more ‘‘effective’’ techniques discovered by social science. Indeed, morality seems always at the cusp of irrelevance, since the argument that some end can be more effectively achieved without its influence seems sufficient to abandon it. Yet morality cannot be abandoned entirely if for no other reason than that liberal orders want to be considered as having at least equal, if not superior, moral standing to that of any other regime. But to what extent can it do this in the absence of traditional moral exhortation and a conception of the good? Liberals are tempted by the argument that the effects of liberal policies speak for themselves, but this gives the entire moral enterprise over to nonliberals. The effect of this is what we find today: widespread material success due to liberal policies coupled with equally widespread cynicism about or hostility to the moral dimensions of those very same policies. While liberalism may have a certain ambivalence toward traditional moral exhortation, its critics have none when it comes to exploiting that ambivalence to their advantage. On the one hand, liberals are criticized for not adhering closely enough to the descriptive side of their theory in positing universal rights independent of all social contexts. It is argued that such moral claims ignore the very reality of moral prescriptions that necessarily occur in specific social orders and are rooted in living social practices. On the other hand, liberals are accused of abandoning the prescriptive side in favor of a narrow homo economicus or ‘‘atomistic’’ conception of human beings that serves to undermine the very possibility of moral values. The culprit here is often the state-of-nature theories so often favored by early and contemporary liberals alike. Though there are some heuristic benefits to state-of-nature theories,4 it is easy enough to see how rooting one’s doctrines in a context with no morality, sociality, or institutional practices fosters charges of atomism, relativism, and acommunalism. The very setting of a state of nature is atomis4. See Douglas B. Rasmussen and Douglas J. Den Uyl, Liberty and Nature: An Aristotelian Defense of Liberal Order (La Salle, Ill.: Open Court, 1991), 191–206, where we discuss Buchanan and the contribution that economic or non-tuistic theorizing can make to social theory

liberalism and ethics

21

tic, relativistic, and acommunal. More important, for our purposes, human beings are perceived according to this model as having no summum bonum or natural ends, and consequently cannot be said to be subject to a good independent from the desires of the individual actors in this state of nature. That means we do not have a standard or foundation of morality that is independent enough to be used to evaluate those desires. Consequently, morality must be a function of those very desires, or the results that come from their pursuit. So the moral would seem to be the norms that result either from the interplay of desires or from the desires generated in us by our perceptions of the consequences of the various interested pursuits, or both. What seems not to be the case is that norms should command our allegiances because they are right, or worthy, or true, or appropriate. To some, this is never to arrive at morality at all. It is certainly the case that traditional appeals to community, rightness, or truth are pushed aside. The desire to keep the prescriptive and descriptive close together comes, so these critics might argue, at the cost of the prescriptive itself. As we see it, the problem goes even deeper. For if one begins a theory from a condition where morality does not exist and cooperation is seen as the first and primary good to be established by a contract of some sort, then it is hard to see where politics ends and morality begins. A moral order would be exclusively the set of norms that regulate how we are to act on our desires vis-a`-vis others, since there can be no prior evaluation of our desires apart from their social effects. So the norms that regulate us will define the boundaries of our interaction. But this is, of course, just what politics seems to do. The liberal who begins this way thus has the problem of finding some way to distinguish the political from the moral, and this problem, as we shall see, is a significant one. That the sorts of criticisms that point to the moral impoverishment of liberalism have indeed hit their mark seems to us indicated by recent defenses of liberalism that characterize it as plausible because disagreements over the nature of the good are essentially intractable. Yet if the good is intractable, it is not clear what it would mean to claim that liberal regimes can, after all, be defended on ethical grounds. And this is, in fact, at least the tacit if not the explicit point of critics like John Gray who wish to adopt liberal policies and values more or less simply because they are what we in liberal societies are accustomed to and can call our own. This strategy is liberalism in a state of exhaustion and could never have been of use to the founders of liberalism in the struggle to give it a place in the face of authoritarian- or tradition-bound social orders.

22

liberalism and the political order

One can, however, adopt another strategy more common to liberalism by suggesting that intractable disagreements about ‘‘the good’’ say nothing about disagreements concerning ‘‘the right.’’ To make this sort of response may be ultimately question begging, because it presupposes a distinction that opponents of liberalism would say is at the heart of what is wrong with liberalism and thus what they are rejecting. Given the pervasiveness of this distinction within much of liberalism, it seems worthwhile to give some attention to it.

The Good and the Right In an effort to accommodate both personal freedom and the demands of justice, liberalism appears to require a basic distinction like the one made between ‘‘the good’’ and ‘‘the right.’’5 The general tendency has been to consider the good as essentially privatized and the right as universalized. The good, in other words, has come to be regarded as the object of one’s own interest, the object of one’s desires, or those things one regards as beneficial to oneself. It is said to stand in contrast to what one may do with any right. What one may do by right is what is allowed to, or demanded of, or required by, all agents equally and universally (or derived from such). Early liberal thinkers could speak comfortably of the ‘‘rights of man,’’ but it would have been unusual for them to speak of the ‘‘good of man.’’ The ‘‘goods of men,’’ by contrast, would have been an acceptable locution (just as ‘‘the right of man’’ would not). Rights are universal; goods accrue to particular individuals. These locutions suggest that the good and the right need not have any necessary connection to one another. What one may do or possess by right has no necessary connection to what will advance one’s good; and what will advance one’s good may conflict with conduct allowed or demanded by right. This asynchronous character of the good and the right is due in the end to the good being partial, interested, and hence 5. The distinction really owes its origins to John Rawls’s work, A Theory of Justice (Cambridge, Mass.: Belknap Press of Harvard University Press, 1971), 446–52. We are uncertain how much support for it can be given using the classical writings of liberalism (for example, Locke, Hume, Constant, and so on), but the distinction has become such a part of the contemporary literature that we feel justified in treating it as a central conceptual distinction of liberalism. Rawls himself now feels the pain of trying to separate the right and the good too much. See John Rawls, Political Liberalism (New York: Columbia University Press, 1993), lecture 5. This rather confirms our point of liberalism’s continual vacillation between the two.

liberalism and ethics

23

amoral, while the right captures the moral by being disinterested or impartial. The benefit of this distinction is that it allows us to have something that is not atomistic, relativistic, and partial—namely ‘‘the right’’—while at the same time allowing for the reality of individual interests, desires, and aims. Nevertheless, the distinction between the good and the right in no way diminishes the fact that one of the central problems of liberalism has traditionally been to align or harmonize the two.6 Which one is to take precedence? Liberal moral theorists gravitate toward the right, while more empirically minded social scientists want to work largely with the good. Thus, the very nature of the distinction creates a tension in search of a resolution, and a number of resolutions have been tried. For example, social contract theory, whether classical or contemporary, can be characterized as the endeavor to generate the right from the good. Those rules that shall govern the social order (the right) are to be the product of the self-interested interaction of individuals (the good). If it all works out, the norms that emerge from the interaction will be ones we recognize to be in our own interest (for our own good)—at least in disinterested moments. This process may indeed reconcile the good and the right, but one is left wondering whether our satisfaction with the various descriptions of the good is simply a function of what we have predetermined to be right. In other words, are not the constraints placed upon the contractors (whether they be ‘‘veils of ignorance’’ or ‘‘unanimity’’) a reflection of some conception of the right, and is it not that conception of the right that tells what is most significant about the agreement being reached by parties to the ‘‘contract’’? And is it not the case that if we must call upon our impartial moments to verify our ‘‘interests,’’ the elements of impartiality (the right) are the more significant standard? The same sorts of questions can be asked of theories that try to ground moral norms in what has evolved rather than what has been explicitly agreed to. For at some point the evolutionary theorist must come up for air and evaluate what has evolved and something 6. Some recent liberal theories have foregone this option by making the good agent-relative but not the right. See, for example, Eric Mack, ‘‘Moral Individualism and Libertarian Theory,’’ in Tibor R. Machan and Douglas B. Rasmussen, eds. Liberty for the Twenty-First Century: Contemporary Libertarian Thought (Lanham, Md.: Rowman & Littlefield, 1995). This differs from the traditional approach because the agent-relativity of the good is given moral status, thus creating a moral dualism. Our view of this position is that it is as unstable as its traditional counterparts and that the very endeavor to reconcile the good and the right is an awareness of the potential tension between them.

24

liberalism and the political order

other than the evolved state of affairs will have to serve as a standard of evaluation.7 That is, one may have to look to the right. As a consequence of the nagging suspicion that social contract theories are, after all, driven more by the right than the good, some have argued (probably beginning with Kant) that the foundations of liberalism must be deontic (that is, grounded in an appeal to principle, rather than consequences).8 In most cases, the good (interest) is simply rejected as being relevant to any determination of the right. The irrelevance of the good can take one of two forms: either it is irrelevant because it is beneath the right or because it is above it. In the first case, the good is defined in terms of interest and then taken to be irrelevant to the determination of one’s basic duties or obligations. A duty or obligation is something that must be universal and impartial, so what is of particular interest to someone cannot qualify. Instead, we must find some basis for making universal, impartial claims. One common and compelling way of doing this has been to look to certain generic features of personhood and derive from them universal and impartial norms. On this basis we might, for example, say that persons are in possession of certain basic rights because their very personhood demands respect from each and every one of us. In the other case, where the good is above the right, the good becomes heroic, because it is pitched beyond what duty requires. For example, it may be that one deserves credit for a certain act of gratitude in response to a previous kindness, while at the same time being under no necessary obligation to perform the act. The one person has no right, let’s say, to claim the other’s resources as a grateful payment for some previous act of kindness. But it seems odd to suppose that the act of gratitude in question has no moral value whatsoever. It seems equally odd to say one should be required to supply the benefit. Consequently, the solution is to say that the good will be recognized as moral, but then relegated to the category of the morally heroic (supererogatory). It has little or nothing to do with the determination of the right, because we cannot say everyone must do it or do it in the 7. It is not clear why, if we remove (or add, depending on the perspective) all of the constraints, we would not simply end up with the world we have already. If we suppose all agents to be rational and bargaining to their best advantage under any given set of conditions with the information they have, then the outcome should be rational as well and constitute an accurate description of the world as it actually exists. 8. See Mack, ‘‘Moral Individualism and Libertarian Theory,’’ 41–58.

liberalism and ethics

25

same way and to the same degree.9 The result is that the good is increasingly ignored in favor of whatever comes under the rubric of the right. There is a remaining possibility. This is the situation where one’s good gets defined as being equivalent to actions done from recognition of the right. Here we are usually confronted with a notion of the ‘‘true’’ good— that is, one that may conflict directly with our immediate interests or desires but that nevertheless embodies a certain principle that one’s own reason can come to accept because it is right or it serves a larger universal purpose. In this case a person could be told, for example, that his personal utility ought to match the utility of society as a whole, or that his own true good really consists in respecting the rights of others.10 In this sort of context, which is largely deontic, the ‘‘true’’ good does not simply mark the classical (that is, premodern) distinction between the apparent and the real good. The classical view still held to the notion that the ‘‘real’’ good was a good for particular persons. The modern deontic view, by contrast, holds the true good to be applicable to no one in particular and everyone equally. We just need to bring ourselves to it. The true good, in this approach, is true precisely because it purges all elements of particularity, and thus it is only one’s good to the extent that one is undifferentiated from others. To differentiate oneself in terms of the good is a sign that one is still failing to see the true good. It is not clear, however, whether this approach is actually attempting to reconcile the good with the right so much as it completely transforms the one (the good) into the other (the right). One final possibility of reconciling the good and the right seems to be 9. It is tempting to say that if we just distinguish between moral and nonmoral goods we can reconcile the low good, the high good, and the right into one theory. But the idea that there is super- and sub-erogation is itself a function of the distinction between the good and the right and the final irrelevance of the good to a determination of the right. There is less a reconciliation than a rejection here. 10. A contemporary example of this is the work of Alan Gewirth, who wishes us to see our own good in terms of the freedom and well-being we imply in our actions toward others. See Gewirth, Reason and Morality (Chicago: University of Chicago Press, 1978). As we note below, this procedure does not seem limited to just deontic theories. Mill seems to recommend identifying one’s good with the well-being of society, although it may be this very concept of ‘‘wellbeing’’ that is to mark the difference. For the idea that utilitarianism is really a kind of deontologism, see Henry B. Veatch, For an Ontology of Morals: A Critique of Contemporary Ethical Theory (Evanston, Ill.: Northwestern University Press, 1971), 152. The most common tendency in equating the good with the right is to reduce all of ethics to issues of justice. On this point, see Douglas J. Den Uyl, ‘‘The Right to Welfare and the Virtue of Charity,’’ Social Philosophy & Policy 10 (Winter 1993): 192–224.

26

liberalism and the political order

reflected in the theories of some eighteenth-century liberals where the good and the right, although distinguished from one another, were nevertheless in a kind of natural harmony or equilibrium. If, for example, people would only adhere to rights respecting conduct (e.g., act without recourse to force or fraud), the diverse pursuit of their own particular goods would eventually redound to everyone’s benefit. This sort of Smithian ‘‘invisible hand’’ concept is, we believe, more powerful than it has been given credit for being,11 but it does little to solve the priority problems we have been addressing. For if the invisible hand does not so steadily lead to harmony, the priority question again emerges. Moreover, unless one is willing to say that whatever is, is in a harmonious state, the very idea of harmony presupposes the possibility of separation and disharmony, calling us again to some form of evaluation and thus again the priority question. Our brief survey suggests that there is an inevitable tendency in the distinction between the good and the right to depreciate the moral nature of the good to the enhancement of the right. In other words, what is impartial and universal comes to take precedence over goods, which are, almost by definition now, partial and particular.12 The problem, then, of separating the good from the right is that particularized ethical content is increasingly sacrificed to abstract and universalized norms.13 Consequently the individual, thought to be so central to liberalism, becomes ethically ever more irrelevant. If liberalism eschews moral exhortation as a technique of social management, it is not simply due to its ineffectiveness. In spite of any rhetoric to the contrary by critics and defenders alike, liberalism has not traditionally been an individualistic ethical theory. Quite the contrary; it gives the individual good little or no moral standing.14 And while liberalism may speak of 11. An example of its depth comes with respect to the uses of knowledge in society. See Thomas Sowell, Knowledge and Decisions (New York: Basic Books, 1980), chap. 1. 12. In this respect our views are similar to those of Rawls, who argues that the priority of the right over the good is central to liberalism and a good thing. As an example of how true this is at the deepest level, Will Kymlicka, in arguing against Rawls, tries to suggest that there is no real issue about the priority of the right and the good. See his Liberalism, Community, and Culture (Oxford: Clarendon Press, 1989), 21. Kymlicka argues that Rawls has misconceived utilitarianism, writing: ‘‘It is the concern with equal consideration that underlies the arguments of Bentham and Sidgwick . . . and is explicitly affirmed by recent utilitarians’’ (25). Of course, to underlie a doctrine with ‘‘equal consideration’’ is just to give priority to the right over the good at the deepest level. 13. We use the term ‘‘separating’’ rather than ‘‘distinguishing’’ deliberately here, for part of our point is that what began as simply a distinction becomes a separation as time moves on. 14. Adam Smith seems something of an exception to this. He allows that besides justice and benevolence, prudence or self-interest has moral importance and standing. This is fine so far as it goes, but which self-interested acts are worthy of approval and which are not have little to do

liberalism and ethics

27

individual autonomy or personhood, its universalistic tendencies render any substantive individualism almost meaningless. This is because, as we have been noting, the distinction between the good and the right inevitably raises a priority question that, under the universalistic tendencies of liberalism, gets resolved in favor of the latter. Individual autonomy would, for example, be good because it has initial permission to be such by the right, not right because it contributes to the good (pace John Stuart Mill).15 It shall be our contention that liberalism is quite correct to ignore the individual and be universalistic in its outlook. It is, however, correct in doing so only if it relinquishes all pretenses to being an ethics.16 Liberalism is no more an ethics than it is a theology. Yet while liberalism as a social theory managed to shed any connections to theology, it has failed to distinguish itself from ethics. Liberal theorists have retained the idea that politics is ethics writ large and that therefore liberal political principles are straightforward ethical principles like any others. For liberalism the cost of retaining this way of looking at things has been the separation of the right from the good, because it is difficult for ethical principles to be both universal and particular if there is any real diversity at the particular level. To avoid the inconveniences the diversity of particulars would pose for ethical principles, there is an inevitable tendency to generalize or universalize, that is, to count as ethical only that which can be asserted equally across persons. This, however, has the effect of undermining the moral propriety of the individualism that liberalism is supposed to cherish and foster. The endeavor to maintain the idea that political principles are ordinary ethical prescriptions broadly extended actually has the effect of socializing ethics, that is, of giving the individual little or no ethical significance. This is exactly what one finds in the depths of most liberal theory. By removing the ethical significance of individual pursuits, the socialization of ethics played an important role in establishing the eventual priority of the right over the good. As a consequence, ethical norms in a liberal environment became increasingly identified with justice. Classical liberalism, in its effort to maintain the value of individual liberty, drifted inevitably toward a with the individual’s own good and much to do with the evolved social norms sanctioned by the impartial spectator. 15. Our point is, of course, not that every liberal doctrine is really a deontology in disguise, but that the tendency is in that direction. 16. To reject an identification of liberalism with ethics is not to reject a connection between the two. An examination of the nature of the connection is found in our discussion of metanormative principles and rights found in the following chapters of this work.

28

liberalism and the political order

moral minimalism, since that best allowed for diversity among individuals. Those that espoused the so-called new liberalism thought that moral minimalism permitted all sorts of social abuses and sought to give justice a more expanded conception,17 since as liberals they, too, were compelled to hold that the only legitimate function of the state is the enforcement of the rules of justice.18 Our focus below, however, will be on indicating the ways in which liberalism has socialized ethics and not upon the divergent implications of that phenomenon.

The Socialization of Ethics Within the very seeds of liberalism we find the phenomenon to which we have just referred.19 Consider the following from Thomas Hobbes: That moral virtue, that we can measure by civil laws, which is different in different states, is justice and equity; that moral virtue which we measure purely by the natural laws is only charity. Furthermore, all moral virtue is contained in these two. However, the other three virtues (except for justice) that are called cardinal— courage, prudence, and temperance—are not virtues of citizens as citizens, but as men, for these virtues are useful not so much to the state as they are to those individual men who have them. . . . For just as every citizen hath his own private good, so hath the state its own public good. Nor, in truth, should one demand that the courage and prudence of the private man, if useful only to himself, be praised or held as a virtue by states or by any other men whatsoever to whom these same are not useful. So, condensing this whole teaching on manners and dispositions into the fewest words, I say that good dispositions are those which are suitable for entering 17. The new liberalism was actually an effort to bring some content back into ethics (or ethics back into liberalism). Its main problem is doing so and still qualifying as a liberalism. 18. This is a term given to liberals in the nineteenth century who sought more state intervention in social life and who tended to hold a more robust conception of the ethical good than their classical counterparts. 19. The process, we believe, began much earlier, with the increasing political control and influence of the Catholic Church. Since religion speaks predominantly in normative terms, its connection to political life would necessarily begin to see the ethical in terms of the social rather than primarily in terms of personal salvation. The rejection of the Catholic Church during the Reformation was not a rejection of this feature of the relationship between ethics and politics, as Calvin’s Geneva indicates.

liberalism and ethics

29

into civil society; and good manners (that is, moral virtues) are those whereby what was entered upon can be best preserved. For all the virtues are contained in justice and charity.20 Notice how all the virtues are reduced to two, and the two virtues are themselves virtues because of what they contribute to social cooperation. The passage begins with Hobbes correctly identifying that the cardinal virtues, with the possible exception of justice, were historically centered on the perfection of the individual (one’s ‘‘private good’’). And although he seems to allow for the distinction between the private and public good, the reduction of all virtues to two, and the interpretation of those two virtues exclusively in terms of their contribution to social cooperation, renders the good of individuals otiose as an ethical category. The private good thus disappears as being of ethical significance, however important it may be in describing life in the state of nature or predicting the terms of the social contract. Other liberals, or figures important to liberalism’s development, make similar suggestions. Consider the following from Lord Shaftesbury: We may consider first, That partial affection, or social Love in part, without regard to a compleat Society or Whole, is in it-self an Inconsistency, and implies an absolute Contradiction. Whatever Affection we have towards any thing besides our-selves; if it be not of the natural sort towards the System, or Kind; it must be, of all other Affections, the most dissociable, and destructive of the Enjoyments of Society: If it be really of the natural sort, and apply’d only to some one Part of Society, or of a Species, but not to the Species or Society it-self; there can be no more account given of it, than of the most odd, capricious, or humoursom Passion which may arise. The Person, therefore, who is conscious of this Affection, can be conscious of no Merit or Worth on the account of it.21 David Hume makes a similar comment: ‘‘But on the whole, it seems to me that though it is always allowed, that there are virtues of many different kinds, yet, when a man is called virtuous, or is denominated a man of virtue, we chiefly regard his social qualities, which are, indeed, the most valu20. Hobbes, De Homine, chap. XIII, 9. 21. Cited in L. A. Selby-Bigge, ed., The British Moralists, vol. 1 (Oxford: Clarendon Press, 1897), 40.

30

liberalism and the political order

able.’’22 Such remarks are not limited to British Empiricists. Kant claims, for example, that ‘‘we have reason to have but a low opinion of ourselves as individuals, but as representatives of mankind we ought to hold ourselves in high esteem.’’23 It might be objected, especially with thinkers such as Hume, Adam Smith, and Kant, that they were careful to separate the self-regarding from the social (other-regarding) virtues or duties, both of which are necessary for a complete account of morality. This objection, however, simply reinforces the point. Whatever independence the self-regarding virtues or duties may possess, their value is determined almost completely in terms of their contribution to social cooperation. Consider, for example, these words from Smith: ‘‘That wisdom which contrived the system of human affections, as well as that of every other part of nature, seems to have judged that the interest of the great society of mankind would be best promoted by directing the principal attention of each individual to that particular portion of it, which was most within the sphere both of his abilities and of his understanding.’’24 Thus although liberalism may grant the individual freedom to act as he or she pleases, this in no way implies an ethical individualism—that is, an ethics where the individual is of primary value and the flourishing (the good) of the individual the basic ethical purpose. Indeed, there is a paradox of individualism in liberalism traditionally understood, for while critics of liberalism are eager to point to the ‘‘atomistic’’ or ‘‘possessive’’ character of individuals that is found within liberal theories, the fact is that liberalism is driven by the need to socialize rather than atomize. It is little wonder, then, that by the time one gets to Smith and Kant, impartiality is the central feature of ethical theorizing, the partiality of individuals being considered the main obstacle to social cooperation and peace. It is also, in this connection, quite telling that the attack on liberalism begins in earnest with one who actually does attach positive ethical value to the truly atomized individual, namely, Rousseau and his ‘‘savage man.’’ That ethics is historically socialized under liberalism and therefore that liberalism is not necessarily an ethics of individualism is itself a function of the abandonment of another feature of classical ethics—the replacement of 22. David Hume, Enquiries Concerning the Human Understanding and Concerning the Principles of Morals, 2nd ed., ed. L. A. Selby-Bigge (Oxford: Clarendon Press, 1902), appendix IV, 314. 23. Immanuel Kant, Lectures on Ethics (Indianapolis and Cambridge: Hackett Publishing, 1930), 126. 24. Adam Smith, Theory of Moral Sentiments, VI, ii, 2.4.

liberalism and ethics

31

prudence by justice as the supreme cardinal virtue.25 That justice could come to replace prudence is undoubtedly at least partially due to the abandonment of ‘‘self-perfection’’ in favor of social cooperation, harmony, or peace. Apart from what is indicated in the passage from Hobbes cited above, there is little doubt that other thinkers are equally insistent upon making the substitution. Consider, for example, these passages from Hume and Mill respectively: The necessity of justice to the support of society is the sole foundation of that virtue; and since no moral excellence is more highly esteemed, we may conclude, that this circumstance of usefulness has, in general, the strongest energy, and most entire command over our sentiments. It must, therefore, be the source of a considerable part of the merit ascribed to humanity, benevolence, friendship, public spirit, and other social virtues of that stamp; as it is the sole source of the moral approbation paid to fidelity, justice, veracity, integrity, and those other estimable and useful qualities and principles.26 It appears from what has been said, that justice is a name for certain moral requirements, which, regarded collectively, stand higher in the scale of social utility, and are therefore of more paramount obligation, than any others.27 The urge to equate justice with the whole of ethics has been virtually irresistible to liberalism. From one perspective, if liberals take the proper province of state action to be limited only to matters of justice, then all matters of serious moral concern may become relegated to issues of justice. For to leave a serious moral matter outside the sphere of justice would deprive it of sanction and render it a mere matter of individual choice. It is not clear, in such a case, how serious the moral matter could therefore be if, being now left up to the individual alone, it fails to be necessarily social in nature and without social sanction. 25. See Douglas J. Den Uyl, The Virtue of Prudence (New York: Peter Lang, 1991) for an account of this virtue. 26. Hume, Enquiry Concerning the Principles of Morals, section 3, part 2. 27. John Stuart Mill, Utilitarianism, 2nd ed., ed. George Sher (Indianapolis: Hackett Publishing, 2001), 63.

32

liberalism and the political order

Looked at from another perspective, the socialization of ethics would indicate that what is necessarily and inherently social would come to have primacy of place over that which is not. Justice would seem to be the best candidate for being central to ethics because of its apparently inherent interpersonal structure. In addition, the interpersonal character of justice seems to legitimize the management of interpersonal relations, bringing us back again to politics. Since the socialization of ethics through justice tends to make what can be managed the focus of ethics, one effect of this is to secularize ethics. Personal salvation, for example, which might have historically made some claim to primacy, is pushed to the fringes of private conscience. If social cooperation is our end, our actions or dispositions toward others must be paramount. That leaves little room for the personal or ‘‘private’’ to have much standing, and it provides an incentive to interpret whatever may have been private in a public way. It is no accident, therefore, that despite Hobbes’s distinction between justice and charity, the latter concept has little independent value. Spinoza is even more explicit in this connection.28 Today, of course, we have virtually no conception of charity beyond what one does for others.29 A further indication of the reduction of ethics to justice comes with respect to the language of rights. Communitarians often lament the fact that the study of ethics is conducted almost exclusively in the language of rights. At least as a descriptive matter, the communitarians are surely correct in identifying rights as the central concept of liberal ethics. Indeed, among contemporary political philosophers, the problem of political philosophy seems to be exclusively one of justifying and specifying basic rights. It almost goes without saying that such concerns fall under the rubric of justice. And although the various theories and their conclusions differ with respect to what rights we do or do not have, they seldom deviate from the path of seeing ethics primarily in terms of issues of justice. For the liberal, however, a certain significant problem arises when ethics is socialized through justice. The doctrine is called ‘‘liberalism’’ because of its liberal character—that is, its love of liberty. But the combination of liberty with the socialization of ethics would lean toward moral minimization. If, in other words, one’s central moral obligations tend to be defined in 28. Spinoza, Tractatus Theologico Politicus, chap. XIV. 29. See Den Uyl, ‘‘Right to Welfare and the Virtue of Charity.’’

liberalism and ethics

33

terms of what is owed to others, and if one should also be left free to pursue personal interests as one sees fit to the maximum degree possible, then squaring these two would seem to require a minimal amount of restrictive interpersonal duties. True, the claim might be made that while our interpersonal duties are kept to a minimum, we may have many other moral obligations we would need to attend to as individuals. Those other obligations would suggest that moral minimalism is not necessarily accurate as a description of liberalism. But as we have seen, what does not enter the central fold is spun off to the edges and rendered insignificant. As a consequence, liberalism seems torn between maximizing liberty and minimizing obligation, on the one hand, and increasing obligation at the expense of liberty, on the other. This tension is created precisely because liberty itself gets filtered through justice. If cooperation is possible with minimal constraints upon one’s conduct, then it would seem that the demand of justice has been met. If, on the other hand, the sort of ‘‘cooperation’’ that results from free association is considered to be in some way defective (for example, paying workers ‘‘starvation’’ wages), then the push for the inclusion of other values besides liberty will inevitably affect liberty. The tension seems to us irreconcilable so long as justice defines the very structure of ethics and liberalism is itself regarded as an ethics.

The Metanormative Solution We have seen that the relationship between liberalism and ethics is one of ambivalence and tension. This results from the failure of liberal thinkers to appreciate the true uniqueness of liberalism. These thinkers write as if they were simply continuing a long tradition in political philosophy of searching for the best social order, the good society, or the ideal state. They regard their project as one of producing and justifying regulative norms for the best society that have the status of moral duties. One recent author, for example, tells us that liberalism is a ‘‘normative political philosophy, a set of moral arguments about the justification of political action and institutions.’’30 Another writer tells us that there is an ‘‘opposition . . . between liberal individualism in some version or other and the Aristotelian tradition 30. Kymlicka, Liberalism, Community, and Culture, 9.

34

liberalism and the political order

in some version or other.’’31 In both cases we see liberalism treated as an ethical philosophy to be contrasted with other ethical philosophies.32 Herein lies much of the problem. Norms are not, in fact, all of one type, differentiated by subject or thinker alone. It may be that some norms regulate the conditions in which moral conduct may take place, while others are more directly prescriptive of moral conduct itself. In light of this possibility, we believe it is not appropriate to say that liberalism is a ‘‘normative political philosophy’’ in the usual sense. It is rather a political philosophy of metanorms. It seeks not to guide individual conduct in moral activity, but rather to regulate conduct so that conditions might be obtained where moral action can take place. To contrast liberalism directly with alternative ethical systems or values is, therefore, something of a category mistake. Liberalism is best understood if it is not treated as an equinormative system.33 Equinormative systems are those that regard ethical principles as differing only with respect to subject matter and not according to type. Another way of putting this is to say that in equinormative systems all justified norms regulative of the conduct of persons have status as moral rules. Some rules may be more important or more fundamental than others, more or less general, or more or less about one subject or another, but they all form a single class of moral rules differing only with respect to their degree of obligatoriness or point of applicability. Political theory is seen, then, as an extension of a debate about the merits of various equinormative systems, for example, where one system requires that individuals are to be given basic abstract rights is opposed to another where their duties are defined by a community to which they are subservient. Theorists invest their time in working out the implications of the vari31. Alasdair MacIntyre, After Virtue: A Study in Moral Theory, 2nd ed. (Notre Dame, Ind.: University of Notre Dame Press, 1981), 259. 32. We, of course, argue that nothing could be further from the truth than saying that liberalism and Aristotelianism are opposed. We would agree with MacIntyre, however, to the extent that the ‘‘opposition’’ would be greater without the metanormative distinction 33. It would be a mistake to interpret our remarks here as implying that liberalism was previously oblivious to our point here. In fact, in Chapters XIV–XX of the Tractatus TheologicoPoliticus, Spinoza indicates the distinction between the norms provided by the state and ethical salvation or blessedness. Adam Smith distinguishes ethics from jurisprudence as being two separate parts of ‘‘moral philosophy’’; see his Theory of Moral Sentiments (VI ii. introduction). Moreover, in the early American experience it was not uncommon to speak of rights as a ‘‘power . . . to act in a moral way,’’ suggesting a distinction between moral action per se and rights, although the exact role of morality here was confused; see James H. Hutson ‘‘The Emergence of the Modern Concept of a Right in America: The Contribution of Michel Villey,’’ American Journal of Jurisprudence 39 (1994): 185–224.

liberalism and ethics

35

ous systems as well as how one might be superior to another. Common to all the approaches, however, is the idea that the end product is understanding what sort of moral orientation or outlook, whether it be ‘‘liberal’’ or not, communities ought to have. It is important to understand that the position we take against the usual views about liberalism—namely, that it should be considered in terms of metanorms rather than norms—is not another version of the priority of the right over the good. One is not necessarily outside an equinormative system when deontological principles trump consequentialist ones. All that may be established is the priority of the principles (matters of right have priority over matters of good), not that there is more than one kind. The same point would apply to systems (for example, utilitarianism) that give priority to the good over the right, for this too may be simply another priority matter. Indeed, modern deontological and utilitarian ethical systems, being universalistic and inclusive in nature, have little sense of a typology of ethical principles, although we are not claiming they necessarily preclude that typology.34 It is especially important, in addition, to note that theories skeptical of systematic ethics, such as one might find in the work of John Gray or Isaiah Berlin, are also equinormative. To say that there are irreducible conflicts of value does nothing to suggest that there may be values or norms that are of different types. Indeed, in some respects this sort of theory is the most equinormative of all, since conflicts of value are more apparent when even the priorities of the various values or norms hold the same status. Our view, therefore, is simply that the malaise of liberalism is largely the result of treating it as an equinormative system. Liberalism is both more vulnerable to its critics and subject to its own ‘‘tensions’’ when understood in this way. The point here is not merely of a theoretical nature, but of a practical one as well. It is quite possible, as some critics of liberalism have claimed, that the exclusive focus upon liberal values has led people to ignore other significant moral virtues and has thereby impoverished morality in the process. If, however, liberalism is not an ethical philosophy, the promotion of ‘‘liberal values’’ would hardly qualify as completing a process of ethical instruction and thus could not be faulted as such. Nor could one claim 34. Perhaps Kant comes closest with his distinction between the categorical imperative and all other rules.

36

liberalism and the political order

much by way of ethical accomplishment when one succeeds in living according to liberal values.35 The traditional litany of liberal values indicates next to nothing about what it would take for an individual to exhibit moral excellence—a point that critics of liberalism are quick to make.36 In other words, there is nothing particularly laudable, challenging, or directive about being, for example, a tolerant or an autonomous individual. That would depend in large part on how tolerance and autonomy are exercised. It is nonetheless tempting in this connection to see liberal principles as implying moral values. Charles Taylor, for example, writes: ‘‘To talk of universal, natural, or human rights is to connect respect for human life and integrity with the notion of autonomy. It is to conceive people as active cooperators in establishing and ensuring the respect which is due them. And this expresses a central feature of the modern Western moral outlook.’’37 If liberal principles are metanorms, it is not at all permissible, contrary to Taylor, to derive or infer moral norms or values from them, however comfortable the fit may appear. Whether individuals actively cooperate in ensuring the respect that is due them or passively languish in the hope of that respect is of no official interest to liberalism. Because liberalism is not necessarily an equinormative system, no particular set of moral values is dictated by it, although some values may be ruled out and various ranges and sets of values may be more workable than others, depending on circumstances. It is not, in other words, any more an implication of liberalism that one’s life be justified according to, say, the dictates of the Protestant work ethic than it is by working for causes in support of gay rights. Liberalism, then, is not designed to promote, preserve, or imply one form of flourishing over another. It is not thereby completely open ended, however. Liberalism does prevent ‘‘forms of flourishing’’ that inherently preclude the possibility of taking place alongside of other diverse forms of flourishing. In this respect, it may be impossible for any equinormative system that must of necessity treat its norms, however abstract and general they may be, as implying a certain form of life to finally embrace diverse forms of flourishing.38 This is why it seems preferable to allow the development of 35. In saying this we are clearly rejecting the view that sees liberalism as abstract universal rules plus personal interests, such that one is either referring to one or the other. In our schema there are liberal norms, ethical norms, and personal interests. 36. MacIntyre, After Virtue, chaps. 17 and 18. 37. Charles Taylor, Sources of the Self: The Making of Modern Identity (Cambridge, Mass.: Harvard University Press, 1989), 12. 38. The account of ethics, including metaethics, we believe most in accord with liberalism’s nature will be made clear in Chapter 6.

liberalism and ethics

37

substantive ethical norms within in the context provided by metanorms, rather than to increasingly universalize and abstract the norms themselves. When one does treat liberalism as an equinormative ethical theory, an important element of liberalism is missed: its claim about the ill-suitedness or inappropriateness of the state to regulate or promote moral conduct. It makes no difference whether the conduct accords with liberal or conservative, ancient or modern, commercial or pastoral values. Liberalism’s true uniqueness as a social doctrine is its endeavor to distinguish politics from morality in the same way it is recognized to have done with respect to theology. When politics is used to promote particular ethical norms or modes of flourishing, the same mistake would be committed as if politics were trying to instill a particular way of understanding God or religion. Liberalism is designed to transcend the competition between equinormative frameworks.39 The metanormative solution thus calls a halt to the discussion of whether or not liberalism is an adequate ethical philosophy by suggesting both that it is not an ethical philosophy per se and that it is in the nature of politics to imply one form of flourishing over another, when politics is used as a vehicle for the regulation of ethical conduct. What liberalism presents instead is a doctrine that separates politics from ethics as far as possible without lapsing into either relativism, nihilism, or historicism.40 In practice, the debate about these matters today contains a mixture of the normative and metanormative, but the failure to sort out the levels of argument—or even to recognize that there are such levels—is virtually equivalent to denying them. The Taylor passage cited above, for example, clearly indicates how ethical levels are simultaneously jumped. The formalistic and abstract requirement to give persons respect in order to establish human rights is structurally different from the respect one may claim because one wishes to secure one’s autonomy or be appreciated for one’s worth as a person, yet they are treated the same. In the former case (human rights), the ethical principles exist independently of who or what one is in particular, one’s narrative history, one’s projects, and one’s links to the narratives and projects of others. The other sorts of ethical principles would be critically dependent on such factors. 39. Some values—perhaps fairness among them—might be interpreted in ways that are metanormative and ways that are straightforwardly moral. This problem only adds to the confusion of which we speak. 40. Chapters 6 through 9 as well as Chapters 11 and 12 will indicate the ethical and political framework that allows liberalism to avoid these problems.

38

liberalism and the political order

One may be inclined to say that the basis for both types of ethical principles just mentioned is the same; namely, both rely on moral values such as respect for persons as individuals, respect for the idea that one’s choices should matter (at least to oneself), the value of persuasion and reason over force in interpersonal relations, the importance of human life, and the like. These moral values are common to the abstract and particular perspectives alike. With both ethical principles stemming from the same source, our moral system may look as equinormative as any other. While the logic of this argument is compelling if these values are taken as primitive, for us they are rather values drawn from within a full-blown moral philosophy. This means that we do not derive our distinction between normative and metanormative values by first accepting these values, but rather that whatever truth those values contain is a function of the framework that gives rise to them. That same framework would give rise to the distinction between normative and metanormative as well. The values then are not primitive at all, but complex notions in need of a supporting theoretical framework. We say something about that framework in the chapters to follow, but for the moment the point is to notice the difference in the structural characteristics of the norms in question and not to gloss over them. In the one case, individual histories, intentions, interests, and circumstances do not matter to their ethical force. In the other case, they are critical. That difference alone may give some basis for questioning equinormativity. The classical (that is, Aristotelian) moral perspective we adopt makes it easy for us to distinguish the morally normative from the metanormative. From this perspective, moral conduct, and thus the norms that regulate and define it, has as its object the self-perfection of the individual. The line of demarcation between the normative and metanormative is thus relatively easy to draw, because norms not directly concerned with the self-perfection of particular acting agents would not be ‘‘moral’’ in this primary sense. Therefore, to advance the notion that conditions of equal freedom should obtain among individuals in society might be an important ethicalsocial principle, but in itself it does little directly to further the self-perfection of any individual. It is therefore not a moral norm but a metanorm. In this respect, it is important to realize that it is not the abstractness or generality that determines metanormativity. Nothing could be more abstract and general than the principle to ‘‘do good and avoid evil,’’ but this is clearly and directly regulative of personal conduct and is thus a moral norm. To some, however, all this may look like begging the question. After all, why should others look at morality this way, especially since it is more com-

liberalism and ethics

39

monly viewed otherwise? We do not think the metanormative distinction requires adopting our approach to ethics, although we shall argue further for its appropriateness below. All that is required for the plausibility of the metanormative distinction is the possibility of recognizing a difference between norms that directly regulate moral conduct and those that regulate the conditions under which such conduct could take place.41 Two objections come immediately to mind from what we have just said: (1) there is no material difference between liberalism seen as a metanormative system and liberalism seen as a substantive ethical philosophy, because the metanorms will in fact engender the sorts of moral values liberals have traditionally admired; and (2) liberalism may appear to be committed to a strict neutrality due to its apparent amoralist transcendental commitments; and if not, its deepest theoretical commitments would show after all that it is an equinormative theory like any other, as suggested by the first objection. Taking the second objection first, we respond that the exact connection between liberalism and ethics must await the following chapters. The purpose here must be first to remind ourselves that liberalism is not all inclusive, and second that to say that ‘‘liberalism is neutral’’ usually means that the right takes priority over the good and liberalism is neutral with respect to forms of the good. While it is mistaken to speak of liberalism as neutral in this sense, if one must talk this way then metanormativity would imply that liberalism is as ‘‘neutral’’ with respect to the right as it is to the good. We believe, however, that the right and the good cannot be separated and that liberalism is quite compatible with a perspective that denies that separation.42 It would therefore seem necessary to focus on the first objection. To answer the first objection fully would take us far beyond what can be accomplished here. Part of our answer occurs in the chapters that follow, particularly where we deal with communitarian and conservative criticisms of liberalism in Chapter 10. It must at the same time be recognized that part 41. A number of liberal authors come close to this. For example, F. A. Hayek speaks of ‘‘purpose-independent’’ rules that do not aim at the promotion of any one value. Hayek, Rules and Order, vol. 1 of Law, Legislation, and Liberty (Chicago: University of Chicago Press, 1973), 112–14. However, while authors sometimes recognize different levels of rules, they fail to understand the relationship between the rules and morality, and so they either succumb to the temptation to regard the general abstract rules as moral rules, or they diminish the substantive character of morality by reducing it to conflict avoidance or rights-respecting conduct. 42. John Gray is fond of citing Joseph Raz’s contention that rights are not primitive but based in the end on interests. See Gray, ‘‘Agonistic Liberalism,’’ Social Philosophy & Policy 12 (Winter 1995): 119. The interests we develop, however, are just as dependent on the rights we possess. Little seems to be gained from this chicken/egg sort of dispute.

40

liberalism and the political order

of the answer also lies in one’s view of the relationship between theory and practice. If a traditional society, for example, were to liberalize and allow its members the liberty to pursue their own projects, which turned out to be primarily commercial in nature, would we say the commercial ethic is an implication of the newly adopted doctrine of liberalism, or that commercial pursuits are a natural human endeavor now given the freedom to be exercised? Since Plato and Aristotle it has been believed that the constitutional structure of a regime at least influences, if not creates, the sort of persons one finds in the regime. Liberal regimes would, therefore, create a certain type of ‘‘liberal’’ personality, while other regimes would do likewise according to their kind.43 There is undoubtedly truth in this position, though less than would satisfy the vanity of political theorists and philosophers who seem to judge their every notion as fraught with clearly delineated realworld applicability. It is quite possible, by contrast, that the structure of a regime is a function of the people within it. Liberalism does not so much answer the priority question as it does point to an alternative conception. What liberalism implies, since it is grounded in metanorms rather than moral duties, is that the actual social and cultural implications of its principles remain to be worked out, and indeed cannot be developed except in practice. In this sense, liberalism is radically incomplete. If there is such a thing as a ‘‘liberal’’ personality, it is a severely underdetermined creature. While some would suggest that it is this very underdetermination that subverts the substantive components needed for both communal and personal flourishing, liberalism’s retort is that flourishing is not, in the end, completely written into the structural principles of any regime.44 Liberalism’s fundamental metanormative structure indicates that ethical conduct and ethical flourishing are to be found elsewhere than politics. The apparent laissez-faire posture toward ethics is not a sign of rejection, but of recognition that ethics is grounded in practices that cannot be subsumed by the state, or the law, or even the formally constituted community. The metanormative structure is simply the recognition of that fact. It would seem, then, that our approach to liberalism is so unique as to 43. See, for example, R. Lerner, ‘‘Commerce and Character: The Anglo-American as New Model Man,’’ William and Mary Quarterly 36 (January 1979): 3–26. 44. There are, of course, some who would urge that there are completed liberal individuals with their own liberal virtues. See, for example, Stephen Macedo, Liberal Virtues: Citizenship, Virtue, and Community in Liberal Constitutionalism (Oxford: Clarendon Press, 1991).

liberalism and ethics

41

be without precedent. Before continuing with our positive theory, it seems appropriate to spend a moment on some of our intellectual predecessors within the liberal tradition. We shall both identify sources of inspiration and differentiate ourselves from thinkers whose views could be confused with our own. This helps lay out the basic parameters of our approach to which this part of the book is devoted.

Chapter Three liberalism’s past and precedents

The purpose of every state is secure and comfortable living. —spinoza, tractatus theologico-politicus

This statement by Spinoza is one of the pithiest statements of the essence of political liberalism. Unpacked, it foreshadows values shared by virtually all liberal theorists. Liberty, property, peace, and the welcoming of improvements in man’s estate are the sorts of values that contribute to the ends described by Spinoza, which we find nearly all liberals defending. This common set of values has suggested to many a common set of foundations for them. Liberalism is referred to these days as if it is a term that has univocal meaning and a common set of assumptions to support its political principles. Indeed, some regard liberalism to have implications and principles well beyond the political. Alasdair MacIntyre, for example, takes liberalism to be indicative of an entire moral philosophy with its own metaethics and philosophical anthropology.1 Other communitarians treat liberalism similarly, 2 and liberals themselves often speak this 1. Alasdair MacIntyre, After Virtue: A Study in Moral Theory, 2nd ed. (Notre Dame, Ind.: University of Notre Dame Press, 1984), chaps. 6 and 7. 2. See the essays in the following works: Markate Daly, ed., Communitarianism: A New Public Ethics (Belmont, Calif.: Wadsworth Publishing, 1994); Stephen Mulhall and Adam Swift, eds., Liberals and Communitarians (Oxford: Blackwell, 1992); and C. F. Delaney, ed., The LiberalismCommunitarianism Debate: Liberty and Community Values (Lanham, Md.: Rowman & Littlefield, 1994). Further, see the following works by Charles Taylor: Philosophy and The Human Sciences: Philosophical Papers 2 (Cambridge: Cambridge University Press, 1985); Taylor, Sources of the Self: The Making of Modern Identity (Cambridge, Mass.: Harvard University Press, 1989); Taylor, ‘‘Cross Purposes: The Liberal-Communitarian Debate,’’ in Liberalism and the Moral Life, ed. Nancy L. Rosenblum, 159–82 (Cambridge, Mass.: Harvard University Press, 1989). See also these works by Michael J. Sandel: Liberalism and the Limits of Justice (Cambridge: Cambridge University Press, 1982); Sandel, ed., Liberalism and Its Critics (Oxford: Blackwell, 1984); Sandel, Democracy’s Discontent: America in Search of a Public Philosophy (Cambridge, Mass.: Belknap Press of Harvard University Press, 1996).

liberalism’s past and precedents

43

way.3 Yet while there are undoubtedly some shared perspectives among at least the fathers of liberalism, in our opinion they are open questions as to whether or not there is only one way to defend what is shared, or whether or not the defenses one finds are the best ones. Liberals may, for instance, traditionally hold to some distinctions that need not be accepted. An example here might be the distinction between the right and the good discussed in the last chapter. While this distinction may be a principle common to historical and contemporary liberals alike, it is one we neither endorse nor believe will serve liberalism’s interests in the long run. Second, liberalism has been saddled, as we noted in Chapter 1, with relativism, minimalism, emotivism, skepticism, atomism, universalism, and materialism—not to mention the undesirable consequences said to flow from these supposed features of liberalism, such as loss of community, loss of virtue, and the alleged incoherency or self-defeating character of liberalism’s own principles. Yet again, we are not so convinced that many of these elements are advocated by the individuals accused of promoting them—individuals such as Locke, or Hume or Smith or Hayek, or even Hobbes.4 But to try to unpack all that here with respect to each thinker or historical context would be a different sort of project from the one we are undertaking. Our forays into historical figures or contexts are mainly for the purposes of helping to illuminate our more positive theses and arguments, as we did in the last chapter. In general, we are skeptical that the elements attributed to liberalism mentioned above are necessary features of it—at least in the usual ways suggested by critics of liberalism. By the same token, although we would reject, for example, atomism as being finally applicable to liberalism or any significant historical advocate of liberalism, it does not follow that we thereby endorse all features of the classical liberal theories found in the past. We are not, as we saw in the last chapter, sympathetic to one of the theoretical perspectives that has given rise to the charge of atomism, namely ‘‘state-ofnature’’ theories, and we disagree with these theories for reasons not unlike those pressed by liberalism’s critics. In saying we side at times with critics of liberalism, we paradoxically do so by disagreeing with one of the central tenets of liberalism’s critics: namely, their view that liberalism is a philosophy of life, an ethical doctrine, 3. See, as but one example, Stephen Macedo, Liberal Virtues: Citizenship, Virtue, and Community in Liberal Constitutionalism (Oxford: Clarendon Press, 1991). 4. See Douglas J. Den Uyl and Stuart Warner, ‘‘Liberalism and Hobbes and Spinoza,’’ Studia Spinozana 3 (Fall 1987): 261–317.

44

liberalism and the political order

or a polestar for measuring community or individual well-being, however impoverished or ill-founded that philosophy may be. It is, as we conceive it, none of these things, but instead a political doctrine that grows out of rather specific social and philosophical needs and that has a limited and determinate purpose. Though we link it to a wider philosophical framework, it is not a philosophy of life. To suppose that it is—as many defenders of liberalism have themselves done—is not only to misunderstand liberalism, but to actively undermine it. In this regard, then, the undermining of liberalism is not limited to its critics! There are defenders of liberalism who believe, for example, that liberalism has a developed ethical theory, including a theory of virtue and an accompanying list of the central virtues. In many respects, simply drawing a tight connection between morality and politics becomes one of the most common and debilitating errors in conceiving liberalism—one shared by defenders and critics alike. In light of what we have said above and in the last two chapters, our view of liberalism would thus seem to be without historical precedent. The claim to be forging new territory is one that may seem either arrogant or foolish—arrogant for thinking one is so original, foolish for thinking one’s originality is sound! It does at least seem from all that has been said thus far that we do not fit neatly into the usual categories used when talking about liberalism and political theory. We have already noted how we are perfectionists in ethics, but not in politics, for example. How, then, does our neo-Aristotelian perfectionism (a term whose use we will discuss in Chapter 6) and our modern natural-rights approach to politics fit with the classical history of liberalism? It will be helpful to look at a few important individuals from the legacy of liberalism who might be similar to us in particular or important ways. Our purpose, as just stated, is to help illuminate our positive doctrine and not to do an exhaustive history. The discussion is broken down into two main parts. First, we look at the nature of liberalism generally. Second, we examine the philosophical precedents for the theory of natural negative individual rights to which we subscribe. In both cases we do so without having yet presented our positive theory, so we ask the reader’s indulgence about the sign posts we will display that point to later discussions.

The Nature of Liberalism There is, we believe, at least one historical figure who fully understood what is central to the nature of liberalism—Spinoza. Spinoza understood not

liberalism’s past and precedents

45

only that the scope of morality was wider and deeper than the scope of politics, but also that politics was not suited to the production of virtue. He understood these principles from a framework that includes a very robust ethics, that is, an ethics that does not reduce moral excellence to some form of social cooperation, as most liberal theorists do. The notion that morality transcends the political is a part of Spinoza’s political theory. We find, for example, statements like the following from the Tractatus Theologico-Politicus (hereafter TTP): ‘‘Simplicity and integrity of spirit are not inspired in men by the command of laws or by public authority, and it is quite impossible to make anyone blessed by force or legal enactments; the means required are pious and brotherly counsel, a good upbringing, and, above all, a judgment that is free and independent’’ (TTP, VII). In the Tractatus Politicus (hereafter TP), as well, Spinoza makes similar remarks: ‘‘Those who believe that a people, or men divided over public business, can be induced to live by reason’s dictate alone, are dreaming of the poets’ golden age. . . . For freedom or strength of mind is a private virtue; the virtue of a state is stability’’ (TP, I, 5–6). The theoretical basis for making the foregoing statements is found in the TTP, where we are told that the objects of human desire fall into three categories: knowledge of primary causes, control of the passions, and security and physical well-being (sano corpore). The objects of desire also seem to be ranked by Spinoza with the highest being the first mentioned, the lowest being the third. Politics is only applicable to the last category. The direct means to the first two goods, their proximate and efficient causes if you like, are contained in human nature itself; so that their attainment largely depends on our own unaided power, i.e., on the laws of human nature alone. . . . But the means to security and conservation of the body (corpus conservandum) lie mainly in things outside us. Accordingly, these goods are called gifts of fortune. . . . Still, human guidance and vigilance can do a great deal to help men live in safety and avoid injury . . . and the surest means to this end, and the means prescribed by reason and experience, is to form a society with definite laws. (TTP, III) Political life is concerned with security and physical well-being. It is not concerned with ethical matters as described in the first two goods. Keeping in mind what Spinoza calls ‘‘fortune’’ in the above passage, he tells us later in the TTP that ‘‘the happiness and peace of the man who cultivates his natural understanding depends mainly on his own inherent virtue . . . and

46

liberalism and the political order

not on the control of fortune’’ (TTP, IV). Indeed, politics seems so far removed from moral perfection that at one point Spinoza writes that ‘‘a man can be free in any kind of state; for, of course, a man is free in so far as he is guided by reason’’ ( TTP, XVI, n. 33). The foregoing attitude toward the political is illustrated as well when we come to the issue of God and religion. In chapter 4 of the TTP, Spinoza distinguishes human from divine law and tells us that each has a different aim. Divine law is the love of God, which stems neither from fear nor the ‘‘love of anything else we desire to enjoy’’ but from knowledge that is ‘‘selfvalidating and self-evident.’’ In this chapter of the TTP Spinoza is trying to show that belief in historical narratives is not necessary for our supreme good, but he is at the same time demonstrating that fears and rewards do little for that end as well. Consequently, ‘‘Actions whose only claim to goodness is the fact that they are prescribed by convention, or that they symbolize some good, can do nothing to perfect our understanding, but are simply empty forms, and no part of conduct which is the product or fruit of understanding and sound sense’’ (TTP, IV). Sacred rights, we are told in chapter 5, have nothing to do with divine law and ‘‘consequently nothing to [do with] blessedness and virtue.’’ Sacred rights are, in effect, political forms for Spinoza, so this is equivalent to saying that politics has nothing to do with virtue or moral excellence. The typical liberal procedure was not to distinguish politics from morality, but rather to define the morally good in ways consistent with liberal politics. This often had the consequence of reducing morality to versions of cooperation. Notice that Spinoza does not make this move. Matters of security and physical well-being are really not matters of substantive morality because they are so far removed from a state of moral excellence or blessedness. It is not that ‘‘peace and commodious living,’’ as Spinoza elsewhere refers to them, are unconnected to the human good. Rather, securing the conditions for their fulfillment may have little to do with qualities of character that one might associate with moral excellence. The reason is that the forms of conduct required to secure the conditions of peace—for example, refraining from injuring others or tolerating differences among nonthreatening neighbors—do not require any special forms of excellence on the part of acting agents and are thus available to any and everyone. More important, the basic conditions for peace and commodious living do not require any qualities of character at all, since they can be, for the most part, as easily fulfilled by legal coercion as by qualities of character. They also do nothing to further develop our natures as rational beings. To refrain from

liberalism’s past and precedents

47

injuring someone or to seek to be cooperative with them are valuable interpersonal modes of conduct, but they demand at most a modestly developed moral character or sentiment. Other than Spinoza, traditional liberals have, as we saw in the last chapter, followed their intellectual forefathers in the belief that political theory must concern itself with the moral character of the community. Since minimal state involvement in people’s lives was sought, the realm of morality would itself have to be minimized if there was to be a substantial congruence between morality and politics. As we also noted in Chapter 2, this emphasis upon liberty within a traditional framework of joining politics and morality provides strong tendencies in liberalism to reduce morality to rights. Rights respecting conduct, tolerance, open-mindedness, and other such ‘‘liberal virtues’’ implied by an ethic of cooperation thus came to be identified with the whole of morality.5 In the face of such pressure, the ‘‘liberal’’ (meaning one who believes the state should be restricted to protecting people’s rights) desirous of a more robust ethics must expand the realm of rights, thus allowing more state direction and guidance into the lives of citizens. The result of not distinguishing the work of morality from that of politics, as we suggest, results in what might be called the dilemma of liberalism—a tendency to either impoverish morality or trivialize rights. Ordinary defenses of liberalism do the former when they relegate moral excellence to the supererogatory. They do the latter when they inflate the language of rights to cover every conceivable human good. It is a unique feature of Spinoza’s political philosophy that he manages to avoid both the impoverishment of morality and the trivialization of rights. He does so by clearly delineating the moral from the political sphere.6 In this respect, Spinoza is a predecessor to our theory in a very significant respect and one whom we regard as getting the nature of liberalism exactly right. Some other historical figures, such as T. H. Green and Kant, would seem to bear a certain resemblance to our desire to constrain the connection between politics and morality. Both figures are also closely connected to liberalism. With Green, for example, we find an ethical theory that, like an Aristotelian one, is teleological and perfectionistic as well as interested in distinguishing the political from the moral. With respect to the ‘‘organiza5. Hobbes’s list of ‘‘natural laws’’ in Leviathan is a source of instruction in the ethics of cooperation. 6. For a much fuller elaboration on this theme, see Douglas J. Den Uyl, ‘‘Autonomous Autonomy,’’ Social Philosophy & Policy 20, no. 2 (Summer 2003): 30–69.

48

liberalism and the political order

tion’’ elements, we are told by Green, for example, that ‘‘the determination of will by reason, then, which constitutes moral freedom or autonomy, must mean its determination by an object which a person willing, in virtue of his reason, presents to himself, that object consisting in the realization of an idea of perfection in and by himself.’’ The Kantian overtones notwithstanding, there is clearly a sense of self-development and moral perfectionism in Green’s thought that easily could be connected to the tradition of flourishing we subscribe to and to virtue ethics in general. Consider: ‘‘The moral progress of mankind has no reality except as resulting in the formation of more perfect individual characters; but on the other hand every progress toward perfection on the part of the individual character presupposes some embodiment or expression of itself by the self-realising principle in what may be called . . . the organization of life.’’7 Our obligation is to organize ourselves such that we self-develop to some level of moral perfection. For Green, encouraging that development turns out to be a central purpose of the state and the rights and duties it assigns and manages. ‘‘The claim or right of the individual to have certain powers secured to him by society, and the counter-claim of society to exercise certain powers over the individual, alike rest on the fact that these powers are necessary to the fulfillment of man’s vocation as a moral being, to an effectual self-devotion to the work of developing the perfect character in himself and others.’’8 The direction of this statement is clear: in fashioning a system of rights and duties, the state is to have in mind what will contribute to the moral perfection of its members. This perspective qualifies as modern liberal politics because Green sees moral perfection as critically dependent upon freedom of choice and personal responsibility. The value then of the institutions of civil life lies in their operation as giving reality to these capacities of will and reason, and enabling them to be really exercised. In their general effect, apart from particular aberrations, they render it possible for a man to be freely determined by the idea of a possible satisfaction of himself, instead of being driven this way and that by external forces, and thus they give reality to the capacity called will: and they enable him to organize his reason, i.e., his idea of self-perfection, by acting as a mem7. T. H. Green, ‘‘The Sense of ‘Freedom’ in Morality,’’ in Lectures on the Principles of Political Obligation (Ann Arbor: University of Michigan Press, 1967), 24, 26. 8. T. H. Green, ‘‘Lectures on the Grounds of Political Obligation,’’ in Lectures on the Principles of Political Obligation, 41.

liberalism’s past and precedents

49

ber of a social organization in which each contributes to the betterbeing of all the rest.9 The institutions Green envisions are not to encourage the direct exhibition of virtuous conduct, but rather to encourage self-willed behavior that results in some form of self-satisfaction. The state would provide conditions and encouragements rather than mandate actions for the purpose of achieving some end. Indeed, the state cannot mandate moral perfection anyway, since it is critically dependent upon actions that result from fully internalized principles and not externally defined courses of action.10 According to Green’s vision, one sees a state that is little involved in telling people what to do and much more involved in providing the settings within which people would be most likely to realize their ends through independent action. Consequently, ‘‘The real function of government [is] to maintain conditions of life in which morality shall be possible, and morality consisting in the disinterested performance of self-imposed duties.’’ In this regard, Green is careful to distinguish the rights the state is to respect from morality. Unlike rights, which require the enforcement powers of the state to secure and protect them, ‘‘moral duties do not admit of being so enforced.’’11 Rights are nevertheless fashioned and justified in terms of the moral framework alluded to above. The state will never, therefore, be legitimately in the business of legislating morality, but it will be concerned to secure those conditions in which morality will flourish. Besides teleological and self-perfectionist ethics, Green’s theory appears to have other elements that are similar to our own. There is, first of all, the centrality of self-directedness to moral action. There is also the view that the state is not an appropriate vehicle for defining and directing moral action, but is instead limited to providing conditions under which such action may take place. Finally, distinguishing ‘‘rights’’ (jus naturae) from morality has a resemblance to our metanormative/normative distinction. The full nature of our own position and the reasons behind our theory are yet to follow. Still, it is instructive at this stage to note that Green’s theory is significantly different from our own despite some striking similarities. 9. Ibid., 32–33. 10. Green calls upon us to act upon ‘‘self-realising’’ principles, which in each case would be principles that ‘‘at each stage of its existence is conscious of a more perfect form of existence as possible for itself, and is moved to action by the consciousness.’’ Green, ‘‘The Sense of ‘Freedom’ in Morality,’’ in Lectures on the Principles of Political Obligation, 20. 11. Green, ‘‘Lectures on the Grounds of Political Obligation,’’ 34–44.

50

liberalism and the political order

The main difference is that in our theory the state is not to encourage the conditions for moral conduct, but rather is limited to securing those conditions that make moral conduct possible insofar as such conduct might be affected by others. Indeed, this is not the only limitation, but it is sufficient for making our point here. Securing the conditions for moral action is certainly different from attempting to secure moral action itself. By the same token, securing those conditions that make moral action possible is some distance from attempting to secure conditions that encourage moral conduct. And finally, there is a difference between conditions that may lend themselves to moral conduct and securing the conditions that make it possible for moral conduct to occur. Though it is perhaps something of an empirical matter, we might nevertheless imagine an argument that advances the proposition that without certain minimal provisions of food, health care, and education, the prospect for virtue among individuals is quite limited. Consequently, a theory that encourages the state to secure the conditions for virtue (either directly or indirectly) would seem to have to be open to making provisions for at least minimal (and why just minimal?) material goods as part of what it means to establish conditions for virtue. There may be other, less ‘‘material’’ ways to encourage virtue, such as paternalistic legislation or requirements for community service. Green’s position would in principle be open to this and has indeed been used to support such programs. By contrast, nothing in our theory, which limits the state to securing conditions for the possibility of moral action, requires any commitment to programs of this kind on the part of the state. What is possible does not of itself commit one to what is likely or even probable. We argue, in fact, that it is not the function of the state either to secure morality directly or to secure conditions likely to lead to improved moral conduct. We argue for this not out of an indifference to the promotion of virtue, but because we believe a concern for the value of morality requires it. In this respect we are like Green. It is the case that in some way political theory must ground itself in a broader moral or ethical framework to have any hope of providing an answer to questions of legitimacy. But it does not follow that a concern for the placement of political theory within the broad purview of ethics, or the idea that virtue is of importance and consequence, requires any commitment to its promotion by, or organizing role in, a political system. That obtaining some set of conditions C makes some other set of conditions P possible is not at all the same as saying that C functions to produce P or that C ought to function to produce P. Even if we expect

liberalism’s past and precedents

51

C to produce P more often than not, it does not follow that C functions to produce P as a sufficient condition for P. And obviously, if C is a necessary condition, then there may be other necessary conditions. Even if C is the only necessary condition, it does not follow that C functions to produce P, since it may also be a necessary condition for Q. We must be careful, then, to avoid the fallacy of believing that a concern for virtue is a political program. In saying these things, it would seem that our position has some marked similarities to Kant’s. Kant tells us, for example, that in organizing people according to universal laws to secure survival, the constitution must be such as to produce peace. In doing this, he writes: For such a task does not involve the moral improvement of man; it only means finding out how the mechanism of nature can be applied to men in such a manner that the antagonism of their hostile attitudes will make them compel one another to submit to coercive laws, thereby producing a condition of peace within which the laws can be enforced. . . . We cannot expect their moral attitudes to produce a good political constitution; on the contrary, it is only through the latter that people can be expected to attain a good level of moral culture.12 Kant is suggesting here that politics does not ignore morality completely, but nevertheless makes no attempt to encourage it. Instead, it provides a kind of foundation from which morality might flourish, but which is not itself directly productive of such conduct.13 H. S. Reiss, the editor of the Cambridge edition of Kant: Political Writings, puts the matter this way: Republicanism at home and abroad does not make men better— that would require a new creation. It merely brings about a state of affairs in which it will, in the end, be easier to perform moral actions because they come less and less into conflict with the law or government actions. The Kantian republic respects the liberty 12. Immanuel Kant, ‘‘Perpetual Peace,’’ in Kant’s Political Writings, ed. H. S. Reiss (Cambridge: Cambridge University Press, 1997), 113. 13. This can be argued to be a somewhat strained reading. Before the passage cited, Kant gives us a reason to think of the state as a kind of surrogate for morality—that it does what morality would do if people could be trusted to act from moral motives, but since they cannot we rely on this mechanism of the state to act in their stead. We are focusing here on an interpretation that is most like ours in order to highlight any differences.

52

liberalism and the political order

. . . that is essential to moral activity. . . . Or, in other words, the right political conditions are necessary in order to create an ethical community in which all men will act morally, and in which the highest good can accordingly be realized, or rather approximated to.14 Indeed, just before this passage, the editor notes that for Kant ‘‘morality is essentially and exclusively a personal matter. . . . Politics ought therefore to be concerned with developing a legal framework which will allow individuals to lead a moral life and thus be true to their own humanity.’’15 Although we are not convinced that Kant’s writings support interpreting his political theory as exclusively concerned with creating the political conditions for moral activity, as opposed to fostering moral activity itself, we shall take it as accurate for our purposes here. Doing so makes the perspective attributed to Kant look much like our own. But even granting this reading of Kant, there are nonetheless some significant differences between his theory and ours. The first is the Aristotelian versus Kantian foundations of the two approaches. While the full scope of that difference cannot be explored in a few paragraphs in this chapter, perhaps a broader sense of the differences will emerge as our argument develops. In any case, what we can note here is that the purposes of the two approaches are quite different, even if some conclusions look the same. Kant, as described above, wants to establish the framework for morality, because he has to settle for less due to the defects of human nature. If it were possible to legislate for the moral order, Kant would do so; but because it is not, he settles for the peaceful order instead. Politics cannot wait for a time when people recognize the moral propriety of peace and mutual respect, so it develops a surrogate that does not depend on moral action but is consistent with it should one ever be so motivated. For us, by contrast, the exclusive concern of politics with securing the conditions for the possibility of moral activity is not due to pessimism about human beings or human nature, nor is it a settling for less. Our view is rather that the nature of politics and the nature of morality are such that it is not appropriate to give politics a moral mission,16 although having a 14. H. S. Reiss, quoted in Kant’s Political Writings, 259–60. Again, some of the phrases left out here may be interpreted to distance Kant from us more than we wish to consider in making our contrast here. 15. Ibid., 259. 16. In other words, there is an ethical reason based on the nature of human flourishing for why politics ought not to take up the standard tasks of normative ethics or morality: that is, take

liberalism’s past and precedents

53

moral mission may necessitate that one take an interest in politics. What is especially important here is that we take a perspective that does not require us to reject human nature at its best when making this claim about the inappropriateness of moralizing politics. That is to say, we do not believe we need to drop down from a conception of moral excellence, as Kant does, in order to construct a plausible political theory, nor do we believe we have to be idealistic about human nature. Our theory is grounded in human nature without requiring us to depend upon or ignore the possibility of human perfection. This is because, as we see it, the purpose of political theory is not to fit politics to the correct amount of human perfection, ideally or empirically understood. Rather we hold that the political problem, which we in this work term ‘‘liberalism’s problem,’’ is, by its very nature, simply not the moral one. By contrast, the problem of perfectibility just is the moral problem, and this we must say as Aristotelians. And at this moment it is important to make a logical point, the substantive underpinnings of which must be fleshed out as we go along.17 Any instance of human conduct X might be measured in terms of whether it conflicts with or contributes to morality, that is, to human selfperfection or virtue.18 It does not from this admission follow, however, that all human actions thereby have moral significance, nor does it follow that saying that X is not a moral action or principle in this sense imply that X is thereby immoral or inappropriate for human conduct. It may be that in some contexts, and under some frames of reference, some action X has the sanction of ethics, or morality broadly understood, without it representing a moral principle or moral action itself. It may be, in other words, the case that either morality is indifferent to X, or that X has little to do with ordinary moral principles or objectives (that is, human flourishing directly), and more to do with some other dimension of the moral order. At this stage the point is merely a logical one, but we develop this latter idea in the chapters that follow. Kant retains the traditional view that political philosophy is fundamentally concerned with morality normally understood.19 He up discovering what is inherently good or obligatory and determining how to go about achieving the good or performing what is right. 17. These underpinnings are first outlined in Chapter 4, but they are more extensively developed and defended in Chapters 6 and 7, and then restated in a step-by-step manner in Chapter 11. 18. This includes, we might add, the virtue of justice, which is discussed in Chapters 7 and 12. 19. Of course, Aristotle held this view also and, like Kant, may have thought of political life as a ‘‘dropping down’’ from the best sort of life. In this respect, Kant and Aristotle are more akin to each other than either is to us in saying that the political project is a moral one whose main problem is where to raise or lower the moral bar. Kant’s indirect connection between poli-

54

liberalism and the political order

moves away from or outside of morality in its name. We, by contrast, hold that politics and morality have quite different problems to solve and not that politics does more or less badly in helping to achieve moral conduct. Another significant difference between Kant’s political philosophy and ours is that Kant’s approach either exemplifies or requires a separation between the right and the good. Kant tells us, for example, that the principle of happiness (which is not in fact a definite principle at all) has ill effects in political right just as in morality, however good the intentions of those who teach it. The sovereign wants to make people happy as he thinks best, and thus becomes a despot, while the people are unwilling to give up their universal human desire to seek happiness in their own way, and thus become rebels. If they had first of all asked what is lawful (in terms of a priori certainty, which no empiricist can upset), the idea of a social contract would retain its authority undiminished.20 The end of this passage, and the passage generally, refers to the problem of obedience and peace between sovereign and citizen, or the social contract between the people and the sovereign. We need not concern ourselves with social contract theory in order to note that the passage refers to a concept of political right that is separate from and presumably prior to (in terms of taking precedence over) the good. It fits, of course, with Kant’s general ethical position that the good—what is believed to benefit one—is something quite outside that which is defining of moral right. The good also seems outside the realm of political right—giving Kant’s theory its liberal cast— since the state would not have as one of its functions securing ‘‘goods’’ for its citizens. The distinction between the right and the good is clearly one that pervades most of liberal political theory, culminating, perhaps, in Rawls’s strong endorsement of it in A Theory of Justice. One does not, therefore, need to be a Kantian to adopt the distinction, although its adoption is consistent with Kant’s thought. It is clear that for Kant, nonetheless, the distinction between the right and the good is not a distinction between the right and morality, for in a way Kantian ethics purges morality from the good and leaves it with the right. Duty is a manifestation of the right, and tics and morality is more akin to our view, although we are linked more to Aristotle in the way we conceive of morality. 20. Kant, ‘‘Theory and Practice,’’ in Kant’s Political Writings, 83.

liberalism’s past and precedents

55

whether or not it leads to one’s good is virtually immaterial to its rightness for Kant.21 It is for the last reason that Kant—paradoxically, perhaps—can never escape unifying the political and the moral, at least at the a priori level. The passages we have examined above indicate that the two would be one if only people were able to be more attentive to the requirements of duty. Since they are not, we have politics, which is a surrogate for morality in an impure empirical world. By the same token, Kant’s conception of the connection between rights and morality gives his theory a look like our own in practice, because the good for him is essentially ignored by the state. Universal principles of right guide the political, while particularistic conceptions of the good are left to individuals for their pursuit and achievement. The difference between Kant and us, then, is that we would put matters of the good squarely within the realm of the moral, because the teleological nature of Aristotelianism makes the pursuit of goods a matter of moral import. So as we have already noted, it looks as though we are vulnerable to the view that the difference between Kant’s position and ours, while real enough, is of purely academic or philosophical interest with few practical implications. Yet the last inference is a bit hasty. By allowing practices, aspirations, projects, goods, social roles, and the like into the realm of morality, our position both captures what seems true of ordinary understandings of actors in the real world and agrees with those who would argue that something is seriously wrong with a theory that fails to give moral weight to these sorts of human activities. We therefore separate ourselves strongly and significantly from Kant by treating, for example, family relationships or career aspirations as central to the meaning of moral life and thus to the meaning of what makes our actions ‘‘right.’’ At the same time, we separate ourselves from some critics of liberalism by denying that such moral matters are best thought of in connection with the political—that is, that they are either overtly or indirectly political actions. And because the political is not for us simply the collectivization of the moral, however robustly or minimally ‘‘moral’’ is understood, the infusion of morality into politics not only leads to the problem of sovereign/citizen relations referred to by Kant in the passage from which we’ve most recently quoted, but it also engenders an intellectual confusion between the two that threatens liberty and virtue alike by giving full scope to neither. 21. Kant does not, of course, say the good is unimportant to morality, just to its structure and foundations.

56

liberalism and the political order

Rawls, using the distinction between the right and the good, tries to deal with the issue of politics and morality in a different way. He most famously invokes a distinction between comprehensive liberal doctrines and ‘‘political liberalism.’’22 Comprehensive liberalisms are those defenses of liberalism that take place within larger philosophical doctrines that have something to say in general about what is valuable or best for human beings to pursue or embrace. The defense of liberalism in the comprehensive mode depends in some critical way upon the framework and values of the larger philosophical system. Kant is a comprehensive liberal, and so are we. Rawls wishes to limit himself to political liberalism, a doctrine bounded by the political alone that does not appeal to broader issues of human well-being or the good life. The main problem with comprehensive liberalism for Rawls is that it threatens his desire for a political theory that is neutral among goods. Comprehensive theories suggest that liberalism is of value because it accords with a conception of the good that the comprehensive theory favors. If this is the case, liberalism could not claim to transcend all theories of the good or to be neutral among them. It could not claim to be independent of them either, if each and every liberalism were at root derived from a comprehensive doctrine. We are not so much concerned with the neutrality issue here. Our approach is clearly not neutral between theories, nor does it claim that liberalism could be so neutral. We reject ‘‘justificatory neutralism.’’ If there is neutralism in our approach at all, it does not come because the theory transcends the good, but rather from an understanding of the nature of the good in practice. That is for later discussion.23 What concerns us here is Rawls’s implication that the distinction between the right and the good is necessary for separating the political from other domains of concern and interest such as morality, the good life, or some other sense of the nonpolitical. Critics of Rawls wish to deny a separation of the political from the nonpolitical, saying that the lines are blurry, if there are any there to be found at all.24 All modes of life have political implications and all political pro22. John Rawls, Political Liberalism (New York: Columbia University Press, 1993), xxvii and Lecture V, ‘‘The Priority of the Right and Ideas of the Good,’’ 173–211. The distinction between the right and the good in Rawls’s thought is also found in his A Theory of Justice (Cambridge, Mass.: Belknap Press of Harvard University Press, 1971), 446–52. 23. We are not completely neutral with respect to actions either, since politics does presuppose a set of ethical principles that delimit actions in some ways. We seem so neutral among actions because the scope that politics is legitimately regulating is so small. 24. For a nice discussion of one of the more important critics, Charles Taylor, see Ruth Abbey, Charles Taylor (Princeton: Princeton University Press, 2000).

liberalism’s past and precedents

57

grams favor some modes of life over others. It would seem, then, that if we try to draw a line between the political and the moral, we too are subject to the same sort of objection. We cannot fully respond to that charge here, because much is yet to be said about the distinctions we draw and the reasons for them. In general, however, we can make two responses now, one metaphysical and the other moral/theoretical. First, as Aristotelians, we are not Humeans. That means that distinctions are not necessarily separations. Because we may draw a distinction between the political and the moral does not imply that they are so separated by agents in actual conduct. A person’s actual actions may be multidimensional, having both political and moral dimensions, not to mention others. We draw the distinctions we do to help understand what sorts of responses, if any, are appropriate, and by whom. It does not follow that it makes sense to say that this aspect of the action was the political part and that aspect the moral. The meanings, motivations, and purposes of an action may be diverse, but it is still an action—an integrated unit of purposive behavior. That means that there can be distinctions about it that may not be separations. Diverse motivations may be separate things, but the aesthetic and utility qualities of an action, for example, may be distinguishable but not separable. On the less metaphysical and more directly moral side, we are Aristotelians as well. This means that for us morality neither reduces to, nor is primarily concerned with, matters of social cooperation. Consequently, even if one could show that liberal politics cannot be separated from values such as toleration, a sense of fair play, or inclusiveness, one would have, for us, gone very little distance toward the self-perfection required by an Aristotelian ethical theory. There are undoubtedly some self-perfectionist qualities in, say, tolerance, but not many, and not the most important ones. Rawls and others have problems separating the political from the nonpolitical because in the modern world values associated with social cooperation define virtually the whole of morality. It is thus difficult, if not impossible, to speak of a political theory in contradiction to or in separation from social cooperation. We are willing to admit that these values of social cooperation make it difficult to separate the political from the moral, since in many respects they are values that, given our natural sociality, allow us to look in both directions. It is mistaken, however, to assume there is no useful distinction here to be made between politics and morality. Indeed, thinking that there is no such real distinction is itself an undermining of a robust ethics by encouraging the reduction of all values to those of social cooperation. Moreover, by arguing against the distinction, critics put them-

58

liberalism and the political order

selves in a kind of intellectual dilemma: either they must deny that liberalism succeeds in making the theoretical case for the distinction because the distinction is not tenable, meaning that there never has been a successful articulation of the very doctrine they aim to criticize, or they must admit that the distinction is defining of the very nature of liberalism and thus that the distinction can hold in some respect. The latter horn would undermine the argument that the distinction is somehow structurally defective or incoherent. One would have to say instead that it is possible to draw the distinction, but misguided to fashion a political philosophy out of it or upon it. The first horn of the dilemma means that the arguments against liberalism are not actually arguments against liberalism, because liberalism cannot be articulated, since the basic defining distinction of liberalism between the political and nonpolitical is itself meaningless. But that would be a strange result, since we need the distinction, the political philosophy built from it, and the political orders trying to implement it in order to attack liberalism.25 But not only does this leave open the possibility for a new theory to come along that better articulates and defends the distinction, but it also means that liberal orders, while defective, are nevertheless not completely incoherent or self-contradictory. They could not exist if they were such. One possible way out of that dilemma is to suggest that there never have been any liberal orders, at least as conceived by theorists. There have only been political orders more or less liberal as determined by elements found in liberal theories. But if this is true, the debate is not about liberalism per se, but the value of the various approximations of it. As we noted in the previous chapter, it is the distinction between the right and the good that has seemed to allow one to distinguish the political from the nonpolitical. It is fair to say, therefore, that our overall project is to indicate that that is not necessarily so. One might distinguish the political from the nonpolitical without adhering to a distinction between the right and the good, and the distinction between the right and the good is, in our view, not necessarily supportive of doctrines like liberalism, because that distinction actually serves to undermine the necessary one for liberalism, namely, the distinction between the political and the nonpolitical. It does so, as we have seen, by encouraging the equation of politics and morality. Yet it seems clear that any discussion of the right and the good cannot fail to bring us back to Kant and remind us of how central he is to these 25. This, as we shall see in Chapter 10, is an inherent difficulty for all forms of communitarianism.

liberalism’s past and precedents

59

deliberations. For it is in many ways his conception of the inherent structure of the right that dominates the way the modern debate is conducted. Notions of universality, disinterestedness, impartiality, and impersonality are the defining features of Kant’s notion of right, as well as being central in separating the right from the good. The good for Kant is divested of much moral content and this feature of his system seems to persist in most of the post-Kantian moral projects. Since the right and the good are easily distinguished on the basis that the right is more truly an ethical perspective than the good, the question then is whether or not politics and morality can be adequately distinguished within a framework where forms of universality and impartiality are the defining features of what is to qualify as moral or ethical. We need to admit that at first glance it does seem possible to read at least Kant in such a way that the political enterprise is both concerned with the right and yet not concerned with morality. For the Kantian, politics might be better understood in terms of ‘‘metamoral’’ rules that protect the freedom of morality as such, rather than promote a particular morality or package of moral values.26 In this respect politics is suited to the protection of the conditions of moral autonomy, and if it does this much, morality proper can take place. For the first thing we have to do is to recognize and secure others as moral agents in order for moral action to take place, and that is different from attempting to secure moral action itself. Outside of the noumenal order, it would look like politics and law are the means by which to establish that metamoral framework of a community of autonomous agents necessary for functioning moral activity. Yet just as it seems that the Kantian position and our own might be converging, we actually find the greatest distance. Our discussion of Kant and Rawls and the distinction between the right and the good—whether as part of a comprehensive doctrine or no—points us to the main difference between that position and our own and why the Kantian position cannot in the end sustain the attempt to distinguish the metamoral from the moral.27 The reason is that the essence of morality for Kant is fundamen26. This case has been effectively presented to us by Corinna Delkeskamp-Hayes in a forthcoming paper, ‘‘Moralized Human Rights and the Right to Moral Autonomy.’’ 27. There is, in a sense, an easier way, which is to suggest that—exactly the opposite of Kant—we invest the good with morality and divest the right of it. This is perhaps a valuable heuristic device for understanding the difference in approach between ourselves and other Kantlike perspectives, but it also would put us in the category of endorsing the separation of the right and the good, which we are reluctant to make. Nevertheless, as will be evident momentarily and later as well, something like the right is suitable to politics, in our opinion, while not very characteristic of moral conduct.

60

liberalism and the political order

tally legislative,28 whereas for us it is fundamentally teleocentric. Kant explicitly tells us that morality is a form of law-making throughout his moral writings. It is central to the very form of ethical judgment: ‘‘we must be able to will that a maxim of our action should become a universal law— this is the general canon for all moral judgment of action.’’29 Universality, impartiality, disinterestedness, and impersonality are all (properly) features of law. If they are central to the very structure of moral judgments as well, then distinguishing the political from the moral becomes increasingly difficult in principle. Assuming that law is the form through which a political order expresses its values, there would be nothing to structurally differentiate propositions of law from those of ethics—other than empirical considerations, such as feasibility of enforcement. In principle, as Kant seems to suggest, any moral rule is conceivably a legal one as well, though many practical considerations may override its being so. Kant understood this, which is why, as we have seen, he must rely on a ‘‘second best’’ approach in distinguishing the political from the moral. Yet the endeavor to distinguish conditions of autonomy from the exercise of autonomous actions seems to us hopeless. Although it is true that we can distinguish the recognition of another as an autonomous moral agent from moral actions that might be taken with respect to that agent, the distinction in a Kantian framework is useful only in determining who falls within the moral universal and not for separating moral actions from others. Since moral actions are defined essentially by universality and its derivatives, the recognition of the other as a moral agent is simply the first step in taking actions toward that other (who must by universality be included) and not a means of separating actions. That is why Kant more plausibly resorts to a ‘‘second best’’ argument—that is, in lieu of being able to realize the inherent unity of the moral and the legislative, he adopts a political compromise. For us, by contrast, universality, impartiality, disinterestedness, and impersonalism are not central to the structure of moral propositions. The moral propositions of a teleocentric perspective are concerned with their relationship to personal flourishing. There may be generic elements that resemble the Kantian conditions of universality, but of equal or superior importance for us—given our agent-centered perspective—are the elements of a moral judgment that include the particular, the partial, the interested, and the personal. These elements are as critical to the morality of an 28. Indeed, we are to ‘‘share . . . in the making of universal law.’’ Kant, Groundwork of the Metaphysic of Morals, ed. H. J. Patton (New York: Harper, 1967), 103. 29. Ibid., 91.

liberalism’s past and precedents

61

action as any universal features that might be applicable. Of course, fleshing all this out and making it clear is something that remains for us to do in the chapters that follow. For now it is important to recognize that the structures of moral and political/legal propositions as we conceive them are different than Kant’s and these differences reflect a difference in the sort of work they are supposed to do.30 Consequently, for us it is not simply that the modality of political or legal action (coercion) is incompatible with morality, but that the ethical form of the one differs from the other. This leads to our distinction between different types of ethical principles—the normative and the metanormative—and this means that the moral and political can be distinguished more readily and that the temptation to confuse the one with the other is lessened. What we must do politically and socially is find rules that can be applied impartially across the board and without reference to particular interests or social status. What we must do morally is to find principles that can guide one to a condition of flourishing. Whether those principles are equally applicable, or applicable in the same way, to others is less the concern than identifying their potential roles in making a contribution to flourishing. Yet because we flourish in the company of others, we must find a means for reconciling these two projects, for they must take place not only together, but also within one another. The structural divergence between ordinary moral judgments and the norms appropriate to political life give rise to our distinction between normative and metanormative principles. It is the sort of distinction that is not entirely absent in the history of liberalism, but is rarely found there. Kant was not just an innovator in ethical theory, but also a man of perceptive insight into the direction and nature of moral theory before his time. The quest for universality is a distinctive mark of modern politics against the parochialism that came before it.31 Kant turns that political trend into the essence of ethical judgment, and in the process rids ethics once and for all of any Aristotelian overtones. Indeed, the depersonalization of ethics seems to accelerate after Kant, for utilitarianism does little to reverse the trend. Yet, although the universalism may have been 30. We argue in Chapter 4 that the work of the political/legal order is defined in terms of ‘‘liberalism’s problem.’’ 31. For an account of this quest from an existentialist perspective, see Jason D. Hill, Becoming a Cosmopolitan: What it Means to Be a Human Being in the New Millennium (Lanham, Md.: Rowman & Littlefield, 2000). Hill argues persuasively that cosmopolitanism is necessary to overcome tribalism, but his existentialist account of the self does not allow him to appreciate sufficiently the significance of the distinction between cosmopolitanism understood as a principle for political/legal theory and as a principle for moral theory.

62

liberalism and the political order

helpful in furthering the spread of liberalism, the lack of agent-centeredness may be a source of liberalism’s undoing, either by antiliberal doctrines hostile to the individual or by the failure hold the line on the limits to legitimate state action. We must move, then, to alternative way of looking at and defending liberalism.

Natural Rights Because of both our Aristotelianism and our liberalism, which is grounded in ‘‘Lockean’’ negative natural rights, it is important that we first consider the ways in which natural rights are an extension of the natural law tradition. This discussion will include some mention of the ways in which advocates of natural rights have failed to appreciate the connection or have directly undermined it. Since our project is largely conceptual rather than historical, we shall concentrate on principles as they apply to both sides of the issue. To sum up our conclusions on these matters here: our main problem with traditional natural law theory is its failure to understand the individual character of the good; the main problem with most modern natural rights theories is their rejection of teleological eudaimonism in ethics.32 Further, a few comments about our own position should be made before we begin this examination of these different positions. We hold that there is a contemporary account of natural end ethics that can be used to support a version of natural rights classical liberalism. This ethical view holds that phrone¯sis (or practical wisdom) is the central intellectual virtue of the flourishing or self-perfecting human life and that the human good is not monistic and simple, but plural and complex. Human flourishing cannot be achieved or maintained without paying very close attention to its individuality, but it is, at the same time, profoundly social in character. Succinctly stated, then, human flourishing is objective, inclusive, individualized, agent-relative, self-directed, and social (see Chapter 6). 32. ‘‘Teleological eudaimonism’’ holds that human flourishing is the natural end or telos of human life. It is the moral standard by which human conduct is evaluated. Humans may choose not to hold flourishing as their moral standard, but they cannot choose not to be human or have the overall potentiality for human flourishing. Accordingly, human choice or self-direction is not radically free. It is for the sake of the human good. Self-direction does not create its potentiality for human flourishing. Yet, self-direction is the central and necessary element in the actualization of this potentiality—that is, in the discovery, implementation, integration, and enjoyment of the goods that constitute human flourishing. A contemporary account of this view is explained in Douglas B. Rasmussen, ‘‘Perfectionism,’’ in Encyclopedia of Applied Ethics, vol. 3 (San Diego: Academic Press, 1997), 473–80.

liberalism’s past and precedents

63

We have argued in Liberty and Nature, and we will do so again in Chapters 4 and 11, that the foregoing conception of human flourishing generates a need for a concept of ‘‘rights’’ that has an irreducible function. Rights are for us an ethical concept, but they are different from other such concepts. Rights are not directly concerned with human flourishing, virtue, or even moral obligation as generally understood; rather they are concerned with context setting—that is, with providing guidance in creating, interpreting, evaluating, and justifying political/legal systems. The aim of rights is to solve a problem that results when one tries to establish a political/legal order that will, structurally, not require that one form of human flourishing be preferred to any other.33 In other words, rights aim to reconcile both the individualized and social characters of human flourishing. The only sorts of rights we believe do this are what are called ‘‘Lockean’’ rights—that is, rights that individuals possess that call for mutual noninterference. These are sometimes referred to as ‘‘negative’’ rights as well, since they more or less call only for restraint and not ‘‘positive’’ action on anyone’s part. We shall speak to these concepts more in later chapters, but for now it is primarily the ‘‘naturalness’’ and ‘‘individuality’’ of rights that concern us here. If natural rights are ‘‘natural,’’ then one of the questions that has preoccupied us is the extent to which the natural rights tradition is connected to the natural law tradition. On the face of it, the natural law tradition is sympathetic to Aristotelianism, but the natural rights tradition is not. By the same token, the natural law tradition seems less sympathetic to the individualized nature of the good we subscribe to, not to mention our liberal politics. What, then, might be their connection, if any? One way of seeing natural rights as not being in conflict with natural law is to assimilate the former to the latter.34 One does this by thinking of natural rights as simply principles of natural law expressed through an individual.35 An extreme version of this position is taken by legal philosopher 33. As already noted, we call this ‘‘liberalism’s problem’’ and explain in Chapter 4 and again in Chapter 11 how this problem results from the individualized, agent-relative, and social character of human flourishing. 34. Many of the remaining paragraphs of this section are taken with slight, but important, modifications from Douglas J. Den Uyl and Douglas B. Rasmussen, ‘‘Ethical Individualism, Natural Law, and the Primacy of Natural Rights,’’ Social Philosophy & Policy 18 (Winter 2001): 34–69. 35. As we note elsewhere, even individuality is in doubt here. Rommen speaks of the importance of ‘‘personality’’ in natural law, but personality is itself a kind of generic category of ends to which individuals must adhere. There is little that is genuinely individual about it. Heinrich A. Rommen, The Natural Law: A Study in Legal and Social History and Philosophy (Indianapolis: Liberty Fund, 1998), 206.

64

liberalism and the political order

Heinrich Rommen. In his account, rights are conflated with what is right such that rights are ‘‘the sphere of right that is ‘given’ with the nature of a person.’’36 We see how this is expressed when Rommen favorably cites Thomas P. Neill’s view that each natural right is ‘‘founded on a corresponding duty on the part of its possessor. The right to freedom of religion, for example, is based on the duty to worship God, just as the right to work is based on the duty of self-preservation and self-perfection.’’37 We have, then, only rights to that which we are duty-bound to pursue. On this view, rights do little more here than reiterate the notion that obligations are held by individuals. No new substantive work is done by this concept of ‘‘rights.’’ Natural law views that give more status to the concept of rights, such as those of philosophers John Finnis and Henry B. Veatch, also have a similar problem in the end. In Finnis’s account, rights are ways of expressing principles of justice. For him, the natural law tradition is incomplete without the language of rights, because the language of rights is a more precise linguistic tool for discriminating obligations of justice than is the language of traditional natural law.38 It is not clear, however, why the language of duties could not be adapted to do the same work, however much rights-talk has evolved as the preferred mode of discourse. Perhaps the argument is that to speak of someone’s rights (or what they have a right to in a certain situation) is more economical than alternative modes of expression. It is, in other words, a good deal easier to say that Mary has a right to X than to spell out the extent and scope of her duties. But this sort of account leads one to suspect that the substantive moral work is being done by the principles of justice, with rights serving as merely a way of conveying a meaning determined elsewhere. Our suspicions are supported by the following: ‘‘But when we come to explain the requirements of justice, which we do by referring to the needs of the common good at its various levels, then we find that there is reason for treating the concept of duty, obligation, or moral requirement as having a more strategic explanatory role than the concept of rights.’’39 Rights are important, according to Finnis, because the individual is the one who benefits from and acts in accord with the obligations implied by rights. Although this point does correctly note the necessary connection between rights and individuals, it fails to identify the nature or significance of that connection. For Finnis, individuals are vehicles for 36. 37. 38. 39.

Ibid. Ibid., 216. John Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980), 205ff. Ibid., 210.

liberalism’s past and precedents

65

translating obligations into practice, but are not significant in defining the nature of the obligations themselves. Moreover, what Finnis says about individuals with respect to obligations is said in the same way that he discusses individuals with respect to duties or benefits, thereby marking out no new conceptual territory for rights other than, again, advantages gained through an economy of language. The idea that individualism is somehow morally central to the very nature of rights is not present here. Consequently, Finnis’s position with respect to rights is an assimilationist position; he simply sees natural rights as an extension of natural law. The assimilationist position is also advanced in the theory of rights put forward by Henry B. Veatch.40 In an effort to avoid having to ground rights on interest-based theories or deontological considerations41—ethical frameworks that he (rightly) rejects—Veatch has posed a novel ‘‘third way’’ of grounding natural rights. In his account, natural rights are not derivative of natural duties we owe to others, nor are they the results either of social contracts or of interests manifested through either calculations of personal or social advantage. Instead, natural rights are derived from duties one naturally owes to oneself.42 The argument runs something like this: since we all by nature have an obligation or duty of self-perfection (given by an Aristotelian ethic), each of us is bound by nature to fulfill that obligation. To prevent or interfere with a person’s efforts to fulfill his natural obligation deprives the person of what he and others recognize he ought to do (and so for each of us). Therefore, our duty to self-perfection generates the right not to have the pursuit of our end impeded. We believe that two important features of this argument should be accepted. First, the conclusion is true. No one has the right to interfere with another’s pursuit of self-perfection. Second, Veatch’s third way is the correct one in the following senses: (1) it appeals to self-perfection rather than to interest or formal deontic duties;43 (2) it understands self-perfection in such a way that an individual’s own pursuit of it is at least of structurally 40. Henry B. Veatch, Human Rights: Fact or Fancy? (Baton Rouge: Louisiana State University Press, 1985), 160–96. The following paragraphs criticizing Veatch’s theory are adapted from material in Douglas B. Rasmussen and Douglas J. Den Uyl, Liberty and Nature: An Aristotelian Defense of Liberal Order (La Salle, Ill.: Open Court, 1991), chap. 3, and in Douglas J. Den Uyl, The Virtue of Prudence (New York: Peter Lang, 1991), chap. 9. 41. A deontological theory is any theory in normative ethics that holds ‘‘duty’’ and ‘‘right’’ to be basic and defines the morally good in terms of them. Such theories attempt to determine obligations apart from a consideration of what promotes or expresses the good. For Kantians, this is accomplished primarily by a universalizability test. 42. Veatch, Human Rights: Fact or Fancy? 160–66. 43. See note 41.

66

liberalism and the political order

equivalent value to anyone else’s pursuit of it; and (3) the argument provides a naturalistic and morally informed basis for saying that whatever rights exist will be universalized across all individuals. Nevertheless, some problems arise from Veatch’s basic failure to distinguish a right from what is right. In our summary of Veatch’s argument, for example, it is evident that one possesses the right to freedom from interference only so long as one is pursuing one’s self-perfection. Suppose, however, that one is not doing this; suppose an individual’s self-perfection lies in writing philosophical treatises, but he is instead pursuing a life of sloth, hedonism, or simply sport. Do others have the right to interfere with this person’s path of degradation? We think not. But there is nothing in Veatch’s argument that gives one the right to deviate from the path of virtue. Veatch’s argument, of course, does not say someone else would have the right to interfere with this person either; but if they do not interfere, it cannot be because they would be violating this person’s rights. Veatch has correctly seen that having a right is connected to liberty. Yet he has failed to see that having a right has a broader extension than doing (or being in pursuit of) what is right. Our rights are not based upon any actual pursuit or achievement of what is right, but upon the need for a social/political context that protects the possibility for such pursuit or achievement. Let us label the failure to clearly distinguish having a right from doing what is right— which we have witnessed with Rommen and Finnis as well—the ‘‘moralist fallacy.’’ But suppose we ignore the moralist fallacy for a moment. It still seems to us that Veatch’s argument would, in any case, contain a non sequitur. If an individual has a duty of self-perfection, why are others duty-bound to refrain from interfering with her pursuit of it? Granted, if they interfere, the individual will be prevented from doing something she is obligated to do—indeed, something that others recognize that she is obligated to do. However, saying this is some distance away from saying that others are thereby obligated themselves not to interfere, for the individual’s obligation does not necessarily give others a reason to refrain from interference. Something is surely missing, then, from Veatch’s argument. One approach to this problem might be to claim that by preventing you from achieving your selfperfection, an individual is doing something that prevents her from achieving her own. However, this is neither always nor necessarily the case, for what is good for one person is not necessarily good for another. Moreover, to use the situation described above, an individual who prevents you from degrading yourself may actually enhance her own self-perfection, since she

liberalism’s past and precedents

67

has contributed something to another’s well-being, which may in turn reflect upon her own virtuous character. She surely can keep you from degrading yourself by violating your rights. Therefore, unless one can show without begging the question that a violation of another’s rights is always a denial of one’s own obligation to self-perfection, this attempt to solve the problem will not work. It would also seem to follow from Veatch’s theory that if I prevent or interfere with my own achievement of self-perfection (for example, by willfully turning away from the good), then it would be the case that I have violated my own rights. According to Veatch’s theory, rights are generated out of the pursuit of an obligation, and an interference with such a pursuit constitutes a rights violation. Veatch draws no distinction based on who is doing the interfering; Rommen and Finnis fail to do so as well. Surely, however, while it can be said that someone may have rights and either exercise them or fail to exercise them, it is absurd to speak of someone violating his own rights. What is correct, of course, is to say that that someone has failed in his obligations.44 Unlike ‘‘obligations’’ (at least as understood under natural law ethics), ‘‘rights’’ is a relational concept whose applicability applies only with respect to other persons. It should be evident by now that Veatch’s argument fails because he, like Rommen and Finnis, assumes that the duty expressed by a right is similar in nature to other moral duties that one might have, however more or less important some of those duties might be in relation to others. In other words, he believes in duties to self and that there is an objective right, but he does not believe that individual human beings have rights in any irreducible sense. In fact, Veatch is quite explicit about this, writing that ‘‘on a natural law theory of ethics . . . a person’s rights are strictly conditioned upon that individual’s life, liberty, and property being the necessary means of his living wisely and responsibly and of his becoming and being the person that a human being ought to be.’’45 Regarding the individual who engages in nonperfecting conduct, Veatch states: ‘‘The actions that he takes and the conduct that he pursues are then no longer right at all; nor can his natural rights to life, liberty, and property be said to entitle him so to live in the way he has foolishly and unwisely chosen to do. In other words, that one should abuse one’s rights [that is, engage in nonperfecting conduct] must not itself be taken to be right, or 44. According to natural law ethics, one can have an obligation to oneself. 45. Veatch, Human Rights: Fact or Fancy? 205.

68

liberalism and the political order

even one’s right in any strict sense.’’46 Clearly, then, when Veatch speaks of a person’s right to doing X, this is but a shorthand for saying two other things. First, Veatch means that it is right that the person does X, or that doing X is necessary to something else that is itself right for the person to do. Second, he means that it is by virtue of the rightness of doing X, or of doing X being the means necessary to something else that is itself right, that others (somehow) have the duty not to interfere with a person’s doing X. The concept of natural rights on Veatch’s account really is, then, superfluous; the only concepts his account needs are those of what is right and of the duty of persons to do what is right. In the end, what Veatch’s third way really establishes is that the recognition of our own obligation to self-perfection is coupled with a recognition that others have an obligation to their own self-perfection, and that the obligation takes very different forms in very different people. Therefore, when we attempt to consider the matter from a social perspective, we need to set aside how we are different and find the common critical element that runs through all pursuits of self-perfection. This is why we said above that Veatch’s argument is correct to the extent that it establishes the appropriate model of universalization. But if one goes further, as Veatch does, and conflates rights with what is right, not only does one leave the concept of rights with no work to do that cannot by done by duty or obligation, but, more important, pluralism and individualism are thereby threatened. The more closely that rights are identified with what is right, the more likely it is that a particular form of self-perfection will be structurally incorporated into the principles of rights to the prejudice of other forms. Furthermore, if one does not want one’s principles of rights to be vacuous, some answer to the question of what is right must be given. Yet in a social context where all individuals must be addressed, this answer must always be put in universal form—and it is precisely this universal form that is so problematic, even contradictory, to the individualized nature of any positive account of selfperfection. The issue, then, is not only finding some work for the concept of natural rights to do, but also finding a role for the individual as something more than a mere repository of interchangeable obligations, an issue to which we will return later. In any case, as a strategy for claiming that there is compatibility between the natural law and natural rights traditions, the assimilationist approaches of Rommen, Finnis, and Veatch succeed by effectively 46. Ibid.

liberalism’s past and precedents

69

removing natural rights. Since this seems to be no solution, we must be mindful of the possibility that our own position does the reverse—namely, that it effectively removes the natural law position by assimilating it into a natural rights position. This possibility raises the question of whether or not the two traditions can be distinct without being antithetical in some fundamental way. The recent work of both philosopher Fred D. Miller Jr. and intellectual historian Brian Tierney might be considered as efforts to indicate how the two traditions might be compatible yet still distinct.47 For our purposes, Tierney’s work is more relevant here, since he deals with the late medieval and early modern period when natural rights began to evolve from natural law. We must first note that much of Tierney’s discussion is devoted to showing that natural rights (also called ‘‘subjective’’ or ‘‘individual’’ rights) were developed in conjunction with traditional natural law teaching. This thesis counters the view that natural rights are strictly the invention of modern political theory or of nominalism. However interesting this thesis may be, it shows historical coincidence rather than doctrinal consistency. That two doctrines developed together over time does not imply consistency between them. Joint development may even represent a split or tension within a school of thought or an ambiguity about the nature of a certain concept. Does Tierney’s account provide us with a more philosophical understanding of the compatibility between natural law and natural rights? To answer this question, we must distinguish between two doctrines not being incompatible and two doctrines being compatible. Two doctrines are not incompatible when there is no ostensible contradiction between them. In discussing Ockham and Aquinas, for example, Tierney notes that Ockham’s doctrine of subjective rights does not directly contradict Aquinas’s doctrine of natural law.48 However, this does not mean that there is any structural or other significant relationship between the two doctrines. Presumably, if two doctrines are compatible, then they work together in some direct way or share some central principle or principles. The best argument we see Tierney making for why natural law is compatible with natural rights might be called the ‘‘moral capacity solution.’’ Tierney mentions it in connection with Christian Wolff—an eighteenth-century philosopher who followed Leibniz but incorporated Aquinas into his thought as well: ‘‘Natural law, 47. Fred D. Miller Jr., Nature, Justice, and Rights in Aristotle’s ‘‘Politics’’ (Oxford: Clarendon Press, 1995); Brian Tierney, The Idea of Natural Rights: Studies on Natural Rights, Natural Law, and Church Law (Atlanta, Ga.: Scholar’s Press, 1997). 48. Tierney, Idea of Natural Rights, 286.

70

liberalism and the political order

law inherent in the rational nature of man, obliges each person to seek selfperfection. But the fulfillment of moral obligation requires a certain freedom of action; and Wolff declared, ‘This faculty or moral power of acting is called a right (ius).’ Carrying the argument further, Wolff explained that ‘What the law of nature obliges to as an end, ius gives us as a means.’ ’’49 Natural rights, then, refer to those spheres of freedom that individuals must have in order to fulfill their moral obligations. The spheres of freedom of action are distinct from the principle upon which action is based—that is, the obligation to seek human flourishing—so there is a distinction between natural rights and natural law. Yet, in this account, natural rights and natural law are dependent upon each other and hence function in necessary relation to each other. In addition, both can be called ‘‘natural’’ because the foundations of the moral principles are derived from man’s nature, or because it is within the very nature of the meaning of moral action to include both elements.50 Either way, compatibility is achieved. The problem with the moral capacity argument is that it is not clear why we need to designate a special term (that is, ‘‘natural rights’’) for the spheres of free action. These could easily be subsumed under what we mean by moral obligation itself. There are perhaps practical reasons for distinguishing between moral obligation and the spheres of free action. But why are the spheres of action anything other than the scope of the applicability of the moral obligation, and if they are just that, why not consider them as part of what we mean by the obligation? Moreover, the spheres of free action seem delimited by the obligation, rather than the reverse; hence, the significant work here is done by moral obligation, not the spheres of free action. It seems, then, that the moral capacity argument does not truly give an independent role to the realm of natural rights. It might be argued, however, that what would really make rights distinctive is how they determine obligations by delimiting spheres of freedom. Consequently, although the moral capacity argument is superior to the assimilationist position, it is still unclear if it can ultimately preserve an independent role for both natural law and natural rights. Thus, it may, in the end, simply be a modified form of assimilationism. Given that Tierney’s position ends up looking assimilationist, we are still left with the problem of understanding how natural law and natural rights 49. Ibid., 51. Christian Wolff, Institutiones juris naturae et gentium, ed. M. Thommann, in Gesammelte Werke, 36 vols. (Hildesheim, Germany: Olms, 1968–83), 26:1.1.46, 24. 50. We mean these could be alternative meanings in general, not within Christian Wolff’s doctrine.

liberalism’s past and precedents

71

can be distinct yet compatible. There is another account that attempts to do this. In this account, that natural rights perspective ‘‘accents’’ certain features of the natural law tradition. This process of accenting gives the natural rights approach a rather different look than that of the natural law approach, but the roots of natural rights can still be traced back to natural law. One exponent of this position is A. P. d’Entre`ves. He argues that although the natural rights perspective is quite different from that of natural law, its basic elements are to be found in the natural law tradition.51 For d’Entre`ves the natural rights tradition is characterized by rationalism, individualism, and radicalism (radicalism referring to political and social reform). The importance of reason and the basic worth of the individual, ideas found in the natural law tradition, are thus accented in the natural rights tradition and transformed to radicalism by a move from what is right to what the individual has a right to—in d’Entre`ves’ terms, a move from ‘‘objective’’ right to ‘‘subjective’’ right. Though it is less than fully clear in the thought of d’Entre`ves, the move from objective to subjective right that brings about the radicalism may itself be the result of an increased emphasis upon the individual. In any case, as this emphasis came to pass, the primacy of reason and the importance of the individual were central to traditional natural law, but what was done with such ideas was not. There was nothing new in the notion that man is born free and equal to all other men; in the idea of an original state of nature; in the quest for an explanation of the change which had come about with the rise of social and political institutions. It is only a shifting of accent on these commonplaces of natural law theory which can explain why all of a sudden we are faced with a doctrine which purposely sets out to construe civil society as the result of a deliberate act of will on the part of its components. The shifting of accent is the same that we have analyzed in the transformation of natural law into a purely rational and secular principle. The accent is now on the individual.52 Apart from confirming our interpretation of d’Entre`ves’ argument, this passage raises the issue of where to draw the line between an ‘‘accent’’ and a change of principle or doctrine. Is social contract theory just the result of 51. A. P. d’Entre`ves, Natural Law (London: Hutchinson University Library, 1970), especially chap. 4. 52. Ibid., 58.

72

liberalism and the political order

giving more attention to the centrality of the individual, or does it represent a significant shift away from something fundamental to the natural law tradition? In part, the answer to this question comes from how one interprets what is central in the traditional natural law approach. Perhaps in light of contemporary communitarian critiques of liberal individualism,53 d’Entre`ves’ claim seems somewhat incredible. Whatever other complaints might exist about natural law theory, no one has ever accused it of lacking a sense of community or of being atomistic. Yet, the individualism connected to the natural rights tradition has certainly called forth such criticism. It also seems probable that the early exponents of natural rights would not have conceived of their project as one of accenting parts of the natural law tradition. Before we get too carried away with this line of criticism, it should be noted that such new natural law theorists as John Finnis, Germain Grisez, and Robert George, aspects of whose work we examine in Chapter 8, provide the very accents d’Entre`ves describes as being present in natural rights theory. For these theorists, the individual is said to be squarely at the center of natural law theory. Moreover, if we consider the uses to which natural law theory is put against certain contemporary trends and practices, it seems that social reform is part of the theory as well.54 Finally, reason is also central to the new natural law theories; they actively criticize contemporary forms of reasoning for having too much of a secular thrust. Natural rights, therefore, insofar as they are legitimate at all, would be a way of accenting what is already in the natural law perspective. On the surface, then, d’Entre`ves appears to have a case when we look at contemporary theory: natural law and natural rights seem to be distinct, yet compatible. It is our position, however, that there are more significant differences between natural law and natural rights than d’Entre`ves’ position indicates. In some cases, most notably with respect to individualism, the natural rights position is different from—and superior to—the natural law approach in substantive ways. This is not a matter of accent, but of alteration. In offering an alternative to the natural law tradition, however, the natural rights approach may have lost sight of what was valuable in that tradition. Here we believe d’Entre`ves has an important insight to offer. He cites the following from the twentieth-century Aristotelian philosopher 53. See notes 1 and 2. 54. This again depends on how one looks at the individual. There would seem to be some question as to whether or not the social criticism of the new natural law theorists is done in the name of individual freedom as classical natural rights criticism was.

liberalism’s past and precedents

73

John Wild: ‘‘All genuine natural law philosophy . . . must be unreservedly ontological in character. It must be concerned with the nature of existence in general, for it is only in the light of such basic analysis that the moral structure of human life can be more clearly understood.’’55 In addition, d’Entre`ves cites Rommen in the same connection. ‘‘The idea of natural law obtains general acceptance only in the periods where metaphysics, queen of the sciences, is dominant. It recedes or suffers an eclipse, on the other hand, when being . . . and oughtness, morality and law, are separated, when the essence of things and their ontological order are viewed as unknowable.’’56 These basic insights are ones with which we are in accord. Early natural rights theorists provided a more broadly based ontological and metaphysical framework from which to understand natural rights, and in this way connected themselves to the natural law tradition described in the foregoing passages. Recall the opening parts of Hobbes’s Leviathan, Locke’s First Treatise, or Rousseau’s Discourses. At least with respect to philosophical anthropology, the study of what it is to be human, the concept of ‘‘nature’’ remains in both the natural law and early natural rights perspectives. That is to say, in these perspectives one’s theory about nature, or human nature in particular, is central and significant to the moral and political positions taken by adherents to these doctrines. A few pages after the passages quoted above, d’Entre`ves criticizes the natural law tradition for being too ontological, which is to say, for being too objective and thus closing itself off to the ‘‘subjective’’ orientation of the natural rights approach.57 However, d’Entre`ves fails to ask and answer the basic questions—namely, whether or not the ontology that the natural rights advocates do provide is in any significant way similar to what is found in traditional natural law, and, if not, if that ontology of the natural rights tradition has something significant to say about why the natural rights tradition is different. There is another question as well: whether or not the sort of ontology found in the natural law tradition could be adapted to the natural rights approach. We cannot engage here in a lengthy discussion of the first two questions. It seems, however, somewhat safe to say that the teleological perspective of classical natural law metaphysics was something that was not a part of the philosophical anthropology of the early modern era. Indeed, it is likely that 55. John Wild, Plato’s Modern Enemies and the Theory of Natural Law (Chicago: University of Chicago Press, 1953), 172, quoted in d’Entre`ves, Natural Law, 152. 56. d’Entre`ves, Natural Law, 152. 57. Ibid., 157ff.

74

liberalism and the political order

these early moderns were looking for a metaphysical framework that accorded with what they took to be the demands of modern science and realism in political theory—something that classical metaphysical doctrines did not do. Indeed, it is not implausible to argue that theories of natural rights may have looked the way they did precisely because of these selfconscious endeavors to deviate from the classical metaphysical tradition. For us, however, the question is the opposite: Can a theory of natural rights get a foothold within a metaphysical perspective that is more akin to the classical teleological eudaimonistic one? In essence, what we are attempting to do here, and have attempted to do in Liberty and Nature as well, is to draw this connection. We agree with those who argue that a wider metaphysical perspective is ultimately necessary for any complete account of rights in a political theory. This desire for the wider perspective runs counter to the attitudes of most political theorists today, at least in philosophy, but again the matter is too extensive for treatment here. At best we can provide a small indication of how natural rights might retain some of the key elements of the classical teleological perspective. The problem with d’Entre`ves’ argument as it stands is that it is not clear why the movement from objective right to subjective right was a good one. The best we can make out is that a shift has taken place and that a theory would be somehow out of step not to take account of this shift. It is possible, too, that the natural rights position gives the individual more pride of place than traditional natural law theory does, and that d’Entre`ves believes that this is a good thing. We would concur with this as well, but other than sentiment about the value of individuals, it is not obvious what is so valuable about the ‘‘subjective’’ emphasis. Furthermore, in light of communitarian criticisms of atomism in modern political and social theory, some might even argue that the turn toward the ‘‘subjective’’ was for the worse! D’Entre`ves comes out of a post–World War II environment where collectivist doctrines abounded and where individuality seemed especially vulnerable. Today, some critics claim we are awash in individualism to our detriment. Our position, then, is relatively simple, and one we have stated earlier. We wish to take basically a classical teleological eudaimonistic approach to ethics and a more or less Aristotelian realist approach to metaphysics and epistemology, and use these as a foundation for a modern-looking political theory; that is, one that emphasizes the liberty of the individual. With respect to the particulars of this chapter, our claim is that the natural law

liberalism’s past and precedents

75

approach as we find it today is not sufficiently attentive to the individual and thus we prefer the natural rights approach. However, the natural law tradition, by emphasizing the teleological eudaimonistic framework, is closer than are other ethical frameworks to having the correct foundation for natural rights. Thus, although we would not go so far as to say the two traditions are opposed, we see real differences that go beyond mere accenting. We are then ‘‘Lockean’’ in our conception of rights and use a neo-Aristotelian base of support for that position. It is perhaps arguable how Aristotelian Locke may be in his metaphysical, epistemological, and ethical theories. The degree to which he is or is not is the degree to which we would converge or diverge from him in these areas. We are, however, clearly in accord with the negative natural rights he advocates and that undergird a liberal political order. In a way, then, we are seeking to reconcile the traditions of natural rights and natural law about which we have been speaking. They seem to possess some irreconcilable tendencies, if history is our guide. We begin now, however, to make the case for their reconciliation by drawing heavily from both traditions.

Chapter Four why individual rights? rights as metanormative principles

thomas more: The law is not a ‘‘light’’ for you or any man to see by; the law is not an instrument of any kind. The law is a causeway upon which, so long as he keeps to it, a citizen may walk safely. —robert bolt, a man for all seasons

The language of rights is the language of liberalism, and liberals, as we shall see, should not abandon that language. Moreover, as we have claimed and will develop here and in later chapters, the tradition and language of individual natural rights is our own context as well. Individual natural rights, then, are a historical legacy we do not wish to abandon. Consequently, the primary task of this chapter is to present the general features of our argument for such rights. First, we will explain what is involved in the assertion that individuals have a basic, negative, moral right to liberty. Second, we will note the central problem this claim faces. Third, we will take up the challenge of providing an argument for this basic right—which, in effect, will show why it is a natural right. This chapter presents, however, only the contours of our argument. In Part III, we will return in Chapter 11 to the issue of individual rights and develop some of the components of our argument in greater detail, and in Chapter 12 we will respond to objections to our argument.

The Basic Right to Liberty Let us consider the assertion that individuals have a basic, negative, moral right to liberty—an assertion that is traditional with liberalism. ‘‘Right’’ is

why individual rights?

77

used here to refer to a claim or entitlement that individuals have for how others will treat them. ‘‘Moral’’ means that this treatment ought to exist but not necessarily that it does exist. ‘‘Negative’’ refers to the type of treatment that others owe individuals—that is, they may not use individuals without their consent. Specifically, persons are prohibited from initiating, or threatening to initiate, physical force in any and all of its forms against other persons. This right is considered basic in the sense that it is not founded on any other right and is the source for other, derivative rights— for example, contractual rights. An individual’s right to liberty is also understood to entail two corollary rights: the right to life and the right to private property. The former is the right to live one’s life according to one’s own choices, not to be physically compelled or threatened. The latter right is discussed in the next chapter. So understood, these rights imply that the lives and resources as well as conduct of individuals may not be used or directed to purposes to which they have not consented. They apply to every human person, but they also require a legal system for their actual implementation. The most important and perhaps controversial feature about individual rights is that they override or ‘‘trump’’ all other moral claims. If individuals have a right to liberty, then they may not be physically compelled or coerced to take actions that may otherwise be morally worthwhile. This means that individuals may not be compelled or coerced to engage in actions that, for example, constitute virtuous behavior, or fulfill their moral obligations to others, or achieve the political common good, or promote the greatest good for the greatest number. Further, individuals may not be coercively prohibited from doing what is morally wrong. People ought to be free to choose the morally wrong course of action. Physical compulsion and coercion—the boundaries of which are determined by individual rights—may be used ultimately only in defense against, or in response to, the exercise of physical force or coercion. This is generally understood to include extortion, fraud, and any other form of nonconsensual use of persons and their property. The central problem faced by any advocate of individual rights is how to justify giving the right to liberty such fundamental importance. Why is the right to liberty more important than being virtuous, fulfilling our obligations to others, achieving the political common good, or promoting the greatest good for the greatest number? Any argument on behalf of individual rights must answer these questions if it is to succeed.

78

liberalism and the political order

Rights as Metanormative Principles Individual rights are a unique ethical concept that cannot be reduced to other ethical concepts; hence the basic character of individual rights cannot be grasped if ethics is understood in an equinormative manner, that is, if all ethical norms are understood as being of the same type or having the same function. Individual rights are an ethical concept different from those concepts generally found in normative ethics. They are not needed in order to know the nature of human flourishing or virtue, or our obligations to others, or even the requirements of justice. Nor are they more heavily weighted versions of these other norms. Rather, individual rights are needed to solve a problem that is uniquely social, political, and legal. We call the problem ‘‘liberalism’s problem,’’1 and it can be stated as follows: How do we allow for the possibility that individuals might flourish in different ways (in different communities and cultures) without creating inherent moral conflict in the overall structure of the social/political context—that is, in the structure that is provided by the political/legal order? How do we find a political/legal order that will in principle not require that the human flourishing of any person or group be given structural preference over others? How do we protect the possibility that each may flourish while at the same time provide principles that regulate the conduct of all?2 An individual’s right to liberty is crucial to the resolution of liberalism’s problem. By protecting liberty, the possibility of agency or of self-direction, which is central to any and every form of human flourishing, is socially preserved. The moral propriety of individualism and the need for sociality are reconciled. An individual’s right to liberty is thus not in essence a normative principle. Rather, it is a metanormative principle. In other words, it is concerned with the creation, interpretation, and justification of a political/legal context in which the possibility of the pursuit of flourishing is secured. The rationale behind an individual’s right to liberty is the search for a political/legal backdrop that will allow both the individual and the interper1. We call it ‘‘liberalism’s problem’’ because liberalism has been, by and large, the only political tradition to appreciate the fundamentality and importance of this problem. But as we have indicated already, the liberal tradition has not always done so coherently. 2. Another (and from our perspective, defective) attempt to answer these questions is offered by Steven Wall in his Liberalism, Perfectionism, and Restraint (Cambridge: Cambridge University Press, 1998). See Elaine Sternberg’s critical review in Philosophical Books 40, no. 4 (October 1999): 273–75.

why individual rights?

79

sonal character of the moral life not to be in structural conflict. The legitimacy of this metanormative conception of individual rights, as well as the argument for it, depends on human flourishing being (1) objective but highly individualized (and thus plural); (2) profoundly social; and (3) selfdirected. This largely Aristotelian conception of the human good is crucial to understanding both the moral force and the limits of individual rights.

Human Flourishing—Objective but Plural Despite what many contemporary thinkers believe, human flourishing is not merely conventional.3 Rather, our nature as human beings reveals a cluster of generic goods that we need to have fulfilled in order to flourish. These goods constitute human flourishing generally understood. Among these are sociability, knowledge, leisure, aesthetic appreciation, creativity, moral virtue, health, pleasure, self-esteem, and practical wisdom.4 A human life that fails to partake in some form of each of these generic goods is deficient. Accordingly, human flourishing is not simply a matter of social mores or personal desire. It is our objective good and moral purpose. Each of these goods is necessary to the very character of human flourishing, but, when considered as such without regard to whose goods they are, no one of these generic goods is of any more importance than any of the others, with the exception of the integrating and directive virtue of practical wisdom. Abstractly considered, human nature does not tell us what weighting or valuation to give these goods. Contrary to what Plato and Aristotle seem to contend, we do not know the universally best form of human flourishing. There is no general recipe that gives the proper valuations or weightings for generic goods that every individual should have. Our moral purpose lies in creating a flourishing life for ourselves, but appeals to abstract moral principles or lists of generic goods will not tell us what we need to know. Such ethical rationalism is highly limited. 3. The remainder of this chapter has been adapted from Douglas B. Rasmussen, ‘‘Why Individual Rights?’’ in Individual Rights Reconsidered: Are the Truths of the U.S. Declaration of Independence Lasting? ed. Tibor R. Machan, 113–37 (Stanford, Calif.: Hoover Institution Press, 2001). 4. Practical wisdom is the central integrating virtue of human flourishing and as such is present in every virtuous act and generic good. Thus, it and moral virtue (when considered as a whole) are not on the same order as the other generic goods. See Douglas J. Den Uyl, The Virtue of Prudence (New York: Peter Lang, 1991). We do not think this list necessarily exhaustive. Spirituality, for example, may be added by some. That sort of issue does not, we believe, alter our main point here.

80

liberalism and the political order

Indeed, since our humanity is not some amorphous, undifferentiated universal, human flourishing does not have some abstract and universal character. The generic goods that constitute human flourishing only become real, determinate, and valuable when they are given particular form by the choices of flesh-and-blood persons. In reality, the importance or value of these goods is rooted in factors that are unique to each person. The circumstances, talents, endowments, interests, beliefs, and histories that descriptively characterize each individual—what we call an individual’s ‘‘nexus’’—determine, as much as possible, the appropriate valuation or weighting of these generic goods for each individual. Human flourishing is not simply achieved and enjoyed by individuals, but is itself individually realized. Contrary to the views of most modern ethical theorists, we hold that the ethical or moral life requires that persons be partial in their valuations of generic goods. The excellent use of practical reason—what Aristotle called phrone¯sis (practical wisdom)—requires that individuals discover how one generic good, alongside the other generic goods, is to be coherently integrated and particularized in their lives. This process requires that generic goods not be valued equally but given different valuations or weightings. The value or weight that is accorded a generic good in some individual’s life is crucially dependent on that individual’s nexus. The contingent and particular are ineliminable features of the ethical or moral life, and they are essential for determining the proper balance or weighting of generic goods for an individual. There are individuative as well as generic potentialities, and this makes human flourishing always unique to a particular individual. Moreover, it must be emphasized that human flourishing does not merely occur within an individual’s life, as if an individual were simply a placeholder. The generic goods of human flourishing are always finally goods for some individual or other, and so are not something extrinsic to the individual. The very nature of these goods as goods involves an essential reference to the individual for whom they are goods as part of their description. Their value is found and expended in those activities of an individual that constitute his or her flourishing. Human flourishing is agent-relative as well as individualized.5 5. Human flourishing, F, for a person, P, is agent-relative if and only if its distinctive presence in world W1 is a basis for P ranking W1 over world W2, even though F may not be the basis for any other persons ranking W1 over W2. See our account of this statement in our discussions of agent-relativity in Chapters 6 and 7. See also Eric Mack’s very important article, ‘‘Moral Individualism, Agent-Relativity, and Deontic Restraints,’’ Social Philosophy & Policy 7 (Autumn 1989): 81–111.

why individual rights?

81

We can and indeed should consider these generic goods abstractly. However, we should always guard against the temptation to imagine the goods that human flourishing comprises as having an existence or value apart from the individuals whose goods they are. Since individuals are not placeholders or loci in which these goods are instantiated, individuals should not be regarded as metaphysical pincushions in which these generic goods are ‘‘stuck.’’ Individuals do more than locate these generic goods in space. It is only through an individual’s practical choices that these generic goods become determinate, real, and valuable. An ethics of human flourishing so conceived is a version of moral pluralism. Human flourishing is neither a ‘‘Platonic’’ form nor an impersonal good.6 There are many forms of human flourishing, but there is no single best form of human flourishing. Rather, there are only specific forms of human flourishing best for specific individuals.7 Thus, there are many summa bona. Nonetheless, this does not require that human flourishing be subjective. Human flourishing consists neither in merely having favorable feelings nor in having value conferred upon it simply by one’s preference. It is possible for an account of human flourishing to encompass diversity without subjectivism.

Human Flourishing—Profoundly Social Despite the individualized character of the good, human flourishing is not atomistic, but highly social. We do not flourish like mushrooms, suddenly, all at once, without engagement with one another. Rather, our maturation and our maturity require a life with others. We have potentialities that are other-oriented, and we cannot find fulfillment without their actualization. Having other-concern (philia) is, in fact, one of the generic goods that constitute human flourishing. In terms of origin, we are almost always born into a society or commu6. An ethical theory is impersonal when all ultimately morally salient values, reasons, and rankings are ‘‘agent-neutral’’; and they are agent-neutral when they do not involve as part of their description an essential reference to the person for whom the value or reason exists or the ranking is correct. Accordingly, when it comes to describing a value, reason, or ranking, it does not ethically matter whose value, reason, or ranking it is. See our account of this statement in our discussions of agent-neutrality in Chapters 6 and 7. 7. In fact, for some persons, especially when they are young and usually before they have made crucial choices, it is possible that there is no single best form of flourishing for them, but rather a limited set of such forms.

82

liberalism and the political order

nity, and it is in some social context or other that we grow and develop. Much of what is crucial to our self-conception and fundamental values is dependent on our upbringing and environment. Our lives are intertwined with others. Indeed, we cannot flourish without societies and communities in which there are shared values. We need to live and work with others according to some common set of values. Accordingly, to think that human beings can flourish independently and apart from others commits the fallacy of reification just as much as thinking that human nature or society can exist independently and apart from individuals.8 Being asocial is not a policy consistent with human flourishing, and individuals ought to be concerned with the nature of and conditions for social life. Of course, the need for community life does not necessarily mean that individuals must accept the status quo of the community in which they live. Because the responsibility for realizing the generic goods of human flourishing in terms of one’s nexus is one’s own, it may be necessary for a person to leave or change her or his community. Yet this cannot be done if sociality is only possible with those with whom one currently has common values. It must be possible for persons to imagine, discover, and establish alternative relationships. Unlike animals, which are locked into particular types of communities, we as human beings have the capacity to have relationships with others with whom there is only a potential for shared values. Thus, we need to keep open the possibility of relationships with others where all that is known is that one is dealing with another human being. Contrary to what seems to have been the traditional Aristotelian view,9 human sociality need not be confined to a select group or pool of human beings. Though relationships with others are founded on common values that form the basis for a continuum of relations—from those with close friends and acquaintances to those with fellow members of communities and cultures—human sociality is open-ended. It imposes no a priori limitation regarding with whom one may have a relationship. To claim, then, that one’s flourishing or moral maturation is impossible without sharing values with others does not mean that sociality is confined to only currently existing relationships and sets of values. Human sociality allows for openness to strangers or human beings in general. Indeed, human flourishing is possible only if people can be open to relationships with others with whom no par8. Simply stated, this fallacy occurs when one treats an abstract consideration of a being as if it were the being itself. Thus, whoever commits this fallacy ignores the differences between the mode and manner of a being’s cognition and the features and properties of the being itself. 9. See Julia Annas, The Morality of Happiness (New York: Oxford University Press, 1993), 250–52, for a discussion of this point.

why individual rights?

83

ticular values are as yet shared. This is because, like all other goods that qualify as goods for the individual, these social goods must also be in some significant way ‘‘made one’s own.’’ This means that how exactly one will deal with others cannot be hard-wired or determined prior to a relationship. The open-ended character of human sociality is important. It reveals the need for a perspective that is broad enough to explain how the possible relationships among persons who as yet share no common values and are strangers to each other can, nonetheless, coexist ethically, that is, be ‘‘compossible.’’ In other words, it requires that attention be given to how it might be possible for different individuals to flourish and to do so in different ways (in different communities and cultures) without creating inherent ethical conflict in the overall structure of their social/political context. Thus, the open-ended character of human sociality requires any ethics that sees human flourishing as always lived in some community and culture to consider questions concerning the proper character of political/legal orders. Specifically, it requires an ethics of human flourishing to consider the question of finding a political framework that is at once compatible with the moral propriety of individualism and yet based on something that can be mutually worthwhile for everyone involved. Moreover, since our sociality is essential to our self-understanding and well-being, this concern for political frameworks is not ethically optional for the individual. When interpersonal or social life is understood as concerned with relationships with any human being, and when the individualized and agentrelative character of human flourishing is grasped, then the need for a different type of ethical norm is recognized. What is needed is a norm that is concerned not with the guidance of individual conduct in moral activity, but rather with the regulation of conduct so that conditions might be obtained whereby morally significant action can take place. The open-ended character of our natural sociality creates the need for a principle that will, as previously noted, allow for the possibility that individuals might flourish in different ways (in different communities and cultures) without creating inherent moral conflict in the overall structure of the social/political context—that is, in the structure that is provided by the political/legal order. We need a solution to liberalism’s problem. We need a metanormative principle.

Requirements for Metanormativity We cannot have a metanormative principle that will structurally prejudice the political/legal order of society more toward some forms of human

84

liberalism and the political order

flourishing than others. To do so would make such a principle inconsistent with our claim that human flourishing is the basic moral purpose of every individual. Thus, the principle we arrive at must be universal in the sense of being equally applicable to all individuals. In addition, as we hope will be made clear both here and in later chapters, the universality requirement necessitates that we center our principle on that characteristic present in all forms of human flourishing (or its pursuit). Otherwise, we will again prejudice the situation in favor of some forms of flourishing over others. Generic goods will not suffice as our standard here. Although they are universal in the sense of helping to define human flourishing for all individuals, their particular form or weighting varies from individual to individual. We do not possess a priori, universal rules that dictate the proper weighting of the generic goods of human flourishing. There is no such thing as agentneutral human flourishing.10 This means that while, for example, artistic pursuit or creativity or health or friendship may be necessary for flourishing, their particular form or weighting will differ from person to person. Generic goods only have determinacy, reality, and value in relation to the individual. This is the crucial insight of moral individualism or pluralism. A metanormative principle must apply to both the particular and general in the same way and in the same respect, or we will be back to an a priori promotion of some forms of human flourishing over others. Now, of course, it is very difficult to find a candidate for grounding a metanormative principle—one that is retained across individuals and throughout the developmental process of achieving and maintaining individualized human flourishing. Can there be a political/legal order that will not require, as a matter of principle, that some form of human flourishing be preferred? How are we to avoid the anarchist’s condemnation of political/legal life as necessarily requiring the sacrifice of some form of the good life to other forms? Can we justify a political/legal order? To put the issue graphically, do political/legal orders require moral cannibalism?

Justifying the Political/Legal Order The two basic questions of political philosophy are: Is there a connection between the ethical order and the political/legal order and, if so, what is the nature of the connection between them? If there is no ethical basis for a 10. See notes 5 and 6.

why individual rights?

85

society’s political/legal order, then its legitimacy is, to say the least, dubious. Of course, it might be the case that there can be no morally legitimate political/legal orders. Yet, even if it is granted that there is some connection between the two orders, it certainly should not be assumed at the outset that there is a direct or isomorphic relation between the two, much less an identity. To say that some activity X is morally right or good and ought to be done does not, by itself, imply that doing X ought to be politically/legally required. Further, to say that doing X is morally wrong and ought not to be done does not, by itself, imply that doing X ought to be politically/legally prohibited. Further, these claims are obviously not semantically equivalent. Indeed, as Aquinas notes, there is a difference between demands of justice that are morally binding and those that are morally and legally binding.11 It thus cannot be legitimately assumed that politics is simply ethics writ large. There needs to be something that connects the ethical and the political/ legal orders. Indeed, this is, de jure, the fundamental datum explanandum of political philosophy, and it is incumbent on the political philosopher to show what justifies moving from one order to the next. This cannot merely be assumed. Because of the prima facie difference between moral and political propositions that was noted in the previous paragraph, the onus of proof is on the person who seeks to move from the ethical to the political/ legal. Without such proof, there is then no ethical justification for a political/legal order. This is a practical as well as a theoretical problem, because most existing political orders seem legitimate in the eyes of those within them, but may become unstable if no ethical justification could be given in the face of questions about the very conditions of social life. It should also be apparent, then, that our argument for the right to liberty is an attempt to find a principled justification for the political/legal order. Our conclusion is that an ethics that conceives of human flourishing as the ultimate moral standard is one that upholds a political/legal order that sees protection of individual liberty as its chief aim. Contrary to the conclusions of many contemporary liberals and conservatives alike, an ethics of human flourishing or self-perfection does not require a perfectionist politics. The aim of politics is not human flourishing, but peace and order (as defined by our basic, negative, moral right to liberty). In other words, there is a perfectionist basis for a non-perfectionist politics. The key to making such an argument is the self-directed character of human flourish11. Aquinas, Summa theologiae II-III, 23, ad 1 and II-II, 80, ad 1.

86

liberalism and the political order

ing, because it promises to provide the basis for solving the legitimacy question while at the same time solving liberalism’s problem.

Human Flourishing—A Self-Directed Activity Regarding Aristotle’s conception of human flourishing (eudaimonia), Jennifer Whiting has made the following comparison: A heart which, owing to some deficiency in its natural capacities, cannot beat on its own but is made to beat by means of a pacemaker is not a healthy heart. For it, the heart, is not strictly performing its function. Similarly, a man who, owing to some deficiency in his natural capacities, cannot manage his own life but is managed by means of another’s deliberating and ordering him is not eudaimoˆn—not even if he possesses the same goods and engages in the same first order activities as does a eudaimoˆn man. For he, the man, is not strictly speaking performing his function. . . . Aristotle’s claim that eudaimonia is an activity of the soul in accordance with virtue shows that he thinks that eudaimonia consists in exercising rational agency.12 Regardless of whether or not the foregoing is exactly Aristotle’s position, Whiting’s comparison is apt for our purposes. Human flourishing is fundamentally a self-directed activity. From this Aristotelian perspective, human flourishing must be attained through an individual’s own efforts and cannot be the result of factors that are beyond her or his control. Flourishing does not consist in the mere possession and use of goods that might be necessary for a flourishing life. Rather, human flourishing consists in a person developing the skills, habits, judgments, and virtues that will, in most cases, achieve the needed goods. The goods must, in a central way, be made one’s own. The point here is not, however, that self-direction is merely necessary for the existence of human flourishing, for surely there are numerous such necessary conditions. Self-direction is not simply one of those many conditions. The point is rather that self-direction is necessary to the very essence 12. Jennifer Whiting, ‘‘Aristotle’s Function Argument: A Defense,’’ Ancient Philosophy 8 (1988): 43.

why individual rights?

87

of human flourishing. Self-direction is the central necessary constituent or ingredient of human flourishing. No other features could be a constituent or ingredient without self-direction. Indeed, their very status as features of flourishing is a function of their self-directedness. In other words, selfdirection is both a necessary condition for, and an operating condition of, the pursuit and achievement of human flourishing. Regardless of the level of achievement or specificity, self-direction is a feature of all acts of human flourishing. Self-direction is what makes human flourishing a personal activity, rather than simply a behavioral act, on the one hand, or a static, nonrelational state of being, on the other. To appreciate fully this understanding of self-direction, we need to consider briefly the role of practical wisdom as the central integrating virtue of human flourishing. Since there are no a priori, universal rules that dictate the proper weighting of the goods and virtues of human flourishing, a proper weighting is only achieved by individuals having practical insight at the time of action. They need to discover the proper balance for themselves. The generic goods of flourishing need to be achieved, maintained, and enjoyed in a coherent manner. Practical wisdom is the ability of the individual to discern in particular and contingent circumstances what is morally required for action: it is practical reason properly used. Put generally, practical wisdom is the intelligent management of one’s life so that all of the necessary goods and virtues are coherently achieved, maintained, and enjoyed in a manner that is appropriate for that individual human being. Yet, this exercise of practical reason is not automatic. Regardless of one’s level of learning or degree of ability, effort or exertion is required. One must be active, not passive, to discover the goods and virtues of human flourishing as well as to achieve and implement them. The act of using one’s intellectual capacity is an exercise of self-direction, and the act of self-direction is an exercise of reason.13 They are not the separate acts of two isolated capacities, but distinct aspects of the same conscious act.14 Though the conclusions of practical reasoning can be shared, the act of reasoning that is an exercise of self-direction cannot. It is something each person must do for him- or herself. Thus, if we were to speak of ‘‘human 13. See Den Uyl, The Virtue of Prudence, 183–86. 14. Aquinas states that ‘‘man is master of his actions through his reason and will; whence, too, the free-will is defined as ‘the faculty and will of reason’ ’’ (Summa theologiae IaIIae, 1.1). See also Ayn Rand’s discussion of the relationship between agency and human reason, specifically her notion of ‘‘volitional consciousness,’’ in Atlas Shrugged (New York: Random House, 1957), 1012–13.

88

liberalism and the political order

flourishing’’ as the ‘‘perfection’’ of the human being, then it would be fundamentally a process of self-perfection—where the individual human being is both the agent and the object of the process.

Self-Direction as the Basis for Metanormativity Self-direction is both central and necessary to the nature of human flourishing, being simultaneously universal and particular. It is the only feature of human flourishing that is common to all acts of human flourishing and peculiar to each, and yet at the same time does not imply any particular form of flourishing. It expresses the fundamental core of human flourishing. Self-direction, therefore, meets the requirements for metanormativity. Self-direction is the only feature of human flourishing of which it can be said that each and every person in a concrete situation has a necessary stake. Further, it is the only feature of human flourishing whose protection is consistent with the diverse forms of flourishing. Since self-direction is not only common to, but is required by, all forms of human flourishing (or its pursuit), regardless of the level of achievement or specificity, it can be used to create a political/legal order. It will not require that the flourishing of any person or group be sacrificed to any other. Self-direction is thus the single feature of human flourishing upon which to base a solution to liberalism’s problem. Self-direction also provides the moral basis for linking the ethical and the political/legal orders. Before ever addressing questions about what one should reason about or how one should conduct oneself, an analysis of the nature of human flourishing reveals a need for the exercise of reason or the need to be self-directed. It is, of course, seldom the case that one confronts the issue of exercising one’s reason or intelligence as such. We reason about, pass judgment on, and give priority to some issue or object; and so this abstract point about the fundamental importance of self-direction to the nature of human flourishing is rarely faced in ethical conduct. Yet since neither speculative nor practical reason simply occurs ‘‘naturally,’’ the primary importance of self-direction becomes more apparent when abstracted from specific contexts and applied to the issue of justifying political/legal orders. It is important to realize, however, that the term ‘‘self-direction’’ in this context does not mean full-blown Millean or Kantian autonomy or the directedness of the perfected self where one is fully rational. Instead, it

why individual rights?

89

means the act of using of one’s reason and judgment upon the world in an effort to understand one’s surroundings, to make plans to act, and to act within or upon those surroundings. Self-direction described in this fashion is still true of the actions of the most self-perfected of individuals, but nothing in this description requires or implies that self-direction is predicated upon self-perfected individuals or even successful conduct. Thus, the political/legal order can have an ethical grounding without requiring such an order to be moralistic.

Protecting the Possibility of Self-Direction Among Others Self-direction cannot exist when certain people direct others to purposes to which they have not consented. Moreover, since the initiation of physical force is the single most threatening encroachment upon self-direction, as well as the most basic,15 the aim of the individual right to liberty is to ban 15. The self-direction of a person, B, is bypassed by another person, A, when A literally moves, uses, directs, or otherwise physically treats B in ways to which B has not consented. This is a fairly straightforward matter when, for example, A physically strikes B in some manner or takes B’s property without B’s consent. (See our discussion of the natural right to private property in Chapter 5.) Further, if A obtains B’s property through an exchange but knowingly and willing plans and refuses to fulfill the terms of the exchange, then A’s possession of B’s property is a taking of B’s property without B’s consent, because A possesses B’s property on terms other than to what B agreed. Fraud is thus a version of initiatory physical force too, because, assuming one has a legitimate right to the property, it is as if A simply waited a moment before physically taking the property of B, that is, until A reneges on the terms of the exchange. Further, we should also consider the case of threats of physical force. Suppose A, while brandishing a knife, threatens B as follows: ‘‘Your money or your life.’’ Clearly, B is being asked to decide whether to give up his money or his life. Indeed, the old joke in the 1940s radio program comes to mind, where the comedian Jack Benny—who always portrayed himself as very miserly—pauses in silence after being offered this alternative in order to indicate that he is thinking over his options! Yet, the point at issue is not whether there is some decision-making involved by B when presented with such options. Rather, it is the ethical impermissibility of A’s offering to B these very options. A may have the power to wield his knife against B, but if A is already obligated not to physically treat, use, move, or direct B without his consent, A is also obligated not to threaten B with such actions. That is to say, if A is in the first place obligated not to initiate such physical force, because B has the right not to suffer such treatment, then A may not offer to refrain from initiating such force in exchange for B’s money. The basis for such an ‘‘exchange’’ would be a treatment that B has a right not to suffer and A is obligated not to create—namely, physically using B without B’s consent, which is indeed what would be the case if A’s knife entered B’s body. Otherwise this threat could not be successful. On this very point, see Eric Mack, ‘‘Individualism, Rights, and the Open Society,’’ in The Libertarian Reader, ed. Tibor R. Machan, 13–14 (Totowa, N.J.: Rowman & Allanheld, 1982). Moreover, it is also the case that such threats are a version of initiatory physical force, because given that B has a right not to have either B’s life or B’s property used without B’s consent and given that B has consented to neither being used in exchange for the other, it is as if A simply waited a moment (until after

90

liberalism and the political order

legally such activity in all its forms. The individual right to liberty allows each person a sphere of freedom—a ‘‘moral space’’ or ‘‘moral territory’’— whereby self-directed activities can be exercised without being invaded by others. This translates socially into a principle of compossible and equal freedom for all. The freedom must be equal, in the sense that it must allow for the possibility of diverse modes of flourishing, and, therefore, must not be structurally biased in favor of some forms of flourishing over others. It must also be compossible, meaning that the exercise of self-directed activity by one person must not encroach upon or diminish that of another. Thus, a theory of individual rights that protects persons’ self-direction can be used to create a political/legal order that will not necessarily require that the flourishing of any person or group be sacrificed to any other. By protecting the possibility of self-direction, the right to liberty serves human flourishing not in the sense of directly and positively promoting it, but rather by preventing encroachments upon the condition in which human flourishing can exist. The aim of the right to liberty is to secure the possibility of human flourishing, but in a very specific way: through seeking to protect the possibility of self-direction.16 In this way, the right to liberty is justified by an appeal to the nature of human flourishing, and a solution to liberalism’s problem is provided. B decides to give up either his life or property) before physically taking either the life or property (or both) of B. 16. Individual rights are aimed only at the protection of the possibility of self-directed action in society, not at securing its exercise. The capacity for self-direction is inherent to any physically normal human being, but its exercise is something that persons must do for themselves. It cannot be provided by others. Yet this raises the questions of whether or not there are actions by persons that are not self-directed and whether or not these actions are protected by individual rights. There can, of course, be situations where persons’ actions are not the result of their exercise of self-direction, as in cases where their actions are the result of ‘‘internal’’ or ‘‘external’’ forces that are entirely beyond their control. Yet, these have the same standing as ‘‘acts of nature’’ and are not the subject for either ethical or legal evaluation, because they are not in the relevant sense ‘‘performed’’ by persons. More interestingly for our purposes, however, are those complicated, and often extraordinary, situations where the actions of persons involve a mixture of self-direction and non-self-direction. These are actions for which there are degrees of selfdirection and responsibility. All of these situations must, of course, be examined in a case-bycase manner because knowing the specific details is vital for determining the moral status of the person. Yet as far as individual rights are concerned, if it is a situation where the actions of persons exhibit self-direction to some degree, then these rights protect its possibility in a social context. From a political/legal view the only relevant issue is whether or not these mixed actions involve using or directing the others without their consent. The subtle considerations of a moral analysis are not appropriate for a political/legal analysis, which is but another indication of the importance of conceiving of rights as metanormative principles.

why individual rights?

91

It is important to realize that the individual right to liberty is not directly concerned with the promotion of human flourishing itself, but only with the condition for its possibility. It is thus not the consequences per se that determine when someone’s liberty is violated. What is decisive is whether the action taken by one person toward another secures that other’s consent or is otherwise a function of that other’s choices. For one might violate another’s rights and produce a chain of events that lead to consequences that could be said to be to that other’s apparent or real benefit. Alternatively, one might not violate another’s rights and produce a chain of events that lead to one’s apparent or real detriment. Yet since the purpose here is to structure a political principle that protects the condition for the possibility of human flourishing among others, rather than leading to human flourishing itself, the consequences of actions are of little importance (except insofar as they threaten the condition that rights were designed to protect in the first place). The concern here is not with how acts will turn out, but rather with setting the appropriate foundation for the taking of any action in the first place.

Understanding Individual Rights Individual rights are therefore not norms in the sense of guiding us toward the achievement of moral excellence or human flourishing. And contrary to appearances, they are not ordinary interpersonal normative principles either. Individual rights express a type of moral principle that must obtain if we are to reconcile our natural sociality with diverse forms of flourishing. In other words, we need a robust social life, but we also need to succeed as individuals approaching a particular form of flourishing. Norms and obligations that specify how to live, both with respect to achieving one’s own goals and with respect to living among others, are one thing; norms that define the settings for such interactions and obligations are quite another. The obligations one has to another in the latter case are due to a shared need to act in a peaceful and orderly social/political context. These are metanorms. The obligations one has in the former case are a function of what is needed to live well and cannot be generated apart from the particular actions, context, culture, traditions, intentions, and practices in which one finds oneself acting. Those actions and contexts call forth evaluative norms by which success, propriety, and merit can be measured and judged in particular cases. Individual rights are metanorms. They are

92

liberalism and the political order

not, however, called upon by the progress of a culture or an individual, but rather depended upon. As such, individual rights are politically primary. Individual rights are not, however, primary ethical principles. Failure to see the difference between the function of individual rights and that of other ethical principles has been responsible for much of the misdirected criticism of individual rights. Communitarian and conservative critics have, for example, argued that rights cannot be politically primary if they are dependent on some more basic ethical principle. They have also argued that rights cannot adequately handle the complexities of moral life because finer conceptual tools than rights are required. Finally, they have argued that a political regime based on the individual right to liberty requires greater moral foundation than just liberty in order to sustain it. These charges will be considered in greater detail in Chapter 10, yet something of a direct reply can be offered here. It is simply that these charges fail to show that the individual right to liberty is not politically primary. Individual rights do indeed require a deeper ethical foundation, but that does not mean that rights cannot have a unique function. Furthermore, as we characterize rights, they are certainly not meant to replace all of the other moral concepts we use, and they are, most assuredly, not the concepts to be used in making subtle moral distinctions. Yet, why should this mean that rights should not be primary when it comes to the political/ legal order? Finally, a political regime based on the individual’s right to liberty does in fact require more than just the right to liberty to sustain it. Yet once again, this does not mean that when it comes to addressing liberalism’s problem, which is indeed the problem of political philosophy, individual rights are not primary. It is perfectly possible for individual rights to be the answer to a very crucial ethical question without it also being true that individual rights are the answer to all ethical questions.17

Why Individual Rights Trump It still needs to be explained why individual rights override all other moral claims. First, it should be made clear, if it is not so already, that rights do 17. Our position is even more radical than first appearances might suggest. Individual rights are not only not an answer to all ethical questions, they are also not an answer to the question of educating people in moral virtue. If Aristotle is correct and the norms of a political order are in fact and necessarily morally educative, then liberal orders would be educating individuals in universalistic, minimalistic, impersonal moralities. But we reject this educative premise. Individual rights are not morally educative, but morally contextualizing.

why individual rights?

93

not override all other moral claims tout court. Instead, they only override other claims when it comes to addressing an important but specific problem—what we have called ‘‘liberalism’s problem.’’ It is only when addressing this problem that individual rights are primary. Second, the conception of human flourishing that we have been presenting aims to show the legitimacy and fundamental importance of liberalism’s problem. The problem of finding a basis for a political/legal order that will not, as a matter of principle, require that the human flourishing of any person or group be preferred to others is a central and basic human concern. It is part of the human condition and a problem that is based in human nature. The fundamentality of this problem gives its solution overriding importance. Third, it cannot be assumed that politics is simply ethics writ large. Moving from ‘‘doing X ought (ought not) to be done’’ to ‘‘doing X ought to be politically/legally required (prohibited)’’ requires justification, as we have said. There needs to be a mediating premise, and this premise needs to be consistent with the highly individualized and self-directed as well as profoundly social character of human flourishing. In other words, such a premise needs to meet the requirements of metanormativity. In any political debate or discussion, the burden of proof is on the person who seeks to move directly from the ethical to the political/legal order. Without such proof, the conditions for metanormativity are not met, and no reason to make doing X a political/legal concern is provided. Fourth, self-direction is both central and necessary to the very nature of human flourishing. As we have noted above, self-direction is the singular feature of human flourishing whose protection by the political/legal order is consistent with diverse forms of human flourishing. It is also the only feature of human flourishing in which every person in the concrete situation has a necessary stake. It meets the requirement of metanormativity and thus priority. Fifth, the individual right to liberty protects the possibility of self-direction in a social context. This, in turn, secures the possibility that individual human beings might flourish in diverse ways in various cultures and communities without requiring that the flourishing of any other individual or group be sacrificed.18 The individual right to liberty is the solution to liber18. Murder, thievery, rape, extortion, and fraud are the sorts of activities legally banned by a political/legal order based on individual rights. Though there might be some individuals who regard these activities as forms of human flourishing, they are not. These activities are incompatible with many of the features of human flourishing, but especially the generic good of sociality. Moreover, these activities are not the necessary or unique expressions of human tendencies

94

liberalism and the political order

alism’s problem, which we have seen is a central and fundamental problem for human life. It thus overrides all moral claims when it comes to solving liberalism’s problem and legitimizing political/legal orders.

A Major Objection Considered This chapter has had to ignore a number of objections and problems, many of which we will consider later. It is necessary, however, to confront briefly one major objection at this stage. This objection is also of a communitarian/conservative nature, and it goes to the very heart of the argument that we have outlined. It simply rejects the distinction between normative and metanormative principles. It claims that purpose of the political/legal order is to create moral excellence, that it is possible to habituate moral excellence through coercion, and that the political/legal order is ultimately a tool for education. In other words, statecraft is ‘‘soulcraft.’’ Our basic response is to note that the statecraft-is-soulcraft position is guilty of confusing two things: (1) a contingent relationship with a necessary relationship; and (2) orderly conduct with moral excellence. (1) It is, of course, possible for coercion to bring some persons to a position where they come to understand the appropriateness of a moral norm that they may not have otherwise seen. In fact, the extreme example of this is Aleksandr Solzhenitsyn. He turned the Gulag into an opportunity for moral development. However, there is no necessary relationship here. What examples like the Gulag reveal is that, if individuals have some control over some areas of their lives, they might be able to integrate their circumstances into their own unique form of flourishing. Yet what this illustrates is the pluralistic character of human flourishing, not the usefulness of coercion in creating moral excellence. Indeed, what coercion often means for countless persons is the loss of their moral compasses and indeed their souls. But numbers do no not matter here; what matters here is that coercion bears no necessary, or even probable, connection to moral excellence. If our goal is moral excellence, then there is little to recommend coercion generally applied. (2) There is a difference between conduct adhering to a moral norm that toward comfort, sexuality, assertiveness, and the like and are thus not forms of flourishing on those grounds either. Finally, to the extent that such activities become a part of ‘‘normal’’ social and cultural practices, then to that extent such societies and cultures are inimical to the social and pluralistic character of human flourishing.

why individual rights?

95

one believes appropriate because it follows that norm, and conduct that proceeds from an understanding of the appropriateness of a moral norm. The latter form of conduct is required for moral excellence. However, understanding the appropriateness of a moral norm requires that the individual exercise both speculative and practical wisdom, but these are essentially self-directed activities. Coercion cannot itself create morally excellent or virtuous persons, because it does not ultimately appeal to individuals’ understanding or reason to ground their beliefs in the appropriateness of the moral norm. Conformity does not imply understanding, and coercion bypasses the individual’s reason. The communitarian/conservative cannot reasonably hope, therefore, to achieve moral excellence by coercion, but must instead settle for orderly conduct. That is to say, the communitarian/conservative has to settle for people merely believing that some conduct is morally appropriate, not understanding that it is. If people come to believe through fear, or the desire to conform, or any other sentiment, that amount of belief is acceptable for orderly conduct. It is not acceptable, however, for moral excellence or human flourishing. Despite the rhetoric of moral virtue appearing to be on the side of those who advocate coercion as a tool for achieving moral excellence, the opposite is the case. It is really the advocate of liberalism—that is, a legal/political order that is based on the individual right to liberty—whose position bears the closer relation to moral virtue or excellence. The liberal order may allow people to live lives without virtue or excellence of any type. Yet, by limiting itself to context setting (as defined by the individual right to liberty), the liberal order provides a political/legal structure that allows for the possibility of moral virtue in a social context for everyone. Alternatively, the nonliberal order, be it of left- or right-wing inspiration, must deny that possibility for some individuals and groups. The truth is that any political/ legal order that is not based on the individual right to liberty must practice moral cannibalism to some degree. Our goals in this chapter have been twofold. First, we have presented a conception of individual rights that reveals their unique character and fundamental importance: they are metanormative principles. Second, we have provided an outline of an argument for this conception of individual rights, which shows how individual rights can be politically primary, but nonetheless dependent on a deeper ethical notion—the concept of human flourishing. Human flourishing is objective, individualized, social, and selfdirected. It provides the foundation for the individual right to liberty. There

96

liberalism and the political order

is much more, however, that we need to say about this conception of human flourishing and its relationship to individual rights. That relationship will occupy us beginning with Part II. First, however, we feel it is necessary to say something about a right considered central to liberal theory, namely, the right to property. In discussing that right in the next chapter, we hope to illuminate not only something about that central right in particular, but also something further about how the metanormative perspective may alter the way one looks at that right.

Chapter Five the natural right to private property

The right to property is right to an action . . . it is not the right to an object, but to the action and the consequence of producing or earning that object. —ayn rand, ‘‘man’s rights’’

Arguably the most controversial component in the Lockean tradition of liberalism is the natural right to private property. Our purpose here is not to start applying our theory to particular rights that have been traditionally associated with the Lockean tradition or to particular forms of property rights as they have been defined in the past. Rather, we seek to outline some implications of our theory of individual rights in this most central and controversial area of traditional liberal theorizing. In doing so we wish to express our view that property is indeed central to liberalism and how it might be understood according to the principles of our theory. In the first place, we take the statement in the epigraph to be the essence of the correct approach to thinking about property rights. This statement contrasts nicely with the usual understanding reflected in a statement like ‘‘a property right is, roughly, a right which a person has with respect to a specific thing,’’1 where there is nothing that refers to the essence of a property right as an action. This traditional way of thinking of property rights in terms of things is not completely avoided by those who define property in terms of ownership.2 ‘‘Ownership’’ is less object- or thing-oriented than The material is this chapter is adapted from our argument for the natural right to private property in Douglas B. Rasmussen and Douglas J. Den Uyl, Liberty and Nature: An Aristotelian Defense of Liberal Order (La Salle, Ill.: Open Court, 1991), 115–28. This material has also appeared in slightly different form in our essay ‘‘Aristotelianism, Commerce, and the Political Order,’’ in Aristotle and Modern Politics, ed. Aristide Tessitore (Notre Dame, Ind.: University of Notre Dame Press, 2002), 278–304. 1. Allan Gibbard, ‘‘Natural Property Rights,’’ Nouˆs 10 (1976): 77. 2. Lawrence C. Becker, Property Rights: Philosophical Foundations (London: Routledge and Kegan Paul, 1977), 18–20 and, especially, 120 n. 11.

98

liberalism and the political order

many approaches, but it is still a derivative concept from what must be first said about action, as we shall see more fully in Chapter 9. The relationship people have toward things or objects, whether in terms of possession or ownership, is a function of human action. The central question about property rights, therefore, is how one’s theory fits into what one says in general about rights and human action. Our position is that human beings are material beings, not disembodied ghosts, and that being self-directed is not merely some psychic state. Self-directedness pertains to actions in the world, actions employing or involving material things at some place and at some time.3 For such actions by individuals to be selfdirected, they need to have the use and control of what they have created and produced protected from being used without their consent. Thus, it is not objects per se that individuals need to have property rights to, as if any random distribution were acceptable.4 A human being needs to have property rights to things that are the result of his or her own judgments and productive efforts. A person’s choices and judgments cannot be said to have been respected if the material expression of those judgments is divested from the individual. In our view, then, human action is not composed of a ‘‘mental’’ part accompanied by a physical correlate. Two-substance dualism is false. Rather, the choices, judgments, or intentions of human action are ultimately realized in terms of material and physical realities in space and time. Further, since these actions are undertaken by individuals, and since there are no collective minds, this is an individual affair. The realization that production is a highly individualized affair is perhaps our first indication that Locke was mistaken in his contention that God or nature has given mankind a stock of objects (in common or otherwise) from which we must devise a set of rules for just distribution (or even, as we shall see, for original ownership). The most nature offers is the potential opportunity for the transformation of the material world. A theory of property rights will, therefore, concern itself with legitimate exploitation of opportunities, not with things or objects, and ‘‘ownership’’ will be the legal expression of the legitimate exploitation of opportunities. Notice that this way of looking at the issue does not rule out ownership of, or property rights to, that which is not a thing or area of land, such as electromagnetic fields. This approach to the issue also does not begin with the essentially 3. See George Mavrodes, ‘‘Property,’’ in Property in a Humane Economy: A Collection of Essays, ed. Samuel L. Blumenfeld, (La Salle, Ill.: Open Court, 1974), 183. 4. David Kelley, ‘‘Life, Liberty, and Property,’’ Social Philosophy & Policy 1 (Spring 1984): 112.

the natural right to private property

99

collectivist assumption that there is a common stock of goods that everyone must equally regard as ‘‘wealth.’’ Property and wealth are not beings in rerum natura—that is, things that exist ‘‘out there’’ independently and apart from human cognition and effort. Rather, they are essentially a function of the transformative efforts of individual human beings.5 It is quite illegitimate to regard anything as wealth that is not the product of an individual’s mind or action.6 George Mavrodes finds such a claim ‘‘peculiar,’’7 and he is not alone. But the claim follows from our general denial of nonrelational value (see Chapter 6 for our discussion of the ontological ground for value), from our assertion about the primacy of human thought and action in production, and from experience. The relatively impoverished continent of Africa is no less generously endowed with natural assets than is North America; but the former is clearly less wealthy than the latter. We believe that a significant part of the reason for this has to do with encumbrances placed upon the exploitation of opportunity. In any case, our point is that wealth is relative to productive acts and interests, so each new existential state of the material world is simply a new field of opportunities just as the previous state was. All existential states considered apart from human action are simply potential opportunities. When one thinks of opportunities, one does not think first of objects, but rather of actions whose ends may be to secure objects. But if we are correct in saying that objects themselves are productions or creations,8 then even objects cannot be the end of actions, but a feature of the actions themselves; and traditional moral wisdom has had plenty to say about the mis5. If this individualistic perspective is correct, it seems to follow immediately that we need not consider the mere existential condition or arrangement of material assets as necessarily indicative of any particular moral proposition. In other words, we need not consider, as, for example, Becker does (Property Rights, 109–11), the mere presence of resource depletion or inequity in holdings as necessarily indicative of anything of moral interest. 6. Prior to some person’s initial cognition and action, there are only potential opportunities, there is no knowledge or awareness of opportunities, no value is yet made actual, and thus no basis for the creation of wealth or property. For an interesting discussion, which is in some respects similar to our own, of the what is involved in establishing initial acquisition and why such acquisition is not unjust, see Edward Feser, ‘‘There Is No Such Thing as an Unjust Initial Acquisition,’’ Social Philosophy & Policy 22 (Winter 2005): 56–80. We do not, however, think that the self-ownership thesis is an adequate way to start the argument for property rights. See Chapter 9. 7. Mavrodes, ‘‘Property,’’ 187. 8. As the Latin Aristotelians and commentators on Aquinas would say, beings in rerum natura do not become objects until they stand in relation to human cognition or effort. For a discussion of this and related issues, see Douglas B. Rasmussen, ‘‘The Significance for Cognitive Realism of the Thought of John Poinsot,’’ American Catholic Philosophical Quarterly 68 (Summer 1994): 409–24, especially 411 n. 6.

100

liberalism and the political order

take of treating objects as ends. Two points appear to follow from these considerations and those of previous paragraphs: (1) the objects or possessions one has must be considered an extension of what one is (assuming no dichotomy between oneself and one’s actions) and not as items contingently attached to oneself; and (2) the concept of ‘‘opportunity’’ must be a function of the general right to action (as specified above) if there is to be a natural right to property. We have seen that our natural rights consist in metanormative principles that define a set of compossible moral territories. We have also claimed, and shall argue further later, that individuals are in a significant sense value creators, each of whose eudaimonic fulfillments is unique to the individual. Rights remain abstract and negative in order to accommodate the truth of individualism. Now since rights define moral territories, they circumscribe areas within which an individual is free to act. Having freedom of action within certain boundaries is nothing less than having an opportunity for action within those same boundaries. Since the extension of the opportunity is equivalent to the extension of the boundaries, the first point we learn about the natural right to property is that it is simply another name for the freedom to act and, hence, to live according to one’s own choices. To put the point another way, the natural right to property is a natural right and shares the central features of any natural right. To differentiate a natural right to property from other natural rights, then, we need a differentia. Opportunity functions as a genus because it is present in all other natural rights as well (for example, free speech being the opportunity to communicate what one wishes within permissible bounds). The differentia for property comes with respect to the concept of exploitation. We understand exploitation to be the attempt to transform one’s legitimate opportunities into consequences in accord with one’s values. Since actions and consequences generally have a material dimension, the act of transformation involved here usually incorporates something tangible. This must certainly be true with respect to drafting positive law in this area; for even intellectual property rights must have a tangible embodiment (such as books, articles, and works of art) if they are to have the protection of law. But at this stage it is enough to note that property rights will concern allowable acts of transformation of the material world. Throughout this discussion, ‘‘allowable,’’ ‘‘legitimate,’’ and similar terms will refer to actions that do not cross the borders of another’s moral territory without permission. The right to transform the material world is little else than the right to act, since actions occur in the material order. The second component in the

the natural right to private property

101

natural right to property, therefore, is equivalent to saying that one has the right to act. What becomes controversial is the extent to which one has the right to retain the consequences of one’s actions. But how does one go about solving such a problem? The first issue, we believe, concerns a ‘‘burden of proof’’ argument. With respect to property rights, the burden of proof could go in either of two directions: (1) the individual must show why he or she must be allowed to keep the consequences of his or her actions; or (2) others must show grounds for interfering with the retention of those consequences. It is clear from the theory of rights presented in this book that the burden of proof is the latter. Exercising a natural right is not something one is obligated to justify to others. However, what retaining the consequences means has not yet been examined.9 Nevertheless, we believe we can say at this stage that discussions of property are off to a wrong start if the central rights question requires that the individual justify retention of the consequences of his actions in the absence of any evidence of a border crossing. Another way of putting the same point is that a discussion of property rights is off to a wrong start if the first question is taken to be, how much of what a person produces should he or she be allowed to keep? For us, the question ought to be the reverse: When, if ever, can some people interfere with the productive acts of others? Second, since property is created or produced through an act of transformation, the Lockean proviso that there must be ‘‘enough and as good’’ left for others in cases of original acquisition is moot. For there can never be ‘‘enough and as good’’ left for others if every action issues in a unique transformation. If an action transforms the material order, there can be no other identical forms of property until a similar action accomplishes the same result. Picking an apple from a tree should not be judged in terms of the numbers of apples left, but in terms of the action that transformed the tree into a useful commodity. All of this follows, of course, from our claim that there is no such thing as preexisting (in other words, pretransformed) wealth. One may wish to argue that one is obligated to leave equivalent opportunities for others to perform the same act of transformation. But apart from questions of scarcity, it is not clear why one has this obligation. This is because one’s act of transformation in no way deprives another of what he has transformed. Nor is it the case that opportunities are as similar to each 9. See Robert Nozick’s famous ‘‘tomato juice’’ example in his Anarchy, State, and Utopia (New York: Basic Books, 1974), 175.

102

liberalism and the political order

other as the apples on the tree, since they are highly dependent on an individual’s circumstances, interests, and abilities. Finally, opportunities are essentially matters of judgment and thus in no way common. Even with apples, one individual may judge them ready to eat while another predicts they will make one sick by being too green or too ripe. Mavrodes claims that the act of transformation deprives another of his rights, because one is acting upon something to which one had no right (the unowned object).10 But this fails to distinguish between depriving another of their rights and depriving them of a potential opportunity.11 The former is clearly illegitimate while the latter is not, and acts of transformation under conditions of original acquisition are clearly not rights violating because (virtually by definition) no one has rights to the pretransformed objects in question, since in the relevant sense they are not yet objects. If transforming unowned resources is not rights violating, is the endeavor to undertake an act of transformation (‘‘exploit an opportunity’’) potentially or actually rights violating? In other words, can one assert that it is illegitimate to initiate action to exploit a perceived opportunity in conditions of original acquisition? Ceteris paribus, it is not illegitimate or rights violating to begin acting on a perceived opportunity to transform resources. That is, one does have the right to undertake action to exploit an opportunity for the following reasons: First, we are material beings who must act in a material world in order to exist. Our ‘‘perceived’’ opportunities must, therefore, be understood not as merely mental states but as actions. Second, exploitations of perceived opportunities are essentially acts of creation. This means that one has no prior obligations to others regarding a particular creation, because the ‘‘opportunity’’ only has existential meaning as a function of the agent performing the act of transformation and no one else. To suppose that opportunities are themselves subject to prior obligations (e.g., to others or the community) is equivalent to saying that one’s own judgments are so obligated. This, however, is clearly slavery or the absence of any individual rights.12 One may, however, have prior obligations that 10. Mavrodes, ‘‘Property,’’ 189, 195, passim. 11. Mavrodes implicitly endorses an idea of a positive right to an opportunity to acquire property. It should in general be noted that we understand the concept of ‘‘equal opportunity’’ to signify that the basic natural, negative right to property is legally protected and implemented for all members of a political community. This does not involve ‘‘an equal distribution of opportunities’’ in the sense of requiring the distribution of goods and services in accordance with some principle of equality. 12. It is possible that more than one person might have the same perception simultaneously as another, in which case there might need to be a rule developed to avoid conflict (for example,

the natural right to private property

103

could affect what one does in exploiting an opportunity.13 For example, one might perceive an opportunity half way around the world but be obligated to remain home and take care of one’s children. Third, rights on our theory are not a function of social permission to act, so the burden of proof rests with the one who claims there are preexisting obligations to others, not the one who wishes to act on a perceived opportunity. From this, it follows that a correct theory of the natural right to property will recognize that no one has a right to the acts of transformation of others, since there can be no preexisting claims to that which does not yet exist (the transformed entity).14 Yet, since we are speaking of rights, we are speaking of metanorms applicable in a social context. The social context requires that the acts of transformation be compossible. Now ‘‘compossible’’ here does not issue simply in ‘‘ambiguity clarification,’’ for any system of rules will clarify ambiguities about who can do what (provided the rules are clear and practicable). It must refer here to a set of rules or principles that are consistent with the general theory of natural rights we developed in the preceding chapter. We believe that there is in principle a wide latitude of acceptable rules that would satisfy the compossibility requirement. We do not believe, however, that the latitude is completely open. Since we are at the general level of discussion here, the restrictions upon the latitude of acceptable rules must themselves be general. Here we follow the lead of F. A. Hayek in requiring that the limitations upon the latitude of acceptable rules be universality and negativity. Universality is uncontroversial because all rights are supposed to have this characteristic. We have already mentioned the negativity of natural rights. But in this context ‘‘negative’’ means (a) boundary setting in nature and (b) exclusionary; (a) makes (b) possible, and (b) has been justified by our previous discussion of the burden of proof and our conception of the natural right to liberty as first come first served, or splitting equally, or whoever files first, and the like). Such a rule gives a positive right perhaps, but it does not show that one’s judgment is any less independent or subject to any prior obligations. Indeed, it is not because of a prior obligation that we develop a rule but precisely because we do not have one that we may have the need for such in this case. 13. Obviously the act of transformation would have to respect existing rights that may exist around it. One could not, in other words, transform a piece of land without taking into account the effects that doing so may impose on rightful owners of surrounding pieces of land. We are thus speaking of the act of transformation and perception of opportunities itself and not the context in which these events may occur. 14. The only way out, at this general level, is to take the collectivist premise seriously and argue that all of one’s actions have attached to them obligations to serve the interests of others such that no actions are ever really one’s own. We need not comment here about how contrary such a position is to our neo-Aristotelian conception of human flourishing.

104

liberalism and the political order

requiring moral territories. Both jointly capture the concept of ‘‘negative,’’ because natural rights are essentially obligations of restraint, and because there is a lack of a preexisting obligation not to engage in opportunity deprivation (since no rights are being violated in the process). Perhaps some examples would help clarify our point. Mavrodes, in his discussion of the original acquisition of a tree, states that a number of rules would be possible in such a case and lists the following: 1. Everyone has the right to fell any standing tree, and he who does so thereby becomes the owner of the fallen tree. 2. Everyone has the right to fell any standing tree and to trim off its branches, and he who does so is the owner of the resulting log. 3. Everyone has the right to mark any unmarked tree by painting his initials on it, and he thereby acquires ownership of it. 4. Everyone has the right to claim any unowned tree by marking it and then offering a sacrifice on top of Mt. Cloudpiercer. He who does so owns the tree. 5. Everyone has the right to claim any unowned set of trees by posting, in the village square, a notice of his claim which defines the set, such as ‘‘I claim all of the trees which now stand, and which shall stand in the future, in the valley of the Broad River from its source in the mountains to its mouth at the edge of the sea.’’ Whoever does so thereby comes to own all of the trees so specified. 6. Everyone has the right to claim any unowned tree by marking it and then giving a feast for all of his fellows. He who does so comes to own the tree. 7. Everyone has the right to claim any unowned tree by marking it and then giving each of his fellows a useful tool, such as an axe or a saw. He who does so comes to own the tree.15 Mavrodes argues that since there is no ‘‘ready metaphysical principle’’ to decide which of these is appropriate, they are all possible. We mostly agree. Universality and negativity are ‘‘metaphysical’’ limitations, but ones that do not significantly pare down Mavrodes’s list. Specifically, rules 1–3 and 5 seem possible on our theory, but 4, 6, and 7 are not acceptable.16 As we said, 15. Mavrodes, ‘‘Property,’’ 194–96. 16. This is different from what we say in Liberty and Nature, 123.

the natural right to private property

105

the latitude is wide, but not unlimited. These three violate our negativity requirement by making one’s right contingent upon paying off others. Negativity is required to ensure that property rights are initiated by individuals. In addition, rules 4, 6, and 7 seem to require the presence of the state in a way that the other rules do not. Requiring that individuals perform ceremonies, give banquets, or give gifts would seem to suppose the presence of a third party who defines the extent to which one must give or perform to qualify as an owner. But Mavrodes may simply be saying that some overt act may be required as a sign of ownership, and with that we would generally agree. Our point, however, is that one must distinguish recognizing an opportunity exploited from the actual exploitation itself. The former may involve third parties but must arise in response to the latter. Our general point here is that in specific situations and social settings, how to explicate all of this in terms of positive law and rights will be difficult and beyond the purview of abstract moral, social, and political theory. A community of artists might settle upon criteria of visual perspective in their society (for example, you own what you can see) in cases of original acquisition. We find it highly improbable that these criteria would command consensus; but then it is also unlikely that the puritanical idea that one owns what one can physically labor upon would be the only acceptable principle of original acquisition. People will come to discover that they have different values than those they may have held at the time of the original acquisition, so as property gets exchanged the overall look of holdings will alter. A would-be artist who gained a large holding under the terms of original acquisition mentioned in the last paragraph might discover he has no talent for art. His own form of flourishing might be best served by divesting himself of part of his land in exchange for other goods (perhaps even rights of use on the lands of others). It is the essence of the individualist position that we cannot settle a priori upon an appropriate value system for diverse individuals. Rules of original acquisition are often less a matter of morality than they are a matter of getting cooperative society off the ground. Unrestricted voluntary transfer of goods is a feature of property rights that follows from the negativity requirement and the primitive moral proposition that choice is respected through consent in a social context. Consent is the means by which the integrity of moral territories is maintained interpersonally. And property is nothing other than the material expression of one’s moral territory. In order to be able to carry our moral territories with

106

liberalism and the political order

us across time and in compossible fashion with others, others must restrain themselves from crossing into our territory unless given permission. Much of what we have said depends upon the validity of the first principle mentioned earlier, namely, that the ‘‘objects’’ or ‘‘possessions’’ that one has must be considered extensions of what and who one is. Since we have already shown that persons have the natural right to liberty, if it is the case that property is simply an extension of self, we would have the natural right to property as well; for then, the natural right to property—appropriate to a certain context—is essentially a restatement of the basic natural right to liberty for which we have already argued. As living things, human beings have no choice about being related to other things in existence. Human life is not atomistic. Yet we do have much to say about what we will be related to and the manner by which we will be related. Further, humans have the responsibility for creating relationships that will enable them to flourish. We are beings that create relationships, and these relationships—be they logical, loving, or productive—are the means by which we know, care for, and control our environments. Such relations are both the means to and constituents of human life: they make up the life of a human being. Thus, since we are beings whose conceptual powers allow us to create, control, and use relationships, the exploitation of opportunities in the world is a fundamental expression of what and who we are. Taking control of another’s property against that other’s wishes can now be seen as nothing less than taking control of one of the central relationships that constitute a human being’s life. There is and can be no dichotomy between a human being’s natural right to life and liberty and his or her natural right to private property. The latter is the expression of the metaphysical fact that human beings are material things that live and flourish through the exploitation of opportunities in the material world. The acceptance of this basic natural right does not preclude the possibility that what one does within the legitimate boundaries of one’s moral territory has ‘‘undesirable’’ effects upon others. Such effects may be of interest to moralists, but they do not necessarily imply unethical action and certainly do not imply the presence of a rights violation. If A produces a better product than B, then the consequences to B will be ‘‘undesirable’’; but A has not necessarily done anything ‘‘wrong’’ and has not violated B’s natural rights. One is not by nature obligated to provide others with a stream of favorable consequences. One is only obligated to restrain one’s actions in such a way that the moral territories of others are not penetrated without

the natural right to private property

107

permission. But this brings us back full circle to our initial thesis about the concept of natural rights. The idea that the right to property is a function of the right to action and thus grounded in agency is certainly consistent with the sort of Aristotelianism with which we have allied ourselves. Our defense of private property is, however, not exactly the same as Aristotle’s own, which has a much more utilitarian flavor to it (see the Politics 1263a ff.). Still, a defense of private property is within the confines of standard Aristotelianism, although by itself it only goes part of the distance in showing how Aristotelianism can undergird classical liberalism or libertarianism. We believe the chapters that follow in the next part of the book will help fill in how an Aristotelian theory can be married to our conception of rights. In the third part of the book we will then return once again to the structure of the rights argument we have been advancing. Throughout there will be little further mention of private property. This is not because we consider it unimportant but more because we consider property an extension of the concept of action, the point with which we opened this chapter. In this respect our central point here is that the right to property is really another way of expressing the primacy of self-direction in a social and political context. Indeed, it is not inaccurate to think of the right to property as a metanormative rule that protects the possibility for self-directed transformations of perceived opportunities by agents acting in a material order. Metanormativity ‘‘guarantees’’ compossibility in this case, although that, of course, is not to suggest that there will be no disputes or gray areas about who has transformed what. It has not been our purpose in this chapter, however, to explore the basic legal and practical problems involved in establishing a workable system of property rights. We can only initiate an effort to see property as an extension of self-directed action and give what support we can for the primacy of self-direction in a social and political context. It is to further support of the foundations for this claim that we now turn, even if property itself is not explicitly mentioned.

Part Two a new deep structure for liberalism Liberty is not a means to a higher political end. It is itself the highest political end. It is not for the sake of good public administration that it is required, but for security in the pursuit of the highest objects of civil society, and of private life. —lord acton, the history of freedom in antiquity (emphasis added)

The upshot of the first three chapters of Part I was the insight—once common, but now seemingly forgotten—that liberalism is not an ethical doctrine or a polestar for measuring community or individual well-being. Rather, liberalism is a political doctrine that grows out of specific social and philosophical needs and has a limited and determinate purpose—namely, securing a peaceful and orderly social order. Yet the deep structure with which liberalism has chosen to ground this insight has failed to provide support. Indeed, it has undermined it. Thus, what political liberalism needs is a new deep structure. Chapters 4 and 5 sought to set out the general contours of our argument that the fundamental principles of liberalism—namely, individual rights—are metanormative principles and hence that liberalism is a political philosophy of metanorms. In doing so, these chapters, particularly Chapter 4, appealed to a new deep structure for liberalism by showing that a neo-Aristotelian ethical perfectionism supports a non-perfectionist view of politics, particularly one that sees individual rights as defining the character of ‘‘peace and order.’’ What follows here in Part II is a more indepth account of the bases for the argument begun in Chapters 4 and 5. Chapter 6 develops the neo-Aristotelian conception of

human flourishing in much greater detail, though with an eye to political theory more than ethics proper. Chapter 7 defends this account of human flourishing against various criticisms; and Chapter 8 offers a critique of both traditional and new natural law theory as each pertains to human flourishing and the common good of the political community. Finally, Chapter 9 examines and evaluates one of the central assumptions of liberal thought—the self-ownership thesis—and shows that it is not adequate to ground the claim that individuals have basic negative rights. Overall, we seek in Part II to provide more of the details for our argument as introduced in Part I, and we seek to compare our argument to both natural law and traditional liberal theorizing. We make these comparisons because we wish to use insights from both of these traditions to illuminate the nature of the deep structure appropriate to liberalism and to provide the reader with the means to further appreciate and evaluate that deep structure and its connection to the political theory it implies. The additional details and comparisons are necessary not just to fill out the argument, but also because our framework for defending liberalism is rarely the one used in making that defense. Consequently, exploring more of the meaning and parameters of that framework seems especially needed in light of its importance to understanding liberalism.

Chapter Six individualistic perfectionism

Everybody, however, must resolutely hold fast to his own peculiar gifts, in so far as they are peculiar only and not vicious, in order that propriety, which is the object of our inquiry, may the more easily be secured. For we must so act as not to oppose the universal laws of human nature, but, while safeguarding those, to follow the bent of our own particular nature; and even if other careers should be better and nobler, we may still regulate our own pursuits by the standard of our own nature. —cicero, de officiis

What is perfectionism? If we understand normative ethics to ask two questions—(1) what is inherently good or valuable? and (2) how ought persons to conduct themselves?—then we may determine what perfectionism is by its respective answers to these two questions. Perfectionism holds that eudaimonia is the ultimate good or value and that virtue ought to characterize how human beings conduct their lives. But more must be said in order to appreciate these answers. Eudaimonia is a Greek term, and ‘‘happiness’’ as a translation for it does not always convey what is meant. ‘‘Happiness’’ to modern ears often means merely doing what one wants or finds pleasing or satisfying, and this does not necessarily amount to eudaimonia. The phrases ‘‘human flourishing’’ or ‘‘self-perfection’’ or ‘‘self-actualization’’ convey more accurately what is meant by eudaimonia, for each seems to carry within itself the idea that eudaimonia is desirable or choice-worthy because of what this activity is and not simply because it is desired or chosen. Further, ‘‘perfect’’ comes from the Latin perfectus and its Greek counterpart teleiois. Perfectus implies that a thing is actualized, completed, or finished and thus involves the idea of a thing having a nature, which is its end (telos) or function (ergon). To ‘‘perfect’’ or to ‘‘actualize’’ oneself is thus not to become God-like, immune to degeneration, or incapable of harm; it is rather to fulfill those potentiali-

112

a new deep structure for liberalism

ties and capacities that we realize and specify in individual ways. Finally, the notion of a thing functioning well or with excellence is the completion or attainment of its telos. This is the basic idea of virtue (areˆte). Eudaimonia is an activity according to virtue. Perfectionism has had a strong influence throughout the history of ethics. From Plato, Aristotle, and Aquinas to Spinoza, Hegel, Marx, and Nietzsche, various conceptions of the good life, as defined by human nature, have been a central part of normative ethics. For most of the twentieth century, however, perfectionism has not fared well. It was thought to embody a ‘‘naturalistic fallacy,’’1 to entail commitments to controversial ontological and epistemological views, and to simply fail to offer sufficiently determinate advice for ethical conduct. Deontology, contractarianism, and consequentialism (usually in some utilitarian form) have dominated the ethical scene.2 However, with John Rawls’s discussion of theories of goodness and perfection in part three of A Theory of Justice and Alasdair MacIntyre’s criticisms of consequentialism and deontology in After Virtue, as well as with Bernard Williams’s criticisms of impartialism in Ethics and the Limits of Philosophy and Joseph Raz’s qualified endorsement of perfectionism in The Morality of Freedom, interest in perfectionist and virtue theories over the last quarter century has greatly increased. Further, the explosion of works on Aristotelian ethics and politics through the efforts of such scholars as J. L. Ackrill, Julia Annas, G. E. M. Anscombe, John Cooper, John Finnis, Philippa Foot, Rosalind Hursthouse, Abraham Maslow, Fred D. Miller Jr., David L. Norton, and Henry B. Veatch have helped to bring such terms as ‘‘self-perfection,’’ ‘‘self-actualization,’’ ‘‘self-realization,’’ ‘‘human flourishing,’’ and ‘‘eudaimonism’’ into current philosophical usage. Perfectionism in contemporary ethics has, moreover, taken an impor1. The ‘‘naturalistic fallacy’’ is the alleged fallacy of deducing a statement of what ought to be from a statement of what is the case, or of a statement about a value from a statement about a fact. 2. A deontological theory is any theory in normative ethics that holds ‘‘duty’’ and ‘‘right’’ to be basic and defines the morally good in terms of them. Such theories attempt to determine obligations apart from a consideration of the good. For Kantians, this is attempted by a universalizability test. Contractarianism is any ethical theory that attempts to determine normative and/or political obligations by an appeal to what is (or would be) agreed upon by actual or hypothetical persons, considered apart from their social situation. It is usually assumed that conflict resolution is the central aim of ethical theory. Consequentialism is any theory in normative ethics that attempts to determine obligations simply by whether an action or rule produces the greatest, net, expected ‘‘good’’ (or ‘‘least bad’’) consequences. A utilitarian theory is a consequentialist theory of obligation that does not consider whose good is being achieved or realized, but is universalistic in its aim. One’s own good should be considered, but not more than any other’s. It is an impersonal and agent-neutral theory.

individualistic perfectionism

113

tant turn in that it is understood increasingly to be a radical departure from Kantian, contractarian, and utilitarian modes of theorizing. This is especially so with a neo-Aristotelian version of perfectionist thought. This theory combines an appeal to human nature with recognition of human individuality. This neo-Aristotelian conception of human flourishing is inspired in part by Ackrill’s observation: [Aristotle] certainly does think that the nature of man—the powers and needs all men have—determines the character that any satisfying human life must have. But since his account of the nature of man is in general terms the corresponding specification of the best life for man is also general. So while his assumption puts some limits on the possible answers to the question ‘‘how shall I live?’’ it leaves considerable scope for a discussion which takes account of my individual tastes, capacities, and circumstances.3 The fundamental insight behind this conception of human flourishing is not only that it is the flourishing of individual human beings that ultimately matters, but the individuality of flourishing as well. Norton expressed this point well by noting that ‘‘to emulate a worthy man is not to re-live his individual life, but to utilize the principle of worthy living, exemplified by him, toward the qualitative improvement of our individual life.’’4 Thus, one’s aim is not to imitate the ‘‘worthy man,’’ but to emulate him. This theory, the many interrelated features of which generate an elaborate conception of the human good and obligation, illustrates well how an individualistic perfectionism represents a fundamental alternative to the twentieth century’s more dominant views in normative ethics. The outline and discussion following the next section of this chapter will provide a basis for understanding the challenge to Kantian, contractarian, and utilitarian outlooks presented by this version of contemporary perfectionist thought. Further, it will provide a point of departure from some of the features of traditional, as well as so-called new, natural law theorizing. Prior to taking up our outline and discussion of individualistic perfectionism, however, we need to spell out in greater detail just how radically this approach to ethics departs from the dominant ethical views of our 3. J. L. Ackrill, Aristotle’s Ethics (New York: Humanities Press, 1973), 19–20. 4. David L. Norton, Personal Destinies: A Philosophy of Ethical Individualism (Princeton: Princeton University Press, 1976), 13.

114

a new deep structure for liberalism

time. As we have noted elsewhere,5 there are two main paradigms of ethical theory, and these we have labeled the ‘‘classical’’ and ‘‘modern’’ approaches to ethics. The modern approach takes ethics to be fundamentally about ‘‘social management.’’ In modern ethics the central problem is an interpersonal one, namely, generating norms that resolve conflicts of interest (or that at least prescribe rules of interpersonal relationships). Modern ethics finds it difficult to know exactly what to do with the personal or ‘‘self-interested’’ side of our practical reason. As Henry Sidgwick states: There is the vital need that our Practical reason feels of proving or postulating this connexion of Virtue and self-interest, if it is to be made consistent with itself. For the negation of the connexion must force us to admit an ultimate and fundamental contradiction in our apparent intuitions of what is reasonable in conduct; and from this admission it would seem to follow that the apparently intuitive operation of the Practical reason, manifested in these contradictory judgments, is after all illusory. . . . If then the reconciliation of duty and self-interest is to be regarded as a hypothesis logically necessary to avoid a fundamental contradiction in one chief department of our thought, it remains to ask how far this necessity constitutes a sufficient reason for accepting this hypothesis.6 Modern ethics is so oriented toward the social or the interpersonal that personal or self-interested moral obligations are only understood adequately in terms of what they contribute to the social or interpersonal. Yet, practical reason seems to require that there are obligations that are personal and independent of whether or not they contribute to social welfare or some total good. Indeed, this passage from Sidgwick proclaims the fundamentality and irreducibility of our ‘‘self-interest’’ in the eyes of practical reason. It is not just that self-interest is morally permissible, but also that the self has a moral status at least equal to (if not greater than) any alternative orientation of our practical reason. Sidgwick could not resolve the conflict between the two primary modes of practical reason, and neither could modern eth5. Douglas J. Den Uyl, ‘‘Teleology and Agent-Centeredness,’’ Monist 75, no. 1 (January 1992): 14–33. 6. Henry Sidgwick, The Methods of Ethics, 7th ed. (Indianapolis: Hackett Publishing, 1981 [1907]), 508.

individualistic perfectionism

115

ics. The problem in both cases stems from not taking the individual human person seriously enough when it comes to determining moral obligation. In direct contrast to this approach stands classical ethics, which takes the central problem of ethics to be what to make of one’s own life and is thus ‘‘self-perfectionist’’ in its orientation. It is the paradigmatic case of what could be called an ‘‘agent-centered’’ ethics, in which all ethical or moral obligations are related to the perfection of the individual human agent. Whether one is speaking of Aristotelian eudaimonia or the beatific vision of Aquinas, the enterprise of ethics is fundamentally directed toward perfecting the self, with social management being derived from (or not in conflict with) the principles thought necessary for self-perfection.7 Though we will be emphasizing the individualistic character of self-perfection, our approach belongs squarely to the classical paradigm. This needs to be kept in mind as we develop our account of the good life and the nature of moral obligation.

A Cautionary Note and a Brief Discussion of Method and Metaphysical Context Before embarking on an outline and discussion of this contemporary perfectionist theory, two additional things should be done. First, a cautionary note should be sounded. What follows does not purport to be textual exegesis. The term ‘‘neo-Aristotelian’’ here means ‘‘modern theorizing which incorporates some central doctrines of Aristotle. . . . Such theorizing should critically assess his claims in light of modern philosophical theory, scientific research, and practical experience, revise or reject them where necessary, and consider their application to . . . contexts not envisioned by him.’’8 Though often interconnected, there is a difference between neo-Aristotelian theorizing and an exegesis of Aristotle’s texts. It is, then, in the foregoing sense that this perfectionist theory is neo-Aristotelian. 7. Some qualification might be required here, for it may be the case that in the ‘‘intellectualist’’ interpretation of eudaimonia the individual human self or personality is overcome in knowing the forms of best things or in knowing God. So, possibly our observation should be confined to natural perfection. On the other hand, it seems that the individual subject cannot be eliminated entirely from the process of knowing best things or God, because that would ultimately destroy any distinction between the knower and best things or God and would in effect be a mysticism, and no longer knowing. 8. Fred D. Miller Jr., Nature, Justice, and Rights in Aristotle’s ‘‘Politics’’ (Oxford: Clarendon Press, 1995), 336 n. 1.

116

a new deep structure for liberalism

Second, how this version of perfectionist ethics both understands and appeals to human nature needs to be explained. To begin with, the character of human flourishing is not discovered solely by a scientific study of human nature. Considerations of the requirements and conditions for human volition and action, cultural and social practices, and commonsense observations are part of the process. Further, we do not assume that our beliefs and practices must be barriers to knowing what is real. It is not necessary to proceed in a Cartesian manner and raze all opinions in order to find some firm foundation. We must start somewhere, and the starting point of an inquiry into the character of human flourishing is with the established opinions, or endoxa, of our society and culture. Indeed, we seldom, if ever, appeal to human nature to understand human flourishing without already having a set of evaluative views. The point of entry for such reflection most often occurs when we examine our lives as a whole and wonder what they are for.9 Our general aim is to make our lives as good as possible and to find unity for them. Yet, the fact that we do not begin our investigation of human flourishing de novo does not imply that we are confined to the status quo. The claim that rationality is always embodied in a tradition that provides the context that determines if an argument is a good one is subject to two interpretations.10 It can mean either that a tradition determines whether or not an argument is good or merely that it determines whether people think an argument is good. The truth of the latter, weaker claim certainly does not imply the truth of the former, stronger claim. Further, there seems little reason to give up the basic and well-established idea that it is an argument’s adequacy to its subject matter that constitutes its goodness and not its counting as so within some tradition.11 Human nature sets the general limit on what is ultimately included in or excluded from any account of human flourishing. This being said, it should be noted that the following discussion is essentialistic in the following mod9. John M. Cooper, ‘‘Eudaimonism, the Appeal to Nature, and ‘Moral Duty’ in Stoicism,’’ in Aristotle, Kant, and the Stoics: Rethinking Happiness and Duty, ed. Stephen Engstrom and Jennifer Whiting, 264–65 (Cambridge: Cambridge University Press, 1996). 10. See Alasdair MacIntyre, Whose Justice? Which Rationality? (Notre Dame, Ind.: University of Notre Dame Press, 1988). For an important and powerful critique of this book, see T. H. Irwin, ‘‘Tradition and Reason in the History of Ethics,’’ Social Philosophy & Policy 7 (Autumn 1989): 45–68. 11. Also, it seems unfair to suppose that those who claim that reason is always embodied in a tradition mean to endorse the view that the truth of a proposition consists only in members of a tradition thinking or believing that it is so.

individualistic perfectionism

117

erate sense: what and who human beings are is not entirely a function of social or cultural forces, linguistic and conceptual schemes, or systems of interpretation. These factors do not ultimately determine human nature. There are, in other words, individual realities of a certain kind to which the term ‘‘human being’’ refers. Further, this discussion assumes that cognitive realism is possible; that is to say, it assumes that we can know what things really are. We thus hold to the realist principle that the manner and mode of our cognition does not determine the very character of the content of our cognition. In this case, this means that what human beings are can be known. These are important assumptions that require defense, which cannot be provided here but has been provided elsewhere.12 The neo-Aristotelian view of human flourishing that will be presented appeals to human nature in two basic ways: (1) it assumes that human nature is teleological, that is, that human beings have a telos or natural function;13 and (2) it assumes that this natural function has moral import. In other words, it assumes that knowing what our natural function is tells us something about the character of human flourishing and that moral evaluation of human conduct is in terms of flourishing. Both of these assumptions shall be explained. They cannot be defended, however, in any detail. That task is for a much larger project. It is the hope, however, that these remarks will show at least how these assumptions are not as implausible as is sometimes thought. (1) That human nature is teleological is at once the most important and the most controversial assumption of our view of human flourishing. It is 12. See Douglas B. Rasmussen, ‘‘Quine and Aristotelian Essentialism,’’ The New Scholasticism 58 (Summer 1984): 316–35; Rasmussen, ‘‘The Significance for Cognitive Realism of the Thought of John Poinsot,’’ American Catholic Philosophical Quarterly 68 (Summer 1994): 409–24; Baruch Brody, Identity and Essence (Princeton: Princeton University Press, 1980); Tibor R. Machan, ‘‘Epistemology and Moral Knowledge,’’ The Review of Metaphysics 36 (September 1982): 23–49; Edward Pols, Radical Realism: Direct Knowing in Science and Philosophy (Ithaca: Cornell University Press, 1992); and Anthony J. Lisska, Aquinas’s Theory of Natural Law: An Analytic Reconstruction (Oxford: Clarendon Press, 1996). 13. We commonly think of artifacts as having a proper function (ergon), e.g., the function of a knife is to cut. To claim that an entity has a natural function is to claim that an entity has a proper function in virtue of what it is, not as the result of someone designing it for a certain activity. ‘‘Proper’’ here means essential to the entity. The claim that an entity has a proper activity that is its natural function is confined here to the biological realm. Thus, natural functions primarily occur in living organisms. The claim that living entities have natural functions rests, however, on the further claim that living entities have an end (telos) in virtue of their nature. Thus, the natural function of a living thing is understood in terms of its natural end. ‘‘End’’ means in this context that-for-the-sake-of-which, but it does not necessarily mean ‘‘conscious purpose.’’ This claim is explained and defended in what follows.

118

a new deep structure for liberalism

the most important because it is the idea that human flourishing is the end (telos) or function (ergon) of human life that allows this theory to avoid the ‘‘naturalistic fallacy.’’ If human flourishing is the natural end for human life, and if we understand the human good in terms of that end, then it is simply not the case that all facts are valueless. This means that for human beings their good is based on and understood in terms of facts pertaining to their nature. Indeed, for the class of beings that have natural ends or functions, goodness is ontological in the sense that it is a potentiality that is actualized.14 Hence, it is not always a fallacy to go from a fact to a value, because some facts are inherently value-laden. Further, if self-direction is for the sake of the human good, then agency or self-direction is not radically free, as existentialists or voluntarists would apparently have it. Selfdirection has an innate potentiality for the good.15 Thus, reason and motivation need not always be separate, and the problem of finding motivation for being moral need not be insuperable. That human nature is teleological is certainly a most controversial claim. For some, to link this claim to this view of human flourishing is to render this view beyond the pale. Indeed, it must be admitted that teleology is often associated with dubious metaphysical views—for example, that the cosmos has some end, that species are fixed and do not evolve, and that there is a scala naturae ascending from simple elements to an unmoved mover. Alasdair MacIntyre termed such views ‘‘metaphysical biology.’’16 Moreover, teleology is associated with such positions as theism, vitalism, ineluctablism, and genericism,17 as well as the fallacy of anthropomorphism. Not surprisingly, there are some advocates of an ethics of human 14. See Douglas B. Rasmussen and Douglas J. Den Uyl, Liberty and Nature: An Aristotelian Defense of Liberal Order (La Salle, Ill.: Open Court, 1991), 56–57, as well as Henry B. Veatch, For an Ontology of Morals: A Critique of Contemporary Ethical Theory (Evanston, Ill.: Northwestern University Press, 1971). 15. See Douglas B. Rasmussen, ‘‘Rand on Obligation and Value,’’ Journal of Ayn Rand Studies 4, no. 1 (Fall 2002): 69–86. 16. Alasdair MacIntyre, After Virtue: A Study in Moral Theory, 2nd ed. (Notre Dame, Ind.: University of Notre Dame Press, 1984), 162. Yet see note 39 below. 17. Vitalism holds that present in any living thing is an immaterial substance, an ´elan vital, that imparts to that thing powers that are neither possessed by nor result from the inanimate parts that compose it. Vitalism should, then, be distinguished from the view that present in any living thing are emergent properties, which are contingent on the organization of its inanimate parts, but not reducible to them. If one’s telos is ineluctable, then the issue of being responsible for achieving it is irrelevant. Genericism is the view ‘‘that all developmental processes are generically equivalent across individuals such that individuals come to be little more than repositories of generic endowments.’’ Douglas J. Den Uyl, The Virtue of Prudence (New York: Peter Lang, 1991), 36.

individualistic perfectionism

119

flourishing who seek to avoid making ontological commitments about the nature of human flourishing.18 The situation is, however, not so grim. Present-day advocates of natural teleology argue that their position does not require them to uphold any of the foregoing views or to commit any fallacies. It is not necessary to hold that the cosmos, history, society, or the human race is directed toward some grand telos. Instead, it is only necessary that individuals have ends.19 Moreover, there are individuative potentialities that are actualized. It is not the case that individuals are little more than repositories for generic endowments and add nothing to the developmental processes. It is not necessary to accept genericism. Thus, the existence of a human telos need not be in conflict with the individualized character of human flourishing, as it seems to be for traditional versions of Aristotelian and natural law ethics. Nor is it necessary to hold that God has created the universe or individual things to serve some end to which they are drawn. There need only be a natural teleology.20 James G. Lennox and Andre´ Ariew have argued that there are basically two different models of teleology, or final causation.21 According to the Platonic model, which has its origin in the divine craftsman of the Timaeus,22 the operation of ends as causes requires the actions of a rational agent or 18. See Thomas Hurka, Perfectionism (New York: Oxford University Press, 1993), for an account of human flourishing that does not assume a theory of human nature. See also Robert P. George, ‘‘Natural Law and Human Nature,’’ in Natural Law Theory: Contemporary Essays, ed. Robert P. George, 31–41 (Oxford: Clarendon Press, 1992). George argues that basic goods such as knowledge and friendship are self-evidently good and ‘‘therefore’’ do not require an anthropological basis. See Lisska, Aquinas’s Theory of Natural Law, for a critique of George’s view. 19. Philippa Foot differentiates sharply between ‘‘function’’ and ‘‘good’’ as they are used in evolutionary biology with regard to ‘‘the good of a species, as if a species were itself a gradually developing, one-off organism, whose life might stretch for millions of years,’’ and ‘‘function’’ and ‘‘good’’ as they are used in an everyday way to describe ‘‘a certain place’’ that a feature of a living thing has ‘‘in the life of individuals that belong to that species at a certain time.’’ Foot, Natural Goodness (Oxford: Clarendon Press, 2001), 32 n. 10. 20. ‘‘Natural’’ is used here to rule out the necessity of any supernatural commitment. It does not mean the same thing as materialism or, at least, not eliminative or reductive materialism. See Elliott Sober’s discussion, ‘‘Teleology Naturalized,’’ in his Philosophy of Biology (Boulder, Colo.: Westview Press, 1993), 82–87. 21. James G. Lennox, ‘‘Teleology,’’ in Keywords in Evolutionary Biology, ed. Evelyn Fox Keller and Elisabeth A. Lloyd, 324–33 (Cambridge, Mass.: Harvard University Press, 1992); Andre´ Ariew, ‘‘Platonic and Aristotelian Roots of Teleological Arguments,’’ in Functions: New Essays in the Philosophy of Psychology and Biology, ed. Andre´ Ariew, Robert Cummins, and Mark Perlman, 7–32 (Oxford: Oxford University Press, 2002). 22. James G. Lennox, ‘‘Plato’s Unnatural Teleology,’’ in Platonic Investigations, ed. Dominic J. O’Meara, 195–218 (Washington, D.C.: Catholic University Press, 1985). The Timaeus is Plato’s creation myth in which the divine craftsman, the ‘‘demiurge,’’ gives purpose to nature.

120

a new deep structure for liberalism

mind whose intentions apply to the entire cosmos. It is in terms of this agent’s intentions that processes in the natural world are judged good. Both the cause and the goodness are, for this model, ‘‘external’’ to what is being explained. It is in principle the same view of teleology that is used when speaking of artifacts. Just as we say that a good knife is one that fulfills the purpose for which it is created—that is, cutting—so we say the same regarding entities in the natural world. According to the Aristotelian model,23 final causation is only one of the answers to the question ‘‘Why?’’ and does not require a rational agent whose universal intentions determine goodness. Instead, teleology is restricted to the biological domain and is ‘‘internal’’ or ‘‘immanent’’ to the organism that is being explained. It is the goal or function of the individual organism, not the ‘‘external’’ designer, that is under consideration. Further, it is not necessary to posit an immaterial, separable force, an ´elan vital, within an organism that provides direction and motivation.24 Rather, teleology can result from an internal directive principle that is an irreducible feature of the developmental processes of the living organism itself. The process is irreducible in the sense that the movement from potentiality to actuality is inherent in the structure of the organism in such a way that other forms of explanation (for example, mechanical or chemical) are insufficient to account for the phenomenon. In other words, it is precisely the capacity for the development to maturity that cannot be accounted for by merely appealing to the potentialities of 23. See Allan Gotthelf, ‘‘Aristotle’s Conception of Final Causality,’’ in Philosophical Issues in Aristotle’s Biology, ed. Allan Gotthelf and James Lennox, 204–42 (Cambridge: Cambridge University Press, 1987); Gotthelf, ‘‘Understanding Aristotle’s Teleology,’’ in Final Causality in Nature and Human Affairs, ed. R. F. Hassing, 71–82 (Washington, D.C.: Catholic University Press, 1997); and Miller, ‘‘Natural Teleology,’’ in Nature, Justice, and Rights in Aristotle’s ‘‘Politics,’’ 336–46. 24. ‘‘Even if one holds that final aitia are ontologically irreducible to material causes, it does not follow that these irreducible properties are forward-‘looking,’ intentional ‘vital forces.’ A ‘vital force’ is a force that drives a causal process. Picking one out would be to pick out the source of motion or developmental change. However, in Aristotle’s account of explanation, to attribute this role to final aitia would be to collapse the distinction between final aitia and efficient causes. . . . It is the latter, causal aitia that pick out the source of change.’’ Ariew, ‘‘Platonic and Aristotelian Roots of Teleological Arguments,’’ 18. Also, D. M. Balme notes that ‘‘Aristotle always presents the four causes as four separate factors in a causal situation (Ph. II.3). They are not one factor plus three alternate descriptions or views of it. Nor does ‘cause’ (aitia) mean merely explanation, for which his word is logos or apodeixis. Modern translators, haunted by Hume, sometime prefer ‘explanation’ to ‘cause,’ but this risks vicious ambiguity; for in Aristotle’s usage explanations and reasons are words and thoughts, whereas causes are objective things and events. Therefore if the efficient cause is one objective factor in nature, so too is the final cause another one.’’ Balme, ‘‘Teleology and Necessity,’’ in Philosophical Issues in Aristotle’s Biology, ed. Gotthelf and Lennox, 275–85.

individualistic perfectionism

121

the basic material elements that compose a living thing. For Aristotle, these material elements were earth, air, fire, and water. For us, they are much more complex, but the principle is the same.25 Development to maturity does occur and requires explanation. Yet appealing to the potentialities of these basic material elements alone does not suffice. Only an inherent potential for the development to maturity will suffice. Accordingly, contemporary advocates of natural teleology hold that what living things are and how they develop cannot be adequately understood except insofar as they are understood as functioning for the sake of the mature state of the organism. The process of pursuing and maintaining ends is the result of the very nature of living things. Teleology has a place in nature, then, not because the universe has a purpose or because God has created and endowed each creature with a purpose. Teleology is fundamentally biocentric. It exists because the nature of a living thing involves the potential that is irreducibly for development to maturity.26 Since the nature of a living thing always exists in cognition-independent reality in an individualized manner and is not some Platonic eidos or Porphyrian essence,27 what the irreducible development to maturity amounts to 25. On the idea that the principle behind Aristotle’s teleology can be defended without accepting his account of the physical processes involved, see Michael Bradie and Fred D. Miller Jr., ‘‘Teleology and Natural Necessity in Aristotle,’’ History of Philosophy Quarterly 1 (April 1984): 133–46. See also Robert Mayhew, The Female in Aristotle’s Biology: Reason or Rationalization (Chicago: University of Chicago Press, 2004), for an account of how Aristotle’s errors regarding female biology are not a result of sheer misogyny or ideological rationalization. 26. It is further argued that the theoretical core of Aristotle’s teleology—namely, that life forms are self-directing in virtue of inherent forms or structure—is vindicated by modern biology. Aristotle’s accounts of the physical mechanisms (for example, vital heat) that are supposed to be the source of transmission of the formal principle, are, of course, not defensible, but he seems to have gotten the essentials right. As Max Delbru¨ck, founder of molecular genetics, remarked about Aristotle’s explanation of the generation of animals: ‘‘What strikes the modern reader most forcibly is his insistence that in the generation of animals the male contributes, in the semen, a form principle, not a mini-man. . . . The form principle is likened to a carpenter. The carpenter is a moving force which changes the substrate, but the moving force is not contained in the finished product. . . . Put into modern language [what Aristotle says] is this: The form principle is the information which is stored in the semen. After fertilization it is read out in a preprogrammed way; the readout alters the matter upon which it acts, but it does not alter the stored information, which is not, properly speaking, part of the finished product. In other words, if that committee in Stockholm, which has the unenviable task each year of pointing out the most creative scientists, had the liberty of giving awards posthumously, I think they should consider Aristotle for the discovery of the principle implied in DNA.’’ Delbru¨ck, ‘‘Aristotle-totletotle,’’ in Of Microbes and Life, ed. Jacques Monod and Ernest Borek, 54–55 (New York: Columbia University Press, 1971). Miller’s work, Nature, Justice, and Rights in Aristotle’s ‘‘Politics,’’ first drew our attention to this statement by Delbru¨ck. 27. This view holds that the essence or nature of a thing actually exists in the individual entity as a universal part or element. Sometimes ‘‘moderate realism’’ is mistakenly described as

122

a new deep structure for liberalism

for one sort of living thing is not the same as another’s. Amoebas, plants, animals, and human beings are different kinds of living things, and so what the full and complete actualization of their respective natures—that is, their maturation—will come to is not something uniform. It is important to grasp that a natural, biocentric teleology is more than just an alternative to a supernatural or anthropocentric teleology. It is a teleology in which the nature of a living thing determines the general manner of living that constitutes each living thing’s telos. Moreover, since living is not some abstraction or denatured reality, the development to maturity of a living thing can never be merely meeting the minimum requirements for the avoidance of death. Rather, maturity must be something more. It must have some form or manner or modality. As Philippa Foot has observed, ‘‘the teleological story goes beyond survival itself.’’28 Indeed, this approach carries with it an ontological view of goodness. In its most general sense, goodness is ‘‘defined’’ as the actualization by a living thing of the potentialities that make up its nature, since the needs and requirements of a living thing are what give rise to that actualization being an end.29 It is the relation in a living thing between what is actualized and what is potential that provides the basis for calling it good. In other words, it is the actual as over and against the potential that is what it is for a living thing to be good. Yet, there is no single identical property in every living thing that is goodness. The biocentric approach to teleology introduces the notion of benefit to that of goodness. It makes goodness always a good for some living thing or other. Fundamentally speaking, the activities of a living thing that make it a good instance of its kind must also be activities that are in principle good for it.30 It should be emphasized that goodness does not exist abstractly. (We shall discuss this point as it pertains to human flourishing in greater detail in the next section.) As we have said, what is good is determined by the holding this view. See Rasmussen, ‘‘Quine and Aristotelian Essentialism’’ and ‘‘The Significance for Cognitive Realism of the Thought of John Poinsot.’’ 28. Foot, Natural Goodness, 43. 29. See Rasmussen and Den Uyl, Liberty and Nature, 51–57, for a critique of G. E. Moore’s ‘‘open-question argument’’ and his claim that goodness cannot be defined. 30. The notion of ‘‘kind’’ or ‘‘life-form’’ or ‘‘nature’’ need not be Platonic or deny the importance of a living thing’s environment to our understanding of its nature. Circumstances or chance play an important role in determining whether activities that make a living thing a good instance of its kind are indeed beneficial to it in a given situation. These factors can never be ignored. But the ontological point remains—namely, that in order for a living thing to be a good instance of its kind, it must be a good living thing as well. Being of benefit for the living thing is necessarily a part of its goodness.

individualistic perfectionism

123

nature of a living thing, and so what is good for one sort of living thing may not be good for another. Yet, this is still too abstract because there is no such thing as the actualization of the potentialities of a living thing’s nature that does not involve the actualization of its individuative potentialities (and vice versa). Further, the actualization of an individual living thing’s potentialities is consequent (that is, supervenient) upon the satisfaction of that entity’s needs. It is not some tertium quid. Goodness is thus always what is good for the individual living thing, and is not some abstract property or relation.31 On this account, then, goodness is not separate from facts when it comes to living things. Further, goodness is ‘‘ontological’’ but still ultimately relational. In other words, certain actions of a living thing at a given time benefit its life. That is to say, they promote its development to maturity—they allow it to actualize its potentialities. The actions that promote the development to maturity of a living thing in turn make it possible for that entity in the future to repeat those actions that will continue to further it and maintain it, and so on. These actions thus both produce and express the life of the entity. They constitute its life although they are also for it. Goodness is therefore neither an intrinsic (nonrelational) feature of things or actions, nor is it merely a subjective phenomenon of consciousness. Instead, it is an aspect of reality in relation to what is necessary for a living thing to actualize its potentialities and thus achieve maturity.32 Indeed, we might say that apart from living things there are no intrinsically good, right, or beautiful things. Things are only good, right, or beautiful in relation to living entities.33 (2) Let us turn now to the second way in which our neo-Aristotelian view of human flourishing appeals to human nature. Human beings are part of the natural order and are not immune from its influences. Yet, if the foregoing account of teleology is correct, human beings are naturally drawn to their telos, but not driven to it. They have an inherent potentiality for 31. These last two paragraphs have been adapted from Liberty and Nature, 56. 32. This relation can come about in many ways. For example, it could be a constitutive activity of a particular living thing’s manner of living; it also could be some activity that is merely an instrument or tool for achieving a particular living thing’s manner of living. Further, it could be some combination. In other words, the activities of a living thing could be related to its mature state as activities that either express that state or produce it, or both. Additionally, their relation to a living thing’s mature state could be either direct or indirect. See Foot’s discussion of ‘‘primary’’ and ‘‘secondary’’ goodness, Natural Goodness, 26–27. 33. Tibor R. Machan, Human Rights and Human Liberties (Chicago: Nelson-Hall, 1974), 66. Cf. Ayn Rand, ‘‘The Objectivist Ethics,’’ in The Virtue of Selfishness: A New Concept of Egoism (New York, New American Library, 1964), 17; and Foot, Natural Goodness, 26–27.

124

a new deep structure for liberalism

their telos, but they need to recognize in what activities their end consists and what its actualization calls for in both general and specific terms. The achievement of the human telos is not ineluctable. Human beings actualize their telos only through their self-directed efforts, and insofar as they do so, they are moral agents. The achievement of one’s telos occurs through a person’s dispositions for the proper desires and actions—dispositions that are ultimately a matter of moral responsibility. The human reason of a person that forms the conception of what is good for that person is expressed in one’s developed character or dispositions.34 It is the ability to have a correct conception of what is good for oneself (that children and nonhuman animals do not possess) that creates the causal power necessary for the purposeful production of good outcomes. Classically stated, the achievement of one’s telos depends on the right use of reason (see our discussion of practical wisdom below). This is crucial for human flourishing and for any given activity being morally right.35 As Aristotle states, ‘‘Reason is for distinguishing the beneficial and the harmful, and so too the just and the unjust. For this distinguishes a human being from the other animals—that he alone has perception of the good and bad and just and unjust and the rest’’ (Politics 1253a 14–18). Thus, it is in terms of the human telos or function that the general character of human flourishing (which will be explored in greater detail in the next section) is understood, and it is in terms of human flourishing that human conduct can be said to be good or bad, wise or foolish, virtuous or vicious, just or unjust. Accordingly, the meaning and purpose of morality are to be found in terms of a human being’s ‘‘self-perfection’’ or ‘‘self-actualization’’ or ‘‘human flourishing.’’ Morality requires both explanation and justification. But the explanation and justification of morality are not found in some premoral commitment to flourish, or in the external consequences that flow from right activity that make ‘‘morality pay,’’ or in an appeal to duty for duty’s sake. Rather, the explanation and justification of morality are grounded in the fact that each and every human being has an inherent potentiality for his or her mature state, and that this state is the ultimate basis for understanding both what is good and what is right. In other words, the answer to the question of why one should be moral 34. Aquinas, Summa theologiae, Ia.5.1. 35. We do not here attempt to address the issues of ‘‘free will,’’ ‘‘determinism,’’ or ‘‘compatibilism.’’ But see Susan Sauve´ Meyer, Aristotle on Moral Responsibility: Character and Cause (Oxford: Basil Blackwell, 1993).

individualistic perfectionism

125

is in terms of human flourishing, which is the natural end for each and every human being, but this flourishing is both a way of being (the ultimate good for an individual human being) and a type of activity (how one ought to conduct oneself). Human flourishing is simultaneously both a good state of being and a right activity. Thus, a natural end ethics of the sort we are presenting transcends the traditional deontological/consequentialist approach to how we determine moral obligations. Moral obligations are primarily determined neither apart from a consideration of human flourishing nor as a mere means to it.36 Further, the role of practical wisdom becomes crucial (as we shall see) to the process of determining what one ought to do. What is worthwhile or good for a human being is constituted by right activity, and right activity expresses, not merely produces, what is worthwhile or good for a human being. The ‘‘good’’ cannot be separated from the ‘‘right,’’ or vice versa. Thus, a natural end ethics of the sort that we envision answers the why-be-moral question with two interchangeable answers ‘‘because it is good for you’’ and ‘‘because it is the right thing for you to do.’’ Finally, the fundamental nature of an ethical imperative for a natural end ethics of the sort that we are presenting is best explained by reference to the following classifications: ‘‘Categorical imperative—regardless of what ends you seek, you must take the following steps. Problematic hypothetical imperative—if you seek this end, then you must take the following steps. Assertoric hypothetical imperative—since you seek this end, then you must take the following steps’’ (emphasis added).37 Our approach to natural end ethics ultimately provides an assertoric hypothetical ethical imperative. This imperative runs as follows: Since every human being has an inherent potentiality for her or his mature state, which is that individual’s natural end and has been identified as human flourishing, and since this potentiality, though actualized through choice, is itself not a matter of choice but a matter of human nature that has directive power for our choices, then, if doing X is a necessary activity for achieving our natural end, then doing X is actually good for us as human beings. Doing X is either a means to or a constitutive property of the set of activities that constitute our being good human beings. But to say that doing X is actually good for us is also to say that 36. Something could be necessary for human flourishing in two possible ways: (1) merely as an instrument; or (2) as a necessary constituent. See our discussion of the inclusive nature of human flourishing below. 37. Roderick Long, Reason and Value: Aristotle Versus Rand (Poughkeepsie, N.Y.: The Objectivist Center, 2000), 61 n. 65. We have changed the punctuation slightly and reordered the list.

126

a new deep structure for liberalism

doing X is worthy of choice, and noting that doing X is choice-worthy is just to say that we ought to choose it—everything else being equal. Thus, on the one hand, the obligation to do X, where X is either a means to or constitutive activity of human flourishing, does not flow from the mere choice to pursue human flourishing; but, on the other hand, neither does the obligation to do X result merely because one categorically ought to do X. It is recognized that human choice is not simply a random act— something that just happens to come down in favor of one course of conduct over another—but is something that must involve having a reason. Yet, it is also recognized that ‘‘ought’’ only becomes intelligible as being something that needs to be done in a context where there is an end to be achieved, which in this case is the doing of X being actually good for us and worthy of our choice.38 Otherwise, one is not merely being told ‘‘one ought to do X because one ought to do X,’’ full stop, which simply begs the question, why be moral? Obviously, the foregoing ontological and anthropological considerations are complex, and if this were a work on the metaethical foundations of natural end ethics, a more detailed examination and defense would be required.39 However, for our purposes what we have said (and what we will 38. Of course, in order for doing X to be an actually good and worthwhile activity for someone, it must be achieved and integrated with all the other activities that constitute an individual’s human flourishing. This requires the virtue of practical wisdom, which is discussed later in this chapter. 39. An example of the sort of issue that needs further examination is raised by Rosalind Hursthouse when she observes that ‘‘a misunderstanding of eudaimonia as an unmoralised concept leads some critics to suppose that the neo-Aristotelians are attempting to ground their claims in a scientific account of human nature and what counts, for a human being, as flourishing. Others assume that, if this is not what they are doing, they cannot be validating their claims that, for example, justice, charity, courage, and generosity are virtues. Either they are illegitimately helping themselves to Aristotle’s discredited natural teleology . . . or producing mere rationalisations of their own personal or culturally inculcated values. But McDowell, Foot, MacIntyre and Hursthouse have all recently been outlining versions of a third way between these two extremes. Eudaimonia in virtue ethics, is indeed a moralised concept, but it is not only that. Claims about what constitutes flourishing for human beings no more float free of scientific facts about what human beings are like than ethological claims about what constitutes flourishing for elephants. In both cases, the truth of the claims depends in part on what kind of animal they are and what capacities, desires and interests the humans or elephants have’’ (Rosalind Hursthouse, ‘‘Virtue Ethics,’’ The Stanford Encyclopedia of Philosophy (Fall 2003), ed. Edward N. Zalta. Available at http://plato.stanford.edu/archives/fall2003/entries/ethics-virtue/ The central question here is, of course, whether ‘‘versions of a third way’’ can avoid the naturalistic fallacy without some commitment or other to natural teleology. Much, of course, depends on what natural teleology involves, and it may be that these versions of a third way would find it congenial to accept the biocentric account of natural teleology presented here or, at least, one similar to it. Indeed, Foot seems to subscribe to such a biocentric account already. See Foot, Natural Goodness, 32–33. Further, it should be noted that MacIntyre now does not

................. 11426$

$CH6

08-10-05 09:12:51

PS

PAGE 126

individualistic perfectionism

127

say elsewhere in this work) is sufficient to make our account of the relationship between human flourishing and human nature both reasonable and plausible. Indeed, as the central features of this account of human flourishing are explained, the reasonableness and plausibility of our understanding of the relationship between human flourishing and human nature will be more apparent, for these features of human flourishing affect the character of that relationship.

An Outline of a Neo-Aristotelian Version of Perfectionist Ethics Central to understanding our neo-Aristotelian version of perfectionism is the account that is given of human flourishing. According to this account, the human good is: (1) objective; (2) inclusive; (3) individualized; (4) agentrelative; (5) self-directed; and (6) social. These basic and interrelated features will be directly explained.

1. Objective Human flourishing is an object of desire. Yet, in terms similar to Socrates’ question to Euthyphro, flourishing is an object of desire because it is desirable and choice-worthy, not simply because it is desired or chosen. In other words, it is desired because of what it is. Its constitution is what makes it think it possible to give an account of the moral life without making reference to how the form of life of beings that are biologically constituted as humans is possible. See Alasdair MacIntyre, Dependent Rational Animals: Why Human Beings Need the Virtues (La Salle, Ill.: Open Court, 1999), x. Yet, there is also the issue of how one conceives the job of philosophy. We can only note here that we do not accept what seems to be a dominant contemporary mode of ethical theorizing—that is, where one studiously avoids pursuing such a foundational question as ‘‘To what in reality do ‘good’ and ‘right’ refer?’’ and instead assumes that there is something called ‘‘morality’’ that we all intuitively know and against which we can measure the worth of competing moral theories such as virtue ethics, deontology, and utilitarianism. As we have noted above, it is perfectly permissible to start with endoxa, but that is not necessarily where one finishes. One often needs to go deeper. Finally, the issue may be epistemological as well, because as cognitive realists we do not see ideas or well-founded opinion as the ultimate ground for what the good and the right are. For our cognitions to be true, they must answer to the real. This is, of course, not to deny that the nature of reality is often very difficult to discover or that human beings are most certainly fallible, but it is to claim that reality is not necessarily hidden from us. Thus, it is ironically not wrong for us to speak of ‘‘direct insight’’ or even ‘‘intuition,’’ but this is because insights or intuitions are at the basic level of analysis always insights or intuitions of some aspect of reality, not short-cuts that replace the hard work of investigation and analysis.

128

a new deep structure for liberalism

good. Thus, human goodness is also something ontological. It is a state of being, not a mere feeling or experience.40 Human flourishing’s goodness, however, cannot be understood apart from a biocentric context. It is a way of living and belongs to the schema of natural normativity that one finds in the case of all living things. As Foot has remarked, ‘‘The structure of the derivation is the same whether we derive an evaluation of the roots of a particular tree or the action of a particular human being. The meaning of the words ‘good’ and ‘bad’ is not different when used in features of plants on the one hand and humans on the other, but is rather the same applied, in judgments of natural goodness and defect, in the case of all living things.’’41 Nonetheless, human flourishing is also a way of living, because there is human nature. Flourishing is thus something more than self-preservation or survival. Again, Foot has observed: When we think about the idea of an individual’s good as opposed to its goodness, as we started to do in introducing the concept of benefit, human good must indeed be recognized as different from good in the world of plants or animals, where good consisted in success in the cycle of development, self-maintenance, and reproduction. Human good is sui generis. Nevertheless . . . a common conceptual structure remains. For there is a ‘‘natural-history story’’ about how human beings achieve this good as there is about how plants and animals achieve theirs. There are truths such as ‘‘Humans make clothes and build houses’’ that are compared with ‘‘Birds grow feathers and build nests’’; but also propositions such as ‘‘Humans establish rules of conduct and recognize rights.’’ To determine what is goodness and what defect of character, disposition, and choice, we must consider what human good is and how human beings live: in other words: what kind of living thing a human being is.42 (emphasis added) Human flourishing consists of activities that both express and produce in a human being an actualization of potentialities that are specific to its natural 40. This is not, however, to claim that having the proper feelings and experiences could not make up the good human life. Indeed, the good life is traditionally understood as the satisfaction of right desire. 41. Foot, Natural Goodness, 47. 42. Ibid., 51.

individualistic perfectionism

129

kind43 —that is, specific to the kind of thing a human being is. These activities constitute the achievement of a human being’s natural end or telos.44 Ontologically considered, human flourishing is an activity, an actuality, and an end (or function) that is realized (or performed) through choice. Human flourishing is not the mere possession of needed goods and virtues. Omne ens perficitur in actu: flourishing is to be found in action. Basic or ‘‘generic’’ goods (which will be discussed shortly) would not exist as goods (or virtues as virtues) if they were not objects or manifestations of a person’s own efforts. Flourishing is a self-directed activity, not a static or passive state. Human flourishing is that-for-the-sake-of-which human conduct is done, and although flourishing is dependent on human agency (what we also call ‘‘self-direction’’) for its actualization or achievement, it does not depend on such agency for its status as the ultimate end. It is thus ultimately the standard by which human desires, wishes, and choices are evaluated.

2. Inclusive Human flourishing is the ultimate end of human conduct, but it is not the only activity of inherent worth. It is not a ‘‘dominant’’ end that reduces the value of everything else to that of a mere means to it. Neither is it monistic and simple. Rather, it is ‘‘the most final end and is never sought for the sake of anything else, because it includes all final ends.’’45 Human flourishing is an ‘‘inclusive’’ end.46 It comprises basic or ‘‘generic’’ goods and virtues47— 43. As we will discuss later, however, human flourishing is not some abstract universal; potentialities unique to the individual are also involved. 44. See Jonathan Jacobs, ‘‘Metaethics and Teleology,’’ The Review of Metaphysics 55 (September 2001): 41–55, for a discussion of the importance of teleology for perfectionist and virtue ethics. 45. J. L. Ackrill, ‘‘Aristotle on Eudaimonia,’’ in Essays on Aristotle’s Ethics, ed. Ame´lie O. Rorty (Berkeley and Los Angeles: University of California Press, 1980), 23. 46. Irfan Khawaja has expressed to us that the inclusive-dominant distinction is not logically exhaustive and that these terms contrast different issues. He suggests that the issues should be redefined as follows: the inclusive-exclusive distinction pertains to the question of what is included in human flourishing and what is not; and the dominant-subordinate distinction pertains to the query regarding what is ordered to what and why. This seems like a good way to discuss these matters. Nonetheless, the inclusive-versus-dominant terminology of W. F. R. Hardie and J. L. Ackrill is well established and is sufficient for our limited purposes. For more on this issue, see Scott MacDonald, ‘‘Ultimate Ends in Practical Reasoning: Aquinas’s Aristotelian Moral Psychology and Anscombe’s Fallacy,’’ The Philosophical Review 100 (January 1991): 31–66. 47. Basic goods can be regarded as somewhat similar to what John Rawls calls ‘‘primary goods,’’ that is, things that every rational man is presumed to want.’’ Rawls, A Theory of Justice (Cambridge, Mass.: Belknap Press of Harvard University Press, 1971), 62. For convenience, the

130

a new deep structure for liberalism

for example, such goods as knowledge, health, friendship, creative achievement, beauty, and pleasure; and such virtues as integrity, temperance, courage, and justice. These are valuable not as mere means to human flourishing, but as expressions of it, and thus as partial realizations of it as well. As such, these goods and virtues are final ends and valuable in their own right.48 To understand this idea better we should consider two types of relations of subordination to some end: (a) on the one hand, there is the difference between activities that are purely means or instruments to that end; and (b) on the other, there are activities that are ingredients in or constituents of that end. For example, consider the difference between the relationship of obtaining golf clubs to playing golf and the relationship of putting to playing golf. While both activities are ‘‘for the sake of’’ playing golf, the former is only a necessary preliminary, while putting is one of the activities that makes golfing what it is. Furthermore, the actions taken to obtain golf clubs produce an outcome separate from that activity—namely, the possession of golf clubs that can be used—but putting has no end or result apart from itself. Its value is not that of a mere means. Its value lies in its being an expression or realization of the activity of which it is a constituent. As Ackrill states, ‘‘One does not putt in order to play golf. . . . Putting is playing golf (though not all that playing golf is).’’49 Another point that is crucial to appreciating what it means for human flourishing to be an ‘‘inclusive’’ end is the idea that (c) some things can be done for their own sake and yet also done for the sake of something else. term ‘‘generic’’ is used to stand for considerations that involve both the genus and the species to which a human being belongs. 48. ‘‘A is more final than B if though B is sought for its own sake (and hence is indeed a final and not merely intermediate goal) it is also sought for the sake of A.’’ Ackrill, ‘‘Aristotle on Eudaimonia,’’ 21. Also, as Richard Kraut observes: ‘‘There is no incompatibility, in Aristotle’s ethics, between choosing virtuous acts for themselves and choosing them only on condition that they are principal ingredients of happiness.’’ ‘‘Aristotle on Choosing Virtue for Itself,’’ Archiv fu¨r Geschichte Der Philosophie 58, no. 3 (1976): 238. 49. Ackrill, ‘‘Aristotle on Eudaimonia,’’ 19. As Ackrill implies, the relations of subordination are even more complicated than described here. See MacDonald, ‘‘Ultimate Ends in Practical Reasoning,’’ 31–66, for a discussion of these complications and a thorough defense of the idea that the human good is an inclusive end. MacDonald argues, however, that Ackrill’s example of the relationship of putting to golfing is not a good one for illustrating inclusivity, because it is logically possible to play a round of golf without putting. To illustrate inclusivity MacDonald instead uses the example of running a ten-kilometer race as a constituent part of a triathlon [international length]. Yet, it still seems that Ackrill’s example of putting’s relationship to golfing could be defended as a constitutive part if one noted that the end was doing well at golf or having the lowest score, not merely playing a round of golf.

individualistic perfectionism

131

This notion (c) is possible since flourishing is not the result of the efforts of a lifetime; it is not something that one looks forward to enjoying in the future. Rather, it is a continuous process of living well. Thus, the constituents of such living are more than merely means for bringing about what is to follow; they are also worthwhile in themselves. It is perfectly possible for something to be pursued for its own sake and still be a constituent of human flourishing. Indeed, as Aristotle states: What is always chosen as an end in itself and never as a means to something else is called final in an unqualified sense. This description seems to apply to eudaimonia above all else; for we always choose eudaimonia as an end in itself and never for the sake of something else. Honor, pleasure, intelligence, and all virtue we choose partly for themselves—for we would choose each of them even if no further advantage would accrue from them—but we also choose them partly for the sake of eudaimonia. (Nicomachean Ethics, 1097b ff.) This view of human flourishing is open to the possibility that there may not be a preset weighting or evaluative pattern for the basic or generic goods and virtues that constitute it. Even if all of the aforementioned goods and virtues are necessary to flourishing, an abstract analysis of human nature may not show us what their evaluative ranking should be. Such an analysis may not tell us how much time and effort should be spent in the pursuit of one necessary good or virtue as opposed to another. As we shall see, this possibility creates a basis for a conception of human flourishing that is different in many respects from that usually associated with traditional perfectionist theories. Further, the theory of obligation generated by this inclusive view of human flourishing is one in which it is not necessary to calculate what the expected consequences of every proposed course of conduct might be in order to determine what is good and what ought to be done. Nor is it necessary always to be open to the possibility of such calculation. Though calculation would be appropriate for dealing with matters that are entirely instrumental to human flourishing, this is not so when it comes to the components of human flourishing itself. The first principle of practical reason is, as Aquinas noted, to do good and avoid evil. Thus, the major concern is determining what in the particular and contingent is really good or virtuous. Once one discerns what is good or virtuous, one knows what ought

132

a new deep structure for liberalism

to be done. It is in this respect that an ethics of human flourishing is not consequentialist, because some virtues and goods are seen as activities that characterize our human flourishing itself, not merely as external means. This is not to say, however, that there might not be other senses (for example, a personal or a nonmaximizing sense) in which this view can be termed ‘‘consequentialist.’’50 The problem with consequentialism is that it is seen as foundational in determining obligations, not that consequences do not have a role to play within morality. In other words, once the constituent goods and virtues of human flourishing that ought to be pursued and practiced are determined, how the conduct that expresses these goods and virtues is integrated into a flourishing life for that individual does indeed involve reflection on consequences. An individual needs to consider, for example, whether or not the effects or consequences of the pursuit of one good are compatible with the pursuit of another. Determining how to incorporate such conduct into an integrated whole is the central task faced by practical wisdom. Thus, it is consequentialism as a theory for determining the nature of moral obligations and their foundational character that individualistic perfectionism rejects, not the notion that consequences have no role—albeit a derivative and bounded one—to play in an individual determining what actions to take. We shall explore this issue further when we consider the role practical wisdom (phrone¯sis) plays in individualistic perfectionism.

3. Individualized Human flourishing is individualized and diverse. It is dependent on who as well as what one is. Abstractly considered, we can speak of human flourishing and of basic or generic goods and virtues that help to define it. Yet, this does not make human flourishing in reality either abstract or universal. Concretely speaking, no two cases of human flourishing are the same, and they are not interchangeable. Just as Mary’s actualization of her potentialities is not the same as Bill’s actualization of his, Mary’s fulfillment is not the same as Bill’s. There are individuative as well as generic potentialities, and this makes human fulfillment always something unique. The generic goods and virtues that constitute human flourishing only become actual, determinate, and valuable realities when they are given particular form by the choices of flesh-and-blood persons. The importance or 50. See Foot, Natural Goodness, 48–50.

individualistic perfectionism

133

value of these goods and virtues is rooted in factors that are unique to each person, for it is not the universal as such that is valuable. Consequently, the circumstances, talents, endowments, interests, beliefs, and histories that descriptively characterize each individual—what we have called an individual’s ‘‘nexus’’—determine, as much as possible, the appropriate valuation or weighting of these generic goods and virtues for each individual. Human flourishing is not simply achieved and enjoyed by individuals, but is itself individualized. As noted in Chapter 4, we thus should guard against the temptation to imagine the goods and virtues that make up human flourishing as existing or having value apart from the individuals whose goods and virtues they are. Further, we should not imagine individuals as mere placeholders or loci in which these goods and virtues are instantiated. Individuals are not metaphysical pincushions in which these generic goods and virtues are ‘‘stuck,’’ and individuals do more than locate these generic goods and virtues in space. It is, to repeat, only through an individual’s practical choices that these generic goods and virtues become determinate, real, and valuable. Another way to understand the foregoing points is to realize that the generic goods and virtues of human flourishing are not like recommended daily allowances for vitamins and minerals. Their weighting, balance, or proportion cannot be read off of human nature like the back of a cereal box and applied equally across all individuals as if individuals were merely repositories for them.51 Rather, it is only when the individual’s particular talents, potentialities, and circumstances are jointly engaged that these goods and virtues become real or achieve determinacy. Human flourishing exists neither apart from the choices and actions of individual human beings nor independently of the particular mix of goods that individual human beings need to determine as being appropriate for their circumstances. It is not that flourishing merely happens or occurs within some person’s life, as if a person were simply a placeholder for this ultimate value. Rather, the relationship between flourishing and a person’s life is much more intimate. The status of human flourishing as the ultimate value arises within and obtains only in relationship to some person’s life. Further, its value is found in and exhausted by those activities of a person that constitute that person’s flourishing. Human flourishing is thus neither some value-at-large 51. Den Uyl, The Virtue of Prudence, 37–38.

134

a new deep structure for liberalism

nor a tertium quid. In other words, it involves an essential reference to the person for whom it is good as part of its description. This account of human flourishing is, then, a version of moral pluralism.52 There are many summa bona, because each individual’s flourishing is the summum bonum for him- or herself and because there is no single summum bonum without unique form or apart from the lives of individual human beings. Nonetheless, this does not require that human flourishing be subjective. Human flourishing consists neither in merely having favorable feelings nor in having value conferred upon it simply by someone’s preference. This individualized account of human flourishing offers diversity without subjectivism.53

4. Agent-Relative Human flourishing is agent-relative. Abstractly stated, human flourishing, F, for a person, P, is agent-relative if and only if its distinctive presence in a world W1 is a basis for P ranking W1 over world W2, even though F may not be the basis for any other persons ranking W1 over W2. There is no human flourishing, full stop. Human flourishing is always and necessarily the good for some person or other. Perhaps the best way to understand what agent-relativity means is to contrast it with its opposing view, the view that basic values and reasons are agent-neutral and ethics is impersonal. The following two statements, the first by Henry Sidgwick and the second by John Stuart Mill, express the impersonal viewpoint well. I obtain the self-evident principle that the good of any one individual is of no more importance, from the point of view (if I may say so) of the Universe, than the good of any other; unless, that is, there are special grounds for believing that more good is likely to be realized in the one case than in the other. And it is evident that as a rational being I am bound to aim at the good generally,—so far as it is attainable by my efforts,—not merely at a particular part of it.54 52. This is not to say that there is more than one ultimate standard of goodness; rather, it is just to say that although human flourishing is the ultimate good, it is always and necessarily expressed in individual form. 53. There is nothing incompatible about human flourishing being objective and it being diverse or individualized. This is discussed in Chapter 7. 54. Sidgwick, The Methods of Ethics, 382.

individualistic perfectionism

135

The happiness which forms the utilitarian standard of what is right in conduct, is not the agent’s own happiness, but that of all concerned. As between his own happiness and that of others, utilitarianism requires him to be as strictly impartial as a disinterested benevolent spectator.55 According to the impersonal view, we are to take on the viewpoint of the universe and become impartial when determining our conduct. In effect, we are to adopt the perspective of an abstract, detached, rational agent, considered apart from all individuating conditions—be they natural, social, or cultural—and eschew all values, rankings, and reasons that could not be held by such a rational agent. In an impersonalist ethical theory, the fact that course of action C results in assistance to one’s own personal projects, family, friends, or country, where non-C does not, provides no ethical reason for preferring C over non-C. These factors might explain how a person would feel about the situation, but when a person is acting from an impersonalist perspective, considerations of a personal nature are irrelevant and should not weigh more heavily. For the impersonal rational agent, who he or she is does not count as a reason to give extra weight or importance to a value when determining the proper course of action. The individual qua individual is not important in an impersonal moral theory.56 The individual only represents a locus at which good is achieved or right conduct performed. Thus, we may say that an ethical theory is impersonal when all ultimately morally salient values, reasons, and rankings are ‘‘agent-neutral’’; and they are agent-neutral when they do not involve as part of their description an essential reference to the person for whom the value or reason exists or the ranking is correct. One person can be substituted for any other. The individual is merely a placeholder around which rules and abstract principles 55. John Stuart Mill, Utilitarianism, ed. George Sher (Indianapolis: Hackett Publishing, 2001), 17. 56. Of course, much depends on what one takes an individual to be. For Kant, particular human beings are indeed centers of value, but this is ultimately because we are noumenal selves and not because of anything having to do with our individuality. Thus, for Kant our individualistic concerns are ruled out by his philosophical anthropology. But if humans are really individual beings—not merely points in space and time but flesh-and-blood realities with a nature that is constituted by both generic and individuative potentialities—then these concerns are important. Indeed, W. D. Ross points out some of the difficulties in applying the principle of universalizability when faced with a view of human nature that takes individuality seriously. See Ross, Kant’s Ethical Theory: A Commentary on the Grundlegung zur Metaphysik der Sitten (New York: Oxford University Press, 1954), 34.

136

a new deep structure for liberalism

revolve. As we have stated elsewhere, ‘‘For any value, reason or ranking V, if a person P1 is justified in holding V, then so are P2 –Pn under appropriately similar conditions. . . . On an agent-neutral conception it is impossible to weight more heavily or at all, V, simply because it is one’s own value.’’57 Accordingly, when it comes to describing a value, reason, or ranking, it does not ethically matter whose value, reason, or ranking it is. According to the neo-Aristotelian view of human flourishing we advance here, an impersonal ethics and an agent-neutral conception of basic values and reasons are unsound. There is no great divide in the nature of things between the facts that can and cannot be ethically relevant. Particular and contingent facts can be ethically important. Of course, some may be more important than others in achieving human flourishing, but this cannot be determined from one’s armchair alone. Certainly, there is, according to our view, no basis for holding that individual, social, and cultural differences among people are ethically irrelevant. They are, to the contrary, highly significant. Further, moral impersonalism’s claim that values central to one’s very conception of oneself may not be weighted more than less-central values is without foundation. The fact that a value is crucial to some person’s deeply held personal project, but to no one else’s, does not make it morally irrelevant. Indeed, the opposite is the case. Such value deserves consideration that is even more careful, precisely because of its relation to oneself. We will discuss these points further when we consider the role of practical wisdom in our conception of human flourishing. There remain, however, three possible confusions about agent-relativity that must be considered here. The first has to do with the relationship between the objectivity of human flourishing and its agent-relativity. While aspects of this issue will be discussed in Chapter 7, it should be noted now that just because something is only valuable relative to some person does not necessarily make its value merely a matter of that person’s attitude toward it or, indeed, merely something desired, wanted, or chosen. Nor is it merely a matter of a person’s point of view. The old question, relative to what? is important here. Human flourishing is agent-relative in the sense that it is essentially related to some person or other, but this does not mean that is essentially related to what a person merely desires, wants, or chooses. This neo-Aristotelian theory assumes that a human being is more than a bundle of passions and desires and that there are real potentialities, needs, 57. Den Uyl, The Virtue of Prudence, 27. See especially Eric Mack, ‘‘Moral Individualism: Agent Relativity and Deontic Restraints,’’ Social Philosophy & Policy 7 (Autumn 1989): 81–111.

individualistic perfectionism

137

and circumstances that characterize both what and who a person is. That one is interested in or has a desire for something does not necessarily mean that it is good for one. The agent-relative, as well as the individualized, character of human flourishing is not incompatible with its being something objective. The second confusion is subtler. It has to do with the issue of whether or not something can be valuable in its own right (that is, as a final end or an end in itself) and nonetheless agent-relative. The problem seems to be that if something is an agent-relative value, then its value lies not in itself, but something else. Thus, something cannot be valuable in its own right and agent-relative as well. This argument confuses, however, instrumental value with agent-relative value. Although all values must be related to some person or other, this does not mean or show that their value lies in their being merely means or instruments. As we noted in our earlier discussion of inclusivity, the constituent goods and virtues of human flourishing are, for example, valuable in their own right but nonetheless essentially related to the lives of individual human beings. Their value is not a matter of their being mere means to human flourishing, but hinges upon their being expressions or realizations of it. So there is no incompatibility in something being valuable in its own right and agent-relative. What is even more to the point, however, is that there is no incompatibility in human flourishing being the ultimate objective value and being agent-relative as well.58 As we have noted, there is no flourishing-at-large; no flourishing that is not essentially the flourishing-for-some-person. The human telos just is, then, the flourishing of each individual. Its value lies in the immanent activities that constitute the fulfillment of individual human beings. These activities are essentially a part of, and thus related to, the lives of individual human beings. As such, human flourishing is not something that competes with the good of individual human beings, but is the very flourishing of their lives. Thus, it is perfectly consistent for the flourishing of individual human beings to be valuable in its own right and essentially related to individual persons. A commitment to the inherent value of human flourishing does not imply, then, that it is agent-neutral. Human flourishing is not something that can be exchanged or promoted regardless of whose flourishing it is. Agent-neutrality is not necessary for upholding either value-objectivity or choice-worthiness (an issue that will be discussed in greater detail in Chapter 7). 58. As Ackrill puts it, the ‘‘the most final end . . . because it includes all final ends.’’ Ackrill, ‘‘Aristotle on Eudaimonia,’’ 23.

138

a new deep structure for liberalism

Finally, agent-relativity should not be confused with egoism. To say that human flourishing is agent-relative does not mean or imply that human flourishing cannot involve concern for the good of others or that acting for the welfare of another could not be a value or reason for one’s conduct.59 Acting for the sake of another could be only good-for-you and not necessarily anyone else. Parents making sacrifices for their children or friends helping and nurturing one another are among the many examples of how flourishing can be agent-relative and nonetheless involve authentic concern for others. Further, even in situations that are not regarded as instances of personal flourishing, we find agent-relativity compatible with other-concern, as in the case of soldiers risking their own lives for their comrades during battle. Therefore, agent-relativity and egoism should be distinguished.60

5. Self-Directed Toward the end of De Anima (II, 5), when Aristotle is discussing the differences between intellectual and sensory apprehension, he notes the role of self-direction in human knowing: Actual sensation corresponds to the stage of the exercise of knowledge. But between the two cases compared there is a difference; the objects that excite the sensory powers to activity, the seen, the heard, & c., are outside. The ground of this difference is that what actual sensation apprehends is individuals, while what knowledge apprehends is universals, and these are in a sense within the soul. That is why a man can exercise his knowledge when he wishes, but his sensation does not depend upon himself—a sensible object must be there. (De Anima 417b18–26, emphasis added)61 The intellectual insight necessary for human knowledge depends on the individual human being exercising the effort necessary to initiate and maintain it. 59. See our discussion of character-friendship in Liberty and Nature, 66–68, as well as the discussion of sociality below. 60. Furthermore, we have yet to discuss the many senses of ‘‘justice’’ and their relation to human flourishing. 61. Fred D. Miller Jr. first directed us to this passage and has taught us that ‘‘wishes’’ in this passage refers to rational desire rather than mere whim. Also, Deborah K. W. Modrak notes that

individualistic perfectionism

139

Accordingly, human flourishing—requiring, as it does, intellectual insight—would seem to be a self-directed activity for Aristotle. Indeed, he notes the importance of self-direction when differentiating between good fortune and eudaimonia for god. ‘‘[He] is eudaimoˆn and blessed, but not on account of any external goods but on account of himself and because he is by nature of a certain sort—which shows that being fortunate must be different from flourishing. For the goods external to the soul come of themselves by chance, but no one is just or temperate by or through chance’’ (Politics 1323b24–29, emphasis added). Flourishing does not consist in the mere possession and use of needed goods.62 Rather, human flourishing consists in a person maintaining those virtues for which he alone is responsible and that in most cases will allow him to attain the goods his life requires.63 Aristotle also notes that if our knowledge and actions are to enable us to be good (or virtuous), as opposed to us merely knowing and doing good (or virtue), three conditions must be met. ‘‘(1) The agent must act in full consciousness of what he is doing. (2) He must ‘will’ the action, and will it for its own sake. (3) The act must proceed from a fixed and unchangeable disposition’’ (Nicomachean Ethics, 1105a31–32). Only by initiating and maintaining the effort to gain the knowledge, to cultivate the proper habits of character, to exercise correct choices, and to perform the right actions can someone achieve moral excellence. These statements, together with others,64 suggest that Aristotle considers human flourishing as fundamentally a self-directed activity. Whether or not this is his ultimate position, however, flourishing is indeed, according to the neo-Aristotelian conception we are advancing, essentially self-directed. Self-direction is not merely one of the many conditions necessary for the existence of flourishing; rather, it is necessary to the very nature of human flourishing.65 the faculty of thought is for Aristotle ‘‘self-starting.’’ Aristotle’s Theory of Language and Meaning (Cambridge: Cambridge University Press, 2001), 246 n. 2. 62. John Cooper notes that ‘‘for Aristotle, eudaimonia is necessarily the result of a person’s own efforts; success, of whatever kind, could only count as eudaimonia if due to one’s own efforts.’’ Cooper, Reason and Human Good in Aristotle (Cambridge, Mass.: Harvard University Press, 1975), 124. 63. None of this is, of course, to deny that matters that are beyond one’s control might not make a vital difference as to whether one flourishes or not. Rather, it is just to say that if one does flourish, it must be something for which one is responsible. 64. See Nicomachean Ethics 1099b18–25 and 116868b34–1169a3. 65. If human beings were attached to machines that satisfied their every need and thus made it unnecessary for them to do anything, that is, if everything were done for them so that they were essentially passive, their lives would not be worthwhile. There would be no self-direction,

140

a new deep structure for liberalism

As Jennifer Whiting’s example of a heart that pumps by aid of a pacemaker illustrated (see Chapter 4), just as a heart that does not pump on its own is not strictly performing its natural function, so neither are human beings who are not fundamentally directing their own lives performing their natural function. Human flourishing consists in exercising rational agency. Indeed, what we stated in Chapter 4 bears repeating: If self-direction were not involved, human flourishing would not be human flourishing. Self-direction is the central necessary constituent or ingredient of human flourishing. It is that feature of human flourishing without which no other feature could be a constituent. That is to say, it is both a necessary condition for, and an operating condition of, the pursuit and achievement of human flourishing. No matter the level of achievement or specificity, self-direction is a feature of all acts of human fulfillment. To appreciate this insight fully we need to discuss the role of practical wisdom as the central integrating virtue of human flourishing. This will be done in the next section. For now, it will suffice to see that the functioning of one’s reason or intelligence, regardless of one’s level of learning or degree of ability, does not occur automatically. It is something the individual initiates and maintains, requiring effort or exertion. Effort is needed to discover the goods and virtues of human flourishing as well as to achieve and implement them. As we have observed already and will again later, the act of using one’s intellectual capacity is an exercise of self-direction, and the act of self-direction is an exercise of reason.66 They are not the separate acts of two isolated capacities, but distinct aspects of the same conscious act.67 The use of one’s practical reason is something each person must do for him- or herself.68 Though its conclusions can be shared, the act of reasoning that is an exercise of self-direction cannot. no reason, and no individualization. Fundamentally, their lives would not really be their own. There would be no such thing as human flourishing. 66. See Den Uyl, The Virtue of Prudence, 183–86. 67. As noted in Chapter 4, Aquinas states that ‘‘man is master of his actions through his reason and will; whence, too, the free-will is defined as ‘the faculty and will of reason.’ ’’ Summa theologiae Ia IIae 1.1. See Scott MacDonald, ‘‘Egoistic Rationalism: Aquinas’s Basis for Christian Morality,’’ in Christian Theism and the Problem of Philosophy, ed. Michael D. Beaty, 327–54 (Notre Dame, Ind.: University of Notre Dame Press, 1990). 68. Henry B. Veatch puts this point well: ‘‘For is it not evident that not only does a human being not attain his natural end by an automatic process of development and maturity after the manner of an animal? In addition, no human being ever attains his natural end or perfection save by his own personal effort and exertion. No one other than the human individual—no agency of society, of family, of friends, or of whatever can make or determine or program an individual to be a good man, or live the life that a human being ought to live. Instead attaining

individualistic perfectionism

141

In an ontological sense, the person is a unity seeking further actualization of the self. But since further actualization depends on choice reflected through action, the degree to which action and choice are consistent affects the degree of success the individual will have. The Aristotelian eudaimonic person is not characterized by an aggregation of intentions, desires, or actions. It is rather that one’s intentions, desires, and actions come to be a manifestation of a single core self developing toward its further realization.69 Therefore, if we speak of ‘‘human flourishing’’ as the ‘‘perfection’’ of the human being, then it would be fundamentally a process of self-perfection, where the individual human being is both the agent and the object of the process.

6. Social Contrary to Hobbes, we contend that human flourishing is not atomistic. We are naturally social animals, specifically in the following ways: 1) Our maturation or flourishing requires a life with others. We do not flourish independent and apart from engagement with others. We have potentialities that are other-oriented, and we cannot find fulfillment without their actualization. Human flourishing does not require gaining the goods of life exclusively for oneself and never acting for the sake of others.70 2) Indeed, having other-concern is crucial to our maturation. As Aristotle makes clear, philia (friendship) is one of the constituents of human flourishing.71 An ethics of human flourishing is then not an ethical egoism, no matter how broadly conceived, for being concerned with others for their own sake is more than simply a means to one’s flourishing. 3) Our origins are almost always social. We are born into a society or one’s natural end as a human person is nothing if not a ‘do-it-yourself’ job.’’ Veatch, Human Rights: Fact or Fancy? (Baton Rouge: Louisiana State University Press, 1985), 84. 69. We also make this point in Liberty and Nature, 40. 70. See Kelly Rogers, ‘‘Aristotle on Loving Another for His Own Sake,’’ Phrone¯sis 39, no. 3 (1994): 291–302. MacDonald notes that ‘‘the claim that one seeks the good of others as a part of one’s own good does not mean that one does not seek the good of others for its own sake but only for the sake of one’s own good. One can seek the constituents of one’s own good for their own sakes, and also for the sake of the good of which they are constituents.’’ McDonald, ‘‘Egoistic Rationalism,’’ 352 n. 35. 71. See John Cooper, ‘‘Aristotle on Friendship,’’ in Essays on Aristotle’s Ethics, ed. Ame´lie O. Rorty, 301–40 (Berkeley and Los Angeles: University of California Press, 1980).

142

a new deep structure for liberalism

community, and we grow and develop in some social context or other. Our upbringings and environments are crucial to the formation of our self-conceptions and fundamental values, and our lives are intertwined with others. We are thus not abstract individuals. It is a fundamental mistake to conceive of human beings achieving maturity or flourishing apart from others and only later taking it upon themselves to join society or to have social concern. Human flourishing is for the most part only achieved with and among others. As Aristotle notes, ‘‘Only a beast or a god would live outside the polis’’ (Politics, 1253a27–29). In Chapter 4, however, we noted that our sociality is even more profound than what seems to have been the traditional Aristotelian view. We observed that 4) Human sociality can, if need be, extend beyond the polis and be cosmopolitan. Our sociality is not necessarily confined to a select group or pool of human beings. It is open to relationships with any human. Though relationships with others are founded on shared values that form the basis for a variety of relations—which range from those with close friends and acquaintances to those with fellow members of communities and cultures—human sociality is open-ended. There might be, of course, important ethical reasons for not having a relationship with someone, but this limitation comes from other features of human flourishing and not human sociality itself. For humans qua social animals, there are no principled limitations regarding with whom one may attempt to have a relationship. Thus, it is an unjustified limitation of human sociality to hold that persons cannot form relationships with persons with whom no common values are yet shared. Though one must flourish in some community or other,72 this does not mean that a given community’s values will always be appropriate for an individual. Thus, one is not morally required simply to accept—indeed, one might be required to reject—the status quo. In such circumstances, one might need to refashion a community’s values or find a new community. It 72. There are also different kinds and levels of community life, each with types and levels of commonality required for its members, that individuals can participate in simultaneously.

individualistic perfectionism

143

is here that the open-ended character of human sociality becomes crucially important, for as noted in Chapter 4, the open-ended character of human sociality discloses the need for a perspective that is wide-ranging enough to explain how the possible relationships among persons who as yet share no common values and are strangers to each other can, nonetheless, be ethically compossible. In other words, it requires that attention be given to addressing the question of how it is possible to establish a social context in which different individuals might flourish, and do so in different ways (in different communities and cultures), without creating inherent moral conflict for the structure of that context. Thus, the open-ended character of human sociality requires a neo-Aristotelian ethics to consider a perspective that extends beyond the polis to questions of political frameworks in the modern sense. If the foregoing account of human flourishing is accurate, what is specifically required is finding an ethical basis for a political framework that is both consistent with individualistic perfectionism and yet based on something that can be cosmopolitan. According to this neo-Aristotelian conception of human flourishing— that is, according to what we call ‘‘individualistic perfectionism’’—we may, then, say the following: One person’s moral well-being cannot be substituted for another’s. The good-for-me is not, and cannot be, the good-foryou. Yet, this is not to say that any choice one makes is as good as the next. Rather, it is to say that the choice must be one’s own and must involve considerations that are unique to the individual. The human good, then, is something objective, self-directed, socially achieved, and yet highly personal. It is not abstract, collectively determined, atomistic, or impersonal.

The Role of Practical Wisdom Regardless of whether or not the foregoing outline of human flourishing meshes with Aristotle’s, it is clear that human flourishing is, for our theory of individualistic perfectionism, something plural and complex, not monistic and simple. As we have noted, this view of human flourishing amounts to a version of moral pluralism because there are many goods that help to define human flourishing. Further, there is no single good or virtue that dominates all others and reduces them to mere instrumental values. Such goods as, for example, health, creative achievement, friendship, beauty, pleasure, and knowledge and such virtues as, for instance, integrity, courage, temperance, and justice seem to be candidates for necessary ingredients

144

a new deep structure for liberalism

or constituents of human flourishing. They are as such valuable in themselves, not as mere means. Each is only one of the components, however. And each, like all of the other necessary components of human flourishing, must be achieved, maintained, and enjoyed in a manner that allows it to be coherently integrated with everything else that makes up human flourishing. Further, since human flourishing is individualized, these goods and virtues must be achieved in light of a consideration of the set of circumstances, talents, endowments, interests, beliefs, and histories that descriptively characterize the individual—her or his nexus—as well as the individual’s community and culture. Thus, an examination of human nature may reveal basic or generic goods and virtues, but it does not reveal what the weighting or balancing of these goods and virtues should be for the individual.73 In other words, what human flourishing amounts to in terms of concrete activities for any particular individual is not something that can be simply read from human nature in some recipe-like manner. It is fundamentally erroneous to assume that abstract ethical principles alone can determine the proper course of conduct for any particular individual. Such ethical rationalism fails to grasp that ethics is practical and concerned with particular and contingent facts—facts that abstract ethical principles cannot explicitly capture. Such facts are crucial to determining what ought to be done. Thus, contrary to much modern and contemporary ethics, not all morally proper conduct need be something everybody should do.74 It might seem, however, that this rejection of ethical rationalism goes too far.75 If knowing in what human flourishing generically consists does not solve the question of how individuals should conduct their lives, this inclusivist view of human flourishing can be charged with underdetermination. In such a view, ethical theory seems not very useful. In other words, critics claim that this view of human flourishing places limits on the ability of practical reason to determine what ought to be done regarding substan73. This paragraph is taken, with slight alterations, from Douglas B. Rasmussen, ‘‘Perfectionism,’’ in the Encyclopedia of Applied Ethics, vol. 3 (San Diego: Academic Press, 1997), 473–80. 74. The principle of universalizability need not be interpreted, as we shall see in Chapter 7, as requiring an impersonalist or agent-neutral approach to ethical obligation. On the issue of how to interpret the principle of universalizability, see Henry B. Veatch, ‘‘On the Use and the Abuse of the Principle of Universalizability,’’ Proceedings of the American Catholic Philosophical Association 51 (1977): 162–70. 75. Ethical rationalism is understood here to be the position that holds (1) that abstract ethical principles alone can determine the proper course of conduct for any particular individual; and (2) that particular and contingent facts are not morally relevant when it comes to determining the proper course of conduct for an individual.

individualistic perfectionism

145

tial matters.76 Further, they claim that a view of human flourishing that allows for a plurality of inherent goods creates irresolvable conflicts when one tries to achieve them.77 In its attempt to avoid the difficulties of a dominant-end account of human flourishing and the dogmatism of ethical rationalism, their overall complaint is that this neo-Aristotelian view has abdicated its responsibility to provide ethical guidance. Our reply to these charges can be summarized as follows. (1) Underdetermination is a flaw only if one assumes that the aim of moral theory is to dictate a set of specific and equally suited rules of conduct for every person regardless of her or his nexus.78 But this is not necessary given that the human good is neither abstract nor agent-neutral. Practical wisdom deals with the contingent and the particular and can provide guidance regarding substantial matters, if we do not confuse it with theoretical reason or its features. (2) A plurality of inherent goods does not necessarily make them incompatible, if we do not confuse concrete with abstract considerations and if we recognize that it is by using practical wisdom, not rules, that potential conflicts are reconciled. We will develop each of these responses. We will also, in the process, explain the central role of practical wisdom for our conception of human flourishing. (1) If it is indeed the case that human flourishing is a highly individualized, agent-relative activity, then a large measure of individualism must be factored into the process of determining what a person should do. Yet if this is so, there might be a way to turn the tables on those who charge this neo-Aristotelian account with underdetermination. What appears to be a flaw might not really be one. In fact, it might be one of the principal advantages of the account we are developing because it represents a theoretical 76. ‘‘To admit an irreducible plurality of ends is to admit a limit to practical reasoning, and to admit that some substantial decisions are not to be explained, and not to be justified by any rational calculation. This is a possibility that cannot be conceptually excluded, even if it makes satisfying theoretical reconstruction of different uses of ‘good,’ as a target-setting term, impossible.’’ Stuart Hampshire, Freedom of Mind and Other Essays (Princeton: Princeton University Press, 1971), 79. 77. Loren Lomasky, Persons, Rights, and the Moral Community (New York: Oxford University Press, 1987), 51. 78. ‘‘Underdetermination’’ is taken here to be the claim that the specific and determinate character of generic goods and virtues cannot be known by an abstract consideration alone. However, if ‘‘underdetermination’’ is taken to be the claim that because we cannot abstractly determine the full range and depth of generic goods or virtues we therefore cannot either know that there are such generic goods or virtues or give them determination through practical wisdom, then this is indeed a flaw. But we think ‘‘underdetermination’’ in this latter sense is false.

146

a new deep structure for liberalism

openness to diversity. This account does not assume that abstract ethical reasoning alone can provide moral guidance or that the contingent and particular must somehow be eliminated from moral deliberations. Further, it does not suppose, as the Kantian (and utilitarian) viewpoints appear to do, that the sine qua non of ethical reasoning is providing impersonal prescriptions. Fundamentally, such a supposition is wrong-headed. The attempt to provide a set of specific and equally suited rules of conduct for all persons regardless of their nexus, which has characterized so much of twentieth-century ethics, confuses agent-neutrality with objectivity and law with ethics, and forgets the open-endedness of ethics.79 Furthermore, it tends to confuse armchair pronouncements with the difficult task of determining what the proper course of conduct is for an individual in a concrete situation. Yet, most important, the search for impersonal prescriptions overlooks the moral significance of what the individual qua individual brings to moral considerations. The search for impersonal prescriptions also ignores the central role of the virtue of phrone¯sis or practical wisdom for an ethics of human flourishing. Practical reason is the intellectual faculty employed in guiding conduct. This faculty can be properly or improperly used. When this faculty is properly or excellently used, we have the virtue of practical wisdom. Practical wisdom is the intellectual virtue for our neo-Aristotelian conception of ethics, for it is central to the exercise of moral virtue. As Aristotle states, ‘‘virtue or excellence is a state of character involving choice and consists in observing the mean relative to us, a mean defined by a rational principle, such as a man of practical wisdom would use to determine it’’ (Nicomachean Ethics, 1107a1–3, emphasis added). It is extremely difficult to overstate the importance of practical wisdom for this view. Practical wisdom is not merely cleverness or means-end reasoning.80 Instead, it is the ability of the individual at the time of action to discern in particular and contingent circumstances what is morally required.81 Since there are, for this view, no a priori universal rules that dictate the proper 79. Law must be concerned with rules that are universal and necessary, because it is concerned with the question of establishing social conditions that must apply to everyone equally. Ethics, on the other hand, need not be so construed. Ethical principles need to be open to the particular and contingent circumstances of the lives of different individuals. 80. See Norman O. Dahl, Practical Reason, Aristotle, and Weakness of the Will (Minneapolis: University of Minnesota Press, 1984), 111. 81. Fred D. Miller Jr., ‘‘Aristotle on Rationality and Action,’’ The Review of Metaphysics 38 (1984): 499–520.

individualistic perfectionism

147

weighting of the goods and virtues of human flourishing, proper weighting is only achieved by individuals using practical wisdom at the time of action to discover the proper balance for themselves. The desirable and choice-worthy elements of flourishing need to be achieved, maintained, and enjoyed in a coherent manner, and this involves a consideration of generic, individuative, and circumstantial factors. This is no small task, and the ability to do it well characterizes the person who lives excellently. Such a person is practically wise: ‘‘Now it is thought to be the mark of a man of practical wisdom to be able to deliberate about what is good and expedient for himself, not in some particular respect . . . but about what sorts of things conduce to the good life in general’’ (Nicomachean Ethics, 1140a25–28). Neither is the proper use of practical reasoning solely a process of maximization. The principal appeal of maximization is that given that something is desirable, it seems irrational not to choose a course of conduct that gives one more of it. However, if it is the case that desirable goals are never pursued apart from other such goals, then practical reasoning has to encompass more than merely maximizing a good. It has to determine how to weight the pursuit of one necessary good or virtue relative to another so that the achievement of one does not eliminate the achievement of another. Indeed, practical reason properly used, which is the virtue of practical wisdom, is the intelligent management of one’s life so that all the necessary goods and virtues are coherently achieved, maintained, and enjoyed in a manner that is appropriate for the individual human being. Figure 2 below illustrates how the role of practical wisdom for this inclusivist, individualized, agent-relative conception of human flourishing might be pictured.82 The lines that divide each diagram represent acts of practical wisdom. HF1, HF2, and HF3 are three different forms of flourishing, but there can be as many different forms of flourishing as there are individuals. The proportion of each diagram allotted each good reflects the valuation or weighting (which is ultimately expressed by an individual’s time and effort) that is proper for three hypothetical, different persons.83 There is no single, agent-neutral model to which each person’s pattern or weighting of these goods must conform. None of these forms of flourishing is inherently superior to the other. Each has the necessary generic goods, but their proportions or weightings vary. The proper proportion must be 82. These diagrams come from Den Uyl, The Virtue of Prudence, 192–93. 83. The list of goods that constitute each ‘‘pie’’ comes from Aristotle’s Rhetoric 1362b10–28. It should be noted that health includes here action and life, and intellectual ability involves speech.

148 Figure 2

a new deep structure for liberalism

Three Forms of Human Flourishing

worked out by practical wisdom in light of each individual’s nexus, community, and culture.84 Practical wisdom is crucial to the process of determining an individual’s proper course of conduct, but it does not replace or render unnecessary speculative or theoretical insight into the character of human flourishing. 84. It we identify HF1 as the life of a business person, HF2 as the life of an athlete, and HF3 as the life of a philosopher, we see that a philosophic life is but one of the possible legitimate forms of flourishing. HF3 is not an inherently superior form of flourishing; there are no inherently superior forms of flourishing. The pie diagrams illustrate well the inclusive, agent-relative view of human flourishing and the central role of practical wisdom. They also reveal clearly how

................. 11426$

$CH6

08-10-05 09:13:06

PS

PAGE 148

individualistic perfectionism

149

In fact, it depends on there being such abstract knowledge. Yet, practical wisdom guides conduct by dealing with the contingent and particular and thus does not have the features of theoretical reasoning. It is not impersonal, atemporal, or universal (a point we develop further in Chapter 7). It is different, and if what has been said about the character of human flourishing is true, this difference does not make ethical theory any less useful for guiding conduct. We need abstract knowledge of generic goods and virtues as well as practical wisdom’s insight into the contingent and particular. In other words, ethical living cannot be a matter of having theoretical knowledge alone or practical knowledge alone. Both are required. We need to have theoretical insight into the general character of human flourishing. For example, we need such knowledge as we attempted to provide in delineating the six features of human flourishing, or we need such knowledge as ethicists provide when they develop an account of the generic goods and virtues of human flourishing. This is knowledge about human flourishing that applies to all human beings regardless of their time or place or who they are. However, we also need to have practical insight at the time of action. We need to see what these generic goods and virtues amount to in the concrete situation, as well as seeing what their proper proportion or balance is for us. Ethical living requires both theoretical and practical wisdom, but we should not forget their differences. The reason for drawing a distinction between theoretical and practical wisdom is because practical wisdom functions ultimately in service of human flourishing, while theoretical wisdom functions basically in determining how the truth of things stands, not with attaining human flourishing. Further, human flourishing always involves considerations of the contingent and particular. They are ineliminable. Thus, instead of trying to launder ethical reasoning through such devices as ‘‘veils of ignorance,’’ ‘‘impartial ideal observers,’’ or agent-neutral conceptions of practical reason, practical wisdom remains concerned with the temporal and individual. It is the central intellectual virtue for ethics because human flourishing is both something individualized and agent-relative and yet requires principles and norms of conduct.85 (2) The existence of a plurality of ends that compose human flourishing does not, abstractly considered, logically entail that these ends are incommuch this neo-Aristotelian view, which we have been elucidating, varies from the dominantend, contemplative model of human flourishing. 85. See Den Uyl, The Virtue of Prudence, 161–223.

................. 11426$

$CH6

08-10-05 09:13:10

PS

PAGE 149

150

a new deep structure for liberalism

patible. Concretely considered, keeping them from becoming incompatible by discovering their proper weighting or balancing is an individual’s central task. Yet, this is only an insuperable difficulty if we assume that the goods and virtues that compose human flourishing are equal among themselves and identical across individuals. The view of human flourishing presented here accepts unequal weighting of its goods and virtues as central to the very character of human flourishing.86 Thus, conflicts between goods and virtues are not as likely, according to our view, because some need not, given a person’s nexus and circumstances, be emphasized or weighted as highly as others. To appreciate this viewpoint better, it is worthwhile to conceptualize the generic characteristics of our nature as a package of capacities whose realization is required for self-perfection, but whose form is individuated by each person’s own attributes, circumstances, and interests. These generic capacities, then, constitute the skeletal structure of one’s life, but do not provide that life with specific content or direction. It is precisely the general character of these capacities that often renders them impotent as specific guides of conduct or character development; for, although grounded in reality, they are nevertheless generalized abstractions of common needs and capacities and not independent realities in their own right. As such, unless the matter at hand concerns people abstractly considered, there is no reason to suppose identity of expression among individuals. Consequently, as components of a skeletal framework, these generic capacities serve to channel or corral individual expressions of self-actualization, but are not of themselves sufficient to identify the particular forms of that expression. And because of their generic quality, they are not in conflict, since they are not yet sufficiently substantive to identify a basis for conflict. Individuals or society may breathe content into these capacities in such a way that conflicts do develop.87 It remains the task for the individual to use his or her practical wisdom to avoid conflict when generic goods and virtues take concrete form. Simply following rules, or even abstract principles, will not suffice. Practical wisdom is required, but enacting this trait is not automatic. It must be initiated and maintained—it must be self-directed. This task is, however, more than merely conflict avoidance, for if these generic goods and virtues are to be determinate, they must be appropriately individualized. As noted earlier, the individual does more than merely 86. Ibid., 213. 87. Ibid., 167–68. For a similar view, see Kathleen V. Wilkes, ‘‘The Good Man and the Good for Man in Aristotle’s Ethics,’’ Mind 87 (October 1978): 570.

individualistic perfectionism

151

instantiate ‘‘abstract’’ goods and virtues. One must incorporate them into one’s nexus by an act of reason or insight, not by mere mechanical application of universal principles to concrete cases. It is not just that an individualistic perfectionism points to a wider variety of ‘‘relevant differences’’ among agents than do typical deontological and consequentialist theories. It is rather that agenthood itself is the ‘‘relevant difference.’’ Consequently, the abstract and universal is somewhat artificial in ethics and more appropriate either to theoretical science or to law.88 For this strongly individualistic account of human flourishing, the particular carries more weight than the universal. As one commentator has put it with respect to Aristotle’s ethics: The universals which form the subject matter of a theoretical science are not regarded as imprecise; on the contrary it is the particular or individual which is indeterminate and imprecise. If there are discrepancies between the universals and the particulars falling under them, the defect is on the side of the particulars. In the case of practical knowledge it is just the reverse: it is the universals that are indeterminate and imprecise while the judgments about particular acts in particular circumstances are precise and determinate. If there is a discrepancy between the particular judgment of the practically wise person and a universal rule which applies to the situation, the defect is on the side of the universal; it is the particular judgment that is authoritative.89 The only thing missing from this statement is that it is not simply the particularity of acts or circumstances that matters here but agents themselves. In fact, abstractly conceived constitutive goods and virtues of human flourishing are valueless apart from the virtue of practical wisdom. They are not like manna from heaven that somehow fits with each individual’s needs and circumstances. Rather, they become valuable—that is, their proper combination, pattern, or weighting is achieved—only in relation to and 88. The legislative character of modern ethics is, for us, a pathology of modern ethics. We have noted this in many forms and many places both here and in other of our works. It is not an insight particularly original with us, but it takes on a special emphasis when compared to classical ethics bearing any similarity to what we are doing here. And the legislative character of modern ethics may be a function of the modern push to theorize everything, thus making all ethical pronouncements ‘‘abstract’’ in nature, meaning universalized. 89. Daniel T. Devereux, ‘‘Particular and Universal in Aristotle’s Conception of Practical Knowledge,’’ The Review of Metaphysics 39 (1986): 497.

152

a new deep structure for liberalism

because of the efforts of individual human beings. When individuals choose and act, they invest themselves in their environment, and this has reinforcing properties to the choice itself as well as to the nexus of choices any given choices fits into. Thus the goods individuals pursue or should pursue are not goods apart from these individuals and their choice. Although there is no abstract incompatibility among the goods and virtues of flourishing, making them compatible is not necessarily guaranteed. There may indeed be times where although the principles are clear, the situation precludes achieving all the necessary goods. Tragedies are possible. Yet human flourishing remains a realistic ideal. We should be careful not to make something utopian of it. Human beings are neither omniscient nor omnipotent. Ethics must thus be understood as being concerned with only what is in principle within the realm of human agency. Moreover, ethics can only deal with what is for the most part. Human lives are not numbers that can be neatly fitted into a mathematical equation. There is no single path or set formula. Despite what input theologians, politicians, philosophers, and even friends may offer—and sometimes this can be valuable—only individuals exercising their own practical wisdom can make themselves whole. These observations do not mean or imply that one can ignore with moral impunity any of the necessary goods or virtues of human flourishing. Nor do they show that one course of action in the concrete situation is as good as the next. Neither conventionalism nor subjectivism is implied.90 There are moral truths. These observations simply show that if our neo-Aristotelian account of human flourishing is true, then ethical rationalism is false and there is at least one form of pluralism that is morally appropriate. In Chapter 8 we will consider how our account of individualistic perfectionism differs from both the ‘‘new’’ and traditional natural law views and how this difference affects one’s conception of the common good of the political community. We will consider these differences both as they concern normative ethics and the common good for the political order. Before moving on to these concerns, however, we should reply to some possible objections to our view of human flourishing and to perfectionism in general, which we will do next in Chapter 7. 90. If we let P refer to the statement ‘‘doing X is right and ought to be done’’ (or ‘‘doing X is wrong and ought not to be done’’), then conventionalism can be defined as the position that holds that ‘‘P is true’’ is semantically equivalent to ‘‘We think or believe P is true’’ and subjectivism can be defined as the position that holds that ‘‘P is true’’ is semantically equivalent to ‘‘I believe or think P is true.’’ In either case, the truth of a moral claim does not exist apart from its being thought or believed so.

................. 11426$

$CH6

08-10-05 09:13:17

PS

PAGE 152

Chapter Seven defending individualistic perfectionism

[The] genus signifies some form, though not determinately this or that [form] which difference expresses determinately, which is none other than that [form] which is signified indeterminately through genus. —aquinas, concerning being and essence, trans. george g. leckie

There are many objections and difficulties that confront Aristotelian perfectionism, but most of these pertain to an impersonal or agent-neutral conception of human flourishing.1 We do not seek to defend such a conception, regardless of how traditional or familiar it may seem to some. Our concern is instead with a personal or agent-relative view of human flourishing. This view is able, as we will see when we consider John Gray’s dismissal of perfectionism in the final section of this chapter, to avoid many of the important criticisms leveled at the agent-neutral view. For now, however, we need to consider the objections and difficulties that seem to apply to our personal or agent-relative account of human flourishing. We will state each objection and offer a response.

Universality and Agent-Relativity2 Objection: Can we speak of human flourishing or the human good ‘‘as such’’ and still describe this good as agent-relative? In other words, does not the ability to 1. For example, see Thomas Hurka, Perfectionism (New York: Oxford University Press, 1993), 55–68. 2. Parts of this chapter are adapted from Douglas B. Rasmussen, ‘‘Human Flourishing and the Appeal to Human Nature,’’ Social Philosophy & Policy 16, no. 1 (Winter 1999): 1–43.

154

a new deep structure for liberalism

know what human flourishing universally is—that is, our ability to consider generic ingredients or constituents of human flourishing abstractly— conflict with the claim that it is agent-relative? Are we not, after all, required to adopt an agent-neutral conception of human flourishing? Reply: Much depends on what abstraction is, which is a fundamental issue for us. To think of the human good without regard to whose good it is, is plainly possible, but does this entail holding that the human good is not necessarily the good for some person or other? Or does considering the human good as such only mean that one can think of the human good without thinking of whose good it is? If it is the latter, then it can still be the case that the good is always and necessarily the good for some person or other. There need not be conflict. The questions in this objection assume that the mode or manner of thinking something thus-and-so must determine the mode or manner of something’s being thus-and-so. Yet there is no reason to accept such a view of abstraction. As Anthony Kenny has noted, To think a thing to be otherwise than it is, is certainly to think falsely. But if all that is meant by ‘‘thinking a thing other than it is’’ is that the way it is with our thinking is different from the way it is with the thing we are thinking about, in its own existence, then there need be no falsehood involved. To think that Henry VIII had no weight is to think a false thought; but there is no falsehood in thinking of Henry VIII without thinking of his weight. Henry VIII could never exist without having some weight or other, but a thought of Henry VIII can certainly exist without any thought at all about his weight.3 3. Anthony Kenny, The Metaphysics of Mind (Oxford: Clarendon Press, 1989), 134. Theories of abstraction are a complicated matter, however, and we cannot explore them in detail here. But for our purposes, we should simply note that there are two basic kinds of abstraction: nonprecisive abstraction (that is, abstraction without precision) and precisive abstraction. Nonprecisive abstraction, as opposed to precisive abstraction, occurs when we focus on the form of an existent so as not to exclude its individual differences from consideration, but rather merely not to express them—that is, its individual differences are treated as implicit. Such a consideration is made possible by focusing on the entire form in an indeterminate manner, so that its individual differences are not specified but are nonetheless regarded as requiring specific determination. The form must—within a range—be specified or determined. Thus, when we consider human flourishing abstractly, but without precision, we focus on its form, without regard to its specification or determination (or manner of existence), but we also know that this form must take some specific determination (and manner of existence). We can thus predicate the human flourishing of various individuals—that is, we can say ‘‘Socrates is flourishing’’ or ‘‘Aristotle is

defending individualistic perfectionism

155

To think of human flourishing without specifying the person whose flourishing it is, or without considering the myriad features of a person’s nexus—that is, the set of circumstances, talents, endowments, interests, beliefs, and histories that descriptively characterizes a person—that give it determination, is to deny neither its relationship to the person nor the existence of individuating features.4 Nor does such abstract consideration require human flourishing to be agent-neutral, universal, or abstract. It is important to understand that an abstract consideration of human flourishing ‘‘as such’’ implies that human flourishing has determinate form for some human being or other, even though this consideration does not itself provide the specifications. From our armchair, we only know the general parameters of human flourishing and that these parameters must be made determinate through human self-direction. Thus, the principle behind an abstract formulation of human flourishing can be stated as follows: human flourishing must exist in some determinate form or other for some individual human being, but it can so exist in any. This is to say that the characteristics of flourishing considered in general are all applicable to the acting agent, but not in specified form. Moreover, the specified form of a general characteristic is not necessarily—and in the case of human flourishing is never—simply an instance of the general characteristic, namely the same from one case to the next. Friendship, for example, may be applicable flourishing’’—but what is predicated of each is just the form abstractly but nonprecisely considered, and not some universal. In other words, what is predicated of Socrates and Aristotle is not generic goods and virtues understood as universals, but their goods and virtues as requiring some specific determination and unique manner of existence. The cognitive signification of ‘‘human flourishing’’ includes the individual differences in the sense that the nonprecisive abstraction allows them to be different in each instance when they are made explicit. It is the form of human flourishing as a ‘‘whole’’ (which includes potentially all of its manifestations in the lives of unique individuals) that determines the signification of ‘‘human flourishing’’ and not how it is mentally considered. See Aquinas, On Being and Essence, 2nd rev. ed., trans. Armand Mauer, C.S.B. (Toronto: The Pontifical Institute of Mediaeval Studies, 1968), 42–43 and 47. See also translator’s note, 39 n. 15. 4. It might be objected that it is not an issue of whether we can think of Henry VIII without thinking of his weight, but rather whether we can think of Henry VIII without thinking of his humanity. Yet it is simply false to unqualifiedly claim that we cannot think of X without thinking of what the nature of X essentially is, because we can, for example, concentrate our explicit attention on Henry VIII so as to positively exclude any consideration of the humanity that he manifests. However, even if we grant that there is a sense in which there cannot be a thought of Henry VIII without thinking of his humanity, so there is also a sense in which we cannot have a thought of human flourishing without thinking of it as the good for some person or other. Human flourishing can no more exist and be what it is without being the concrete, specific good for some individual or other than Henry VIII can exist and be what he is without being human. See note 3.

156

a new deep structure for liberalism

to all specified forms of flourishing, yet not only are the friends different from one case to the next, but so is the relative weight and modes of connectivity of friendship to other characteristics of human flourishing. It might still seem, however, that if we speak of human flourishing as the ultimate end of human conduct, then we are committed to something that is universalizable and, hence, agent-neutral rather than agent-relative. Yet, it is not true that universalizability requires an agent-neutral view, for it is possible to hold a moral theory that claims that a person’s good is agentrelative and still universalize the maxims of actions based on it. Let us say that human flourishing F1 for a person P1 is agent-relative if and only if its distinctive presence in world W1 is a basis for P1 ranking W1 over world W2, even though F1 may not be the basis for any other person’s ranking W1 over W2. Further, let us say the same holds true, respectively, of goods F2 –Fn for persons P2 –Pn. Conduct based on such agent-relative goods can be universalized as follows: just as the production of P1’s good is a reason for P1 to act, so is the production of P2’s good a reason for P2 to act. P1 cannot claim that F1 provides him with a legitimate reason to act without acknowledging that F2 provides P2 with a legitimate reason to act. In other words, if one knows that attaining one’s good provides one with a legitimate reason to act, because it is one’s good, then one also knows that another person’s attaining his or her good provides that person with a legitimate reason to act. The italicized phrase represents the knowledge that a person’s attaining his or her good provides that person with a legitimate reason to act; this claim is what is universalized. That it is universalized, however, does not mean or imply that human flourishing is not always essentially related to some person or other. Thus, agent-relative values can be universalized. Being agent-neutral is not necessary for universalization.5

Objectivity and Individuality Objection: Maybe the real point of the previous objection has to do with universalizability and what it involves. Perhaps universalizability creates difficulties for 5. It should also be noted here that the ability of a value to be the basis for universalizable conduct is not sufficient to establish common values or reasons for other-regarding conduct among persons. This is so because the universalization of agent-relative goods does not show P1’s good to be P2’s good, nor the production of P2’s good as providing P1 with a reason for action, or vice versa. Thus, if P1’s good should conflict with P2’s, universalizability would not

defending individualistic perfectionism

157

our conception of human flourishing, regardless of whether or not it implies agent-neutrality. There are two arguments for this claim: (a) If the human good is universalizable, then the human good is something universal, not individualized; and (b) If the human good is objective, then it must be universalizable and hence universal and thus not individualized. In other words, it might be objected that there is, according to (a), a conflict between the human good being universalizable and its being individualized; and, according to (b), a conflict between the human good being individualized and its being objective. Thus there is a lack of coherence in our conception of individualistic perfectionism. Reply: Both arguments (a) and (b) suppose that if a good is the basis for universalizable conduct, then that good is universal and not individualized. This supposition assumes that what is necessary for the recognition of something as a good and an object of conduct is also necessary for its existence as a good and an object of conduct. This assumption is not true, for as Aquinas observes, ‘‘Although it is necessary for the truth of cognition that the cognition answer to the thing known, still it is not necessary that the mode of the thing known be the same as the mode of its cognition.’’6 To say, for example, that knowledge is good for and ought to be pursued by every human being does not show that knowledge actually exists as some universal, nonindividualized good. To think that knowledge is a good for everyone without thinking of the various individual ways in which it is a good does not show that knowledge does not exist as an individualized good for some human being. To claim that it does is but another instance of assuming that the mode of our cognition of something must determine its mode of existence. Further, as regards (b), Veatch has written: If the good of X is indeed but the actuality of X’s potentialities, then this is a fact that not just X needs to recognize, but anyone provide a way out of this conflict. The following works have directed us to this insight: Henry B. Veatch, ‘‘Ethical Egoism, New Style: Should Its Trademark Be Aristotelian or Libertarian?’’ in Swimming Against the Current in Contemporary Philosophy (Washington, D.C.: Catholic University Press, 1990), 194; Veatch, ‘‘Modern Ethics, Teleology, and Love of Self,’’ Monist 75 (January 1992): 52–70; Veatch, Rational Man: A Modern Interpretation of Aristotelian Ethics (Indianapolis: Liberty Fund, 2003); and Eric Mack, ‘‘Moral Individualism: Agent Relativity and Deontic Restraints,’’ Social Philosophy & Policy 7 (Autumn 1989): 81–111. 6. Aquinas, Summa contra gentiles, II, 75.

158

a new deep structure for liberalism

and everyone else as well. And yet given the mere fact that a certain good needs to be recognized, and recognized universally, to be the good of X, it by no means follows that X’s good must be taken to be Y’s good as well, any more than the actuality or perfection or fulfillment of X needs to be recognized as being the actuality or perfection of Y as well.7 It can be true that some thing or activity is good for someone, even if it is not good for everyone. More generally, a truth about certain goods can be universalizable even if those goods themselves are not. Further, it is false that some thing or activity cannot be actually good for anyone unless it is so for everyone,8 and again more generally, it is false that the universality of the good is a necessary condition for the objectivity of the good. Universality refers to scope, while objectivity refers to applicability. These are obviously not the same consideration. Another way of making these points is simply to note that universalizability is not the same as universality. If something is knowable, then it can be universalized, but this does not mean that it is universal.9 Human flourishing is objective and knowable and thus universalizable, but this does not make it something universal and nonindividualized.

Agent-Neutrality and Practical Reason Objection: According to our account of human flourishing, it is a mistake to treat practical reasoning as simply a process of determining which proposed acts or rules produce ‘‘the most’’ human flourishing for someone. A mere maximizing view of practical reasoning mistakes abstractions for realities and treats one person’s version of human flourishing as comparable to another’s. Such comparisons are not possible, however. There is in reality no flourishing-at-large, no agent-neutral best end, by which to make a comparison. We cannot think of human flourishing as providing the basis for a 7. Veatch, ‘‘Ethical Egoism, New Style,’’ 194. 8. For a recent discussion of this assumption, see Joseph L. Lombardi, ‘‘James Rachels on Kant’s Basic Idea,’’ American Catholic Philosophical Quarterly 71 (Winter 1997): 53–58. See also Veatch, ‘‘Modern Ethics, Teleology, and Love of Self,’’ 52–70. 9. For an illustration of the confusion of universalizability of a reason with universality of a reason, see Mark C. Murphy, Natural Law and Practical Rationality (Cambridge: Cambridge University Press, 2001), 179.

defending individualistic perfectionism

159

unified race, with a single standard of swiftness, where everyone competes for the same prize. Versions of human flourishing are only valuable relative to some individual. Thus, the attempt to aggregate ‘‘total outputs’’ of actions or rules in terms of some agent-neutral conception of human flourishing is not something in which practical reason can engage. However, can this position be consistently maintained without lapsing into subjectivism or conventionalism? Surely, we must make comparisons with others and postulate an ideal standard in order to flourish. How else do we know if we are living up to our potentials? Further, if one is to have worthwhile relationships of any kind, let alone relationships such as character-friendships, one needs to be able to look at the world from the perspectives of others. Despite everything that we have said, it can be objected that that, in order to flourish, people must be capable of transcending their own perspectives or points of view. Thus, it would seem that flourishing requires one to treat value and practical reasons in an agent-neutral manner. Agentrelativity will not suffice. Reply: It is certainly true that the achievement of human flourishing requires individuals to engage in perspectives different from their own. Taking a perspective other than one’s own—whether it is that of an ideal, or the perspective of a friend or of any human being—is a valuable instrument for practical reason in an agent-relative view of human flourishing. An individual’s moral growth, in both its personal and interpersonal dimensions, requires that this procedure be used, because flourishing requires learning about one’s potentialities and understanding others. Nonetheless, when we critically distance ourselves from or put ourselves outside of our current situation in order either to consider abstractly the best that is possible for human beings or to relate to others, we do not necessarily adopt an agent-neutral conception of human flourishing. It is a mistake to equate the value of taking such perspectives with the idea that values and reasons for conduct should or must be agent-neutral. Indeed, abstraction, imagination, empathy, interpersonal perspectives—speculative reason in general—are tools for practical reason, but they need to be used properly. We need to know when our concern is with knowing what is true and good and when it is with achieving what is good. We should not confuse speculative with practical reason. We need to distinguish the speculative activity of determining what the generic characteristics of the goods and virtues of human flourishing are as they might be ordered apart from

160

a new deep structure for liberalism

their relation to any particular person from the practical activity of determining their proper weighting and balance; that is, their value, relative to some individual. In other words, we need to distinguish an abstract consideration of human flourishing ‘‘as such’’ and what that may reveal, if anything, regarding the balancing or weighting of basic goods and virtues from the activity of achieving this good in its proper concrete form for some individual. The former abstract analysis is necessary for a general understanding of human flourishing, but, after engaging in such abstract considerations, we need to return to our own cases to determine in practice what ought to be done. We still need to determine how to achieve that level of excellence with respect to our various potentialities that is compatible with the most complete enjoyment of the other necessary goods and virtues. Human flourishing remains an individualized and agent-relative activity, if we do not confuse an abstract consideration of human flourishing with its real-world embodiment and specifications.10

Justice and Human Flourishing Objection: Closely related to the previous concern is the issue of whether all the goods and virtues human flourishing comprises can be weighted differently for each individual. Might it not be that there are some whose importance is not relative to the other goods and virtues and hence should not be treated in an individualized and agent-relative manner? For example, is not justice too fundamental to be given different weightings by different people? Indeed, the example of justice illustrates perfectly what is said to be wrong with the conception of human flourishing advocated here. According to that objection, one is either just or not just. It is not a matter of weighting, balance, or emphasis: it is ‘‘all or nothing.’’ Reply: This objection is very important; and not all of the dimensions of a full response, specifically the political, can be developed here, although some will be considered in greater detail in Chapter 12. However, we can begin by noting that there are at least two different senses of ‘‘justice.’’ First, we can speak of justice in a Platonic sense, that is, as the overall condition or 10. See note 3.

defending individualistic perfectionism

161

state of the person. This is the idea of the ‘‘rightly ordered soul’’ and is but another way of speaking of human flourishing. It certainly does not seem that justice in this sense is the concern of this objection. Second, we can speak of justice as concerned with the interpersonal or social. This is the sense of the term that is the concern of the foregoing objection, but we need to identify two senses in which justice is interpersonal or social. As we have noted, human flourishing is achieved with and among others. Pursuing, achieving, and maintaining relationships with others are among the central activities of human flourishing. Further, human sociality, like all the other basic goods, is not something abstract; it is always expressed in some specific form, that is, in some specific relationship. These relationships cover a continuum of relations and they involve a principle of selectivity on the part of the participants in the relationship. Some people are included and others excluded because of the value(s) the participants share. These relationships pertain to everything from close friends and confidants to business and work relations to mere acquaintances. It is through such specific relationships that various types of groups, communities, and even cultures are formed. Human sociality is not, however, confined or fixed to some set of specific relations. It allows, as is almost always necessary, for the exploration of relationships with new and different people as well as varied ways of living, working, and thinking. This is the open-ended character of human sociality. When we consider this open-endedness, no principle of selectivity is involved, for we are noting that human sociality, prior to a person’s choice and selection, imposes no limitation regarding with whom and under what circumstances one may have a relationship. This openness to new, different, and varied relationships often provides the wider context in which specific relationships are formed. Many, if not most, specific relationships come about only because there was first this general openness to relationships with anyone.11 Often, when individuals need to adapt to, change, or leave their current set of specific relationships, it is very important that they avail themselves of their natural potential for new social relationships. The existence of this possibility is crucial to their achievement of personal flourishing. Yet, the recognition of the open-ended character of human sociality reveals two senses of interpersonal or social justice that need to be distinguished. We call one (a) ‘‘metanormative’’ justice and the other (b) ‘‘normative’’ justice. 11. Cf. Douglas B. Rasmussen and Douglas J. Den Uyl, Liberty and Nature: An Aristotelian Defense of Liberal Order (La Salle, Ill.: Open Court, 1991), 173–219.

162

a new deep structure for liberalism

(a) As a metanorm, justice deals with social life in the open-ended sense and does not assume a shared set of values or commitments. Hence, the context is as universal as possible—in a word, it is cosmopolitan. In such a context, justice is concerned not with the guidance of individual conduct in moral activity, but rather with the regulation of conduct so that conditions might be obtained where morally significant action can take place. That is to say, it is only concerned with providing the structural conditions that will allow for a social context in which the possible relationships among humans, each of whom has a unique form of human flourishing, is ethically compossible.12 The type of moral requirement that is imposed for establishing this context must be both something everyone’s form of flourishing requires and something that everyone can, in principle, fulfill. Justice understood in this sense is not directly a matter of personal flourishing, but a matter of creating, maintaining, evaluating, and justifying the political/ legal conditions for civil order. It is not one of the constituents of human flourishing and thus cannot be weighted. Rather, justice is the political/legal condition for the possibility of pursuing flourishing among others. It is of fundamental importance because it is grounded in two basic requirements of human flourishing: preserving the open-ended or cosmopolitan character of human sociality, and respecting the individualized, agent-relative, self-directed nature of the human good. As said, we will take up this sense of interpersonal or social justice in greater detail in Chapter 12. (b) When interpersonal or social life is understood in terms of specific relationships, justice is concerned with directing personal conduct for the achievement of human flourishing. So understood, justice is the normative principle of ‘‘rendering each his proportionate due,’’13 and it is one of the central virtues of human flourishing. However, the proper application of the virtue of justice is not conveyed by this virtue alone, but, like that of every other normative virtue, requires practical wisdom. The proper course of conduct is not prescribed by some ethical recipe. Knowledge of circumstance, the other person’s character, and how a possible course of action integrates with the other actions that one’s flourishing requires is needed. Determining what conduct the virtue of justice requires thus involves knowing more than that one is in the presence of a fellow human being. 12. As we have noted in Chapters 4 and 6, the open-ended character of our natural sociality creates the need for finding principles that will allow for the possibility that individuals might flourish in different ways (in different communities and cultures) without requiring that one form of flourishing be structurally preferred to another. 13. Aristotle did not clearly distinguish between the specific and open-ended senses of sociality. Nor, with his use of the term ‘‘polis,’’ did he distinguish clearly between society and state. Thus it should be noted that this account of the virtue of justice differs from his.

defending individualistic perfectionism

163

The virtue of justice is applied neither blindly nor in an impersonal way. Therefore, what the virtue of justice concretely requires will vary. Different courses of conduct will be required for different persons and by different circumstances and situations. It must be remembered that justice in this sense is not equivalent with the overall state or condition of a person’s soul—it is only a ‘‘part’’ and not the ‘‘whole’’ of human flourishing. As said, not only does one have to determine what action in the contingent and particular situation is just, one also has to integrate the actions required by this virtue with those required by the other virtues and goods that constitute one’s flourishing. Accordingly, one can properly decide not to take up a just course of conduct because, although worthy when considered in isolation, that conduct does not fit well with all of the other aspects of one’s flourishing that have been given greater emphasis.14 In other words, deciding on a particular course of just conduct might not be the practical thing to do. It might be impractical not only in the sense that there are insufficient means to achieving justice— for example, inadequate time and money—but also more profoundly impractical, namely, as it concerns the exercise of practical wisdom and the proper ordering of the basic goods that constitute the final ends of one’s flourishing. Regardless of how worthy a course of conduct may be separately considered, it must be a proper course of conduct for oneself. Giving others their appropriate due is a basic virtue, but the conduct that this virtue requires must be compatible with the other basic virtues and goods of human flourishing. It is simply not true that one has an absolute and unqualified obligation to right every wrong or fight every evil. As we have noted elsewhere regarding this very issue, ‘‘it is not only acceptable that one not participate, but right that one not do so.’’15 Justice as it applies to specific relationships is, then, not an ‘‘all or nothing’’ affair.

Desires and Self-Direction Objection: We have claimed that self-direction is crucial to the character of human flourishing and that an act of self-direction is an exercise of reason. Yet 14. See Den Uyl, The Virtue of Prudence, 194–97. 15. Ibid., 194–95. The issue is quite different, however, when it comes to ‘‘metanormative justice,’’ for in this context the concern is not with one’s flourishing but with a solution to liberalism’s problem and what is fundamental to any and every form of human flourishing. The relevant ethical concept here is ‘‘natural rights’’ that are not only basic and negative but also irreducible. See our discussion of irreducibility in Chapter 3.

164

a new deep structure for liberalism

what is it to be self-directed, and when is someone not self-directed? Surely, it may be objected, persons are not self-directed when they do not use their rational faculty. This occurs, of course, when one literally does nothing; but it also happens when one’s desires and passions control one’s actions. The core of self-direction is the exercise of reason; and when one’s passions alone are responsible for one’s conduct, then one is not self-directed. If the foregoing is true, however, this seems to create a problem for the claim that human flourishing is an object of desire. If the human good is an object of desire, then how can we be self-directed? If it is our appetites that move us toward human flourishing, then we have lost control of the situation. Our self-direction is but a sham. It would seem that the only way to stay in control and maintain self-direction would be to confine practical reason to procedures that do not let personal desires play a role in the determination of conduct.16 In other words, it seems that practical reason must, despite everything that has been said, only consider agent-neutral reasons and universal goods. So once again we have a question about the internal consistency of the conception of human flourishing that has been presented. Can the self-directed character of human flourishing be reconciled with its individualized and agent-relative character? Reply: Before responding, some clarifications need to be made, because there are ambiguities in the statement of this objection. Self-direction is the exercise of our rational capacity, and although this activity is what the Scholastics would have called the formal essence of human flourishing, it is still not human flourishing itself. Human flourishing is not just the exercise of reason, but also the exercise of right reason—that is, judging, choosing, and conducting oneself in an appropriate manner. Self-direction must therefore be distinguished from human flourishing or self-perfection.17 Accordingly, we need to be careful when we say that someone is not selfdirected. While it is true that people are not self-directed when they literally do nothing or when, in extreme situations, their passions or desires are so 16. Loren Lomasky summarizes this viewpoint well when he observes that Rawlsian contractors are ‘‘perfectly pure specimens of autonomy. None can be deflected from rational reflection by the force of any untoward inclination, because behind the veil one does not know what one’s inclinations are.’’ Persons, Rights, and the Moral Community (New York: Oxford University Press, 1987), 43. 17. Thus, if we take the question that immediately precedes this paragraph literally, it is asking whether the act or exercise of one’s reason is itself compatible with self-perfection being individualized and agent-relative. To which the answer must be ‘‘yes.’’ After all, it is the act or exercise of someone’s reason. There are no collective minds; there are only individual ones.

defending individualistic perfectionism

165

strong that they override any use of their rational faculty, this does not mean that people are not self-directed when they choose inappropriately. When people choose the improper means for attaining their goals or when they only concentrate on the means for attaining their goals and fail to consider if their goals are truly appropriate for themselves, their passions or desires are often responsible for deflecting their judgments and choices from what they should be. But they do not eliminate all use of their rational faculty. People who act in this fashion are nonetheless judging and choosing. They are self-directed. Most assuredly, these are instances of human beings failing to realize or actualize their humanity, and thus failing to selfperfect, but these are not instances of mere behavior. Rather, they remain instances of conduct. Self-direction is present in these cases. In light of this clarification, then, the earlier question may be recast as follows: Can the individualized and agent-relative character of human flourishing, which allows personal desires to play a central role in the determination of conduct, be reconciled with the idea that human flourishing is the self-directed exercise of right reason? The answer to this question depends on our understanding of what it is to be human. If human beings are rational animals, not merely rational beings, then human flourishing is not exclusively the flourishing of a mind. Flourishing is, of course, a way of living and is thus more than self-preservation or survival. Yet, it is nonetheless a way of living and is thus not intelligible apart from a biocentric context. Desire and appetite are necessarily a part of the process of living. However, the relation of desire and appetite to human flourishing is even more fundamental than this. They are not merely necessary to achieving flourishing. Rather, they are necessary to the very character of human flourishing. Human flourishing is the enactment of right desire. Correctly valuing something is not distinct from desire; rather, it is right desire. Thus, only an excessively rationalist conception of human beings would attempt to conceive of flourishing without desire. Desires and appetites are neither our standard nor our end. They are for the sake of flourishing. That is to say, they are judged by whether or not they are conducive to one’s fulfillment. Thus, it is not a question of eliminating them or discounting their influences. Rather, it is a question of using and controlling desire and appetite for the sake of human flourishing. There is no necessary incompatibility between them and reason. As Kathleen V. Wilkes has noted: Aristotle’s man is active, an agent. His highest good (eudaimonia, roughly translated as ‘‘flourishing’’) is glossed in terms of activity:

166

a new deep structure for liberalism

living well, doing well. ‘‘A man seems to be a source of actions’’ (Nicomachean Ethics, iii.3.1112b31–32); and consider this; ‘‘choice is either desiderative reason or ratiocinative desire, and such a source of action is man’’ (Nicomachean Ethics, vi.2.1139b4–5). We become the people that we are by choosing, deciding, acting; we have the responsibility for shaping ourselves, our characters, and our lives. This stress on agency and activity, man in the world and not just an observer of it, is one of the most attractive features of his general theory.18 Rational desires or dispositions are possible, and it is when one’s character is so disposed that we may say one is flourishing. If it is possible that desires can embody the self-directed exercise of right reason, then there is no basis to suppose that human flourishing cannot be an object of both reason and desire.19 It is not necessary to adopt procedures that prevent personal desires or interests from playing a role in an individual’s determination of conduct. Practical reason need not confine itself to desireless, agent-neutral considerations. There need be no inconsistency between viewing human flourishing as both the self-directed exercise of right reason, on the one hand, and individualized and agent-relative, on the other. If we are to see clearly the possibility of desire embodying the selfdirected exercise of right reason, we must awaken from our Cartesian slumbers. We need to consider issues in philosophical anthropology and metaphysics. Specifically, we need to consider how human beings are teleological in nature and how natural teleology provides a middle ground between compulsion and radical freedom for self-direction to occupy (see Chapter 6 for our discussion of natural teleology). Self-direction is not reducible to some string of efficient causes—the mere result of antecedent genetic or sociocultural factors—nor is it some sort of primitive, inexplicable, unconditional act that creates its own context. Neither reductionist nor existentialist accounts will do.20 According to a neo-Aristotelian view of human nature, self-direction is both causally primary and capable of being evalu18. Kathleen V. Wilkes, Real People: Personal Identity without Thought Experiments (Oxford: Clarendon Press, 1988), 213. 19. See Norman Dahl, Practical Reason, Aristotle, and Weakness of the Will (Minneapolis: University of Minnesota Press, 1984), 93–99. 20. See Edward Pols, ‘‘Rational Action and the Complexity of Causality,’’ Journal of Theoretical and Philosophical Psychology 20, no. 1 (Spring 2002), as well as his Mind Regained (Ithaca: Cornell University Press, 1998).

defending individualistic perfectionism

167

ated in terms of something other than itself. Self-direction is thus crucial to the discovery, implementation, integration, and enjoyment of the goods that constitute its end—that is, the actualization of human flourishing— but self-direction does not create its potentiality for that end. The end-oriented character of self-direction is not itself a matter of self-direction.

The Function Argument Objection: The claim that human flourishing is a telos is intimately connected with the idea that there is a distinct human nature, and it is in terms of one’s nature that the activity of flourishing or process of ‘‘perfection’’ is measured. As we have noted in Chapter 6, to perfect, realize, or actualize oneself is not to become God-like, immune to degeneration, or incapable of harm, but it is to fulfill those potentialities and capacities that make one human. This is to achieve one’s natural end or perform one’s natural function. There are, however, some important objections to this line of thought. They are as follows: (a) Even if we know what the function of a human being is, this does not entitle us to speak legitimately of what a good human being is, because this inference requires that human beings have instrumental functions and purposes in terms of which they are judged good or useful. Yet, human beings are not tools that have instrumental functions or purposes.21 (b) From the fact that some capacity is peculiar or unique to a human being, it does not follow that a good human being is one who exercises this capacity. Neither does it follow that it is good for human beings to exercise this capacity.22 (c) Even if performing one’s natural function determines what makes someone a good human being; it does not follow that it is good for any individual human being to exercise these capacities. There is a 21. W. F. R. Hardie, Aristotle’s Ethical Theory (Oxford: Clarendon Press, 1980), 23–24. 22. Robert Nozick, ‘‘On the Randian Argument,’’ Personalist 52 (1971): 282–304. See also Thomas Nagel, ‘‘Aristotle on Eudaimonia,’’ in Essays on Aristotle’s Ethics, ed. Ame´lie O. Rorty, 7–14 (Berkeley and Los Angeles: University of California Press, 1980).

168

a new deep structure for liberalism

difference between what is a good human being and what is good for a human being.23 Reply: Regarding (a), it is not necessary to assume that human beings have instrumental functions like tools in terms of which their conduct can be judged as functioning well or poorly. In fact, not only is it unnecessary that people be viewed instrumentally, it is necessary that they not be viewed instrumentally. Human beings have a function because of what they are. Their function is ‘‘internally,’’ not ‘‘externally,’’ determined. They are living organisms, and the performance by them of their function is for their sake or benefit, not for some further end or someone else’s benefit. The inference from what the function of a human being is to what it is to be a good human being is confined to individual living things that are members of a natural kind and whose benefit is at least in part determined by the characteristics in virtue of which each is a member of that kind. The activities that compose the function, which we will discuss shortly, serve no further ends or purposes, but are inherent to those characteristics that are responsible for membership in that kind. Yet, it should be emphasized that for this neoAristotelian view one cannot identify the function of a certain kind of living organism without introducing the notion of benefit for members of that kind. Thus, formal and final causes coincide.24 As we explained in Chapter 6, when it comes to the nature of living things, an account of an organism’s function is not merely a descriptive account that is used somehow to move to an evaluative account. Rather, the descriptive account is also an account of what is naturally good for a living thing. Thus there are, so to speak, values ‘‘all the way down.’’25 Regarding (b), a human being’s function is not determined solely by what is peculiar or unique to a human being,26 but instead by what is 23. P. Glassen, ‘‘A Fallacy in Aristotle’s Function Argument about the Good,’’ Philosophical Quarterly 7 (1957): 319–22. For a more recent example of this objection, see Valerie Gray Hardcastle, ‘‘On the Normativity of Functions,’’ in Functions: New Essays in the Philosophy of Psychology and Biology, ed. Andre´ Ariew, Robert Cummins, and Mark Perlman, 154 (Oxford: Oxford University Press, 2002). 24. That is to say, what a human being is (its formal cause) and what a human being is for (its final cause) synchronize in the idea of benefit for members of a kind. 25. Jennifer Whiting, ‘‘Aristotle’s Function Argument: A Defense,’’ Ancient Philosophy 8 (1988): 39. 26. T. H. Irwin, ‘‘The Metaphysical and Psychological Basis of Aristotle’s Ethics,’’ in Essays on Aristotle’s Ethics, ed. Ame´lie O. Rorty (Berkeley and Los Angeles: University of California Press, 1980), 49.

defending individualistic perfectionism

169

‘‘proper’’ or ‘‘essential.’’ It is human nature as a whole, not as part, that is being considered.27 In other words, if human beings are defined as rational animals, then any account of a human being’s function must consider not only the referent of the differentia, but the referent of the genus as well. For human beings, this involves animality and all that goes with it, particularly the fact that a human being is a living being. Moreover, it needs to be realized that any definitional statement of an entity’s nature is a condensation of a vast number of facts and is meant to provide the means by which it is sorted conceptually from other things. It thus implies the presence of many other qualities and features than those explicitly noted by the definition.28 The human ergon is not settled in terms of what is distinctive alone. For the neo-Aristotelian theory we have been describing, then, fulfilling our human function is ‘‘the practical life of man possessing reason.’’ It is not disembodied reasoning. Fulfilling our function includes exercising capacities shared by other animals, such as those for pleasure and health, as well as many other things. What the distinguishing characteristic does is to characterize the modality through which the development of these other faculties will be successful. ‘‘The ergon of man is indeed ‘activity of the psuche in accordance with a rational principle,’ the ‘rational principle’ in question is, broadly, intelligence in general: intelligence that may be applied to art, craft, science, philosophy, politics, or any other domain.’’29 Regarding (c), the distinction between what is a good human being and what is good for a human does not require an ontological separation. There is no gap in reality between the two that needs to be negotiated, if the beneficial sense of ‘‘function,’’ which we noted in response to objection (a), is recognized. One cannot determine a human being’s function or excellence apart from a consideration of the specific needs and requirements that individual has by virtue of the kind of living thing he or she is. Such a determination cannot be divorced from the biocentric context. Further, if the human function is taken to require using practical reason,30 not necessarily contemplation, and if the inclusive, individualized, and agent-relative char27. See note 3. 28. See Douglas B. Rasmussen, ‘‘Quine and Aristotelian Essentialism,’’ The New Scholasticism 58 (Summer 1984): 328–29. 29. Kathleen V. Wilkes, ‘‘The Good Man and the Good For Man,’’ Mind 87 (October 1978): 568. 30. Veatch in his classic work, Rational Man, calls the human function ‘‘rational or intelligent living.’’ Julia Annas indicates the close connection between moral and practical knowledge in ‘‘Moral Knowledge as Practical Knowledge,’’ Social Philosophy & Policy 18, no. 2 (Summer 2001): 236–56.

170

a new deep structure for liberalism

acter of human flourishing is recognized, then the gap between what perfection requires (what is a good human being) and what is beneficial (what is good for a human being) is avoided.31 Whatever remaining basis there is for there being a gap will not be a matter of principle but of situation and circumstance.

Pluralism and Human Flourishing Objection: Isaiah Berlin has argued against the usefulness of any appeal to human nature when it comes to providing ethical knowledge. For Berlin, the dominant ethical fact is the diversity of moral values—what he calls ‘‘value pluralism.’’ By this, however, he does not intend that ethical relativism, in either subjectivist or conventionalist form, is true. Instead, he means that there are many objective values of inherent worth and that these are not compatible. Thus, it is futile to attempt to find some ethical standard that will provide universal guidance. Whether Berlin ever shows these objective values to be inherently incompatible is not at this time our concern,32 although we will consider this issue in detail in the final section of this chapter. Rather, our concern now is with two brief remarks that Berlin makes in passing. He notes that ‘‘forms of life differ. Ends, moral principles, are many. But not infinitely many; they must be within the human horizon.’’33 He also states that ultimate objective ends, though incompatible, ‘‘cannot be unlimited, for the nature of men, however various and subject to change, must possess some generic character if it is to be called human at all.’’34 How does our account of human flourishing square, then, with these observations of Berlin? Reply: It is to what Berlin calls the ‘‘generic character’’ of human beings that our account of individualistic perfectionism appeals. The general parameters of 31. L. W. Sumner discusses this gap in Welfare, Happiness, and Ethics (Oxford: Clarendon Press, 1996), 78–79. He does not consider, however, a view of human flourishing that is inclusive, individualized, and agent-relative. 32. See Steven Lukes, ‘‘The Singular and the Plural: On the Distinctive Liberalism of Isaiah Berlin,’’ Social Research 61, no. 3 (Fall 1994): 687–717. 33. Isaiah Berlin, ‘‘The Pursuit of the Ideal,’’ in The Crooked Timber of Humanity: Chapters in the History of Ideas (New York: Alfred A. Knopf, 1991), 11. 34. Berlin, ‘‘Alleged Relativism in Eighteenth-Century European Thought,’’ in Crooked Timber of Humanity, 80.

defending individualistic perfectionism

171

human flourishing are provided by human nature. Their concrete form is not. As should be clear, our conception of human flourishing does not suppose that the pattern or weighting of the goods and virtues that constitute human flourishing can be determined by simply appealing to human nature. Thus, without endorsing Berlin’s characterization of value pluralism, our conception of human flourishing accepts the idea that there are many objective goods that are valuable in their own right. Yet, the form of value pluralism connected to our conception of flourishing does not suppose that these goods must be incompatible. As noted in Chapter 6, the existence of a plurality of goods does not in itself entail any incompatibility. Rather, the question of their compatibility must be worked out in light of each individual’s nexus and thus cannot be decided a priori. Further, since an agent-neutral conception of human flourishing has been rejected, there is no single model to which each person’s pattern or weighting of these goods must conform. Such ethical rationalism has been rejected. The consideration of human nature does allow a plausible list of generic goods to be made, yet such a list is not intended to be exhaustive. These goods form a cluster concept that is open-ended and subject to revision.35 Nor is this list particularly novel. Indeed, it is not meant to be. It involves knowledge, friendship, justice, creative work, leisure, pleasure, health, aesthetic appreciation, honor, self-esteem, and moral virtue. These seem to be goods that no one, as Aristotle states, would choose to be without. They are, however, wide abstractions that help to outline the general character of human flourishing; they take on actuality and value only in relation to and because of the efforts of individual human beings. It is thus an error to suppose that they can be fulfilled in any manner apart from individuative and agent-relative considerations. These goods are manifested in various activities in individual lives and take diverse forms in different cultures.36

The Role of Moral Virtue Objection: What is the place of moral virtue in this account of human flourishing? Since human beings are not purely minds, should not the role of moral virtue in assisting practical wisdom be explained? 35. See Fred D. Miller Jr.’s discussion of how Aristotle treats happiness as a ‘‘cluster concept’’ in Nature, Justice, and Rights in Aristotle’s ‘‘Politics’’ (Oxford: Clarendon Press, 1995), 313–15. 36. However, these goods may not all be on the same level; some may be more fundamental than others. This is, however, a matter for further investigation.

172

a new deep structure for liberalism

Reply: The role of moral virtue is pivotal in our account of human flourishing. We have feelings and emotions that move us toward objects of apparent benefit and away from objects of apparent harm. We are eager for the former and fearful of the latter. However, what we desire as worthwhile and fear as harmful might not really be so. The problem is not with our emotions and feelings themselves. Being eager or afraid, pleased or sad, excited or bored, satisfied or discouraged—indeed the whole range of emotional responses— are forces of our very being. We cannot flourish without them. Rather, the question is whether the objects of such emotions and feelings merit the responses and reactions that we give them. Is the implicit value judgment behind our emotional responses accurate? It is thus important to have the ability to use and control our emotions and feelings so that their responses will be more accurate to what the situation merits. Not surprisingly, if we do not properly use and control our emotions, they can be a source of conflict. We can come to have rational desires for some things and mere appetites for others. We can be emotionally pushed and pulled, torn apart, rendered dysdaimonic. Hence, our development of moral virtues—that is, rational dispositions that form our moral character—is extremely important. Our appetites and desires can be revamped or reshaped into rational dispositions by our intelligence so that what we ought to desire and in fact do desire can be in harmony.37 This is where such rational dispositions as integrity, courage, temperance, and honesty both assist practical wisdom and reflect its exercise. When considered as a whole, moral virtue is necessary for the coherent achievement and use of multiple basic human goods, and, along with practical wisdom, pervades the entire activity of flourishing.38 In fact, moral virtue and practical wisdom are mutually interdependent, because the compossibility they seek is one of thought and feeling, not mere abstract goods.39 Moral virtue in this 37. We are in sympathy with the classical notion that one may need to do a large amount of revamping of one’s desires, even one’s conception of happiness, in order to flourish. For a discussion, see Julia Annas, ‘‘Virtue and Eudaimonism,’’ Social Philosophy & Policy 15, no. 1 (Winter 1998), especially 50ff. 38. The problem of the so-called unity of the virtues for Aristotle, and generally, is something different from our point here, which concerns the integration of feeling, thought, and action. For a discussion of the unity problem, see John M. Cooper, ‘‘The Unity of Virtue,’’ Social Philosophy & Policy 15 (1998): 233–74. For the purposes of our argument in this book, it does not seem to us required that we adopt the unity thesis, except with respect to its following elements: (1) the virtues have their own natures that need to be considered when one integrates; (2) the virtues can be made compatible (are not in inherent conflict); and (3) integrity—that is, integration and harmonization of goods and virtues—is the central object of practical wisdom. 39. Veatch, Rational Man, 86ff.

defending individualistic perfectionism

173

sense just is the exercise of practical wisdom and as such constitutes appropriate conduct; that is, it constitutes what Aristotle called the ‘‘mean.’’ Yet, when considered not as a whole, but as one good among many, a moral virtue can be given more or less emphasis—for example, a person with a career in the military might require greater emphasis on the virtue of courage than would be the case for a civilian. Achieving proper weighting or balance is needed, then, for the moral virtues or rational dispositions that define an individual’s character. Obviously, any complete account of this neo-Aristotelian conception of human flourishing will have to consider in detail the relationship of the moral virtues to practical wisdom.40 Moreover, a thorough investigation of all these proposed goods and virtues is required, particularly such goods as nobility, honor, and self-esteem. Nonetheless, the crucial feature of this conception of human flourishing remains: an individual must exercise practical wisdom if she or he is to fashion a worthwhile life. It is the task that our nature gives us, but does not do for us.

Considering John Gray’s Dismissal of Perfectionism While claiming to be not an ethical relativist, but a value pluralist, John Gray, who seems to be following the lead of Isaiah Berlin,41 has argued that ‘‘there is an irreducible diversity of ultimate values (goods, excellences, options, reasons for action, and so forth) and that when these values come into conflict or competition with one another there is no overarching standard or principle, no common currency or measure, whereby such conflicts can be arbitrated or resolved.’’42 Gray holds that value pluralism is destructive of the very idea of perfection. It ‘‘strikes a death-blow at the classical foundation of our culture, expressed not only in Plato and Aristotle, but in the Stoic idea of the logos and in Aquinas’s conception of a world order that 40. See Den Uyl, The Virtue of Prudence, 200–213. 41. In his essay ‘‘What Is Dead and What Is Living in Liberalism?’’ Gray states that ‘‘the diversity of ultimate values, great as it is, is not infinite; it is bounded by the limits of human nature.’’ Gray, Post-Liberalism: Studies in Political Thought (New York: Routledge, 1993), 291. He then quotes approvingly Berlin’s claim that ‘‘incompatible these ends may be; but their variety cannot be unlimited, for the nature of men, however various and subject to change, must posses some generic character if it is to be called human at all.’’ Berlin, ‘‘Alleged Relativism in Eighteenth-Century European Thought,’’ in Crooked Timber of Humanity, 80. 42. John Gray, ‘‘Agonistic Liberalism,’’ Social Philosophy & Policy 12, no. 1 (Winter 1995): 116.

174

a new deep structure for liberalism

was rational and moral in essence, even as it was the creation of the Deity, one of the central attributes of which was perfection.’’43 For Gray, it is not merely that human beings cannot achieve perfection; rather, it is that the very idea of perfection makes no sense. Hence, for Gray two classical ethical beliefs must be rejected: (1) that the human good is a single, common form, a monistic whole, with no intrinsic constituents that are irreducible and valuable in themselves; and (2) that all the goods and virtues that constitute the human good are in principle harmonious, with only insufficient knowledge or lack of moral commitment preventing their unification. Instead, in his account, the goods and virtues that constitute human flourishing are often incompatible, and there is no overarching standard whereby conflicts among these goods or among combinations of them might be solved—that is, these goods (or combinations of them) are incomparable and incommensurable. They are incomparable because there is no relevant respect in which one may be judged in relation to another, and they are incommensurable because there is no scale in reference to which one may be judged higher or lower than another. Thus, there are many irreducible values, which are valuable in themselves, that are incompatible, incomparable, and incommensurable. Human flourishing remains functional for Gray, however, because it is reconceptualized. It still consists of more than mere subjective preferences or desires and encompasses the use of human capacities that are reflectively judged as worthwhile, but it becomes for him nonhierarchical. Incommensurability precludes objective rankings or weightings of ultimate values. No one form of life—say, the life of rational inquiry, of contemplation, of wealth-creation, of prayer, or of selfless devotion to others—is the best for the human species. The virtues are not necessarily unified; and the conflicts among goods or excellences, many of which are neither comparable nor commensurable, reveal that there is no uniquely rational combination of them. Indeed, the variety of incommensurable forms of human flourishing is so radically underdetermined by the generic powers and capacities of human beings that it must be frankly acknowledged that human beings are partly self-creators over time and in history. We can see many features of Gray’s value pluralism that coincide with our view of human flourishing. These are as follows: that human flourishing is not a single dominant good or excellence—a monistic whole—but is, instead, composed of many goods and excellences that are valuable in 43. Gray, ‘‘What Is Dead and What Is Living in Liberalism?’’ 291.

defending individualistic perfectionism

175

themselves; that there is no single combination or weighting of goods and excellences that can be ‘‘read off’’ an abstract account of human flourishing and taken as the best for all human beings (the first classical view mentioned above); that an ethical rationalism that tries to determine a priori for someone what is good and what ought to be done in a concrete situation is inadequate; that the number and variety of the goods and excellences that constitute human flourishing are not infinite; that there is generic content to the notion of human flourishing that, though it must be fleshed out by individual and cultural considerations, is not merely an empty form whose content is determined entirely by communal practices and traditions; and, accordingly, that ethical relativism—be it subjectivism or conventionalism—is not true. The major difference between Gray’s value pluralism and our conception of human flourishing concerns the implications of holding that human flourishing is, as described in Chapter 6, agent-relative. Gray believes that if one holds an agent-relative conception of basic or ultimate value then such value can be neither inherent nor objective. He claims that agent-relativity requires denying inherent or objective value (which he equates with agent-neutral value) to various forms of human flourishing and thus endorsing ethical relativism.44 Thus, perfection cannot be for him, as it is for us, individualized, agent-relative, and self-directed. Rather, it has to be universal, agent-neutral, and cosmic. We hold, for reasons already presented in Chapter 6, that agent-relativity requires denying neither inherent value nor the objectivity of versions of human flourishing. Nor does it imply ethical relativism. This difference is crucial, because it goes to the very heart of Gray’s claim that the idea of perfection is incoherent. If perfection is agent-relative and individualized (the self-directed character of perfection will be discussed later), then Gray’s claim that versions of human flourishing (that is, combinations, patterns, or weightings of generic goods and virtues) are incomparable and incommensurable is either pointless or not the problem he supposes it to be for ethics—at least, that is, for the individualistic perfectionism we have been advancing. Thus, Gray’s attack on the concept of perfection is undercut. This issue requires detailed examination. Versions of human flourishing are incommensurable when they are not rationally comparable. According to Gray, incommensurability exists when there is a failure of transitivity in practical reasoning. This occurs in regard 44. Ibid., 309.

176

a new deep structure for liberalism

to versions of human flourishing when there are, for example, two versions of human flourishing, neither of which is better than the other, and when a third version of human flourishing exists that is better than one of the other two forms of flourishing, but not the other.45 This is a breakdown in transitivity in practical reasoning and the basis for Gray’s claim that value pluralism destroys the very idea of perfection. ‘‘Incommensurability . . . is the radical denial of the very meaning of perfection.’’46 However, if we are to speak of versions of flourishing that are more or less valuable, we must consider the question, valuable to whom? We cannot assess the significance of Gray’s claims unless we first answer this question. If we assume first that human flourishing involves no essential reference to the individual for whom it is valuable as part of its description and second that individuals are no more than loci for instantiations of human flourishing, then pointing out that there are versions of human flourishing that are incomparable and incommensurable has a point. It shows the error in believing that practical reasoning requires everyone in the same situation to hold the same valuation, reason, and ranking regarding a certain version of human flourishing. It also shows the error of genericism—that is, the error of assuming that all developmental processes are equivalent across individuals, such that individuals come to be little more than repositories of generic endowments. Incomparability creates a problem, and incommensurability arises for versions of flourishing only if it is assumed that the individual is ethically irrelevant to determining the value and character of a given form of flourishing. There is a breakdown in transitivity in practical reasoning primarily because it is assumed that the aim of ethics is to provide a set of specific, impersonal, equally suited rules of conduct for everyone instead of providing individual guidance. Incomparability and incommensurability do, indeed, destroy the idea of perfection for those who see flourishing as a manifestation of a universal order or cosmic logos. But if perfection is realized in an agent-relative, individualized, selfdirected manner, then the destruction Gray sees as following in the wake of incomparable and incommensurable versions of human flourishing is not so evident. Indeed, if human flourishing involves an essential reference to the person for whom it is valuable as part of its description, and if the individual provides relevant content to the character of human flourishing, 45. Gray, ‘‘Agonistic Liberalism,’’ 117. 46. Ibid.

defending individualistic perfectionism

177

then pointing out that there are incomparable versions of human flourishing creates no problem. This is entailed by the claim that human flourishing is both agent-relative and individualized. As we have argued, there is no version of flourishing that is abstractly better or more valuable than some other version, full stop; these versions are only valuable relative to some person. Thus, if we are careful not to confuse abstractions with realities, we see that one person’s version of human flourishing is not strictly comparable to another’s. Could a person, after considering the set of circumstances, talents, endowments, interests, beliefs, and histories that descriptively characterizes him or her and that he or she brings to any new situation, discover that there is more than one combination, pattern, or weighting of generic goods and virtues that are equally valuable for him? This is possible. Yet, it does not follow that there are no parameters or limits on choice. Practical reason is not destroyed. Simply calculating the probability of success of various strategies could weight one package of goods ahead of another. A consideration of generic goods and virtues does, however, impose some limitations. For example, could anyone reasonably claim to flourish if they neither had nor sought friends; had no integrity, courage, or justice; let their passions run wild or repressed all emotions; or cared nothing for knowledge, reason, consistency, or truth? Such a claim would be dubious indeed. There are also limits imposed by one’s own nexus. For example, one might wish for a career as a venture capitalist, but the solidified components of one’s nexus structurally identify one as an academic. Of course, it may be possible to structure both, but a life such as that would be difficult to manage, requiring more than the ordinary amount of practical wisdom. In any case, simply because there is more than one version of human flourishing that is right for a person at a certain time does not mean that such will be the case at another time. The possibilities open to a twenty-year-old will not necessarily be open to a person of sixty; and this is so not just because of aging, but also because the choices an individual makes today tend to affect where she or he is tomorrow and what resources are available to her or him later. Yet could Gray not argue that if there are agent-relative, individualized versions of human flourishing that are incomparable, then there could also be versions that are incommensurable? As long as human flourishing is viewed in an agent-neutral manner and the input of the individual ignored, this contention has plausibility. When considered as a claim regarding agent-relative, individualized versions of human flourishing, however, it is

178

a new deep structure for liberalism

dubious. Again, we should be clear on what the designation incomparable coupled with incommensurable means in this context. It would mean that there are two versions of human flourishing that are equally valuable to some person and that there is another version that is more valuable than one of the other two versions to that person but not more valuable than the other to that person. Yet what would be the basis for claiming such incommensurability? Since human flourishing is both agent-relative and individualized, it is not clear how we get from the diversity, or even incomparability, of forms of human flourishing, which is a consideration when thinking across individuals, to their incommensurability, which is an issue at the generic level. Put otherwise: if A and B are two forms of human flourishing that are equally valuable to an individual, and if C is a more valuable form of flourishing to that individual than A, what basis is there for saying that C is not also more valuable to that person than B? Gray wants to say that the world is such that someone’s practical reasoning could be intransitive, but not due to any failure of knowledge or moral commitment. On what, then, could the claim of incommensurability among agent-relative, individualized versions of human flourishing be based? Since Gray never considers the effects of such a view of human flourishing on his charge that there are versions of human flourishing that are incommensurable, he provides no answer to this question. It might yet be that the real problem for the view of human flourishing we have been advancing in this book is neither incomparability nor incommensurability, but rather incompatibility. If human flourishing is an inclusive end, and if it is individualized and agent-relative, what leads us to believe that all of the possible components necessary for a self-perfecting life can be made compossible? Gray points out many ways there could be conflict among the components of human flourishing—conflict occasioned, he contends, not by contingencies, but by the very natures of the goods and virtues that provide generic content to human flourishing. He notes, for example, that ‘‘a person with the virtues of courage, resolve, resourcefulness, intrepidity, and indomitability is unlikely to possess the virtues of modesty and humility . . . [and] if Van Gogh had passed through successful psychoanalysis, he would have been a calmer soul, but it is hard to see how he could have painted as he did. . . . Some human powers may depend for their exercise on weaknesses, lacks, or disabilities.’’47 These 47. Gray, ‘‘What Is Dead and What Is Living in Liberalism?’’ 301–2.

defending individualistic perfectionism

179

observations might be the most devastating of Gray’s arsenal of objections against a self-perfectionist virtue ethics. Much needs to be said in response to this challenge, but there are two basic levels of response: abstract and concrete. At the abstract level, there is no logical connection between there being a plurality of ends that compose human flourishing and these ends being incompatible. It is not clear, in other words, that Gray has shown the natures of the generic goods and virtues to be the source of incompatibility. It seems, rather, that incompatibility would only be likely to arise if we assume genericism; that is, if we assume that these goods and virtues are equal among themselves and identical across individuals. It is when emphasis and unequal weighting are precluded from a conception of human flourishing that there is a high probability of conflict. Our view of human flourishing, on the contrary, accepts emphasis and unequal weighting as central to its very identity. Thus, conflicts are not as likely because some goods and virtues need not, given a person’s nexus and circumstances, be emphasized or weighted as highly as other goods and virtues. Determining the proper emphasis or weighting of goods and virtues is the task of practical wisdom, and this is done at the concrete level. It is at the concrete level, in other words, that the coherence among a person’s generic goods and virtues is either achieved or not. It is precisely the role of the virtue of practical wisdom to keep one’s ends from becoming radically incompatible and disparate, although some local tensions may actually serve the overall integration, as, for example, when one gives up time with friends in order to work out, resulting in better health, which contributes to more success with other goods. The central task of practical wisdom consists in achieving, maintaining, enjoying, and coherently integrating these ends. This involves a continual monitoring of the ‘‘fit’’ between generic goods and capacities and one’s nexus and thus a consideration of those personal truths that serve to set standards for what is appropriate for oneself. Practical wisdom involves intelligent management at all three levels at once. It is through this process that one finds a version of human flourishing appropriate for oneself. How the goods and virtues that constitute human flourishing can be made compatible for someone is, then, not determinable a priori. Rather, it is achieved only by the individual, at the time of action, in confronting personal truths and considering contingent circumstances. It is, therefore, not possible for Gray to sustain his claim that the very nature of the goods and virtues that compose human flourishing leads to conflict. This has to

180

a new deep structure for liberalism

be considered in each person’s case. None of this is to say, however, that there cannot be human tragedies—that is, situations that, through no fault of the person affected, make it impossible for crucial goods and virtues to be integrated or terrible evils avoided. Tragedy and disease do not seem, despite Gray’s claims to the contrary, to be the normal context for the working of practical wisdom. Nor does it seem necessary to endorse a providential conception of nature to say this. Rather, for example, one can simply point to the success of insurance companies in betting against disaster and disease. And even if the world were full of conflict and disappointment, this might only indicate the absence of practical wisdom, not the presence of incompatibility. It may be that we have not presented Gray’s objection accurately. He may not be claiming that the generic goods and virtues of human flourishing lead to conflict, but that there are many goods in their concrete form that are constitutively incompatible, and that these goods cannot all be coherently combined into a single form of human flourishing. Gray notes the incompatibility of a priest’s avocation with a soldier’s virtues or a nun’s virtues with the excellences of a courtesan. But here is a confusion of the concrete with the abstract. Certain specific, concrete forms of virtue—the charity and courage of the priest and the soldier, respectively, or the nun’s chastity and the courtesan’s sexual sensitivity—may indeed not be combinable into a single form of flourishing, because elements of each practice, when integrated with other aspects of such an individual’s nexus, prevent a combination. This is what it means to say that human flourishing is individualized and not exchangeable. However, it does not follow that the generic virtues of charity and courage, or chastity and sexual sensitivity, could not be coherently combined over time in some other version of human flourishing that is appropriate for some person. The vacillation between generic considerations and concrete versions of human flourishing brings us to a rather curious feature of Gray’s argument—namely, his acceptance of the Enlightenment view of ethical reasoning. Despite his criticisms of the Enlightenment tendency to give theoretical reason (whose concern is for the universal and necessary) priority over practical reason (whose concern is for the particular and contingent), he nonetheless continues to accept this prioritization when it comes to evaluating ethical theories. Gray regards the inability of an ethical theory to provide universal, impersonal rules for social management as evidence of the limitation of reason in ethics and the primacy of radical choice. He cor-

defending individualistic perfectionism

181

rectly notes that human flourishing is individualized and that ethical rationalism does not suffice, but he too quickly accepts the counsel of despair and the limits of reason. He does not consider the possibilities that a virtue ethics of self-perfection is by definition not concerned with providing such rules, that the principle of universalizability is not the sine qua non of practical reasoning, and, as we will consider again in Chapter 10, that the ethical standards employed by normative ethics are not the same as those employed by political philosophy.48 Gray’s view of self-direction remains to be considered. In this matter he agrees with Joseph Raz that the absence of choice or self-direction does not diminish the value of human relations or displays of excellence. He approvingly quotes Raz: ‘‘I do not see that the absence of choice diminishes the value of human relations or the displays of excellence in technical skills, physical ability, spirit and enterprise, leadership, scholarship, creativity or imaginativeness.’’49 Gray and Raz hold that all of these excellences can be encompassed in lives in which the pursuits and options of persons are not subject to individual choice. Self-direction is thus not an essential ingredient of every form of human flourishing. Rather, the value of self-direction is a ‘‘local affair.’’ Gray contends that ‘‘it is left open whether a form of life in which autonomy is inconspicuous or lacking—the form of life of medieval Christendom, or of feudal Japan in the Edo period—may be better from the standpoint of flourishing, or else simply incommensurably different, by comparison with the form of life of autonomous individuals.’’50 Yet what does it mean for human beings to display excellence in technical skill, physical ability, spirit and enterprise, leadership, scholarship, creativity, or imaginativeness? Are these excellences abstract, uniform, and unrelated to the individual person? Are they merely excellent in some generic way? Does the individual do no more than merely instantiate some ‘‘abstract’’ excellence? Despite Gray’s insistence when he talks of excellences apart from selfdirection that there are versions of human flourishing, the foregoing state48. As we shall see, since practical reasoning individuates generic principles according to the requirements of an individual’s nexus, it does not aim at uniform directives that apply to anyone and everyone. Political rules, by contrast, must be formulated and promulgated generally and as such, practical reasoning of a normative sort should not be expected to provide standards that can be directly and positively employed in political philosophy. The types of principles employed by normative ethics and by political philosophy are not, as Gray assumes, the same. 49. Joseph Raz, ‘‘Facing-Up: A Reply,’’ University of Southern California Law Review 62 (1989): 1227. Gray cites Raz in ‘‘What Is Dead and What Is Living in Liberalism?’’ 308. 50. Ibid., 308.

182

a new deep structure for liberalism

ments show that he treats these excellences as if they were concretely the same for everyone and the individual brought nothing to and did nothing for their realization and value. This is, however, false. It is only through self-direction that individualization itself occurs and an ‘‘abstract’’ excellence becomes concrete and real. Self-direction does not make excellences more excellent or valuable; rather, self-direction makes them actually excellent and valuable. Excellences are inherently self-directed or chosen. Interestingly enough, to speak of excellences apart from self-direction also leaves in doubt what it means to speak of versions of human flourishing, and this bring us to our second point. What, if anything, makes the excellences listed in the previous paragraphs human excellences? They are diverse and can be part of forms of life that are radically different, as Gray so frequently observes, but why are these excellences called ‘‘human’’? Or, more to our point, since the set of excellences that are deemed ‘‘human’’ is not infinite, is there any basis for our decision to include or exclude an excellence? This is a large and deep issue touching on such questions as whether or not there are defensible versions of essentialism, what it means exactly to speak of ‘‘family resemblances,’’ and whether or not it is indeed necessary that we have a basis for such decisions.51 But it hardly seems that Gray believes there to be no basis for such a decision, given his acceptance of what Berlin calls the ‘‘generic character’’ of human beings.52 It would seem that we can at least say what it takes for an excellence to be excluded from the set of human excellences, and the most plausible basis for suggesting an act be excluded is that it involves no act of practical reason, no self-direction. The medieval monk must at least realize the value of his constrained existence for it to qualify as flourishing. Presumably we need hardly point out that if the monk is merely ‘‘going through the motions’’ of being a monk, it would be nonsense to call it flourishing. It seems, then, quite incoherent to talk of human excellences apart from some measure of self-direction or choice. Finally, pointing to examples of people who flourish in societies that do not provide principled protection of their liberty does not show that selfdirection is not an essential ingredient to every form of human flourishing. Nor does it show that the value of self-direction can only be determined by an examination of the particular form of life to which people in these societies and cultures belong. In such societies as medieval Christendom or feu51. Gray offers little definition of, and no argument for, antifoundationalism or the primacy of practice. 52. See note 41.

defending individualistic perfectionism

183

dal Japan in the Edo period or, indeed, the Gulag of the Soviet Union, there can be areas of life in which some are able to integrate their circumstances into a form of flourishing. But as we argued in Chapter 4, this argument speaks more to the diversity of forms of flourishing than to the absence of self-direction from human flourishing. The issue, in any case, ought to be the nature of human flourishing itself and not the many factors that may be necessary for the existence of human flourishing or the ways people in various and different situations might fashion self-perfecting lives. Could human flourishing be such if self-direction were impossible? We think we have amply indicated why this cannot be true. Clearly, empirical examples that fail to distinguish between the factors that constitute the essence of human flourishing from the factors necessary for the existence of human flourishing will not settle this issue,53 for this issue concerns the fundamental character of both the human good and human nature.

53. The history of philosophy bears witness to the overemployment by philosophers of conceptual methods to solve issues that require empirical input, but in the past century we have suffered from the reverse error—namely, the reluctance by philosophers to let conceptual insights into the nature of something be part of method of answering fundamental questions.

Chapter Eight natural law and the common good

The basis for our disagreement [with Aristotle] is simply our unshakeable conviction that living is not for the sake of knowing, but rather that it is toward intelligent living that all our powers and capacities are ultimately directed, including our powers of knowledge, and that it is the man himself who counts more than all his knowledge, no matter how great the latter may be. —henry b. veatch, rational man It is only with abstract principles that a social system may properly be concerned. A social system cannot force a particular good on a man nor can it force him to seek the good: it can only maintain conditions of existence which leave him free to seek it. A government cannot live a man’s life, it can only protect his freedom. It cannot prescribe concretes, it cannot tell a man how to work, what to produce, what to buy, what to say, what to write, what values to seek, what form of happiness to pursue—it can only uphold the principle of his right to make such choices. . . . It is in this sense that ‘‘the common good’’ . . . lies not in what men do when they are free, but in the fact that they are free. —ayn rand, ‘‘from my ‘future file,’ ’’ the ayn rand letter (emphasis added)

Our theory of individualistic perfectionism is a natural law theory, if one understands by that term an ethical theory for which the nature of human beings is crucial to an account of both human goodness and moral obligation. Moreover, our theory is a natural end ethics, because we regard the perfection or actualization of human nature as the telos for human conduct. As we have noted in Chapter 6, we endorse a natural teleology when it comes to understanding the nature of living things; however, we do not believe it is necessary to extend teleology either to every being or to the universe as a whole. Moreover, we do not see a commitment to teleology as requiring a supernatural dimension. And while our view of teleology might

natural law and the common good

185

differentiate us from some natural law theorists when it comes to metaethics, it is our view of human flourishing that differentiates us from most natural law theorists. The fundamental difference in normative ethics between us and most natural law ethicists is our claim that human flourishing is essentially an individualized, agent-relative, and self-directed (or chosen) activity. We have explained and defended this conception in the previous two chapters. In this chapter, we will consider and offer our critique of two groups of natural law theorists who do not share our conception of human flourishing.

New and Traditional Natural Law Theory By ‘‘new natural law theorists,’’1 we mean those thinkers who regard ethics as independent of philosophical anthropology, natural philosophy, and metaphysics.2 By ‘‘traditional natural law theorists’’ we mean those thinkers who regard philosophical anthropology, natural philosophy, and metaphysics as necessary for any justification, explanation, or account of the human good and ethics.3 It is our contention that both sets of theorists fail to appreciate sufficiently the individualized, agent-relative, and self-directed character of the human good. Consequently, they fail to realize some of the chief bases for ‘‘liberalism’s problem’’ and the need for an irreducible concept of natural rights (see Chapters 4 and 11 for our discussion of liberal1. This position is held by such contemporary theorists as John Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980); Germain Grisez, Christian Moral Principles, vol. 1 of The Way of the Lord Jesus (Chicago: Franciscan Herald Press, 1983); and Robert P. George, Making Men Moral: Civil Liberties and Public Morality (Oxford: Clarendon Press, 1993). 2. Philosophical anthropology, natural philosophy, and metaphysics traditionally ask the following basic questions, respectively: What is it to be human? What are the fundamental principles of nature? What is it to be? 3. This view is held by such contemporary theorists as Russell Hittinger, A Critique of the New Natural Law Theory (Notre Dame, Ind.: University of Notre Dame Press, 1987); Benedict M. Ashley, O.P., ‘‘What Is the End of the Human Person? The Vision of God and Integral Human Fulfillment,’’ in Moral Truth and Moral Tradition: Essays in Honour of Peter Geach and Elizabeth Anscombe, ed. Luke Gormally, 68–96 (Dublin: Four Courts Press, 1994); and Ralph McInerney, Ethica Thomistica: The Moral Philosophy of Thomas Aquinas (Notre Dame, Ind.: University of Notre Dame Press, 1982). When it comes to the importance of teleology, the role of human nature for ethics, and the common good of the political community, the following works of Henry B. Veatch also belong to this group: Rational Man: A Modern Interpretation of Aristotelian Ethics (Indianapolis: Liberty Fund, 2003); For An Ontology of Morals: A Critique of Contemporary Ethical Theory (Evanston, Ill.: Northwestern University Press, 1971); and Human Rights: Fact or Fancy? (Baton Rouge: Louisiana State University Press, 1985). However, when it comes to the exact character of human flourishing, Veatch’s views are much closer to ours.

186

a new deep structure for liberalism

ism’s problem and Chapter 3 for our discussion of the natural law tradition’s approach to natural rights). Here we shall examine both approaches to natural law. New natural law theorists reject any attempt to base an ‘‘ought’’ on an ‘‘is.’’ They hold, on the contrary, that there is a logical gap between a truth (what is the case) and its motivating force in producing conduct (what one ought to do). In this account, no theoretical truth can, by itself, be the basis for a practical truth. Thus, Aquinas’s first principle of practical reason, that good is to be done and pursued, and evil is to be avoided,4 is not dependent in any sense upon metaphysical or philosophical anthropological theory. Rather, this principle, as well as the primary principles of practical reason that express various possibilities for human flourishing (that is, basic human goods), are self-evident.5 No mediating premise(s) is (are) required to grasp their truth; they are not deduced or inferred from any is-statement. New natural law theorists also contend that human flourishing is not a single dominant end that makes all other goods merely instrumental goods. Rather, it comprises basic goods that are valuable in themselves. These basic goods are equally fundamental and cannot be reduced to being an aspect of the others. Hence, they are, as such, incommensurable,6 for each helps to define what it is for a human being to flourish.7 Although they do not claim that their catalog of basic goods is exhaustive, the new natural law theorists list seven: life, knowledge, play, aesthetic experience, sociability, practical reasonableness, and religion.8 These goods 4. Summa theologiae, I-II, 94, 2. 5. It is argued that in the case of such a basic good as knowledge, any attempt to question seriously its desirability is operationally self-refuting. That knowledge is a good to be pursued is presupposed by all serious assertions, including the assertion that knowledge is not a good. See Finnis, Natural Law, 73–75. 6. Ibid., 112. 7. As Robert George states, ‘‘Thus, the complete human good—integral human wellbeing—is intrinsically variegated. There are many irreducible, incommensurable, and thus basic human goods. These basic goods are fundamental aspects of the well-being and fulfillment of flesh and blood human beings. They are not Platonic forms that somehow transcend, or are in any sense extrinsic to, the persons in whom they are instantiated. Nor are they means to human flourishing considered as a psychological or other state of being independent of the basic human goods that provide reasons for action. Rather, they are constitutive aspects of the persons whom they fulfill.’’ George, Making Men Moral, 13–14. 8. Most of what follows in this chapter is adapted from Douglas J. Den Uyl and Douglas B. Rasmussen, ‘‘Ethical Individualism, Natural Law, and the Primacy of Natural Rights,’’ Social Philosophy & Policy 18, no. 1 (Winter 2001): 34–69. With regard to the list of seven basic goods, Finnis adds reality versus appearance in The Fundamentals of Ethics (Washington, D.C.: Georgetown University Press, 1983), 75.

................. 11426$

$CH8

08-10-05 09:13:31

PS

PAGE 186

natural law and the common good

187

are not extrinsic to persons; they are not merely things that persons have.9 Instead, they are that by which persons flourish. Together these ultimate goods constitute aspects of an individual’s human flourishing or what the new natural law theorists sometimes call ‘‘complete, integral fulfillment.’’ These theorists formulate their first principle of morality as follows: ‘‘In voluntarily acting for human goods and avoiding what is opposed to them, one ought to choose and otherwise will those and only those possibilities whose willing is compatible with integral human fulfillment.’’10 They regard this abstract principle as, however, too general to guide morally significant choice and so develop ‘‘requirements of practical reasoning’’ or ‘‘modes of responsibility’’ that provide guidance that is more specific. These principles of practical reasonableness are supposed to be a more determinate guide for human conduct than the Aristotelian doctrine of the mean. They are a response to the various ways that passions and feelings can deflect one from choosing in accord with the first principle of morality. It is not necessary, for our purposes, to examine all of the principles of practical reasonableness developed by the new natural law theorists.11 We can instead focus on their claim that practical reasonableness requires (1) that there be no arbitrary preferences among basic forms of the good; (2) that there be no arbitrary preferences among persons; and (3) that one maintain a certain detachment from all specific and limited projects one undertakes. We shall consider each of these contentions. (1) That human flourishing is something objective and not simply a matter of opinion is, of course, something that we accept. Thus, one ought to neither ignore any of the basic goods nor arbitrarily discount or exaggerate them. That is to say, one should not value or weigh any one of the basic goods to such an extent so as to treat the other goods as being of no account. Further, one should not treat any instrumental or derivative good as if it were a basic good. One must instead find a way to participate in each of the basic goods to some extent and never mistake a means to these ends with these ends themselves.12 Proscribing arbitrary valuation of basic goods is, then, certainly a requirement of practical reasonableness. What is not clear, however, is the role of the individual in this process. The new natural law theorists describe, for example, the proscription against arbitrary valuations as a matter of regarding basic goods or life9. 10. 11. 12.

Grisez, Christian Moral Principles, 121. Ibid., 184. See Finnis, Natural Law, 100–133. Ibid., 106.

188

a new deep structure for liberalism

plans ‘‘impartially.’’13 Yet, if we accept this description, we ignore what individuals bring to moral considerations and confuse a theoretical insight with a practical one. Practical reasonableness does not require that persons be impartial in their valuations of basic goods. Rather, the excellent use of practical reason requires that individuals discover how one basic good, along with the others, is to be achieved within the context of an individual’s life. This process requires that basic goods not be valued equally, but given different valuations or weightings. The value or weight that is accorded a basic good in an individual’s life is crucially dependent on the circumstances, talents, endowments, interests, beliefs, and histories that descriptively characterize the individual—that is, the individual’s nexus. Certainly, each of the basic goods, when considered as such and apart from the particular individuals whose goods they are, is of no more importance than the other. Each is equally necessary to define the very character of human flourishing.14 This is an important theoretical point. Yet, these goods are only real, determinate, and valuable when they are given particular form by the choices of flesh-and-blood persons. In reality, the importance or value of these goods is dependent on each person’s unique nexus. This is an important practical point. But if the theoretical is confused with the practical, then practice is molded to fit theory rather than, in the Aristotelian spirit, reason illuminating practice. The new natural law theorists agree that in choosing any coherent or harmonious life-plan there will be a degree of concentration on one or some of the basic goods at the expense of others. Further, they admit that the degree of concentration is based on a consideration of factors that pertain to the individual. As John Finnis states: ‘‘Each of us has a subjective order of priority amongst the basic values; this ranking is no doubt partly shifting and partly stable, but is in any case essential if we are to act at all 13. Ibid., 107–8. See also Grisez, Christian Moral Principles, 189. 14. Acting to maintain and sustain health is, for example, certainly necessary to human flourishing, but so too are virtuous activity and the pursuit of knowledge and friendship. Finnis notes that each of the basic goods is fundamental and that none is more fundamental than the others, ‘‘for each can be reasonably focused upon, and each, when focused upon, claims a priority of value. Hence, there is no objective priority of value amongst them.’’ Finnis, Natural Law, 93. It should be obvious from what we have said in Chapters 6 and 7 that we concur with new natural law theorists on this point. At least we agree insofar as holding: (1) that for every human life to be a flourishing life it must have to some degree or in some form these basic goods; and (2) that the burden of proof is on anyone to demonstrate that an analysis of human nature alone can provide a ranking of these basic goods relative to each another that is applicable to any and every human being.

natural law and the common good

189

to some purpose. But one’s reasons for choosing the particular ranking that one does are reasons that properly relate to one’s temperament, upbringing, capacities and opportunities, not to differences of rank of intrinsic value between basic values.’’15 What are we, however, to make of Finnis’s description of the order of priority as ‘‘subjective’’? Does he mean that such ordering pertains to an individual’s nexus? Does he mean that it is merely a matter of personal choice? How are we to understand his reference to ‘‘differences of rank of intrinsic value between basic values’’? Is he referring to a ranking of basic goods that constitute human flourishing, or to ranking required by an appeal to the principles of practical reasonableness? Regardless of Finnis’s intent, we contend that one should not take his use of the term ‘‘subjective’’ to mean that any ordering of basic goods that results from a consideration of one’s nexus is as morally valid as the next. Nor should we assume that basic goods are somehow real, determinate, or valuable apart from their relation to the lives, choices, and conduct of individual human beings.16 The new natural law theorists do reject a Platonic vision of the human good and admit that human flourishing is always related to individuals, but they do not explicitly consider whether or not that relationship is essential to what human flourishing is. As we have noted, they even acknowledge that basic goods are not extrinsically related to individuals. They do not develop, however, the implications of this insight. Is human flourishing something that is inherently related or unrelated to individual human beings? Is it agent-relative or agent-neutral? What content does the individual bring to our understanding of human flourishing? These questions are never explicitly addressed by the new natural law theorists, and consequently they never come to grips with the implications of individualistic perfectionism for ethics. Finnis states, ‘‘Every human being is a locus of human flourishing.’’17 Robert George describes individuals ‘‘as loci of human goods.’’18 These remarks do not capture the individualized and agent-relative character of the human good. In fact, they show a profound failure to understand its character as such. We should not suppose the basic goods that make up 15. Finnis, Natural Law, 93–94. 16. When individuals choose and act they invest themselves in their environment, and this has reinforcing properties to the choice itself as well as to the nexus of choices any given choice fits into. Thus the goods individuals pursue or should pursue are not goods apart from individuals and their choices. 17. Finnis, Natural Law, 221. 18. George, Making Men Moral, 39.

190

a new deep structure for liberalism

human flourishing as existing or having value apart from the individuals whose goods they are. Further, we should not view individuals as mere placeholders or loci for these basic goods. Flourishing is not simply achieved and enjoyed by individuals; it is itself individualized.19 There are individuative as well as generic potentialities, and this makes human flourishing always unique. The point here is fundamental, and what we have noted before bears repeating. Flourishing does not merely occur within an individual’s life, as if an individual contributed nothing to it. Instead, the relationship between flourishing and an individual’s life is much more intimate. The status of human flourishing as the ultimate value arises and obtains only in relationship to some individual’s life. Moreover, the value of flourishing is found and expended in those activities of an individual that constitute his or her flourishing. Human flourishing is thus neither some value-at-large nor a tertium quid. In other words, flourishing involves an essential reference to the individual for whom it is good as part of its description. Strictly speaking, we should not say that a human being is a locus of human flourishing or that flourishing occurs in an individual. Rather, we should say that a human being is a flourisher or that an individual is flourishing. Properly conceived, then, an ethics of human flourishing is a version of moral pluralism.20 Though we may abstractly speak of a summum bonum, there are in reality only many summa bona. The new natural law theorists tend to confuse the objectivity of human flourishing with impartiality or agent-neutrality because they think that if human flourishing is something objective it cannot have an essential reference to the person for whom it is good as part of its description. Further, they tend to see individuals as being no more than placeholders for human flourishing. Individuals simply instantiate human flourishing, but they do not provide anything crucial to its character. It is, however, quite possible for human flourishing to be both agent19. For the most part, new natural law theorists, as well as traditional natural law theorists, have recognized that human flourishing does not exist apart from the individuals who participate in this good. Further, there has been an acknowledgment of the importance of fitting the pursuit of the good and avoidance of evil to the circumstances in which individuals find themselves. But few in either natural law camp have also recognized that flourishing as it actually exists is individualized and agent-relative as well—in other words, that who the human individual is actually helps to characterize human flourishing and that human flourishing is always and necessarily for the individual human being, never the other way round. 20. As noted in Chapter 6, we are not contending that there is more than one ultimate standard of goodness; rather, we are holding that human flourishing is the ultimate good and that it is always and necessarily expressed in individualized form.

natural law and the common good

191

relative and individualized and nonetheless objective. As we have argued in Chapter 6, simply because something is only valuable relative to some individual (or simply because something is individualized) does not necessarily make its value merely a matter of that individual’s attitude toward it or, indeed, merely something desired, wanted, or chosen. An individual human being is neither a bare particular nor simply a bundle of passions and desires. There are real potentialities, needs, and circumstances that characterize both what and who an individual is, and these are the bases for determining what is good for an individual. Thus, although one may be interested in or have a desire for something, it could still not be the case that the object of one’s interests or desires is good for one. The agent-relative and individualized nature of human flourishing is not incompatible with its being objective. (2) That one should not be selfish, apply moral principles in a biased fashion, or indulge in various forms of special pleading is not controversial. However, it is questionable if these proscriptions are best characterized as being impartial toward all human subjects. Finnis argues that one should be impartial toward all human subjects who are or who may be partakers of the basic goods because ‘‘intelligence and reasonableness can find no basis in the mere fact that A is A and is not B (that I am I and am not you) for evaluating his (our) well-being differently.’’21 Further, the only reason for me to prefer my own well-being (which includes the well-being of my family and friends) is that ‘‘it is through my self-determined and self-realizing participation that I can do what reasonableness suggests and requires, viz., favor and realize the forms of human good indicated in the first principles of practical reason.’’ Finally, Finnis endorses the claim that the basis for such impartiality is the principle of universalizability.22 The points Finnis makes here are problematic. If human flourishing is always essentially related to persons as particular individuals, then contrary to his first point, the excellent use of practical reason does require that when one is deciding how to act, one must consider whose good is involved. Individuals are not simply placeholders and may not be substituted for another, because it is ethically relevant whose good is involved. For example, that some activity is good for someone else’s children but is not good for one’s own is not something to which one ought to be indifferent. Further, if the human good is agent-relative, then Finnis is mistaken to 21. Finnis, Natural Law, 107. 22. Ibid., 107–8.

192

a new deep structure for liberalism

claim that the only reason to prefer one’s own well-being is that it is a means for achieving basic goods. Basic goods are for the sake of fulfilling individual human beings; individuals are not for the sake of achieving basic goods. Finally, it is not necessary to adopt an agent-neutral conception of human flourishing or discount its individualized character in order to avoid selfishness and various forms of special pleading. Nor is it required by the principle of universalizability.23 The reasons for this are twofold. First, to say that human flourishing is agent-relative does not mean or imply that human flourishing cannot involve concern for others, or that acting for the welfare of another could not be a value or reason for one’s conduct. As noted in Chapter 6, acting for the sake of a given person can be good for you even if others would not find it good to perform the same acts for that person themselves. Friends helping and nurturing one another and parents sacrificing for their own children are among the many examples of how flourishing can be agent-relative and nonetheless involve authentic concern for others. Second, to say that human flourishing is agent-relative does not preclude it from being universalized. Universalizability does not require an agent-neutral view.24 As we demonstrated in Chapter 7, it is possible to hold a moral theory that claims that a person’s good is agent-relative and still universalize the maxims of actions based on it. It should be noted here also that ‘‘universalization’’ is an ambiguous concept, for it encompasses many forms and levels. It may be, for example, that at a certain level of abstraction we can universalize the proposition ‘‘knowledge is good for human beings.’’ This proposition ignores a lot about individuals and their specific circumstances, but, ceteris paribus, it can plausibly be said of all of us.25 We have no objection to universalization in this form if its limitations are noted as they are above. But universalization also has for us no special status at the core of what it means for actions to count as moral. If the ultimate aim of ethics were essentially prescriptive 23. Finnis also implies that agent-neutrality is required if one is to follow the demands of justice. But this claim confuses the virtue of justice, which does not necessarily require impartiality, with the justice that is rendered by a political/legal system, which does. See our discussion of this very issue in Chapters 7 and 12. 24. As noted in Chapter 7, the ability of a value to be the basis for universalizable conduct is not sufficient to establish common values or a reason for other-regarding conduct among persons. This is so because the universalization of agent-relative goods does not show P1’s good to be P2’s good, nor the production of P2’s good as providing P1 with a reason for action, or vice versa. Thus, if P1’s good should conflict with P2’s, universalizability would not provide a way out of this conflict. 25. This point would, of course, apply to all the other basic goods and virtues of human flourishing as well.

natural law and the common good

193

or legislative—that is, always and necessarily to provide rules of conduct for everyone—then universalization might take on such a central status. But the ambiguity in the level of abstraction from which a universalization is undertaken points to the fact that the value of universalization may be limited and instrumental. The essence of moral conduct is not action in accordance with some universalized rule. At best those actions are a means, an aid to flourishing. What lies at the heart of ethics for us is not the universalizable but the meliorizable. (3) Finnis states that ‘‘there is no good reason to take up an attitude to any of one’s particular objectives such that if one’s project failed and one’s objective eluded one, one would consider one’s life drained of meaning.’’26 Thus, if one fails to succeed, one should not give up trying. One should practice a certain detachment regarding one’s projects. Certainly, this is good advice. It would be irrational to assume that one’s life must be drained of meaning if one’s project fails; for there are usually other ways to achieve the basic goods that flourishing requires. Moreover, persons are not static. A project that is crucial for achieving basic goods at one time might not be so at another time. However, none of this precludes the possibility that some projects are so important that without them one has lost all chance of flourishing. There might be persons constituted such that only a very limited number of projects will allow them to achieve basic goods. There might also be projects for which no substitution will suffice, and moments and situations that are crucial for flourishing that only come but once. Finnis is certainly correct to reject fanaticism, but the truth is simply that what is fanatical for one person can, for another, be nothing more than a principled commitment to a particular life-plan.27 What the new natural law theorists consistently fail to consider is that the appropriate weightings that different individuals accord the basic goods in their life-plans may vary greatly. There are various forms of human flourishing, and accordingly there are various forms of moral failings and moral tragedies. Some projects for some people might be crucial, and some might be unimportant for others. Only by ignoring the individualized and agent-relative character of human flourishing could one think otherwise. After considering these three contentions of the new natural law theorists regarding practical reasonableness, it should be clear that they fail to appreciate sufficiently the role of the individual in any account of human 26. Finnis, Natural Law, 110. 27. The central question for the individual is, of course, whether or not he or she has developed an appropriate life-plan for him- or herself.

194

a new deep structure for liberalism

flourishing. If we investigate their views further, we find this made even more evident. As noted above, these theorists often describe human flourishing as ‘‘integral human fulfillment.’’ They claim that it is neither individualistic fulfillment nor the fulfillment of some greater good apart from the basic goods. Instead, it is the complete fulfillment, in terms of achieving basic goods, of all persons and communities.28 As Germain Grisez, for example, says, ‘‘the ideal of integral human fulfillment is that of a single system in which all the goods of human persons would contribute to the fulfillment of the whole community of persons.’’29 Understanding this conception of human flourishing requires, then, that we consider how the new natural law theorists understand the common good of the political community. We shall do so in this next section. Now, we shall turn to a consideration of traditional natural law theorists. Traditional natural law theorists argue, contrary to the new natural law theorists, that any account of human flourishing and moral obligation cannot be adequately defended or explained without a supporting philosophical anthropology, a position with which we agree. The claim of the new natural law theorists that the basic goods that constitute human flourishing are self-evident does not show that they are not based on human nature, because self-evidence need not be mere analyticity; it can be a reflection of reality.30 The issue is not whether or not these goods are deduced or inferred from human nature; rather the issue is if these goods are recognized to be goods for individual human beings. If human flourishing is agent-relative, then it is because of what individual human beings are that these goods are known to be good. By not acknowledging that these basic goods are grounded in the nature of individual human beings, the new natural law theorists, despite their protestations to the contrary, end up treating them as if they had value and reality independent and apart from the choices of individual human beings. The traditional natural law theorists are, for the most part, clear that the basic goods are goods for individual human beings. Thus, we accept their initial insight. However, we do not accept their subsequent claim that an exclusive analysis of human nature reveals a particular valuation or weighting of the basic goods that is proper for any or every individual.31 28. George, Making Men Moral, 15–16. 29. Grisez, Christian Moral Principles, 185. 30. See Henry B. Veatch, Two Logics: The Conflict between Classical and Neo-Analytic Philosophy (Evanston, Ill.: Northwestern University Press, 1969), 102–5. 31. See Hittinger, Critique of the New Natural Law Theory; and Ashley, ‘‘What Is the End of the Human Person?’’

natural law and the common good

195

There are three problems with this claim. First, an analysis of human nature does not reveal any relative valuations or weightings of the basic goods, much less one that is proper for all individuals. Analysis of human nature provides, at best, a cluster concept that lists basic goods, and this supports the claim that no one can flourish without having these basic goods in some form. Yet, an analysis of human nature does not show, for example, how friendship should be valued relative to knowledge; human nature as such does not provide this information. There is, then, no recipe for flourishing that human nature provides the individual. Second, even if it is the case that some basic goods are ontologically more fundamental than others, this does not mean that a particular individual’s valuation or weighting of basic goods should be based solely on this dependency. For example, it might be that one cannot enjoy any other basic good unless one also has the good of knowledge, but this does not mean that the life of a philosopher or scientist is the best life for everyone or even that, without further argument, those lives are somehow ‘‘better’’ in themselves. Nor does it mean that one should spend more time and effort pursuing knowledge than pursuing leisure or developing relationships with family and friends.32 The importance or value of a basic good for some person cannot be determined apart from a consideration of that person’s nexus. Certainly, an individual should not disvalue or give no weight to a basic good, particularly those that are ontologically more fundamental than other basic goods. Yet while general ontological fundamentality may more compellingly call our attention to a basic good, the place of an ontologically fundamental basic good within a value hierarchy is not ipso facto determined by its fundamentality alone, with respect to either its content or its place in the value hierarchy of an individual. In the latter case, it does not follow that the more ontologically fundamental good should for every individual be valued or weighed more highly than other basic goods. For instance, that a house requires a foundation does not imply that one must value the view from the basement more than the balcony view. This means that the precise content of a good is open to individualized determination, for the sort of knowledge one needs is a function of its relationship to other values in the hierarchy, not to mention circumstances. Third, an understanding of human flourishing as such does not specify the individual forms of flourishing, but not to specify these forms is not 32. The alternative is not just friendship or leisure, but any other basic good.

196

a new deep structure for liberalism

to deny their existence. In fact, such an abstract consideration of human flourishing requires that flourishing exist in some particular way or manner.33 It requires that in reality there exist many individualized forms of human flourishing, and it is an individual’s nexus that determines which form, which way or manner, of flourishing is appropriate for that individual. There is no such thing as human flourishing ‘‘as such’’ or in one single form. As we have noted more than once, human flourishing is neither some tertium quid nor some value-at-large. To reiterate, knowledge of the specific proper form of flourishing for someone cannot be achieved by a theoretical or speculative account of human nature alone. What one needs is knowledge of the particularities of an individual’s life that are essential to giving the constituents of human flourishing reality, determinacy, and value, and only practical wisdom can provide this sort of knowledge. It is, of course, important to be able to consider things abstractly. It is necessary to have theoretical or speculative knowledge of the basic goods and virtues of human flourishing, for they provide the broad, overall goals for an individual’s conduct. Nevertheless, this does not mean that such theoretical insight should replace practical wisdom’s role in guiding human conduct—that is, when it comes to the discovering, achieving, maintaining, valuing, and enjoying the basic goods for the individual in the contingent and particular situation. The traditional natural law theorists expect too much of theoretical or speculative knowledge and not enough of practical wisdom, and hence fail to appreciate sufficiently the individualized and agent-relative character of human flourishing.34 The theorists of both new and traditional natural law fail to grasp the importance of the individualized and agent-relative character of the human good. As we shall see, this leads to conceptions of the common good of the political community that are problematic, as well as to an inability to see the true importance of natural or individual rights. 33. Aquinas called this type of abstraction ‘‘abstraction without precision.’’ See our discussion of this view of abstraction in Chapter 7, note 3. 34. The traditional natural law theorists may do this because of the traditional dominantend approach to teleological ethics where the contemplative life is given supreme standing. Yet this is a complicated matter, because it involves such questions as: What is the contemplative life? In what sense is it the supreme value? How is it similar to and different from the beatific vision? What is the nature of the relationship between the so-called ‘‘supernatural’’ end of man and the natural end? See Ashley, ‘‘What Is the End of a Human Person?’’

natural law and the common good

197

Natural Law and the Common Good of the Political Community One way of looking at the common good is as John Finnis does. Finnis considers the common good to be the procurement of those conditions that will foster the attainment by individuals of ‘‘a whole ensemble of material and other conditions that tend to favour the realization, by each individual in the community, of his or her personal development.’’35 Finnis’s definition logically allows for the possibility that securing these conditions will not require that particular people be provided with particular things, or indeed with anything at all. It is conceivable that the common good could be obtained by ensuring the existence of conditions that, while allowing individuals to act for their own development, do not provide benefits to particular individuals or respond to individuals’ claims for particular goods or services. Therefore, to hold a belief in the common good does not commit one to a position that necessarily requires the state or any other centralized institution to be active in securing goods and services for its citizens. It is possible to assume that a minimally active state would do all that is necessary to provide for the common good; that is, it would secure the conditions necessary to help individuals achieve the goods they need to flourish. Yet even if we assume that adhering to a notion of the common good does not commit one to any particular political ideology of state intervention, the question still stands as to why the notion of the common good implies anything at all about political action. One might answer that the province of politics is the province of that which is common to us all; we believe, however, that this response makes some arguable assumptions. The fact that something is common to us all does not necessarily imply the need for political concern or action involving that thing. This is especially true if what is at issue, as it is here, is just what the role of politics should be. For example, we would argue that the political is properly concerned only with securing conditions that make it possible for individuals to pursue their own self-perfection among others, as opposed to securing those conditions that tend to encourage the development of self-perfection, or to securing selfperfection for individuals outright. If one takes this position, it does not follow at all that politics is necessarily concerned with everything that might qualify as a ‘‘common good’’ (that is, those things that are good for all indi35. Finnis, Natural Law, 154.

198

a new deep structure for liberalism

viduals). Politics, in other words, may be concerned with what is common, but what is common is not necessarily the province of the political.36 If the political and the common were identical, then we could not discern a difference and thus really distinguish, for political purposes, the conditions for the possibility of the pursuit of self-perfection among individuals from the conditions necessary for the achievement of self-perfection. But we can certainly do this. It may very well be, as we believe it is, that the conditions for making the pursuit of any sort of flourishing possible are less robust in character than the conditions that tend to promote individual flourishing directly. Perhaps any individual’s flourishing can be optimally encouraged by giving him or her an income above the current national median, but a social order that redistributes to give everyone incomes over that level is certainly different from one that simply allows anyone who achieves that level of income to keep it. It should be noted here that we are generally skeptical that there are ‘‘common goods’’ except in the most generic sense—and the generic form is misleading in its own way; we discuss this problem elsewhere.37 Here, for the sake of the argument, we shall ignore this issue and grant that general conditions for promoting flourishing can be discussed meaningfully. If they can, then the issue at hand is not so much about the nature of the common good, but rather about the nature of politics and its connection with the common good. Our point is that even if we grant that X will contribute to the general prospects of flourishing among members of a society, it cannot be assumed that X should be provided as a matter of political action or that political activity is called for if ⬃X obtains. This leads us to the question of whether or not protecting the condition for the possibility for the pursuit of flourishing among others should take precedence over providing conditions that tend to promote flourishing more directly.38 We will not offer a full answer to this question here, but the 36. By ‘‘the province of the political’’ we mean the province of the state or the political/legal order. We do not deny that there may be senses of the term ‘‘political’’ that refer to relations among persons in pursuit of some common good that do not involve the state or political/legal order. So, we admit that there may be a sense of ‘‘political’’ in which every political concern involves a common good. Yet, this is not the sense that is used here or the issue that concerns us. 37. See Rasmussen and Den Uyl, ‘‘Liberty and the Common Good’’ (chap. 4) in Liberty and Nature: An Aristotelian Defense of Liberal Order (La Salle, Ill.: Open Court, 1991), 131–71. 38. In our more optimistic moments we tend to think that a real securing of the conditions for the possibility of pursuing flourishing among others would generally have the effect of creating the conditions that more directly encourage flourishing, but our argument does not hang on that connection.

natural law and the common good

199

fact that one can raise the question sensibly indicates that we cannot simply assume that claims about what would encourage flourishing have any particular political priority. The question of the appropriate role of political activity with respect to goods supportive of flourishing leads us, however, to another issue: Is the flourishing exhibited by individuals a function of the conditions that tend to encourage it, or are these conditions themselves the result of individual actions in pursuit or maintenance of flourishing activities? Putting the matter another way, do individuals through their own actions and relationships with others merely locate in space and time goods that precede these actions and relationships, or do goods—whatever their nature and commonality—arise and continue as the result of individual actions, whether performed singly or in coordination with others? We call the first and second alternatives expressed in these questions the ‘‘conditionalist thesis’’ and the ‘‘individual agency thesis,’’ respectively. Before one tries to answer the preceding questions by saying that something of both sides is true, it must be noted that we are raising the issue behind those questions in a fundamental sense. Saying that both sides are true is perhaps correct in some sense, but not in a fundamental one, because it does not speak to where we should orient our efforts as we try to bring about flourishing. If individuals’ actions secure, maintain, or otherwise give form to the goods connected to flourishing, then it is these actions that must become the focus of our efforts; in this account, focusing on the goods themselves would be misguided, for they are simply derivatives of those actions. If actions are the focus of our efforts, and we allow for a plurality of ends and diversity of approaches to them, then we will tend to concentrate on allowing for the freedom of action. However, if flourishing is a function of having conditions available where individuals can enjoy the goods that it requires, then we should concentrate our efforts on establishing the right conditions rather than on the actions themselves. In this account, actions are seen as the product of the prior conditions, as opposed to conditions being seen as the product of individual action. Finnis might object that some goods, such as friendship, are essentially actions (or actions in a relationship of a certain sort), and that therefore the distinction posed above is not a good one. Finnis speaks of how goods such as friendship are not exhausted by anyone’s enjoyment of them, suggesting that these goods somehow both preexist the actions that characterize them and yet only find expression through individual actions.39 It is difficult, 39. Finnis, Natural Law, 141–56.

200

a new deep structure for liberalism

however, to imagine what good actually and determinately, as opposed to potentially, preexists the actions or relationships produced in something like a friendship, let alone what politics could do to move people toward the enjoyment of this good. It seems likely that the more a good is defined in nonmaterial terms of individual action, the less it is suited to political purposes. In contrast, material conditions (having money, for example) are more promising as objects of political action, because we can identify them and measure the extent to which individuals have them. But if we look for nonmaterial ends of political action, freedom of association seems the most likely political basis for goods like community and friendship. In some of these cases, such as that of freedom of association, the ‘‘condition’’ obtained could easily square with our prescription that politics stick to securing and maintaining the conditions for the possibility for the pursuit of flourishing among others. Since freedom of association does not guarantee friendship or even community—if by ‘‘community’’ one means something more than nonviolent coexistence—freedom of association falls within the purview of securing only the possibility for flourishing. It is not so easy to imagine, however, what else can be said if freedom of association is meant to foster a tendency toward friendship more directly. What we would expect to see under such attempts is that certain types and modes of friendship could be fostered, but only at the expense of other types or modes. More specifically, if those creating the friendships-fostering conditions could not imagine a particular sort of friendship, or thought a particular sort of friendship would be difficult to encourage, then that sort of friendship would most likely be frustrated by whatever conditions were implemented. Our point is not, however, to quibble about what will or will not be more likely to promote a certain end, but first to raise the issue of orientation toward the common good. It seems to us that if someone allows for the possibility of a plurality of modes of flourishing, agent-relativity of value, and the derivative character of material conditions, then one is more likely to look to procedural approaches to the common good than to a notion of the common good that seeks to realize a certain states of affairs or material conditions. Our second point is that by accepting the individual agency thesis, we can speak meaningfully of both conditions and individual action. In contrast, the conditionalist thesis, to the degree that one takes it seriously, seems to make individuality disappear. The more directly that conditions C produce states of flourishing F, the less that individual I matters to the connection between C and F. At one extreme we might imagine

natural law and the common good

201

C invariably producing F for In,40 while at the other extreme we might imagine C being necessary for, but in no way directly productive of, F for I. The latter, of course, would be, in practical terms, close to our own position, for at that end of the spectrum it seems difficult to speak of anything being ‘‘produced’’ or ‘‘encouraged’’ between C and F for I. Most of those who advocate conditionalism yet want to allow for some degree of individuality will not take either of these extreme positions; they will place themselves somewhere in the middle. Yet this middle ground is endlessly contentious: there are no clear criteria either for successfully producing F or for the degree to which C can be altered. Any political program trying to rest on such a middle ground will have to be systematically interventionist, because there is no guarantee that a given level of C will encourage F the same way from one time to the next. Consequently, either because one is on the invariability end of the spectrum or because of the inevitable contentiousness of securing the appropriate conditions, individuals count for very little. Either they do not count because the right conditions produce the right effects through them whether they will it or not, or they do not count because one’s lack of confidence in the causal connection between C and F forces one to think in terms of aggregates and reasoning that is ‘‘for the most part.’’ In either case, ‘‘collective’’ action will supplant individual action. If one accepts the individual agency thesis, however, then both C and F—and the relationship between them—are a function of I. Hence, on the individual agency thesis, we need not sacrifice talk of conditions that encourage flourishing, nor give up talk of individual actions. For it is quite possible, within a political program that seeks only to secure the conditions for the possibility for the pursuit of flourishing among others, that people will jointly aspire (even conspire) to produce conditions favorable to flourishing. Once those conditions are themselves seen to be the product of individual action, there is no contradiction or tension between individual action, on the one hand, and the establishment of common conditions, on the other. Furthermore, one cannot argue that the individual agency thesis eliminates the role of conditions in the same way that the conditionalist thesis eliminates the role of individuals. The conditions do not progressively disappear as we look more and more to individuals because the goods in question that constitute the preferred conditions are just the aspirations 40. Since this is a political issue, it must be expressed as In rather than I, because we can imagine C being invariable for I1 but not for I2.

202

a new deep structure for liberalism

and achievements of individuals. What would be threatened by such an approach would be goods that are the aspiration of some collective entity rather than any individual. But we know of no natural law theorists who wish to be seen as collectivists. The traditional natural law theorist’s account of the common good is not so different from the account Finnis provides. Veatch, for example, defines the common good as ‘‘a social system or social organization or social order designed and disposed so as to make various of the goods of life available to the individuals who make up the community.’’41 This appears to have less to do with flourishing than Finnis’s account, but Veatch’s fuller discussion leaves no doubt that flourishing is the driving force of his theory. His definition of the common good shows that he, like Finnis, is a conditionalist when it comes to the common good; he thinks goods are to be provided so as to promote flourishing among individuals. Yet Veatch is less concerned with arguing about the character of the conditions that should obtain than he is with the very nature of the common good in the face of what he calls the ‘‘hyper-individualist’’ position. Veatch wants to show two things: that there is a good that is not the good of an individual, but the good of all and each, and that this good is a necessary feature of any community or political organization and can take precedence over the good of an individual in cases of conflict. Veatch wants us to imagine a situation where we come to recognize that to have a community at all, we need rules and procedures that individuals must adhere to even if doing so does not enhance their own good. These rules and procedures are good for everyone collectively, for they allow them to reap the benefit of living in community. Of course, these collectively beneficial rules and procedures are also good for each individual. Veatch’s point here is that this common good is somehow different from one that refers to individuals alone. Once one accepts that there can be a good that is not defined in terms of the individuals alone, then a wedge has been introduced for giving the common good a status that cannot be displaced by talk of individuals singly or collectively. Indeed, it seems fair to say for both natural law camps that the common good is politically fundamental, while natural rights are only secondary.42 On the other hand, for the natural rights tradition, rights are fundamental and the common good is secondary, 41. Veatch, Human Rights: Fact or Fancy? 127. 42. See the discussion of the place of natural rights in natural law theory, particularly the exchange between Brian Tierney and John Finnis in The Review of Politics 64, no. 3 (Summer 2002): 389–420.

natural law and the common good

203

which is to say that the common good will be some function of securing natural rights. One cannot help but wonder at times if some of the arguments that natural law theorists present in defending the concept of the common good conflate a person’s overall good with a person’s more immediate interest. Descriptions of the nature of the common good are often given in examples involving clubs, enterprises, organizations, and the like, and such examples lend themselves to this obfuscation. In all sorts of common enterprises, a person’s more immediate interest clearly may have to be subordinated to the ‘‘good’’ of the whole. When we are part of a group, it is not so difficult to recognize times when our own preferences may have to be set aside or compromised so that the group might flourish. Indeed, at an abstract level it might be said—and surely this is accepted by those who believe in objective goodness—that what is good for one is not necessarily the same as what might be in one’s interest at a given time. Indeed, one positive feature of the classical ethical tradition is that it seems to align these apparently distinct items. Perhaps the desire of classical theorists to unify the two explains the conflation. It does not, however, remove the distinction. Even if the distinction were not glossed over, it does not follow from the fact that X is good for one that therefore it must necessarily trump an interest one has in ⬃X in the political arena where force may be used to secure actions and outcomes. The value of some goods, for example, may be integrally dependent upon one’s self-realization of their value. If someone does not accept the value of such a thing, forcing him to do so may lead the person no closer to the value; it may, indeed, produce an opposite reaction, thus preventing the sort of self-realization needed properly to value the good in question.43 If Veatch were to consider our own position, he might argue that the conditions for the possibility for the pursuit of flourishing among others are our theory’s ‘‘common good’’—the good that trumps any individual good contrary to it and that is distinct from the good of any individual. Presumably, his point would be that at some level in any theory individual rights can be overridden by appeals to the common good, for those rights are themselves predicated upon establishing the conditions for their exercise. This is supposed to show that individual rights are conceptually derivative from the common good. Furthermore, it means that in any case of 43. We are well aware of the issues concerning habituation and the like. Our point here is simply one of saying that one cannot move directly from the proposition that X is good for P to that P’s interest in ⬃X must be diverted in some way.

204

a new deep structure for liberalism

conflict between individual rights and the common order that gives rise to and sustains them, the common order must prevail. One presumably cannot respond by saying the common good is nothing other than that state of affairs where individual rights are protected, because that state of affairs is itself a condition that supersedes the individual rights that jointly compose it. However, the foregoing argument moves too fast. Conditions of any sort, including our conditions for the possibility for the pursuit of flourishing among others, are not self-maintaining. Individual action must sustain them. But here again, Veatch would note a difference. The individual action that matters when one is sustaining these conditions is action that looks to the common order rather than to the individual himself. Consequently, while individuals must act to sustain the values of a common order, that order is still distinct from actions directed at attaining their own personal values. Yet our point, one we have already made with respect to Finnis, is that whatever good one is considering—whether it be the common good or a good of one’s own—is an actual good only because of the acts of choice that make it so for the individuals who are to realize the good. If one claims that those choices are themselves products of the conditions that produce them, we can repeat what we have said in our discussion of Finnis’s position: conditions are themselves the products of individual choice and action, and are thus derivatives of such choices and action. Moreover, the good of the whole is only inherently at odds with the good of the individual if one forgets that individuals have concerns about the conditions in which they live among others. In this, we agree with the natural law tradition that we are social beings whose fulfillment must come in the company of others. Given this position, we have considerable skepticism about asocial ‘‘state-of-nature’’ modes of analysis. Yet saying that in no way alters the fact that whether a good be a common one or not, its goodness is only made actual, determinate, and valuable through individual choice. Because of this point, our view is that only a position that advocates securing the conditions for the possibility for the pursuit of flourishing among others can respect common and individual goods equally, because only this sort of position respects what is actually common among them— namely, individual choice. The ‘‘condition’’ spoken of in this context is not a condition that tends to promote the good of individual choice; rather, it is that good socially considered. Since individual choice is not in itself necessarily productive of other goods of flourishing, it cannot be said that it provides a condition for flourishing in the same sense that the natural law

natural law and the common good

205

tradition would like the common good to do. In this respect, it aligns with the natural rights tradition in making rights fundamental. The natural rights tradition not only focuses upon the individual, but it also has lowered expectations about what politics can accomplish with respect to the promotion of flourishing. The ‘‘conditions’’ it seeks are largely negative ones of noninterference, because these are most in accord with the centrality of individual choice. The natural rights tradition’s main defect, as noted, is in forgetting that we have rights because we are social beings, and not because we are atomized in a state of nature. Additionally, the condition spoken of here is not a good in addition to the choices individuals might make for themselves. As stated, it is the choices themselves that constitute the common good as they simultaneously constitute the individual good. But there is still an ambiguity. Veatch was right in suspecting that the common good is something that cannot be reduced to the individual good either in the singular or in the aggregate, which would seem to imply that the common good can be separated from and held up against the individual good. We have resisted this move. But our approach, that conditions themselves are a function of individual actions and choices, might also be misleading in the end. It might suggest that the condition in question is a product of individual choices. In most cases, especially when speaking of most of the goods conducive to human flourishing, this is true. But here when we are speaking of the common good as compossible free choice-making, we must also recognize that the condition in question is not a product of anything. It is the condition exhibited by and through the choices themselves, though neither exhausted by those choices nor reducible to them. In this respect, the ‘‘common good’’ is ‘‘different’’ from the choices of individuals. To sum up, the perspective that political society is essentially like other common enterprises, with a good that can override the goods of individuals when the two conflict, is essentially defective. It fails to appreciate the connection between individual choice and goodness at the most fundamental level, and it fails to grasp the role of individual choice in obtaining and preserving the very goods it forwards as necessary for flourishing. The conditionalist conception of the common good may also beg a number of questions about the role of politics, including what the purpose of politics is. Finally, the natural law tradition seems largely united in its placing of the ‘‘common good’’ at the center of its theories. The superiority of the natural rights tradition, in our view, is its inherent compatibility with what is central to the nature of goodness itself—its foundation in choice.

Chapter Nine self-ownership

Every man has a property in his own person. This nobody has any right to but himself. The labour of his body and the work of his hand, we may say are properly his. —john locke, second treatise Each individual, as a natural fact, is the owner of himself, the ruler of his own person. The ‘‘human’’ rights of the person that are defended in a purely free-market society are, in effect, each man’s property right in his own being. And from this property right stems his right to the material goods he has produced. —murray rothbard, power and the market Each person has exclusive ownership of herself and nobody has any property rights in another person. Decisions about the use of personal abilities are for the individual alone to make, provided that her exercise of self-ownership does not violate the equal rights of others. —john cunliffe, origins of left-liberalism

The transition from natural law to natural right in the modern era may have taken its final turn through the medium of the idea of ‘‘property in oneself’’ or ‘‘self-ownership’’—what we will call the self-ownership thesis.1 So many of the sensibilities of modern natural rights are conveyed by the idea of self-ownership—individualism, equality, inherent worth, and spheres of personal sovereignty, to name a few. The idea of a sphere of autonomous individual sovereignty so especially characteristic of modern This chapter is taken with slight, but important, modifications from Douglas J. Den Uyl and Douglas B. Rasmussen, ‘‘Self-Ownership,’’ The Good Society 12, no. 3 (2003): 50–57. 1. We recognize that there are a number of factors that have contributed to the replacement of natural law by natural right, perhaps extending back well before the modern era. Our point is only that as a vehicle for modern sensibilities, the self-ownership thesis served as the main expression through which the sensibilities of modern natural rights were conveyed. See our discussion of the relationship between natural law and natural rights in Chapter 3.

self-ownership

207

natural rights is at the core of the meaning of a concept like ‘‘self-ownership’’—a concept that actually predates ‘‘autonomy’’—because the selfownership thesis gives pride of place to the individual. Furthermore the concept of ‘‘self-ownership’’ is not inconsistent with the idea that there is something of moral importance that we possess by nature. That a moral order independent of both convention and political power exists is a theme common to both natural law and natural rights theories. Yet even if the self-ownership thesis were the vehicle through which the transformation from natural law to natural rights was expressed, it would not follow that this position would have any substantive content of its own. Self-ownership might, for example, bring together (or bring to mind) a cluster of concepts that do the real work, but that gain a certain accessibility by being linked together by one term or concept. We shall explore this idea in what follows, not in a historical sense, but in a conceptual sense. What does the self-ownership thesis mean and does it do any real work? Or is the term shorthand for more complicated concepts or political perspectives that themselves do the work or depend upon frameworks or principles provided elsewhere? While we cannot explore these questions to their fullest, we do intend to look into some possible meanings and implications of the concept and thus the extent to which self-ownership is a primary or derivative principle. The epigraphs from Locke and Rothbard that open this chapter are typical versions of the self-ownership thesis. This thesis is regarded, by its friends and critics alike, as the fundamental principle for natural rights classical liberalism and contemporary political libertarianism.2 It is not, however, just found on the right. Left-leaning liberal thinkers use the concept as well, as the third epigraph indicates. The quotations from Locke and Rothbard, however, are closest to our own position on politics and natural rights, so we shall concentrate on interpretations linked to that political perspective. What is meant by Locke’s and Rothbard’s claims? Are they defensible? And, most importantly for us, is the self-ownership thesis the basis for the claim that human beings have individual rights, or is it merely the assertion of the claim that human beings have individual rights? 2. See such critics as, for example, G. A. Cohen, Self-Ownership, Freedom, and Equality (Cambridge: Cambridge University Press, 1995); Will Kymlicka, Contemporary Political Philosophy: An Introduction (New York: Oxford University Press, 1990), 95–125; and Richard Arneson, ‘‘Lockean Self-Ownership: Towards a Demolition,’’ Political Studies 39 (1991): 36–54. See also Eric Mack’s response to some of these critics: ‘‘Self-Ownership, Marxism, and Egalitarianism Part I. Challenges to Historical Entitlement,’’ Politics, Philosophy, and Economics 1, no. 1 (February 2002): 119–46; and ‘‘Self-Ownership, Marxism, and Egalitarianism Part II. Challenges to the Self-Ownership Thesis,’’ Politics, Philosophy, and Economics 1, no. 2 (June 2002): 237–76.

208

a new deep structure for liberalism

Let us begin our response to these questions by considering these statements: ‘‘This is my body.’’ ‘‘These are my faculties, talents, and energies. I possess them.’’ ‘‘This body, these faculties, talents, and energies are mine, not yours.’’ It is evident that one has de facto possession and, to some extent, control over one’s body, faculties, talents, and energies—that is to say, ‘‘one’s constitutive ontological properties’’—and that these facts are presupposed by any account of what one ought or ought not do. Yet, to say this is some distance from saying either that one ought to have exclusive control over what one does with these properties or that one has a right to such control that overrides all other moral claims to use or employ these properties.3 It still needs to be shown that one properly or legitimately exercises exclusive control over these constitutive ontological properties and that such control trumps or overrides all other moral claims. In other words, it needs to be shown that they are rightfully one’s own and that they are one’s own by right—that one has an exclusive right to control these constitutive ontological properties. Perhaps it is best to regard the term ‘‘self’’ in self-ownership as purely reflexive. What is owned and what does the owning are one and the same. Thus, the basic idea of self-ownership is that one has rights over one’s whole person and that one does not belong to others—one is not a slave. Even so, what is the basis for this claim, and how does it show that one has a right to what accrues from the exercise of one’s constitutive ontological properties?4 Robert Nozick has observed that individuals are inviolable, that they have individual rights. They may not be sacrificed or used for attaining ends not of their own choosing, because such use of an individual ‘‘does not sufficiently respect and take account of the fact that he is a separate person, that his is the only life he has . . . [and] that there are different individuals 3. Possession of such a right must, of course, be consistent with others having the same right with respect to their constitutive ontological properties. 4. We address this second question in our account of the natural right to private property in Chapter 5, but our answer to this question depends on seeing the natural right to private property as basically an expression of the natural right to liberty. So, the issue that concerns us here is whether the self-ownership thesis works in some crucial and fundamental way to establish the natural right to liberty and thus property.

self-ownership

209

with separate lives.’’5 To use an individual in such a way is, to paraphrase Isaiah Berlin, to sin against the truth that an individual is a human being, a being with a life of her own to live.6 Yet, the inviolability of the individual cannot be based on simply the ontological difference of individuals or the separateness of their lives. Certainly, Marxists would consider these facts as inadequate to justify such a claim, for they regard such facts as something that both can and ought to be changed. Furthermore, the idea of ‘‘speciesbeing’’ suggests that individuality in this sense is something less than a fully human state. Some communitarians, too, might argue that many of one’s talents or capacities are the product of one’s education or social upbringing and thus are communal by nature and open to some types of communal control. One does not, however, need to subscribe to Marxism or communitarianism to see that ontological separateness in and of itself provides no ethical support for individual rights. Rawls, for example, had no problem suggesting that social justice requires that one’s constitutive ontological properties be regarded as if they were a collective asset and not as something that an individual owns, because no one can claim to deserve either these properties or the unequal rewards that accrue from their exercise.7 Thus, noting that this is my life, or that this is my body, or that these are my faculties, talents, and energies is not enough to justify Nozick’s claim that individuals are inviolable. A compelling argument for individual rights must do more than point to the observed facts of individuality, possession, and control. It must establish a moral foundation8 —reasons to believe that it is ethically desirable for persons, utilizing their separateness and uniqueness as individual beings, to fashion a life of their own. ‘‘One could only sin,’’ Eric Mack has noted, ‘‘against a person’s being a being with a life of his own to live if his having and living his own life is what ought to be.’’9 Thus, if the self-ownership thesis amounts to merely de facto possession of and control over 5. Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974), 33. 6. Isaiah Berlin, Four Essays on Liberty (London: Oxford University Press, 1969), 137. 7. John Rawls, A Theory of Justice (Cambridge, Mass.: Harvard University Press, 1971), 101. 8. Nozick never claimed to be presenting a moral foundation for the view of rights presented in his Anarchy, State, and Utopia. Moreover, he did not claim that his work on the foundations of ethics would link up with a notion of Lockean rights or lead to a completely different view. See his Philosophical Explanations (Cambridge: Cambridge University Press, 1981), 498–99. See also A. R. Lacy’s discussion of the relationship between Nozick’s later ethical views and his theory of rights in his Robert Nozick (Princeton: Princeton University Press, 2001). 9. Eric Mack, ‘‘How to Derive Libertarian Rights,’’ in Reading Nozick: Essays on Anarchy, State, and Utopia, ed. Jeffrey Paul (Totowa, N.J.: Rowman & Littlefield, 1981), 288.

210

a new deep structure for liberalism

unique constitutive ontological properties, but not ‘‘ownership’’ properly speaking—with all its attendant ethical properties—then this is at best only a necessary premise in the argument for individual rights. Alternatively, perhaps the self-ownership thesis is merely another way of saying that individuals have basic, negative rights and nothing more. Yet, if this is the case, then this position has no real work to do in the argument for individual rights. We need to look more deeply at what might be lying behind the selfownership thesis. Nozick contends that the moral obligation imposed by individual rights on human conduct reflects ‘‘the underlying Kantian principle that individuals are ends and not merely means; they may not be sacrificed or used for the achieving of other ends without their consent.’’10 Thus, it could be that the basic idea behind the self-ownership thesis is that individual human beings are ends in themselves and are not to be treated as tools for the achievement of ends not of their own choosing. Yet, we need to consider what it means for people to be ends in themselves. Certainly, to say that people are ends in themselves involves saying that they are moral beings. They are not merely objects or things. They are beings to whom a moral injunction has a point—that is, being told that ‘‘X ought to be done’’ or ‘‘X ought not to be done’’ can provide both reason and motivation for their conduct. Further, people are rational beings and thus can understand a moral injunction to be an instance of a principle that applies to everyone else in the same situation. As rational beings, people can act according to moral principles that are not merely dependent on what they wish or want, but that are also universalizable. These are important facts that go into our understanding of people as ends in themselves. Yet, to say that people are ends in themselves is even more complex than this. First, it means that human beings are inherently valuable. Their value or worth or goodness does not come from some extrinsic source, but is based in their very being or nature. Second, it means that promotion of what is inherently valuable is itself valuable so that the flourishing or selfperfection of the human being need not serve any other end but itself.11 Third, it means at least that each individual human being is an end in himor herself. If there are other ends in themselves, such as ‘‘humanity,’’ the ‘‘human species,’’ or God, those ends could not be such as to diminish the value of the individual. Fourth, it means that no individual’s pursuit and 10. Nozick, Anarchy, State and Utopia, 30–31. 11. We make this point in Aristotelian terms, but it would be applicable in somewhat different language to Kantians as well.

self-ownership

211

achievement of his or her self-perfection has any greater importance or worth than any other individual’s own pursuit and achievement of his or her self-perfection. There is no scale of being or value that provides a basis for saying that this form of human flourishing or self-perfection is better than that form. There is only what is best (or better) for some individual human being or other. Fifth, it means that individuals cannot be substituted or exchanged with one another in attempts to determine the proper course of conduct when it comes to the application of moral principles. Universalizability is not a shortcut to determining what is or is not appropriate conduct, and insight into the particular and contingent remains absolutely necessary. As Sir David Ross observed, ‘‘the only safe way to apply Kant’s test of universalizability is to envisage the act in its whole concrete particularity.’’12 Individuality morally matters, and the ability to act on the basis of universal moral principles does not require impersonalism and an agent-neutral approach to moral reasoning. Indeed, to adopt such an approach to moral reasoning is, in our view, to deny that individual human beings are ends in themselves. In terms of our neo-Aristotelian perspective, inherent worth must be conceived within something like a teleological conception of human nature. We, as individual human beings, are not simply static slices of ontological substance, but beings in process toward ends. We act and we seek; and we achieve and we fail. On the whole, then, to say that we as individual human beings are ends in ourselves is to say that we are both the agent and object of self-perfection. Yet, this too requires unpacking. First, it is to say that individual human beings are the efficient cause of the activity through which both their generic and individuative potentialities are made actual. Self-perfection is constituted and achieved by rational insight, but the functioning of rational insight—be it of the universal and necessary or of the contingent and particular—is something that does not occur automatically. It is something that the individual human being must initiate and maintain. As noted in Chapters 4 and 6 and elsewhere, selfperfection is in its very essence a self-directed activity. Second, it is to say that the actualization of the generic and individuative potentialities of individual human beings is the formal and material cause of their being ends in themselves. Their ultimate worth, though made actual through self-direction, involves being a certain kind of reality. Self12. William David Ross, Kant’s Ethical Theory: A Commentary on the Grundlegung zur Metaphysik der Sitten (New York: Oxford University Press, 1954), 34.

212

a new deep structure for liberalism

perfection is not merely conferred or created by self-direction out of nothingness. Rather, the nature of individual human beings and the nexus of their activities, circumstances, histories, interests, and abilities in the world around them provides the structure for understanding how being an end in itself would take concrete shape in any individual case. Finally, it is to say that a person’s self-perfection or flourishing is that person’s final cause—that for the sake of which they exist and function. Their nature as human beings sets the contours of their self-perfection, their nexus establishes its particularized embodiment, and both, as form and matter united, are actualized by self-direction. Yet, it is the fact that all of this activity is what constitutes the individual lives of human beings that is most important. It is because all of this self-perfecting activity amounts to a way of living that makes it their telos. Their telos consists, as Veatch so carefully emphasized, ‘‘in living intelligently.’’13 Ontologically speaking, then, human beings are ends in themselves. We are the efficient, material, formal, and final causes of our being an end in ourselves. Achieving our self-perfection and being an end in ourselves thus amount to the same thing. The only place our telos resides, so to speak, is in ourselves.14 It does not reside someplace else. Yet, traditional natural law ethics has seldom, if ever, come to this realization. Indeed, many proponents of natural law tend to reify the concept of ‘‘natural end’’ so that it competes with the good of individual human beings. But as we have noted in Liberty and Nature and have emphasized in previous chapters: Making the individual the moral center of the universe does not require that one accept nominalism, mechanism, or hedonism, nor does accepting essentialism, teleology, and eudaimonism, at least as we have described them . . . require rejecting individualism. There can be an ego or self that is neither otherworldly nor Hobbesean, but Aristotelian. Further, the achievement of one’s natural end need not be interpreted along Platonic lines. There is no such thing as the flourishing of ‘‘man.’’ There is only the flourishing of individual men. The human good neither exists apart from the choices and actions of individual human beings nor independent 13. Henry B. Veatch, Rational Man: A Modern Interpretation of Aristotelian Ethics (Indianapolis: Liberty Fund, 2003), 40. 14. We shall leave for another occasion what religious or theological implications this claim might involve.

self-ownership

213

of the particular ‘‘mix’’ of goods that individual human beings must determine as appropriate for their circumstances.15 Overall, to reiterate earlier points, natural law ethics has generally failed to see consistently first, that human flourishing does not exist in an agentneutral manner; and second, that human flourishing is achieved and made actual—which also means individualized and made good for an individual human being—only through an individual’s self-direction. As a result, natural law theory also has generally failed to see that human flourishing is, as both an activity and actuality, always something that belongs to some individual or other. Human flourishing does not come into the world unattached. It is, in the metaphysical sense of the term, a ‘‘property’’ of the individual. It is each individual’s own. Thus, that one’s moral perfection must qua moral perfection be something that is one’s own and not anyone else’s seems to be one of the insights that motivates a movement from considerations of natural law to natural rights that provide individuals with protected moral space—that is, that provides the legitimate link within our theory between ethics and politics. It also seems to be the basic truth that lies behind the self-ownership thesis. Finally, it seems to be a crucial premise in the argument for such rights. Yet, this is still does not show that one has a right to exclusive control of one’s constitutive ontological properties or that this control is the moral/ legal state of ownership.16 More is required to establish the legitimacy of the self-ownership thesis.17 Now, if the foregoing is true, then there is no question about the desirability of people being ends in themselves or achieving their self-perfection. Our account of individualistic self-perfection provides the basis for showing why a person ‘‘having and living his own life is what ought to be.’’ Further, our account shows not only that our constitutive ontological properties exist for our self-perfection, and thus ought not be used for anything else, but also that we ought to be the ones who use or employ them. Indeed, as Mack succinctly noted over twenty years ago: 15. Douglas B. Rasmussen and Douglas J. Den Uyl, Liberty and Nature: An Aristotelian Defense of Liberal Order (La Salle, Ill.: Open Court, 1991), 92–93. 16. At the fundamental political/legal level, ‘‘rights’’ are still needed to explain ‘‘ownership,’’ but not vice versa. 17. Although we will discuss much of what is needed to establish this right in this chapter, we will not present an argument for it. Indeed, we will show that standard attempts do not work. We have, however, set out the contours of an argument in Chapter 4 for all that we believe is necessary to establish the self-ownership thesis—namely, the basic, negative, natural right to liberty. For a full account of the argument for this right, see Chapter 11.

214

a new deep structure for liberalism

It is the (proper) function of a person’s activities, capacities, etc. to be employed by that person in (toward the end of) his living well. The function of a person’s activities, etc., is individualized not only with regard to whose well-being it is the end of the activity (capacity, etc.) to serve but also with regard to who must employ the activity (capacity, etc.) for it to fulfill its function. The activity (capacities, etc.) of A must be employed by A if it is to fulfill its function of contributing to the active, ongoing process of A’s living well. (And A’s activities, capacities, etc. have no ‘‘higher’’ end.)18 From these observations, as well as the proposition that a person having and living his own life is what ought to be, then, what may we conclude? To begin with, we may say (1) that if individuals fail to develop integrity or refuse to pursue friendships, or if they abdicate their responsibility of controlling and using their desires or engaging in creative work, or if they care nothing for reason, knowledge, or truth, or even if, finally, they are entirely passive and do nothing, then they are misusing themselves, acting contrary to their natural end, and failing to treat themselves as ends in themselves. Further, we may say (2) that if other persons use or employ the constitutive ontological properties of individuals without their consent, then, regardless of the purposes to be attained by that use or employment, these individuals are being misused, their natural end is contradicted, and they are not being treated as ends in themselves. Thus, it should be noted that only certain specific actions by individuals constitute a misuse of themselves and a failure to treat themselves as ends in themselves, but any use by other persons of the constitutive properties of individuals without their consent is a misuse of them and a failure to treat them as ends in themselves.19 We must, however, examine claim (2) more closely, because although it may have great intuitive appeal, we must see what it really does and does not imply for human conduct. Initially, there is the ethical obligation to pursue good and avoid evil. Individuals ought to pursue and achieve their own form of human flourishing, and they ought not act in ways that are contrary to their own form of flourishing. Further, if it is true that one’s pursuit of one’s own form of flourishing justifies one’s conduct, then it will 18. Mack, ‘‘How to Derive Libertarian Rights,’’ 290. 19. Ibid., 291.

self-ownership

215

also be true that the pursuit by others of their forms of human flourishing justifies their conduct. The notion that one pursues one’s human flourishing is universalizable. In addition, since human flourishing is profoundly social, this means that each of us pursues our own form among others who are doing the same. Thus, if we understand what flourishing involves, then we also understand that there are others who are pursuing their own forms of human flourishing. In other words, we understand that we are ends in ourselves and that others are as well. We understand that their moral goal is not to serve our form of flourishing, but their own, and that the converse holds true as well. Since we understand that individuals have the ethical obligation to pursue and achieve their own forms of human flourishing, it can never be claimed justifiably that human beings ought to conduct themselves as if their ultimate moral purpose is other than the pursuit and achievement of their own form of flourishing. However, this is not the same as saying that one ought never to conduct oneself in ways that might be in conflict with others pursuing and achieving their own forms of flourishing. Human flourishing is unique, and, especially in a world of scarce resources, it is possible for the pursuit of different forms to come into tension with one another.20 Just as human flourishing is agent-relative, so is each individual’s status as an end in him- or herself. There is a difference between being an end in oneself for oneself, and being an end in oneself, full stop. The former can be found everywhere; the latter is found nowhere. That is to say, and as we have noted often, there are many summa bona, because each individual’s flourishing is the summum bonum for him- or herself. But there is no single summum bonum without unique form or apart from the lives of individual human beings. Most assuredly, the human flourishing of any person must involve conduct that is directed for the sake of the good of others—philia is, for example, among the final constituent goods of human flourishing. Further, as we have made it clear in Chapter 6 and elsewhere,21 an ethics of individualistic self-perfection is not merely an egoism, even of the rule variety, and our flourishing is in many respects caught up in and, in certain cases, even 20. It is clear that we reject the idea that may run through much of classical philosophy that virtues are immaterial and cannot thereby conflict, and that things of a ‘‘material’’ order can conflict but are of lesser moral value, if they have any moral value at all. Virtues, for us, are achievements in a real material world and thus subject to its laws and limitations. See our discussion of these issues in Chapters 6, 7, and 8. 21. Rasmussen and Den Uyl, Liberty and Nature, 66–68.

216

a new deep structure for liberalism

defined by the flourishing of others. Yet, conduct that is directed for the sake of the good of another cannot be applied across individuals without regard to each individual’s self-perfection as it may relate to our own selfperfection. There are some individuals whose self-perfection is intertwined with our own, but this is not the case with every individual. Thus, it is has not been shown (a) that being an end in yourself for you also requires (b) that you are an end in yourself for me (or vice versa). The Kantian solution to this difficulty is simply to treat human beings as noumenal selves and to jettison individuating considerations from the deliberations of practical reason. Universality only suffices as the determinant for practical reasoning precisely because individuative considerations are banished from moral deliberation. Yet, there are no good reasons for accepting such an unrealistic philosophical anthropology. Further, formal and logical analysis alone will not allow us to say that (a) implies (b), for there is no contradiction in denying (b). It might be charged that the only reason to refuse to grant (b) is because one is wedded to a consequentialist understanding of moral obligation and that such a view of moral obligation is much too narrow. Accordingly, it is possible that one might have a reason to respect the status of others as ends in themselves that is not dependent on the beneficial consequences accruing to one from such respect. Indeed, it would seem to be a huge cognitive failure for human beings as social animals to fail to see that other humans are ends in themselves. Thus, there might be considerations of obligation and right, specifically as expressed by individual rights, that place obligations on one’s pursuit of self-perfection that are nonetheless not tied to such pursuit. We agree that consequentialism is too narrow a theory of moral obligation. Indeed, we have endorsed and developed a theory of obligation that is perfectionist-based (or final goods-based) and not consequentialist.22 One does not have to project what the rationally expected consequences of following a virtue or seeking a final constituent good of human flourishing (or avoiding some basic evil) might be to know that one ought (or ought not ) 22. See Chapter 6 for a discussion of how this conception of human flourishing rejects the consequentialist/deontological dichotomy when it comes to determining basic moral obligation, and gives practical wisdom centrality in the moral life. See also Liberty and Nature, 58–62; Douglas J. Den Uyl, The Virtue of Prudence (New York: Peter Lang, 1991); and Den Uyl and Tibor R. Machan, ‘‘Recent Work on Happiness,’’ American Philosophical Quarterly 20.2 (April 1983): 115–34.

self-ownership

217

to seek it. Without having to appeal to the consequences of such conduct, one knows, for example, that one ought to seek friends or that one ought not fail to give others their appropriate due. Such obligatory activities are among the final ends of one’s human flourishing and are implied by the natural law injunction that ‘‘one should do good and avoid evil.’’ Yet, this perfectionist-based (or final goods-based) approach to moral obligation does not mean, as we have noted in Chapters 6 and 7, that everyone is (or ought to be) one’s friend or that everything that is necessary for others attaining their human flourishing and being ends-in-themselves is something that one owes them as their appropriate due. All such determinations are made through an exercise of practical wisdom in light of the particular and contingent situation and in relation to the coherent achievement of all of the other final goods and virtues that constitute one’s unique form of human flourishing. Thus, beyond noting that generic goods and virtues ought to be pursued and practiced by everyone, there is very little in a perfectionist-based (or final goods-based) theory of moral obligation to support universalistic prescriptions or proscriptions at the concrete level of real human conduct.23 Indeed, there is no support for such obligations if they are understood in an impersonal or agent-neutral manner, which is indeed just the sort of obligations that most rights theorists seek. We hold further that there is a sense of the obligatory or right, specifically associated with the notion of ‘‘individual rights,’’ that is not accounted for simply in terms of achieving, encouraging, or even, in general, making possible human flourishing.24 This comes from the theory that rights are metanorms whose function is not to encourage virtue but to provide a sociopolitical framework for the very possibility the pursuit of virtue.25 So, the issue remains: even if we are not consequentialist in the manner by which we determine moral obligations, what purchase does the awareness of others as ends in themselves for themselves have on our determination of what it is reasonable for one to do? The problem in moving from (a) to (b) is not based on practical reasons 23. It might be objected here that the virtue of justice for a perfectionist ethics requires giving others their appropriate due, and if this virtue is understood only in terms of not treating persons in certain ways, for example, not murdering or not stealing, then it does provide something universally applicable to all forms of human conduct. See our response to the objection, ‘‘Is the Concept of ‘Metanormative Principles’ Really Necessary?’’ in Chapter 12. 24. As we have argued throughout this book, the relationship between individual rights and human flourishing is more subtle. 25. As we have noted in earlier chapters and as we will discuss in greater detail in Chapter 11, rights provide a solution to liberalism’s problem.

218

a new deep structure for liberalism

being determined by mere consequentialist considerations. Rather, the problem is more fundamental. If we are to speak of conduct as rational, we have to speak of it as purposive action. It is action that is caused by the agent’s conception of the purpose to be achieved, and practical reasons have to do with providing purposes for conduct. So the question is, what purpose can be given for someone to constrain their conduct in pursuit of their being an end in themselves when that pursuit conflicts with someone else being an end in themselves? Can constraining one’s conduct in such a situation be rational without there being a purpose to be reached by such constraint? In effect, can it be reasonable for one to constrain one’s conduct without there being an answer to the question: Why ought I so constrain my conduct? To talk of being obligated to constrain one’s conduct, while refusing to identify a purpose for the constraint, is not to make any sense. Indeed, as Veatch has noted: ‘‘How else can any ‘why’-question with respect to an ‘ought’ be answered, unless one appeals to some purpose or end that one wishes to attain thereby, and in terms of which the ‘ought’ becomes intelligible as being that which one needs to do if one is to attain such and such an end or achieve such and such a purpose?’’26 If we are to say that a course of conduct is either prescribed or proscribed, we need to explain the purpose to be achieved, for without it we have no practical rationality. If it is claimed that it is reasonable for individuals to constrain their conduct in the situation we have described simply because it is obligatory or right and doing the right thing is our purpose,27 we still have not advanced our understanding very far. We still need to know what claim ‘‘the right’’ has on our conduct. The right (or the appropriate activity) is, as we have seen, constitutive of the final ends that human flourishing comprises, but such right (or appropriate activity), although more than a mere means, is nonetheless an expression of human flourishing. Thus, the right (or appropriate activity) must be understood in relation to human flourishing and not apart from it, and thus this ultimate good remains the purpose in terms of which ethical conduct is ultimately explained. Yet, if this is so, then the problem of moving from (a) to (b) is not solved. We still do not know why one person’s ultimate good should be another’s as well. If we are, however, 26. Henry B. Veatch, Human Rights: Fact or Fancy? (Baton Rouge: Louisiana State University Press, 1985), 98. 27. That is to say, in the situation where the conduct that is necessary for one individual being an end in him- or herself is in conflict with what is necessary for another to be an end in him- or herself.

self-ownership

219

told that considerations of obligation or right can be separated from considerations of the human flourishing, we then must inquire to what this amounts. Since we are not noumenal selves, there is no justification for treating the principle of universalizability as an impersonalist principle that refuses to let the individualized and agent-relative character of human flourishing figure into the determination of proper conduct. And if the universalizability principle is not treated as an impersonalist principle, then it provides no privileged way to determine proper conduct. Appealing to the universalizability principle does not justify the move from (a) to (b). So, we still must ask, what is the purpose to be achieved by constraining one’s pursuit of self-perfection when that might either directly conflict with that of another or potentially do so? It might be claimed that we have reached rock bottom with our questioning, and we simply intuit the moral obligation to so constrain our conduct. Yet, even if this does have strong appeal in certain cases, it is doubtful that we can assume it must do so in every case. Further, we cannot forget that we are seeking grounds for a rights claim here—a claim that is supposed to trump or override every other moral consideration. The reason our intuitions do not work in every case is that our intuitions give us two equally compelling moral bedrocks: an intuition about there being dutylike (deontic) behavior, on the one hand, and intuitions that reflect on the moral propriety of the pursuit of ends, on the other. Neither one of these is compelling a priori, or at least so in all cases.28 Consequently, unless we can show that the deontic properties of the self-ownership thesis have no competitors from our intuitions about ends, we cannot rest on this thesis a priori. And it is not reasonable to suspect that we can rest on the self-ownership thesis a priori. For the fact is that our intuitions about property or ownership do not seem to include the absolutist qualities of possession that this position wants and that rights theory seems to need. That is, when we think of ownership or property we seldom think of it as being unqualified possession or control. We may argue for that, but that would not be a starting intuition. Therefore, the self-ownership thesis would seem to be in at least potential conflict with other intuitions we might have. Apart from the problem of conflicting a priori starting places, there is 28. Though we have learned much from Eric Mack’s work and share similar conclusions with him regarding the importance of rights, we find this last consideration to be the very problem in his argument for negative rights in his most thoughtful and powerful essay, ‘‘In Defense of the Jurisdiction Theory of Rights,’’ The Journal of Ethics 4, no. 1–2 (2000): 71–98.

220

a new deep structure for liberalism

another problem with intuitionism in this context, a problem of circularity. It is true of any living creature, for example, that the value of its life is ultimate for it. But we certainly would not take the dog Fido’s value of his own life and respect that ultimacy in the way (b) above suggests. Why not? Why should we not respect the ultimate value of Fido’s life to Fido in the way we are asked to respect the ultimate value of your life to you? We presume the answer is, a` la Kant, that the presence of self-reflective reason is somehow critical—not merely life itself. In the transcendental noumenal order there would be a contradiction between my valuing self-reflective reason as primary for my actions and not doing so in every other case, because by reflecting on oneself as an ultimate value one treats oneself, through the reflective act itself, as an example of a principle. But this supposes a lot of metaphysical baggage we may not wish to carry. Most important, it presupposes that we can meaningfully talk of rationality purged of all associations with the pursuit of ends and that this sort of rationality is a superior basis of value to the acts of endeavoring that constitute a living organism’s life. Kant knew that he needed the noumenal order to clear the field of acts of endeavoring so as to leave only a certain type of rationality as the basis of value. Moreover, doing so would remove all the complications that go on in the real life pursuit of ends (for example, the possible conflict among ends). But why should we want to abandon real life? Is that a plausible intuition? Moreover, does not the Kantian approach presuppose what it is trying to show—namely, that reflective rationality is the sole or primary foundation of value? And if we claim that we need to get deontic categorical type principles in order to get ethics, are we not using the deontic intuition to justify the primacy of the deontic intuition? If this is a circular argument, which it is, then we are back to our two bedrock intuitions and the process begins again. The self-ownership thesis may carry deontic punch, but only because it derives it from elsewhere. Either we have granted it such without argument (for example, on the customary rationality of the terms), or a metaethical framework has been smuggled in to support it. Thus, either the self-ownership thesis derives its force from a more basic metaethical framework or it moves toward circularity by begging the important questions. Either way, it is not a ‘‘rock-bottom’’ intuition. Finally, even if we ignore the circularity problem, there would still be a need for an argument about why rights-respecting behavior follows from granting that one can move to being an end in yourself for me (b) from being an end in yourself for you (a). That is to say, why is rights-respecting-

self-ownership

221

behavior R the correct response to supposing that you are in some way an ultimate end for me, rather than some other sort of behavior Q? For there is no intuition that necessarily fills in the value for R so that we can define and distinguish Q. Presumably we are supposed to go directly from how we treat ourselves to how we are supposed to treat others. Yet short of selfdestruction, we do all sorts of things to ourselves that it might be controversial to include in what we have a right to do with respect to others. We prioritize ends (why not make you and your ends of secondary importance to most of mine?), we expose ourselves to varying degrees of risk (why not make you the part of ‘‘me’’ that bears most of the risks?), and we bear the costs of our decisions (why not make you the one who bears the costs?). Again, Kant saw this problem and solved it, as noted, by removing all of our pursuits or ends, leaving us simply as units of rationality. In this way, valuing oneself is equivalent to valuing the other because there is no other point of differentiation between one and another that remains. Yet once those points of differentiation are added, our intuitions about R fade completely. And having no evident way to supply a value for R, Q too remains open-ended. Clearly, saying that we own ourselves will not carry us very far toward solving any of these problems of moral intuitionism—at least not without raising the very questions we have just asked. And if those questions are raised, it is obvious that self-ownership is not what one will use when working toward solving them. Relying on the ‘‘intuition’’ of self-ownership, then, will give us the deontic punch hoped for it only if the deontic commitment is already granted or presupposed. This suggests that the self-ownership thesis does very little work, but calls forth instead already developed, and possibly question-begging, intuitions. The fact remains, then, that it has not been shown that we have an obligation to constrain our pursuit of being ends in ourselves when that pursuit conflicts with others being ends in themselves. Our approach to this issue is not to deny any of the usual moral insights noted here, especially the realization that an individual is an end in him- or herself who lives among others who are also ends in themselves for themselves. Yet, we do not think that (a) implies (b) or that there is some deontic or non-agent-relative reason for constraining our conduct in the situation we have described. Indeed, we think these approaches have reached a dead-end and that the justification of individual rights cannot be understood in terms of normative ethics alone. We have already presented the contours of our own alternative theory in

222

a new deep structure for liberalism

Chapters 4 and 5.29 Our purpose in this chapter has been to indicate that the work the self-ownership thesis was to do in the Lockean tradition is rather illusory. Either it does not do the work, or the work it does presupposes more substantive and primary frameworks and theorizing. We are not, however, denying the utility of self-ownership terminology. As we suggested at the outset, it is a serviceable way of collating a number of useful and important ideas under one single heading. But those in the Lockean tradition who believe they are making headway toward a theory of Lockean rights by grounding that theory in the self-ownership thesis should not be so confident of the clarity and firmness of their foundations.

29. Chapter 11 presents the structure of our argument for individual rights in a step-by-step and more technical manner, and Chapter 12 responds to objections to our argument.

Part Three defending liberalism Institutions have to be created by the spontaneous motion of sentiments. For them to be powerful but not tyrannical, their origin must be lost in the night to time. For their head to reach toward heaven and cover us with its shade, their roots must be hidden in the earth’s bosom. They are useful as a heritage; they are merely oppressive when drafted as laws. —benjamin constant, the principles of politics applied to

all governments

We argued in Part I that liberalism is not an ethical doctrine for guiding human conduct in achieving good or performing right activity, but is instead a political philosophy of metanorms. Further, we argued that liberalism needs a new deep structure and that this new deep structure is an ethics of Aristotelian inspiration. In Part II we developed an account of this new deep structure, which we called ‘‘individualistic perfectionism.’’ We then defended this account against criticisms and used it to critique both traditional and new natural law views of perfectionism and the political common good. Finally, we used this account to examine and evaluate the self-ownership thesis. We argued that this thesis is not adequate to support the basic negative right to liberty and that attempts to defend this right on deontic grounds do not suffice. In this third and final part, we seek to defend liberalism in the following ways: (1) as a political philosophy of metanorms, not as a normative ethics; (2) as a political philosophy whose basic principles of individual rights are metanorms; and (3) as a political philosophy whose deep structure is individualistic perfectionism. In Chapter 10 we begin our defense of liberalism by considering criticisms of the claim that liberty should be the central and

primary value of the political/legal order—the value to be achieved and maintained before any other—that is, what we have called ‘‘liberalism’s basic tenet.’’ This chapter considers criticisms of liberalism’s tenet that reflect the insights of communitarian, conservative, and indeed Aristotelian political theory. Chapter 11 sets out our argument for individual rights as metanormative principles. It does so in a step-by-step manner showing how both this conception and the defense of the basic negative right to liberty employ crucial insights of liberalism’s new deep structure of individualistic perfectionism. This chapter seeks to make our overall conception and defense of individual rights as clear as possible. Chapter 12 replies to objections to our argument. These objections reflect primarily the perspectives of political philosophers who employ the conceptual techniques of contemporary analytic philosophy. We seek in this chapter not only to deal with objections to our argument but also to show the desirability, and indeed moral necessity, of liberalism when its basic principles of individual rights are understood as metanormative principles. Overall in Part III, we believe we show not only a new and better way to defend liberalism but also a new and better way to conceive of political philosophy.

Chapter Ten communitarian and conservative critics When I say that the conservative lacks principles, I do not mean to suggest that he lacks moral conviction. The typical conservative is indeed usually a man of very strong moral convictions. What I mean is that he has no political principles which enable him to work with people whose moral values differ from his own for a political order in which both can obey their convictions. It is the recognition of such principles that permits the coexistence of different sets of values that makes it possible to build a peaceful society with a minimum of force. —f. a. hayek, the constitution of liberty

Regardless of whether one seeks ‘‘to make men moral’’ or to create conditions for ‘‘social justice,’’ Hayek states succinctly in this epigraph both what is wrong with all attempts to turn politics simply into ethics practiced on the grand scale and what is crucial to liberal political philosophy. The aim of politics should be peace and liberty, not attaining the morally worthwhile life in either its personal or social dimension. As we stated in Chapter 1, that liberty should be the central and primary value of the political/legal order—the value to be achieved and maintained before any other—is liberalism’s fundamental tenet. We have set out the reasons supporting liberalism’s fundamental tenet (as understood in terms of basic negative individual rights), and while we have defended our account of individualistic perfectionism in ethics, we have yet to consider criticisms of liberalism’s tenet in general. In this chapter we will do so. We will primarily focus on criticisms of a communitarian or ‘‘conservative’’ nature, for they represent in our view the greatest threat to liberalism as a political philosophy. We will also pay close attention to an approach to politics that shares nearly all of our eudaimonistic-based ethical views, but nonetheless rejects the liberal tenet.

The Challenge of Communitarianism Even though Alasdair MacIntyre has stated that his views on the importance of ‘‘metaphysical biology’’ for ethics have changed, and despite his

226

defending liberalism

protestations to the contrary,1 perhaps the writings of no theorist are more associated with a communitarian critique of liberalism than those of MacIntyre. Whether we consider his earlier works in which social teleology dominates his account of virtue, or his later works in which the importance of a human telos and a more or less naturalistic basis for human flourishing are acknowledged,2 we find in his thought a form of communitarianism in 1. See Chapter 1 for our account of communitarianism. ‘‘In After Virtue I had attempted to give an account of the place of the virtues, understood as Aristotle had understood them, within social practices, the lives of individuals, and the lives of communities, while making that account independent of what I called Aristotle’s ‘metaphysical biology.’ Although there is indeed good reason to repudiate important elements in Aristotle’s biology, I now judge that I was in error in supposing an ethics independent of biology to be possible. . . . No account of the goods, rules and virtues that are definitive of our moral life can be adequate that does not explain—or at least point us towards an explanation—how that form of life is possible for beings biologically constituted as we are, by providing us with an account of our development towards and into that form of life.’’ Alasdair MacIntyre, Dependent Rational Animals: Why Human Beings Need the Virtues (Chicago: Open Court, 1999), x. In a reply to Phillip Pettit, MacIntyre states that whenever he has had an opportunity, he has strongly disassociated himself from contemporary communitarians who ‘‘advance their proposals as a contribution to the politics of the nation-state. . . . To those Aristotelians, such as myself, . . . the nation-state is not and cannot be the locus of community.’’ After MacIntyre: Critical Perspectives on the Work of Alasdair MacIntyre, ed. John Horton and Susan Mendus (Notre Dame, Ind.: University of Notre Dame Press, 1994), 302–3. Nonetheless, MacIntyre is quite often seen as a communitarian theorist; see, for example, Markate Daly, ed., Communitarianism: A New Public Ethics (Belmont, Calif.: Wadsworth, 1994); Stephen Mulhall and Adam Swift, eds., Liberals and Communitarians (Oxford: Blackwell, 1992); and C. F. Delaney, ed., The LiberalismCommunitarianism Debate: Liberty and Community Values (Lanham, Md.: Rowman & Littlefield, 1994). Moreover, we believe that Stephen Mulhall and Adam Swift have determined why MacIntyre is most plausibly understood as a communitarian. They observe that for MacIntyre ‘‘the very possibility of sustaining rationality and objectivity in the arena of moral and political evaluation depends on locating individuals and their arguments with other individuals within an overarching and nested set of inherently social matrixes. . . . On MacIntyre’s view, failing to recognize the way in which human beings can be and are constitutively attached to their communities entails an inability to give a coherent account of the circumstances necessary to achieve any kind of human good (whether communal in content or not), for in absence of such constitutive communal frame works, the very idea of morality as a rational intelligible enterprise drops out.’’ Mulhall and Swift, Liberals and Communitarians, 93. In what follows, we will see support for this observation in the discussion of MacIntyre’s views in his earlier works, and, when we consider his later work (see note 2), we will see how he has changed, if at all. 2. Earlier works: Alasdair MacIntyre, After Virtue: A Study in Moral Theory, 2nd ed. (Notre Dame, Ind.: University of Notre Dame Press, 1984); Whose Justice? Which Rationality? (Notre Dame, Ind.: University of Notre Dame Press, 1988); Three Rival Versions of Moral Enquiry: Encyclopedia, Genealogy, and Tradition (Notre Dame, Ind.: University of Notre Dame Press, 1990); First Principles, Final Ends, and Contemporary Philosophical Issues: The Aquinas Lecture, 1990 (Milwaukee: Marquette University Press, 1990). Later works: ‘‘Plain Persons and Moral Philosophy: Rules, Virtues, and Goods,’’ American Catholic Philosophical Quarterly 66 (Winter 1992): 3–19; and Dependent Rational Animals. See especially Dependent Rational Animals for MacIntyre’s discussion of the importance of a human telos and a more or less naturalistic basis for human flourishing.

communitarian and conservative critics

227

which there is an unabashed belief in the role of politics in the promotion of virtue and a vigorous rejection of liberalism’s fundamental tenet. Indeed, MacIntyre’s form of communitarianism differs from ordinary forms of both contemporary conservatism and communitarianism in its antipathy to anything tied to liberalism, such as markets or individual rights. In this respect, MacIntyre’s communitarianism, while somewhat more reactionary, is also amenable to those whose sympathies have always been toward the left. Indeed, as MacIntyre has remarked in an interview, ‘‘the Marxist’s understanding of liberalism as ideological, as a deceiving and self-deceiving mask for certain social interests, remains compelling.’’3 Although liberalism has always had its critics, the critique offered by MacIntyre has a particular importance to us, because he claims that his position operates from an Aristotelian perspective. The suggestion is not only that an Aristotelian framework can be used to support the sort of communitarianism that MacIntyre advances but, more important, that it cannot be used to support liberalism. Obviously our remarks to this point in this work can be taken as refuting the claim about the incompatibility of an Aristotelian framework and liberalism, but spending some time looking at the arguments made directly against liberalism, both in his earlier and later works, should also help clarify both the nature of liberalism and our justification of it. We will begin by considering MacIntyre’s earlier works. MacIntyre has many complaints regarding liberalism, including that it is connected to emotivism, subjectivism, relativism, and atomism.4 Further, he questions the primacy of rights in much liberal theory, which he regards as but another futile attempt to give priority to the right over the good in ethics. Nearly all of these complaints, however, have to do with ethical and anthropological views to which liberal political theory has traditionally been linked. It leaves open the possibility that liberal political theory might be linked to an ethical theory and view of human nature that are not so connected. Certainly, the version of self-perfectionist virtue ethics that we have presented in previous chapters is not guilty of emotivism, subjectivism, relativism, or atomism, or of giving the right priority over the good. Yet, since we do endorse a notion of individual rights, we will concentrate on MacIntyre’s basic objection to rights as primary political principles. 3. Alasdair MacIntyre, ‘‘An Interview with Giovanna Borradori,’’ in The MacIntyre Reader, ed. Kelvin Knight (Notre Dame, Ind.: University of Notre Dame Press, 1998), 258. Originally from Giovanna Borradori, The American Philosopher: Conversations with Quine, Davidson, Putnam, Nozick, Danto, Rorty, Cavell, MacIntyre, and Kuhn, trans. Rosanna Crocitto (Chicago: University of Chicago Press, 1994), 143. 4. MacIntyre, After Virtue, chaps. 2–7 and 17.

228

defending liberalism

MacIntyre has two basic objections to liberalism’s advocacy of the primacy of rights. The first complaint is philosophical, and the second is cultural and sociological. The philosophical objection has three aspects: (1) Rights are dependent on deeper ethical concepts and thus are not ethically primary,5 and thus (2) to handle adequately the complexities of moral life, finer conceptual tools than rights are required. Rights have too much of an all-or-nothing character to be of very much use in dealing with moral subtleties and are thus not sufficiently precise. This leads to (3), that a political regime based on the right to liberty is actually inimical to the self-perfection of most people, because it destroys the various traditional forms of community life in which people’s pursuit of their good is embodied.6 The cultural/sociological complaint, which MacIntyre shares with Charles Taylor,7 holds that liberalism and liberal regimes cannot make rights ultimate or primary and maintain themselves for long. The very things that have made liberal civilization possible—the intellectual, cultural, scientific, and moral prerequisites—cannot be maintained if a regime’s ultimate moral message is only liberty. More is necessary.8 Indeed, there are already signs of the demise of liberal orders. The current inflation of rights claims—that is, the tendency to think that everything one needs, or even wants, somehow creates a right—is cutting great swaths through traditional forms of social life and impoverishing the taxpayer. Further, even if one sharply distinguishes negative from positive rights, it still seems that the liberal society, especially today’s United States, is losing the traditions and institutions that ultimately keep societies alive and functioning. Rights-talk has so invaded our ethical discourse and lives that many immediately turn to lawyers at the first sign of conflict. Morals, manners, and other civilities that cannot be captured in such talk seem to have no role to play. Given the character of the argument that we have advanced, we are, as we indicated in Chapter 1, in sympathy with some of these objections. They contain, however, both a fundamental confusion regarding rights and an overstatement of the role of social traditions in discovering and achieving 5. Ibid., chaps. 6 and 9. 6. MacIntyre, Whose Justice? Which Rationality? 335–45. 7. Charles Taylor, Philosophy and the Human Sciences: Philosophical Papers 2 (Cambridge: Cambridge University Press, 1985); Taylor, ‘‘Cross Purposes: The Liberal-Communitarian Debate,’’ in Liberalism and the Moral Life, ed. Nancy L. Rosenblum, 159–82 (Cambridge, Mass.: Harvard University Press, 1989). 8. MacIntyre, After Virtue, chap. 9.

communitarian and conservative critics

229

the good. There is also an even deeper issue of how one understands human nature, which will receive some limited comment here. MacIntyre’s philosophical complaint about liberalism’s advocacy of the primacy of rights fails to consider that rights need to be the ultimate ethical concept only in regard to creating, interpreting, evaluating, and justifying political/legal orders that regulate the overall structure of sociopolitical contexts in which normative activities can occur. They are the solution to liberalism’s problem. This is a crucial problem, one that is impossible to ignore, but it is only one of the ethical problems that human beings face. Rights do not replace the virtues, including interpersonal ones like charity and justice, nor can they replace the role of manners and etiquette in social life. Rights cannot replace all of the other necessary moral activities that are needed to make human living more than mere survival. Liberalism has, however, not always been clear on the role or function of rights, so this complaint is not without some justification. Yet, once the metanormative character of rights is appreciated, the first two aspects of the philosophic complaint lose their force. The third aspect of MacIntyre’s philosophical objection is very serious. He has remarked: Liberalism in the name of freedom imposes a certain kind of unacknowledged domination, and one which in the long run tends to dissolve traditional human ties and to impoverish social and cultural relationships. Liberalism, while imposing through state power regimes that declare everyone free to pursue whatever they take to be their own good, deprives most people of the possibility of understanding their lives as a quest for the discovery and achievement of the good, especially by the way in which it attempts to discredit those traditional forms of human community within which this project has to be embodied.9 In other words, the liberal regime, by enforcing the basic right to liberty, destroys traditional forms of community life that embody people’s efforts to pursue their flourishing. A liberal regime acts as a detriment to the lives of people by allowing their basic institutions to be destroyed. Liberalism, according to MacIntyre, does this by instrumentalizing everything, including its own institutions and principles. To survive, however, a society must 9. MacIntyre, ‘‘Interview with Giovanna Borradori,’’ 258.

230

defending liberalism

see some goods as being internal to practices and not as objects to be manipulated in the service of some individual or group interest. Liberal politics thus centers on serving interests or resolving conflicts rather than being a practice that secures some good by its very engagement. There is a difference, of course, between what a liberal regime allows and what it encourages or discourages. It is most certainly true that a liberal regime, by enforcing the right to liberty, allows people to decide for themselves whether they want to continue following traditional forms of community life or to try other new forms. There is, however, no principled commitment either to discourage traditional forms of community life or to encourage new forms. Therefore, it is hard to see how a liberal regime of the kind we have been defending could sensibly be accused of destroying traditional forms of community life.10 It might be argued, however, that, by allowing people to decide for themselves what forms of community life to pursue, the liberal regime in effect discredits the traditional forms of community life because it permits alternative forms to compete with them. Two points should be made here. (1) Allowing alternative forms of community life to compete with more traditional forms does not, in and of itself, mean or imply that the alternative forms of community life are as good for people as the more traditional ones. To protect people’s liberty to choose what form of community life they will adopt does not imply that any choice they make is as good as the next. It is only by confusing a metanormative principle with a normative one that such a claim could plausibly be made. (2) The need for community life is not something abstract or impersonal. It is, like all of the other goods that make up human flourishing, an individualized and agent-relative good. Thus, it is not possible to know from our armchairs whether or not a traditional form of community life is better for a person than an alternative one. Indeed, MacIntyre makes the mistake of supposing that conformity to practices that are productive of goods internal to the practices themselves (as ‘‘making book’’ is internal to playing bridge or as kneeling in church is internal to worship) is the same as the production of a good. This is either 10. It cannot be claimed that liberalism destroys traditional communities by not valuing them in the way they value themselves because that begs the question of whether or not the values of a liberal ‘‘community’’ are antithetical to traditional ones—the very question we are dealing with. Moreover, community values are internal to the community. Liberalism says little about this. So the whole question is whether communities can exist within communities without losing what they are as such. To say they cannot so exist is quite analogous to saying individuals cannot be anything other than ‘‘liberal’’ individuals in a liberal regime. Does one truly want to say that Orthodox Jews in a liberal order aren’t ‘‘really’’ orthodox?

communitarian and conservative critics

231

gross conventionalism or false, for one either defines the goods in terms of such conformity to existing practice simpliciter (conventionalism), or leaves open the question of whether or not that conformity is good. In the Aristotelian tradition, moral goodness is never determined by convention alone. Liberalism agrees. It would seem, then, that the feature of natural-rights classical liberalism that MacIntyre might be taking ultimate issue with is its naturalism—that is, its appeal to human nature rather than practices as the ultimate standard. Wisdom might suggest that one should only with great care and consideration reject a traditional form of community life for some alternative, but it is certainly possible that such a rejection could be morally appropriate for a person. If the aim is for individuals to find community life that truly supports them in creating and fashioning worthwhile lives, it is important that they be allowed to use their practical reason as best they can in deciding what form of community life to adopt. MacIntyre would seemingly reply, however, that these two responses assume something that is never the case—namely, that people can make judgments about what form of community life is best for them without also considering the crucial role played by their community’s traditions and practices in their very understanding of who they are and what their lives are for. People’s understandings of what is best for them are always learned through and embodied in the customs, traditions, cultures, and histories of their communities. Human moral judgments do not function autonomously apart from the traditions and social structures in which human beings live. Thus, there is no way that people can try to distance themselves from the influence of such social structures and traditions. There simply is no abstract understanding of what is good for human beings over and above what is embodied in human communities. As MacIntyre observes: For I am never able to seek for the good or exercise the virtues only qua individual. This is partly because what it is to live the good life concretely varies from circumstance to circumstance even when it is one and the same conception of the good life and one and the same set of virtues which are being embodied in a human life. What the good life is for a fifth-century Athenian general will not be the same as what it was for a medieval nun or a seventeenth-century farmer. But it is not just that different individuals live in different social circumstances; it is also that we all approach our own circumstances as bearers of a particular social identity. I

232

defending liberalism

am someone’s son or daughter, someone else’s cousin or uncle; I am a citizen of this or that city, a member of this or that guild or profession; I belong to this clan, that tribe, this nation. Hence what is good for me has to be good for one who inhabits these roles. As such, I inherit from the past of my family, my city, my tribe, my nation, a variety of debts, inheritances, rightful expectations and obligations. These constitute the given of my life, my moral starting point. This is in part what gives my life its own moral particularity.11 By allowing people the liberty to question the very workings of their community, MacIntyre believes, the liberal regime destroys the only basis people have for discovering and achieving their good. Our response is simply that in order to evaluate how well a person’s community promotes that individual’s human flourishing, it is not necessary to deny that people’s understanding of who they are, what their lives are for, and thus what is good for them is influenced greatly by their community’s traditions and practices. To admit this, however, does not rule out the possibility that some aspects of what one has learned may be false and that one can determine what these aspects are. Though highly unlikely, it is even possible that one’s community may have gotten things entirely wrong. Furthermore, one can have an abstract understanding of human flourishing that is not without content. As we have noted many times, the virtues and goods that constitute human flourishing exist only in an individualized manner; nonetheless, it is true that we can, through abstraction, apprehend the constituents of human flourishing as such. We can talk of the virtues and generic goods of human flourishing and thus have knowledge that, although it may be incomplete and reflect cultural influences, is quite adequate for us to evaluate what we have received from our community. This abstract understanding is not useless because the norms and values we receive from a community are themselves largely framed in universal terms and thus quite suitable to abstract understanding. Although human flourishing must always be embodied in some form of community life, it is not necessarily limited to the forms with which a person is acquainted. Nor is human flourishing defined merely by the customs and practices of one’s community. MacIntyre comes dangerously close to assuming that the customary morality of a particular society, Sittlichkeit, 11. MacIntyre, After Virtue, 204–5.

communitarian and conservative critics

233

and impersonal moral theory, Moralita¨t, exhaust all the possible conceptions of morality. Yet we have seen in previous chapters an outline of a self-perfectionist virtue ethics that is neither. Such an ethics is not simply customary morality. It would seem, however, that an issue of sociological reductionism is being raised: Does human sociality exhaustively account for, at the most basic level, what it is to be human? Though we are certainly not Cartesian egos or Kantian noumenal selves that operate in isolation, apart from natural and social reality, are we to assume that who and what we are (or what our good consists in) is something entirely and solely determined by our social relations? Is our capacity to reason, engage in abstract considerations of the nature of things, make moral judgments, and conduct ourselves accordingly something that is entirely and solely determined by the traditions and practices of our community? Are there not, instead, features of who and what each of us is that exist as they do whether the traditions and practices of our community recognize them or not? MacIntyre cannot allow his position to reduce to a conventionalism and thus a form of ethical noncognitivism. If this were so, then one of his basic reasons for rejecting liberalism—that it is based on ethical noncognitivism—would be disarmed. The tendencies in MacIntyre’s thought to view ‘‘nature’’ and ‘‘nurture’’ as mutually exclusive alternatives that any account of human nature or human flourishing must choose between and to adopt sociological reductionism is most revealing. They shows a failure to distinguish between (1) thinking of human nature or flourishing without thinking about their social and cultural embodiment; and (2) thinking that human nature or flourishing do not have a social and cultural embodiment. We propose, however, that (1) does not involve a falsehood and (2) does. But there is no good reason to suppose that an abstract consideration of human nature or human flourishing requires (2). Just as the abstraction ‘‘length’’ does not exclude quantity but simply does not specify the amount, so the abstractions ‘‘human nature’’ or ‘‘human flourishing’’ do not exclude the social or cultural forms in which they may exist but simply do not specify what determination they may take.12 12. We cannot, however, enter into a discussion of the nature of abstraction here, but it is nonetheless important to note that MacIntyre seems to adopt a view of abstraction that is typically modern, for it supposes that the process of abstraction necessarily leaves out or excludes aspects of something’s nature and thus can only provide a partial comprehension. This supposition is in fundamental opposition to that espoused by Aquinas, who argues that abstraction does not necessarily exclude or leave out aspects of something’s nature. It is ironic, to say the least, that MacIntyre, who claims superiority for the Thomistic tradition of enquiry, should avail him-

234

defending liberalism

Our central point here is simply this: human nature, including the human good, must have some particular cultural and social manifestation but, abstractly considered, it can have virtually any. Thus, the particular cultural and social manifestation of human nature or the human good should never be taken as defining or constituting human nature or the human good itself. Liberalism is the only political form that takes this central truth and its implications seriously. It is here, however, that we need to consider MacIntyre’s more recent views. In Dependent Rational Animals he states that he is ‘‘committed to giving what is in some sense a naturalistic account of good and of ‘good,’ since insofar as a plant or an animal is flourishing, it is so in virtue of some relevant set of naturalistic characteristics.’’13 Further, he notes that even though evaluative and conceptual inquiry are involved, ‘‘whether or not a given individual or group is or is not flourishing qua member or members of whatever plant or animal species it is to which it or they belong is in itself a question of fact.’’14 So, now it seems that MacIntyre holds that it is possible for an abstract understanding of human flourishing to have content that is based on one’s nature as a human being regardless of one’s social and cultural context. Thus, there no longer seems to be the threat of sociological reductionism present in his thought. Yet, we must move slowly here, for when we examine the naturalism of MacIntyre’s account of human flourishing, we find great emphasis given to the vulnerability that results from the fact that we are living things— specifically, animals of a certain sort with many needs. What is central to MacIntyre’s view of human flourishing is our dependence on the assistance of others for the goods that will enable us to become independent practical reasoners. Particularly, we need from others: those relationships necessary for fostering the ability to evaluate, modify, or reject our own practical judgments, to ask, that is, whether what we take to be good reasons for action really are sufficiently good reasons, and the ability to imagine realistically alternative possible futures, so as to be able to make rational choices between them, and the ability to stand back from our desires, so as to be able to enquire rationally what the pursuit of our good here self of one of the more problematic epistemological tenets of modernity and ignore the Thomistic approach to abstraction. (For a discussion of abstraction, see Chapter 7, note 3.) 13. MacIntyre, Dependent Rational Animals, 78. 14. Ibid., 64.

communitarian and conservative critics

235

and now requires and how our desires must be directed and, if necessary, reeducated, if we are to attain it.15 Without such relationships of assistance—‘‘relationships of giving and receiving’’16 —we can never flourish. Indeed, for MacIntyre they are ‘‘constitutive means to the end of our flourishing.’’17 MacIntyre thus conceives of human flourishing as both achieved and constituted by networks of familial, neighborhood, and craft relationships that involve giving and taking. These relationships achieve a common good that is more than the sum of the goods of the individuals involved. This good is not only achieved by cooperative activity and shared understanding of its importance by the participants, but is itself constituted in crucial ways by the cooperative activity and shared understanding. MacIntyre speaks, for example, of a common good that is found in the excellence of cooperative activities of fishing crews, string quartets, farming households, and teams of research scientists. There is indeed a wide range of practices for which excellence in the relevant kind of activity is found among goods internal to those practices. In order to participate in this network of relationships, as well as determine what place the goods of such activities have in our lives, we must engage in practical reasoning. Yet for MacIntyre this activity is not only always embodied in some network of relationships, it is itself constituted by the rules or norms that characterize these activities. We must always already be in these activities in order to be independent practical reasoners. Thus, when we appeal to our understanding of the human telos to check retrospectively if our account of human flourishing and its virtues is accurate—and in turn whether or not the place we have afforded certain goods in our lives is appropriate—we require the practical learning that is needed to be a practical reasoner. But this learning ‘‘is the same learning needed, if one is to find one’s place within a network of givers and receivers in which the achievement of one’s individual good is understood to be inseparable 15. Ibid., 83. 16. Ibid. See also Dependent Rational Animals, chap. 8, for a full account of this sort of relationship. 17. Ibid., 102. MacIntyre also notes that these relationships ‘‘give expression to established hierarchies of power and of the uses of power, hierarchies and uses that, as instruments of domination and deprivation, often frustrate us in our movement towards our goods’’ (103). Understanding how these relationships become instruments of domination are crucial to MacIntyre’s complaints against liberalism. See Dependent Rational Animals, chap. 11.

236

defending liberalism

from the achievement of the common good.’’18 So, the question, what place should the goods of these practices have in my life? must in MacIntyre’s view be posed instead as, ‘‘what place should the goods of each of these practices in which we are engaged have in our common life? What is the best way of life for our community?’’19 MacIntyre is certainly correct to emphasize that human beings are animals of a certain kind with many needs and vulnerabilities. Further, he is correct to emphasize that we are profoundly social beings who need to participate in networks of relationships in which there is giving and receiving and in which our own individual good is intimately tied to the common good of the activity in which we participate. Indeed, we have throughout this work emphasized the social character of human flourishing, and we have in our earlier work, Liberty and Nature,20 noted the importance of human groups and common enterprises. There is nothing about liberalism’s tenet that is incompatible with these claims.21 The problem for liberalism’s tenet comes from (1) MacIntyre’s understanding of the type of political and social order that can embody relationships of giving and receiving; (2) his extension of giving and receiving characteristics to all relationships within a society; and (3) his tendency to understand human flourishing and practical reasoning exclusively in terms of relationships of giving and receiving. We will consider each of these points. (1) To begin with it must be understood that MacIntyre’s understanding of the term ‘‘political’’ comes from his understanding of Aristotle’s ‘‘polis,’’22 and thus he does not consider himself to be speaking of a political/legal order that applies across all of the various communities and com18. Ibid., 113. 19. MacIntyre, ‘‘Politics, Philosophy, and the Common Good,’’ in The MacIntyre Reader, 240. 20. Douglas B. Rasmussen and Douglas J. Den Uyl, Liberty and Nature: An Aristotelian Defense of Liberal Order (La Salle, Ill: Open Court, 1991), 134 and 152. 21. It should be recalled that George Gilder argued that the essence of capitalism was reciprocity in a social context. See Gilder, Wealth and Poverty (New York: Bantam Books, 1982). In light of what we discuss below about MacIntyre’s notion of the importance of ‘‘giving and receiving,’’ Gilder’s insight is all the more relevant. 22. For an examination of the various ways of understanding Aristotle’s ‘‘polis,’’ see Fred D. Miller Jr., Nature, Justice, and Rights in Aristotle’s ‘‘Politics’’ (Oxford: Clarendon Press, 1995). Also, it should be clear that we have throughout this work argued for the practical and moral necessity of not confining our understanding of ‘‘political community’’ to that of a polis as traditionally understood. Moreover, we think that once the open-ended or cosmopolitan nature of human sociality is understood, then the importance of free exchange and markets for human sociality can be fully appreciated. See Paul Seabright, The Company of Strangers: A Natural History of Economic Life (Princeton: Princeton University Press, 2004).

communitarian and conservative critics

237

mon enterprises found in society. He claims to be concerned with much smaller forms of sociality. Particularly, he is concerned with some form of local community in which families, workplaces, schools, clinics, clubs, and religious organization find a place. Within this type of community, practical reasoning about what place the goods of certain activities are to have in a person’s life is part and parcel of a rational enquiry in which all the members of the community participate regarding their community life. Excellence in practical reasoning involves excellence in communal deliberation and does not occur in isolation. Practical reasoning is ‘‘political’’ reasoning in this sense. Accordingly, if people are allowed the liberty to make and follow decisions as to how to conduct their lives that do not reflect this communal deliberation, but instead reflect only their own judgments of their personal needs and interests (which are often expressed in economic terms), then such liberty would be inconsistent with relationships of giving and receiving and people being independent practical reasoners. MacIntyre states that if a local community that is a network of giving and receiving is to survive or, indeed, thrive, ‘‘economic considerations will have to be subordinated to social and moral considerations. . . . There may have to be self-imposed limits to labor mobility for the sake of the continuities and the stabilities of families and other institutions.’’23 So, for example, if some individuals in a small town should on their own judge that economically it is best for them to no longer shop or work at the stores in the center of the town, but should instead travel to stores outside of town to make their purchases or find employment, then such activity might have to be limited or subordinated. Possibly, such individuals would, and indeed should, judge that such a decision might be contrary to the community life they enjoy, and that the savings or increased salary from traveling to the stores or jobs outside of town are not worth possibly destroying the community life that is so vital to them. Yet, this is not MacIntyre’s point, for the ‘‘self-imposed subordination’’ he speaks of is one that comes through the process of communal deliberation. It is the individual reasoning and acting apart for the process of communal deliberation that destroys the relationship of giving and receiving. This cannot be countenanced. Liberalism’s tenet conflicts with MacIntyre’s understanding of local community because the political/legal order that bases itself upon this tenet would be used to protect the liberty of individuals in their judgments and 23. MacIntyre, Dependent Rational Animals, 145.

238

defending liberalism

decisions on how to order the goods of various activities in their lives. Moreover, liberalism allows for the possibility that the place and role of relationships of giving and receiving could legitimately vary from individual to individual and thus that there could, and possibly should, be a lack of shared understanding or cooperation among individuals. Liberalism’s tenet conflicts with MacIntyre’s conception of local community not because it denies or ignores the social character of human flourishing, but rather because it allows a place for practical reasoning that is not part of a communal process and lets individual differences play a role in determining what is rationally appropriate. It would seem that MacIntyre would respond to this view of practical reasoning by claiming that it already assumes something to be operative that his approach to human flourishing rejects—namely, the idea that flourishing is something that has an individualistic dimension and can be conceived apart from one’s relationship to everyone else, or at least everyone else in one’s community. This brings us to the next point. (2) Certainly MacIntyre is correct to say that relationships of giving and receiving are vital, and not merely ‘‘external,’’ to our understanding of human flourishing. Understanding that flourishing is not something atomistic requires not only that some relationships are embedded in social practices, but that some of these relationships are constitutive of one’s human flourishing as well. Yet, to say this is not to say that all social relationships are embedded in social practices or that all of these are constitutive of one’s human flourishing. Moreover, this is not to say that the way in which these relationships are integrated into one person’s human flourishing is the same as they are integrated into another’s. The question remains as to whether the individual will have the marginal say about what patterns of giving and receiving to engage in or whether those determinations will be imposed by the ‘‘community.’’ Individuals making choices about which communities to belong to and about their degree of involvement therein is not ipso facto a denial of community. It is only a denial of communities where the role of the individual, and most of the significant choices of the individual, is decided collectively, rather than by the individual him- or herself.24 24. In this respect it makes little difference to us, although it seems to for MacIntyre, whether the individual’s choices are imposed (for example, ‘‘your profession will be that of a carpenter’’) or taken with an eye to the ‘‘common good’’ in consultation with the individual involved, since in both cases it is the community that ultimately decides (with the latter being more consultative). The central issue is if, in the end, it is the individual who gets to decide or

communitarian and conservative critics

239

In this connection it seems to us that MacIntyre—and other communitarians as well—confounds the metaphysical with the political and smuggles in a political conclusion when making a metaphysical statement. For even if it could be argued as a metaphysical truth that the decisions of an individual are nothing more than a reflection of a confluence of forces all of which are derived from the community, it would not follow that any form of collective or political action is thereby implied or necessitated. Not only is it conceivable that individuals should still be left free to ‘‘decide’’ their membership and degree of involvement in any community on their own, but it is necessitated that they can do so by the fact there would be, by MacIntyre’s own principles, no need to orient the individual ‘‘properly’’ if he or she could not decide something contrary to what a process of collective action may decide in his or her case. Thus whether or not the individual is in fact capable of independent choice, she or he must be treated as such for collective action to have any point. In this respect, then, the debate is not about if liberalism allows for community, but if decisions that could very well be left in the hands of an individual should be made by the ‘‘community’’ instead. Liberalism recognizes that not all relationships are to be understood according to MacIntyre’s understanding of a polis. Indeed, admitting that one is a social being suggests no theory of collective action whatsoever. It is precisely because we are such social beings that the case for strong collective action is weakened. The sort of community MacIntyre envisions is ironically more suited to an atomistic conception of the individual where the need to contradict individual choices to get coordination may be greater. Provided that one understands that human flourishing is diverse, the case for communities of free entry and exit seems strongest where the social orientation of the individual is presumed at the outset.25 MacIntyre’s account of human flourishing does not recognize this the ‘‘community.’’ MacIntyre simply would be begging the question if he asserts it must be the community, just as we would if we said it must be the individual. In both cases, the argument must be framed by many other considerations of human nature and human flourishing. Our point here is simply that MacIntyre cannot assume that by community we must mean only those whose mode of operation is collectivistic and authoritative as opposed to individualistic and voluntaristic. 25. While we find ‘‘state-of-nature’’ theories useful as a tool of social and economic analysis, as a metaphysical proposition about human nature this approach is not only mistaken, it has at times led liberalism to a call for greater government involvement in social life. This is perhaps no accident, because with an atomistic assumption, it is easier to infer a need to centralize the solution to social problems than to assume people will seek out the needed social mechanisms on their own.

240

defending liberalism

fact. This brings us to our final point in this discussion of MacIntyre’s more recent views. (3) MacIntyre’s account of human flourishing is naturalistic only in the sense that he makes the natural dependence we have on others the central and primary feature of human flourishing. The social character of human flourishing is seen as that in terms of which everything else about flourishing is understood. Practical reasoning is thus not merely a process that is socially embodied. Nor is it merely a process that appeals to norms and virtues internal to the practices of social relationships of giving and receiving. Practical reasoning is, simpliciter, a process of those activities that constitute the relationships of giving and receiving. Human flourishing can only be construed through a communal deliberative process and in light of the norms that characterize this process. Despite all of his appeals to Aquinas, human flourishing has for MacIntyre little or no personal dimension.26 It is not conceptualized in terms of individual beings who stand in various relationships to others and for whom these relationships can take varying importance. MacIntyre’s more recent views thus still make his account of practical rationality something that is primarily communitarian in nature, and so our objections to his earlier views remain relevant to his more recent ones. Yet, he has certainly changed his views, or maybe we should say he has made what is implicit explicit. He can now defend the communitarian character of practical reasoning by offering an account of human flourishing that clearly has a view of human nature behind it. It is, however, one that from an Aristotelian or Thomistic perspective is guilty of the fallacy of reification because it is one in which a human being is seen largely as a ‘‘species being.’’ This may work as a full-blown Marxist account,27 but it will not work as an Aristotelian or Thomistic account of human nature—which is the tradition from which MacIntyre claims to operate. No matter how important the social dimension of human flourishing may be, practical reasoning is still, in the Aristo26. Mark C. Murphy notes that for MacIntyre ‘‘the immunities dictated by the natural law do not have an individualistic basis.’’ ‘‘MacIntyre’s Political Theory,’’ in Alasdair MacIntyre, ed. Mark C. Murphy (Cambridge: Cambridge University Press, 2003), 169. 27. It should, of course, be noted that although we are social beings, this does not suffice to show that we are species beings. This is one of the many problems that a Marxian view of human nature faces. For a discussion of some of the many problems with the Marxian view of human nature and notion of alienation, see N. Scott Arnold, Marx’s Critique of Capitalist Society: A Reconstruction and Critical Evaluation (New York: Oxford University Press, 1990); and J. Roger Lee, ‘‘The Morality of Capitalism and of Market Institutions,’’ in The Main Debate: Communism Versus Capitalism, ed. Tibor R. Machan, 84–110 (New York: Random House, 1987).

communitarian and conservative critics

241

telian-Thomistic tradition, something that an individual must (and can) do for him- or herself. There is no place for replacing individual judgment with communal deliberation.28 Indeed, the more one examines MacIntyre’s account of human flourishing the more one discovers a Marxian theorist in Thomistic drag.29 It might, however, be replied that all of this philosophical debate still misses the point that MacIntyre and other communitarians are making. Granted that the liberal regime does not require the destruction of traditional forms of community life, is this not what generally happens in a liberal regime? Is this not what life in a liberal regime is actually like? In the real world, are not people in general so dominated by liberalism’s emphasis on liberty that the institutions through which they endeavor to discover and achieve their moral well-being are destroyed? These questions cannot be answered here, but we have touched upon aspects of them earlier and noted there that they involve more than philosophical considerations. Historical, cultural, and sociological studies are needed.30 Yet, if this is the level of inquiry at which communitarianism’s concerns about liberalism are to be discussed, then there are questions that need to be asked about communitarian social orders: Assuming that we can get a clear understanding of what is meant by ‘‘community,’’ what is real life in such social orders generally like? Are they really orders where everyone works in solidarity for a single common end, learning from each other and giving and receiving in a spirit of openness and community mindedness; or do these communities tend to be narrow, closed, and petty envi28. See Douglas J. Den Uyl’s discussion of Aquinas’s view of practical reason in The Virtue of Prudence (New York: Peter Lang, 1991), 85–106. See also Henry B. Veatch, Rational Man (Indianapolis: Liberty Fund, 2003). 29. Mark C. Murphy notes that ‘‘MacIntyre took Marxism to be fundamentally right’’ regarding its view of alienation. It is ‘‘one of the few points on which he [MacIntyre] has not held different views at different points in his career’’ (emphasis added). Further, Murphy explains that MacIntyre’s works can be viewed as a search for what is presupposed by ‘‘the Marxist critique of capitalist society’’—namely, an adequate moral theory and concept of human nature. That is to say, one ‘‘where there is no morality for rational beings as such; there is only the morality for human beings, as practiced at some time, in some social setting.’’ Murphy, Alasdair MacIntyre, 3–6. 30. We ignore here the possibility, which we actually think significant, substantial, and true, that government action crowds out intermediary social institutions that keep traditions alive and solve basic human problems. We thank Elaine Sternberg for reminding us of this important point. To cite but two studies that show how government action crowds out intermediary institutions, the first in the medical field and in the second in welfare, see, David G. Green, WorkingClass and the Medical Establishment: Self-Help in Britain from the Mid-Nineteenth Century to 1948 (New York: St. Martin’s Press, 1985); and David T. Beito, From Mutual Aid to the Welfare State: Fraternal Societies and Social Services (Chapel Hill: University of North Carolina Press, 2000).

242

defending liberalism

ronments where all chances people have to flourish in their unique and diverse ways are destroyed? Is the individualized and agent-relative character of human flourishing responded to positively, or is it just denied or ignored? Are some people always and necessarily sacrificed for the common good of the community? In what manner, if any, is the open-ended character of human sociality allowed to exist? Is there any evidence that diversity is a central feature of nonliberal orders? Can one conceptually reject liberalism’s openness and plausibly embrace diversity? Can people choose to adopt a way of life (alone or with others) that conflicts with the values of the community? How are conflicts between different forms of community life met? Are there different forms? It is, to say the least, not obvious that the real, everyday lives of most people in a communitarian political order are better than those in a liberal one.31 We are brought, then, to the cultural/sociological complaint—namely, that liberal regimes cannot make rights ultimate or primary and maintain themselves for long. This complaint, as such, has merit. A liberal regime cannot long maintain itself if the only ethical message found in the culture and society that it protects is simply the right to liberty. Indeed, many things need to be done for the liberal regime to flourish. A liberal political/legal order sets the parameters for a civil society by protecting and preserving the right to liberty, but that order itself also requires that its members take on the task of creating a civil society. People need to care about the moral life, the role of virtue, and the importance of personal responsibility and conduct themselves accordingly. They need to care about the ethical justifications of their social and political institutions. They need to better understand the nature of the arguments that can be used to defend the liberal regime. Further, they need to create institutions and traditions that educate, explain, and illustrate the importance of a political/legal system being based on the right to liberty. These are very important matters, and the role of intellectuals is not insignificant. Yet, interestingly enough, this does not mean that the liberal regime should abandon its primary commitment to the right to liberty. On the contrary, the first and foremost thing that needs to be done is for the liberal regime to remain true to the proper function of the political/legal order— 31. Communitarianism ‘‘can be blinding, dangerous, and disruptive in the real world, where communities do not come ready-packaged and where communal allegiances are as much ancient hatred for one’s neighbors as immemorial traditions of culture.’’ Jeremy Waldron, ‘‘The Cosmopolitan Alternative,’’ in Rights of Minority Cultures, ed. Will Kymlicka (New York: Oxford University Press, 1995), 113.

communitarian and conservative critics

243

namely, protecting and preserving the right to liberty. The liberal regime must, of course, do all that is necessary for the consistent and just implementation of a political/legal system based on this right, but it should not allow the limitation imposed by this rationale to become blurred so that people believe that it is the task of the political/legal order to directly and positively promote a civil society. This matter must instead be understood to lie in the hands and minds of each person. By remaining true to its proper function, the political/legal order will be seen as limited as a matter of ethical principle, and its ethical rationale will be more clearly discerned by the people. Both the importance of individual rights and their limitations will be more readily grasped. It will not be assumed that rights exhaust ethical language, and it will more likely be understood that there are other ethically important concerns. Specifically, it will be understood that citizens are positively and directly responsible for the actual creation of social and cultural life conducive to the existence of a liberal regime and a civil society as well. In our account of liberalism, the proper function of the political/legal order has been made clear, but this has not generally been the case in liberal theory. Insofar as liberal theorists have not clearly recognized the difference between normative and metanormative principles, and insofar as they have thought that liberalism’s political principles could be maintained without a deeper ethical commitment, they have, as we argued in our earlier chapters, helped to create the very forces that are leading to liberalism’s demise. Furthermore, and as noted earlier, the tendency in American liberalism to make a right out of every need (sometimes even a want) has made the concept of rights nearly otiose. Instead of rights being confined to issues about the basic conditions of a political/legal order, they have been used to replace crucial moral concepts, like the virtues, which are primarily concerned with people achieving worthwhile moral lives. This has confused and damaged both forms of ethical language. In fact, it appears to some people that the right to liberty is nothing more than a license to do whatever one wants, and that to call something a moral virtue is to demand a law compelling universal compliance with it. The ethical language of liberalism in the United States today has been virtually deconstructed! The solution to this problem is, however, not to deny the importance of rights-talk as something distinct from other ethical language. Rather, it is to understand clearly the rationale for political institutions being concerned only with the right to liberty. It has been our aim to provide such a rationale and thus defend liberalism. The point of that rationale was to show a

244

defending liberalism

need for a solution to ‘‘liberalism’s problem,’’ and thus a need for the ethical language of metanormativity, not normativity. The natural right to liberty is the basic metanormative principle. There is an ethical justification for a political/legal order qua political/ legal order that does not extend its ethical message beyond respect for the basic right to liberty. It is morally necessary that we distinguish between the ethical principles that provide the basis for the political/legal structure for society and those that apply to our conduct within society. It is ethically necessary that we grasp that not everything is or should be political and that this limitation on political action even applies to many of the activities that are socially and culturally necessary for the maintenance of liberal regimes.32 MacIntyre, as well as many other communitarian and conservative critics, simply begs the question by assuming that the purpose of politics is to promote an ethical vision of some sort—a role these theorists may wish to assign to politics, but one liberalism rightly rejects. In the end, however, there is nothing a liberal political/legal order, or any political/legal order, can do to guarantee its own existence or the presence of virtue within it. That all depends ultimately on what human beings do or fail to do. The best political/legal theorists can hope for is that citizens will keep in mind the need for ‘‘eternal vigilance,’’ and if our account of morality and politics is accurate, that is how it should be.

The Challenge of Pluralistic Communitarianism As a political theorist, John Gray has had many incarnations. His recent musings on philosophical anthropology is his latest intellectual excursion.33 But neither his meditations on human nature nor his rejection of humanism and the very possibility of human progress are surprising to those who have followed his thought. Gray is the eternal pessimist. Such metaphysical issues we shall leave, however, for another time, because it is Gray’s reasons for rejecting liberalism that most concern us here. They represent an important challenge to anyone interested in defending liberalism’s tenet. 32. For a discussion of what is necessary in order to obtain compliance from persons in following the basic metanormative principles of the political/legal order, see Chapter 11, note 16, and Rasmussen and Den Uyl, Liberty and Nature, 193–98 and 224–25. 33. John Gray, Straw Dogs: Thoughts on Humans and Other Animals (London: Granta Books, 2002).

communitarian and conservative critics

245

Accordingly, it will be on this aspect of his thought that we shall concentrate. Gray is a postliberal who thinks that it is no longer plausible to claim that liberty is a universal human value. He is also a communitarian, because he thinks that the attempt to find a theoretical basis upon which to ground liberal political philosophy is doomed. According to Gray, the liberal form of civil society only survives and prospers because of our commitment to it. This commitment is manifested in the realm of practice and is not fully theorizable. Thus, when it comes to determining the meaning, scope, and validity of liberty, neither political nor jurisprudential theory is adequate. Such determinations are provided only by a form of political reasoning that is essentially circumstantial. Consequently, the political has primacy over the theoretical and legal. Further, we saw in Chapter 7 that while Gray is sympathetic to aspects of neo-Aristotelian virtue ethics, he is quite sure that such an ethics cannot employ a meaningful notion of perfection. Perfectionism for him, then, can never be a foundation for liberalism’s claim that liberty is a universal political value. The basic reason for Gray’s abandoning liberalism, adopting a communitarian perspective, and rejecting the very idea of perfectionism can be summed up in two words we have examined in Chapter 7: value pluralism. According to Gray, the ‘‘recognition of a pluralism of forms of human flourishing, each objective, of which only some can exist in a liberal regime, destroys the authority of liberalism as a universal, trans-historical and cross-cultural ideal.’’34 As a result of this pluralism, which Gray sometimes calls ‘‘objective pluralism,’’ liberal rights are not uniquely legitimate for all human beings. There have been human beings who have flourished in regimes that are not liberal, and there are forms of human flourishing that are driven out by liberal regimes. Overall, there is no single, determinate way of life that is right or best for all human beings. Pluralism prevents any ethical theory, especially a self-perfectionist virtue ethics, from being sufficiently determinate to provide content to the right to liberty. Thus, Gray concludes that liberalism cannot use the notion of perfection to justify its claim to offer liberty as a universal political value. Accordingly, Gray sees rights as intermediaries between claims about human interests that are vital to human flourishing and claims about what obligations are reasonable to impose on others in respect of these interests. 34. John Gray, ‘‘What Is Dead and What Is Living in Liberalism,’’ in Post-Liberalism: Studies in Political Thought (New York and London: Routledge, 1993), 313.

246

defending liberalism

However, since the different forms of flourishing give rise to different valuations or weightings of these human interests, there is no uniquely rational way to determine the meaning and scope of liberty and thus furnish a theoretical and jurisprudential limit on the political process. Hard cases regarding what constitutes restraint of liberty abound. They are the rule, not the exception, and it is only the political process itself that can determine the meaning, scope, and, indeed, validity of the right to liberty. Gray is correct to hold that there is no overarching account of human flourishing, nor even a generic account, that can serve as a standard by which various goods, virtues, and excellences are given their appropriate combination, pattern, or weighting. If rights are tied to these various combinations, patterns, or weightings of basic goods or interests, then there is no way in which the meaning, scope, and validity of the right to liberty can be defended theoretically. It must be worked out in the concrete political process. Gray is also correct to note that the scope and content of the concept of ‘‘liberty’’ cannot be specified without making an ethical commitment. Liberty is not merely the absence of external impediment or the ability to do whatever one wants. When conceived in this amoral fashion, there is no way to even understand what it means to promote liberty. If different individuals’ wants conflict, and if my wants are given legal protection and yours are thus constrained, then while it is the case that my liberty has been protected and your liberty denied, we still cannot say that liberty has been promoted. Liberty, so viewed, becomes meaningless as a political ideal. Gray is wrong to assume, however, that there is nothing that can be used from an account of human flourishing to provide meaning, scope, and validity to the right to liberty. We must recall here the basic features of how our account of self-perfectionist virtue ethics provides a basis for this right as we have discussed it earlier (see also Chapter 11 for a presentation of the essential steps of this argument). Given that there are diverse forms of human flourishing and that our need for sociality is profound and openended, we need a political standard that will allow interpersonal life in its widest sense to be possible without, at the same time, structurally requiring the sacrifice of the lives and resources of any person or group to others. Only a political standard that protects the possibility of self-direction will fulfill this need, and the right to liberty is this standard. It should be noted that Gray’s rejection of the right to liberty stems not only from his failure to see that self-direction is central and necessary to the very nature of human flourishing (as we have noted in Chapter 7). There is

communitarian and conservative critics

247

another source of his pessimism about sustaining an argument for the universal value of liberty, namely, his conception of political philosophy. When it comes to Gray’s justification for rejecting liberty as a universally legitimate value, he notes that ‘‘human beings have flourished in regimes that do not shelter a liberal civil society’’ and that ‘‘value pluralism of this radical sort dictates pluralism in political regimes, and undermines the fundamentalist liberal claim that liberal regimes alone are fully legitimate.’’35 Gray believes that there are no universal standards or theoretical limits on the political process, because people have flourished without liberty and because pluralist forms of flourishing require pluralist forms of political regimes. Thus, he seems implicitly to believe that the essence of the political problem is how to assist everyone in flourishing and that political philosophy is either identical with or directly related to ethics. If this were truly the aim and nature of politics, then, Gray would be correct to claim that value pluralism precludes universal standards or theoretical limits on the political process, because human flourishing is, indeed, pluralistic. Yet, we have shown that although human flourishing is itself always and necessarily expressed in individual form, it nonetheless does afford a basis for legitimating liberty as a universal value for political/legal orders if those orders are seen as addressing not the achievement of human flourishing or its conditions, but instead the metanormative solution to what we have called in previous chapters ‘‘liberalism’s problem.’’ The concern about the reality of pluralism that so motivates Gray is not a threat to the basic right to liberty, if it is understood as a metanormative principle. This is because, as we have noted throughout this book, the right to liberty does not provide people guidance regarding how they ought to conduct themselves. It is not a claim about what is good for persons or an assertion of what obligations people owe each other beyond the mutual respecting of each person’s rights. Nor is it an intermediary principle that expresses a reasonable compromise between these claims. It should, therefore, be clear that it is possible for there to be versions of human flourishing that may be largely precluded in certain societies based on the right to liberty. There is no guarantee that all of the conditions necessary for achieving the proper fit between generic goods, virtues, and excellences and someone’s nexus will be achieved or that the maintenance of social structures necessary for a form of flourishing to exist can be maintained. A political system based on the right to liberty does not dictate or guarantee what ver35. Gray, ‘‘What is Dead and What is Living in Liberalism,’’ 284, 314.

248

defending liberalism

sions of human flourishing will exist or what the overall character of a society’s culture will be. As we have noted from the very start, it is crucial to grasp that liberalism is a political philosophy of metanorms, not a normative ethics. It does not use the right to liberty in an attempt to make it possible that everyone can flourish. To the extent that liberal theorists do in fact fail to grasp this point, Gray’s criticisms of liberalism are devastating. We must, however, consider another dimension of Gray’s thought that is involved in his rejection of liberalism’s tenet. This other communitarian dimension is the idea that goods and virtues are integrated into social wholes. Gray claims that when goods and virtues are elements in whole ways of life that depend for their origin and development on social structures that are uncombinable, incommensurability occurs among ways of life and cultures. Further, the identity of human beings is understood in terms of their participation in common forms of life, and Gray means by this concrete historical practices that constitute actual communities, not ideal-typical abstractions. So, it seems that incompatible social structures limit not only our ability to compare and evaluate goods and virtues rationally, but indeed our very understanding of what it is to be human. This is what Gray appears to mean sometimes when he describes his pluralism as radical, and it is sometimes this radical character of pluralism to which he appeals in rejecting the universal value of liberty. There is, nonetheless, an ambiguity with this dimension of Gray’s thought similar to an ambiguity in MacIntyre’s thought. Is it the case that human flourishing is actually defined and constituted by the concrete historical practices that make up communities and that there is nothing across cultures and over time in virtue of which we may speak of human flourishing? Gray seems at times to be answering this question in the affirmative. Yet, it should be recalled that Gray is insistent that objective pluralism not be interpreted as any form of ethical relativism or as moral skepticism: ‘‘If value pluralism is correct, then these are truths, correct moral beliefs about the world. The thesis of incommensurability of values is then not a version of relativism, of subjectivism, or of moral skepticism.’’36 Thus, it cannot be the case for Gray that cultural and social traditions of a given community constitute or define human flourishing. They may be necessary conditions, but they are not necessary and sufficient. Similarly, human beings are most definitely social animals; they live in community with others and cannot be 36. John Gray, ‘‘Agonistic Liberalism,’’ Social Philosophy & Policy 12, no. 1 (Winter 1995): 118.

communitarian and conservative critics

249

properly understood if this feature of their identities is ignored. However, this is not to say that what it is to be human is exhaustively accounted for by one’s sociality, or that there is no sense to the term ‘‘human’’ that is generic and can be used to locate human beings across cultures and over time. Gray accepts the idea that there is some generic character to being human. He approvingly quotes, as we noted in Chapter 7, Berlin’s claim that ‘‘the nature of men, however various and subject to change, must possess some generic character if it is to be called human at all.’’37 Consequently, it would be wrong to say, according to this claim, that because human flourishing and humanity are always culturally and socially specific, they are also culturally and socially bound. In other words, it would be wrong to claim that the validity of a generic account of flourishing or the adequacy of a generic description of human being is limited to a certain culture or society and cannot be valid or adequate across cultures and times. Yet, if ethical relativism is rejected by objective pluralism and generic features of human nature acknowledged, then it is possible for communities as well as individuals to have conceptions of human flourishing that are not as well developed as others, or even simply wrong. Indeed, can anyone reasonably claim to flourish if their societies have neither the practices for seeking friends, achieving integrity, courage, or justice, nor forms of disapproval for letting one’s passions run wild or repressing all emotions, or for caring nothing for knowledge, reason, consistency, or truth? Is not it true for any culture and society that, given the notion of self-perfection we outlined in Chapter 6, a Socrates dissatisfied is better than a fool satisfied? Individuals and their forms of life can in fact be generically compared and evaluated. Nonetheless, it remains true that accounts of generic goods and virtues do not take us very far. They are not sufficient to make human flourishing something determinate or valuable, let alone provide much guidance. As David L. Norton observed so perceptively, When Mill says, ‘‘It is better to be Socrates dissatisfied than a fool satisfied,’’ we must once again ask, ‘‘For whom?’’ And we reject the answer implied by Mill, ‘‘For everyone’’. . . . Certainly it is better 37. Isaiah Berlin, ‘‘Alleged Relativism in Eighteenth-Century European Thought,’’ in The Crooked Timber of Humanity: Chapters in the History of Ideas (New York: Alfred A. Knopf, 1991), 80.

250

defending liberalism

for Socrates to be Socrates. But for Mill to be Socrates (or try to be, since the proposal construes an impossibility) is distinctively worse than for Mill to be Mill, and correspondingly for you and for me. Pleasures are not objective, intrinsic goods, distributable like horses to which we shall hitch our wagons. As conceived abstractly they are valueless, acquiring value or disvalue accordingly as the desires they reflect are commensurate or incommensurate with the persons whose desires they are.38 Likewise, other generic goods (pleasure is, after all, a generic good) and virtues become actual and valuable—their proper combination, pattern, or weighting is achieved—only in relation to individual human beings and their social and cultural situations. Consequently, incomparability among such combinations, patterns, or weightings—whether their origins be due to individual, social, or cultural differences—does not necessarily create a problem of incommensurability. Incommensurability would exist only if it is assumed that differences of place and circumstance, as well as talents and interest, are ethically irrelevant and that the determination of the value and character of generic goods and virtues must accord with some single pattern that is best for everyone. As we have noted in Chapter 7, the incommensurability that is manifested in a breakdown in transitivity in practical reasoning arises primarily because it is assumed that the aim of ethics is to provide a set of specific, equally suited rules of conduct for all persons regardless of each individual’s nexus and social/cultural situation. Our account of individualistic perfectionism, of course, rejects this form of ethical rationalism. We are now poised to ask, what is Gray’s position regarding value pluralism? Despite what he says about rejecting ethical relativism and endorsing generic features of human nature, he seems as a matter of practice to hold two views of value pluralism. Gray continually bounces back and forth between a value pluralism that can accept generic features of human flourishing and a value pluralism that ultimately amounts to a conventionalist form of ethical relativism. This is a tension in his thought, and it cuts across more than just his observations about the viability of liberalism. 38. David L. Norton, Personal Destinies: A Philosophy of Ethical Individualism (Princeton: Princeton University Press, 1976), 219.

communitarian and conservative critics

251

The Challenge of Natural Law Conservatism Robert George has observed that ‘‘what distinguishes liberal political theories from non-liberal theories that nevertheless value individual liberty and embrace pluralism is the liberal idea that there are strict moral norms (and not merely prudential limits) that exclude in principle moral paternalism and the use of coercion to prevent moral harm.’’39 Yet, what is the basis for such a principled limitation on the use of coercion? Surely, ‘‘the proponent of any particular putative moral right to do moral wrong will need to adduce some ground for the claim that it is morally impermissible for the law to forbid the immoral act or abolish the immoral institution in question. . . . It will not do to cite baldly the moral right to perform that act or have the institution as the ground for moral impermissibility.’’40 George thus invites the liberal political philosopher to become a moralist and show why it is morally better to choose what is morally wrong, or at least not right, and why the political/legal order should not engage in activities that will, at least, discourage vice—if not encourage virtue. Why must an individual’s basic right not to have his life and resources used without his consent always trump or override all other moral considerations? George is asking, in effect: Why must such an extreme view be taken? Why not consider what results from protecting one’s right to do wrong before determining that it has such a privileged status? Typically, many liberal political philosophers respond to this sort of challenge by noting that there is a difference between how the word ‘‘right’’ is being used. George is using the term as an adjective to describe conduct that conforms to the requirements of a morally worthwhile life, while liberals are using the word as a noun. When ‘‘right’’ is used an a noun, it refers to a fundamental moral entitlement that is due human beings in virtue of some fact about themselves regardless of whether or not their conduct produces or expresses the human good. So understood, rights do not depend on a consideration of human goods, virtues, consequences, circumstances, values, goals, or interests for their legitimacy. From these features of rights, it is commonly inferred that rights are expressions of impersonalist or agent-neutral moral theory and that it is not necessary to justify rights by any appeal whatsoever—be it direct or indirect—to the human good. Thus, 39. Robert P. George, Making Men Moral: Civil Liberties and Public Morality (Oxford: Clarendon Press, 1993), 167. 40. Ibid., 116.

252

defending liberalism

the response to George’s challenge is that rights are not the kind of moral principles that are concerned with of achieving or expressing the human good. This has always been an important insight of liberal political philosophy. There are, however, deep-seated problems with viewing rights as the result of impersonalist or agent-neutral moral theory. First, there is a fundamental difficulty that stands in the way of anyone who relies upon impersonal moral theory. The difficulty is simply that nothing can be said in reply to those who ask why they ought to be moral in an impersonal sense. There is, in other words, no self-contradiction in asking why one ‘‘ought’’ to adopt an impersonal moral theory (that is why it would be good, worthy, or appropriate for me to do so). And since there is, by definition, no way that an impersonal moral theory can give a reason that is not agent-neutral, it cannot provide an agent-relative reason to the person who asks why he should be moral in an impersonal sense. Thus, any rights theory based on such an impersonal view of morality cannot provide an agent-relative reason for why one ought to respect another’s rights. This is a major, possibly insuperable, difficulty faced by anyone who bases the rights on impersonal moral theory. If, in response to this difficulty, it is claimed that moral reasoning is only impersonal and agent-neutral and that it is not necessary to provide agentrelative reasons, then it is, to say the least, very difficult to see what purchase moral injunctions could have on our conduct. We are thus now faced with another problem: morality becomes irrelevant to our lives. Indeed, if morality is separated from and unrelated to philosophical anthropology and any concern for what is truly good for flesh-and-blood human beings, then there simply is no answer to the question, why be moral? The response, because it is your duty, is a nonstarter.41 As noted in Chapter 6, this response simply begs the question. 41. It is not sufficient to claim, in Kantian fashion, that as rational agents we would see the impersonal, agent-neutral character of morality as implied by rationality itself. This presupposes a theory of rationality that divorces rationality from the particularities that make up an individual’s life. We do not then need to prove, at this point, that our perspective is superior—only that one cannot presuppose the validity of the other. Furthermore, since morality implies action, motivation and other factors of concrete action would seem more plausibly a part of rationality than not. Hence the burden of proof would seem to lie on the Kantian approach. We are skeptical that it can do much more than restate its starting premises. As Robert Paul Wolff has observed: ‘‘Rational action is purposive action. It is behavior which is caused by the agent’s conception of the state of affairs to be brought about by that behavior. . . . So, a categorical imperative cannot ‘directly command a certain conduct without making its condition some purpose to be reached by it,’ for that is the same as saying that it commands an agent to engage in purposive action which has no purpose.’’ Wolff, The Autonomy of Reason: A Commentary on Kant’s Groundwork on the Metaphysics of Morals (Gloucester, Mass.: Peter Smith, 1986), 131.

communitarian and conservative critics

253

Second, even if such an impersonalist or agent-neutral account were to work, how would this help the defender of liberalism’s tenet? How does it follow that basic rights are all negative in character or that there are not legally enforceable positive duties? Why would the protection of self-direction be of such fundamental moral importance? Given everything we know about the make-up of human beings, why should there not be laws that attempt to encourage education, protect families, provide opportunity, promote virtue, and discourage vice? Why is the protection of self-direction to be given priority over all other things that constitute a human being? And if, in order to justify giving self-direction such importance, a human being is reduced simply to a being that reasons and chooses, then why should such a philosophical anthropology be accepted? Indeed, would not the liberal political theories be truly guilty of relying an incomplete view of human nature—an ‘‘unencumbered self,’’ an ‘‘inner citadel,’’ a ‘‘noumenal ego,’’ or a ‘‘thinking thing’’ that is a philosophical reification? It should be clear at this stage in our argument that it is not necessary to accept such views of human nature or impersonalism in ethics in order to justify individual rights or make the case that rights are a different type of moral principle. Furthermore, neither are such commitments necessary in order to see that George’s invitation to the liberal political theorist to become a moralist is something of a trap. To see this, we must return to some points made in earlier chapters. It has been noted that the knowledge that doing X ought or ought not to be done does not, by itself, show that doing X ought to be a political/ legal concern. George, however, argues that the moral wrongness of conduct may provide a reason (that is, a rational motive) for interfering in someone’s performance of that conduct, but that there may be also competing reasons not to interfere.42 George then reflects on what those reasons might be, and it is in the consideration of those competing reasons that he situates the debate between the liberal and the nonliberal. Yet, George’s description of the situation begs all of the important questions from the liberal point of view. There are three interrelated questions: What is the end of the political/legal order? What is the nature of the connection between the ethical and political/legal order? How do we legitimate the political/legal order? First, to say that something may be a possible rational motive for conduct is to say that it may be a means toward or feature of some end, and 42. George, Making Men Moral, 117.

254

defending liberalism

‘‘rational motive’’ is explained by reference to the end. But this is the very point at issue between George and liberal political philosophers: what is the end of the political/legal order? It is possible that the end of political/legal action is not ‘‘human flourishing’’ or ‘‘the moral’’ but something else; if so, the moral wrongness of an action would not be a possible rational motive for interference. Second, it is also possible that the relation between the ethical order and the political/legal order is neither direct nor isomorphic. The domain of moral obligation in general may be wider than the domain of those that require political/legal action; and so one would need to know what justifies, if anything, moving from one to the other. Third, we should not forget the anarchist challenge to the legitimacy of the political/legal order. The moral order may be in fundamental opposition to the legal/political order. Thus, not only may there be no direct or isomorphic connection between the two orders, there may be none at all! One needs to know what, if anything, legitimates a political/legal order. So, as George suggests, the liberal theorist cannot assume that there is an impersonal realm of the right that prohibits the political/legal order from discouraging vice, but neither can George assume that knowing something is vicious establishes a possible reason for political/legal action. To decide what is a possible rational motive for political/legal action, one needs to have answers to our three interrelated questions, and, as said, these are the very points at issue between the liberal and nonliberal political theorist. In light of the previous points, our initial observation that the ethical rightness or wrongness of some act is insufficient, in and of itself, to imply that this act ought to be a political/legal concern stands. Thus, even if George were to succeed in showing that arguments purporting to establish the moral impermissibility of using the coercive force of law to encourage virtue or discourage vice fail, this does not show that therefore the political/ legal order is thereby permitted to use force. To so conclude would be to commit the fallacy of ad ignoratium. The burden of proof rests on those who seek to move from the ethical order to the political/legal order. Their task is to determine the nature of connection, if any, between the two. Accordingly, the liberal political philosopher argues (or, at least, should argue) that it is not the task of political philosophy to determine what is or is not morally obligatory tout court, but rather to determine what matters of morality are to be matters for the political/legal concern and thus what legitimates the political/legal order. It is on this point that the debate between the liberal political philosopher and the nonliberal should be

communitarian and conservative critics

255

located, and it is the conceptual home from which the argument for individual rights is made.43 To argue for individual rights outside of this conceptual home is already to ignore what is unique about the liberal perspective in political philosophy, and it is for this reason that we have insisted that individual rights are metanormative principles and that their function is to provide a solution to liberalism’s problem. Yet, it might still be argued that despite all of these careful qualifications and distinctions, liberalism faces a fundamental dilemma. On the one hand, there is the point made by John Gray: if liberty is to be anything determinate and identifiable, it must mean more than the absence of external impediment.44 Liberty cannot be merely the ability to do what one wants. If liberty occurs only when one is able to do what one wants, then whose liberty is to be protected? Which is to be preferred: Mary’s liberty to do what she wants unconstrained by William, or William’s liberty to do what he wants unconstrained by Mary? Given that people have conflicting wants, as is frequently the case, what does it mean to promote liberty? Liberty needs some normative basis for determining its scope and content. Otherwise, it can provide guidance neither in adjudicating situations where there are conflicts of wants, nor in understanding what it would be to promote liberty. Liberalism becomes, as John Gray has argued, a meaningless political ideal.45 On the other hand, there is Robert George’s point: if we tie liberty to an ethical standard—if we link liberty with reason, with morality, with law— then how can one ever have the a moral right to do what is not morally proper? If we, in other words, agree with Lord Acton that liberty is ‘‘not the power of doing what we like, but the right of being able to do what we ought,’’46 it would seem that we can offer nothing more than pragmatic arguments against philosopher or theologian kings who wish to legislate 43. There is a distinction to be made between saying we must be open to arguments for using coercion to promote the end of virtue and saying that the relation between ethics and politics needs to be considered. We agree with the latter, but not the former, but George assumes that if he has refuted the liberal’s commitment to the right over the good, then he is justified in the former. We say he’s justified only in the latter. 44. John Gray, ‘‘Liberalism and the Choice of Liberties,’’ in The Restraint of Liberty: Bowling Green State University Studies in Applied Philosophy, Vol. 7, ed. Thomas W. Attig, David Callen, and John Gray, 1–25 (Bowling Green, Ohio: Applied Philosophy Program, Bowling Green State University, 1985). 45. See Douglas B. Rasmussen, ‘‘Liberalism and Natural End Ethics,’’ American Philosophical Quarterly 27 (April 1990): 153. 46. John Emerich Edward Dalberg-Acton, Selected Writings of Lord Acton, vol.3, Essays in Religion, Politics, and Morality, ed. J. Rufus Fears (Indianapolis: Liberty Classics, 1988), 613.

256

defending liberalism

nearly every matter of morality. There especially would be no principled rights-based limit on what matters of morality should be enforced. This would undercut our attempt to show that people have a fundamental right to liberty, which overrides all other moral concerns in determining the fundamental character of polity’s political and legal institutions. Either liberty is tied to morality or it is a meaningless political ideal. But if liberty is tied to morality, then people cannot claim that they have a right in any principled sense to choose to do what is not morally proper. There is, however, a deep ambiguity in this dilemma.47 Are ‘‘right’’ and ‘‘ought’’ in the maxim, ‘‘liberty is the right of being able to do what we ought,’’ really best understood as guides to the individual in the conduct of his or her life, or are they better understood as directed more toward the requirements of the basic principles of a polity’s legal system? In other words, regardless of what Lord Acton might have intended, could not ‘‘the right of being able to do what we ought’’ mean that liberty is defined primarily in terms of what a polity’s legal system ought to protect and sanction and thus require of everyone? The law would, then, not be opposed to liberty but would provide the institutional context for its very existence. And could not the principles used to determine what a polity’s legal system ought to protect and sanction be principles whose aim and function is providing the political/legal structure for a social/political context of interpersonal living in its widest sense––rather than those that lead persons to selfperfection, for example, the virtues? In other words, could not the conception of rights as metanormative principles be the ethical notion that gives scope and determinacy to the concept of liberty? At this point in our argument, we can say that the answer to this question is clearly ‘‘yes.’’ Such a concept of rights, by protecting the possibility of self-direction in a social context, provides the link between—though not an identification of—ethics and politics,48 and thus allows us to slip between the horns of the dilemma. 47. In many respects, this dilemma is but a version of the objection we label the ‘‘metanormative dilemma,’’ which we discuss in Chapter 12, and thus what we say there is also relevant to the point at issue here. 48. In Liberty and Nature, 131–71, we argue that this conception of rights is just in what the common good of the political community consists. This view of the common good might in the final analysis be closer to Aquinas’s view than is generally thought. After all, Aquinas does differentiate between matters of justice that are morally binding and matters of justice that are morally and legally binding. Further, he notes that the common good of the political community does not require that all vices be prohibited, since human law is framed for any person and only vices that threaten social life itself, such as homicide and theft, should be prohibited. Also, such a view of the common good might be much closer to Aristotle’s view than is generally thought. See Miller, Nature, Justice, and Rights in Aristotle’s ‘‘Politics,’’ chap. 6.

communitarian and conservative critics

257

The Challenge of Eudaimonic Conservatism Leo Strauss has observed that ‘‘through the shift of emphasis from natural duties or obligations to natural rights, the individual, the ego, had become the center and origin of the moral world, since man—as distinguished from man’s end—had become that center or origin.’’49 The conception of individuality that lies at the foundation of natural rights classical liberalism has been a target of criticism for some time. This is not news. What is news and what is becoming more apparent to those who examine the issue is that the alternative Strauss presents in the above quotation is not mutually exclusive. As we have observed in Liberty and Nature, ‘‘Strauss’s dichotomy betrays a disturbing tendency, often found among proponents of natural right and natural law, to reify the concept ‘natural end’ and make it some good that competes with the good of individual human beings.’’50 David L. Norton, in Democracy and Moral Development, has also noted the nonexclusivity of Strauss’s alternative: Conditioned as we are by modernity’s conception of the individual, the question of replacing avarice as the thematic motivation in lives of persons is likely to leave us at a loss. What else could possibly serve? The purpose of this book is to propose the eudaimonistic answer, and that answer is love in the meaning of Eros. Thus understood, love is not exclusively or primarily interpersonal; it is first of all the right relationship of each person with himself or herself. The self to which love is in the first instance directed is the ideal self that is aspired to and by which random change is transformed into the directed development we term growth. When the ideal of the individual is rightly chosen, it realizes objective values that subsisted within the individual as innate potentialities, thereby achieving in the individual the self-identity that is termed ‘‘integrity’’ and that constitutes the foundation of other virtues.51 Norton desires to reconceptualize the individualism historically associated with classical liberalism so as both to retain the gains of classical liberalism and to overcome its moral minimalism. According to Norton, the crucial problem with the conception of indi49. Leo Strauss, Natural Right and History (Chicago: University of Chicago Press, 1953), 248. 50. Rasmussen and Den Uyl, Liberty and Nature, 92–93. 51. David L. Norton, Democracy and Moral Development (Berkeley and Los Angeles: University of California Press, 1991), 40.

258

defending liberalism

viduality historically associated with classical liberalism is that it is ‘‘nondevelopmental,’’ or, rather, there is only development within a single stage, namely for self-preservation. There is nothing more. There is no standard of self-perfection by which to distinguish satisfaction of desire from satisfaction of right desire—no way to distinguish Socrates’ satisfaction from that of a fool. Norton thus seeks to replace classical liberalism’s nondevelopmental conception of individuality with a eudaimonistic conception of the individual. By doing so, Norton seeks both to overcome modernity’s divorce of politics from virtue and to provide classical liberalism with what, according to him, it most notably lacks—a normative grounding for individual rights. Understood from his position, eudaimonistic moral and political theory holds responsibilities to be logically primitive, and so he conceives of his argument for individual rights as requiring an exchange of a ‘‘rights-primitive’’ conception of the individual for a ‘‘responsibilities-primitive’’ conception. In other words, rights are to be derived from responsibilities. Norton’s fundamental argument is as follows: If every person has the basic moral responsibility to discover and progressively actualize his or her innate potential worth, then by the logic of ‘‘ought implies can,’’ persons have a right (a moral entitlement) to what is needed to fulfill their basic moral responsibility.52 Norton contends that this argument will generate rights that are (1) not inherently adversarial or competitive; (2) both positive and negative; and (3) circumscribed by responsibilities. Norton holds that in order for the ‘‘ought’’ of self-actualization to be attributable to individuals, it must be the case that they can actualize their potential worth. Yet, ‘‘can’’ has both a conditional and unconditional sense. The unconditional ‘‘can’’ refers to what is possible for a person qua person, while the conditional ‘‘can’’ refers to what is possible for a person in certain circumstances. Norton argues that the effect of this distinction is that even though a person may be blocked by circumstances from doing what selfactualization requires, there remains an abstract moral obligation for a person to struggle against these obstacles. A person’s liability for failing to fulfill his or her basic moral responsibility may be proportionally diminished by circumstances, but this basic moral responsibility is not absolved. Thus, when it comes to the things that are needed for self-actualization, but that 52. Most of the paragraphs in this section are adapted from Douglas B. Rasmussen, ‘‘Reclaiming Liberalism,’’ The Thomist 58 (January 1994): 109–19. This argument is in some respects similar to Henry Veatch’s in Human Rights: Fact or Fancy? (Baton Rouge: Louisiana State University Press, 1985), 160–97.

communitarian and conservative critics

259

cannot be self-provided and can come from others, the moral responsibility on the part of others to provide these necessary conditions also remains. Norton states: ‘‘By the ubiquity of the abstract and unconditional ‘ought’. . . , it is the first responsibility of any society to provide such conditions for all persons.’’53 Norton divides basic rights into two classes: (1) rights that can be selfprovided, which are essentially to things and not against persons, and require only a protective perimeter of ‘‘negative rights’’; and (2) rights that cannot be self-provided, which are essentially claims to the positive performances of others, and thus are ‘‘positive’’ rights. According to Norton, one has a right to what one needs and can use in one’s primary moral work of actualizing one’s innate potential worth. Clearly, Norton starts from an ethical basis very much like our own, but he develops a conception of rights very different from ours. What are we to make of his argument? It seems to have the following structure. Suppose that in order for William to actualize his innate potential worth he must perform action M, this yields the premise: (1) William ought to do M. This is an obligation that William owes to himself. According to the ‘‘ought implies can’’ principle, (2) If William ought to do M, then William can do M. Therefore, it follows that (3) William can do M. Now, suppose that Mary (who has the ability to do otherwise) coercively interferes with William’s attempt to self-actualize and prevents William from doing M, or suppose that Mary (who has the means) fails to provide William with the means by which William might overcome obstacles that prevent him from doing M in a particular situation, then (4) Mary brings it about that it is not the case that William can do M. 53. Norton, Democracy and Moral Development, 111.

260

defending liberalism

Ignoring how it could be correct to say that Mary can, by failing to do something, cause William’s inability to do something, it is clear that even if Norton’s argument has established (4), it has yet to establish that (5) Nobody ought to bring it about that another person cannot perform his self-actualizing actions. It is certainly true that William has the obligation either to do M or to take actions to overcome any obstacles that prevent him from doing M, but this is a far cry from establishing any obligation on the part of others not to prevent William from doing M, let alone to provide William with the means by which he might do M. What other premises are there to Norton’s argument that might provide (5) with a justification? Norton claims that (6) eudaimonia is an objective value. It is not imputed, but recognized. As in response to Socrates’ question to Euthyphro, it is something that is desired because it is good. Norton claims that since eudaimonia is of objective worth, it is valuable not only to the individual who actualizes it, but to everyone else who can recognize it. Thus, it is ‘‘on the premise of innate potential worth in all persons, which is at the same time responsibility for actualizing this worth,’’54 that we impute responsibilities to persons unknown to us and affirm the basic dignity of all persons. An individual’s rights are derived from responsibilities. Norton seems, then, to be claiming that since eudaimonia is of objective worth, then William’s actualization of his innate potential worth is of value to Mary and vice versa. And if this is so, then everyone has a responsibility for actualizing this worth, regardless of whose worth it is. There are by now three familiar problems with this reasoning. Yet, it is worthwhile to state these problems again. First, it may be true that eudaimonia is an objective value, but it does not follow from this that its worth is the same for all individuals. Eudaimonia could be an agent-relative value such that the weighting that is given by person P1 to his achievement of eudaimonia, E1, is greater than what P1 gives to P2’s achievement of eudaimonia, E2. In other words, it is perfectly consistent for eudaimonia to be an objective value and yet essentially related to persons such that E1 gives P1 the primary moral responsibility of achieving E1 without implying any such responsibility for P1 achieving E2. Second, for everyone to recognize the objective worth of eudaimonia 54. Ibid., 110.

communitarian and conservative critics

261

does not mean that one person’s achievement of it is the same as another’s. We must recall a basic point, which we noted in Chapter 7, that Henry B. Veatch made: ‘‘That a certain good needs to be recognized, and recognized universally, to be the good of X, it by no means follows that X’s good must be taken to be Y’s good as well, any more than the actuality or perfection or fulfillment of X needs to be recognized as being the actuality or perfection or fulfillment of Y as well.’’55 Eudaimonia is not something abstract, but is found in the completion of our individual potentials. Third, universalization of the claim ‘‘One ought to actualize his innate potential worth’’ does not justify (5). It can be true that if actualizing P1’s innate potential worth is a basis or reason for P1 taking a certain action, then P2 actualizing his innate potential worth is also a reason for P2 taking a certain action, but this does not show either that P1’s innate potential worth is P2’s or that P1 has any reason to assist, or even not to interfere with, P2’s attaining his innate potential worth. Thus, it does not seem that Norton can find a justification for (5) by simply appealing to the objective character of eudaimonia. Is there any other premise to which Norton appeals? He also holds that eudaimonism rejects the idea that a human being is an isolated entity as well as subscribing to (7) that human beings are inherently social beings. Maybe this premise will allow Norton to justify (5). It depends on the plausibility of what Norton takes the inherent sociality of human beings to mean or imply. To say that we as human beings are inherently social certainly means that our natural origin is within society, not some state of nature, and that each of us needs to associate and cooperate with others in order to fulfill our individual innate potential worth, but to say this is neither to affirm nor to imply (5). The fact that human beings are naturally social does not establish that there are individual rights or even interpersonal duties; rather, it creates the necessity for attempting to determine what the basic principles of human social, political, and legal life should be. How can the individual innate potential worth of each and every person be achieved in a manner consistent with the inherent sociality of persons? Something stronger than (7) is needed to answer this question. Norton links (7) with a claim about the ‘‘common good’’ of a society. Eudaimonism holds (8) that ‘‘the common good is no more and no less 55. Henry B. Veatch, ‘‘Ethical Egoism, New Style: Should Its Trademark Be Libertarian or Aristotelian?’’ in Swimming Against the Current in Contemporary Philosophy (Washington, D.C.: Catholic University Press, 1990), 194.

262

defending liberalism

than the particular goods of individuals in complementary interrelationship.’’56 Norton claims that the complementary interrelationship of goods is implicit in the fact that the good that is to be actualized, conserved, and defended—the good that represents the individual’s achieved identity—is an objective good, that is, it is of value to others no less than to the individual who actualizes it. Because this is so, no life can be said to be fulfilled whose worth is not recognized and utilized by (some) other persons in their own self-actualizing enterprises. Correspondingly every well-lived life must utilize values produced by (some) other well-lived lives. And this is to say that within a society, every person has a legitimate interest in the essential personhood of every other.57 The move from ‘‘some other’’ to ‘‘every other’’ in this passage is legitimated, Norton claims, by the fact that those who produce the values upon which you or I rely have need of values that are produced by others, who in turn have need of values produced by others, and so on. This forms the basis for a community of true individuals. While it is certainly true that the actualization of a person’s innate potential worth is caught up in various kinds of relationships with other persons, there are still some problems with this argument. The fact that a significant number of a person’s potentialities are other-oriented in nature does not show either (a) that the actualization of P2’s potential is or should be of the same worth to P1 as the actualization of his own potential, or (b) that the fulfillment of P1’s potential cannot be achieved without the fulfillment of every other person’s potential. Surely, there are some other persons whose well-being is intimately tied up in one’s own, and maybe an empirical case can be made that shows how in certain circumstances one’s well-being and that of every other person amount to the same thing. Yet this is not something that flows from the very nature of eudaimonia. It is not something known a priori. To use Norton’s very words, ‘‘a duty to self can be at the same time a duty to others,’’58 but this does not suffice to establish that every person’s well-being requires an interest and concern in the well-being of every other person. Nor does it establish (5). Before ending these comments we cannot help but observe that Norton’s 56. Norton, Democracy and Moral Development, 124. 57. Ibid., 124. 58. Ibid., 119 (our emphasis).

communitarian and conservative critics

263

argument—though certainly powerful and moving in many ways—seems disconnected. Norton states very early in Democracy and Moral Development that eudaimonia is an inclusive end and that according to this interpretation, it is open-ended; that is, it allows for ‘‘a multiplicity of kinds of self-actualizing lives directed toward a multiplicity of ends.’’59 But if this is true, then eudaimonism, although an objective good, is also an individualized, agent-relative, and self-directed good, and it is only in terms of abstract principles that we can speak of eudaimonia being the same thing for different people. It is not concretely the same thing for any William and Mary.60 However, it does not seem that Norton recognizes the implications of this position for his evaluation of the economic decisions of people in classical liberal society. Norton speaks of people being distracted from actualizing their innate potential worth by possessions that engulf them and holds that no one has a right to more of a good that he or she can utilize. He speaks, for example, of people owning sports cars they cannot utilize or whose utilization takes them away from their life course. But given Norton’s view of eudaimonism, can such criticism be made from his philosophical armchair? While misuse of goods by an individual is certainly a real possibility, what this actually amounts to varies from individual to individual and is not something that can be determined from a mere abstract consideration of eudaimonia. When it comes to determining just what conduct eudaimonia concretely does or does not require of an individual, this can on be only determined by practical wisdom, and practical wisdom is only exercised when individuals confront the contingent and particular facts of their situations and resolve at the time of action what is truly the appropriate course of conduct for them. Determining, then, what concretely ought to be done to attain eudaimonia or what concretely ought to done to avoid dysdaimonia varies from individual to individual and is not something that Platonic Rulers or Norton can divine by some inspectio mentis procedure. The individualized character of eudaimonia, when conjoined with its other characteristics, has important implications for how the relationship between ethics and politics is conceptualized. Thus, when it comes to rejecting modernity’s divorce of politics from virtue, Norton should have been more cautious. Eudaimonism demands that severing any connection 59. Ibid., 6. 60. Showing that eudaimonia is not some kind Platonic eidos or Aristotelian generic form was one of the central points of Norton’s earlier book, Personal Destinies: A Philosophy of Ethical Individualism.

264

defending liberalism

between politics and ethics be rejected, but this does not require that ethics and politics be identified or have the same function. Neither does it require that ‘‘rights’’ be reducible without remainder to other moral concepts such as ‘‘responsibility,’’ ‘‘duty,’’ or even ‘‘justice.’’61 Rather, rights are an ethical concept that is not directly concerned with achieving the self-perfection of individuals but instead with providing moral guidance in the creation, interpretation, and justification of the overall structure the political/legal order provides the social/political context—that is, with solving liberalism’s problem. Indeed, in Norton’s acceptance of an inclusive-end interpretation of eudaimonia and dismissal of the idea that eudaimonia requires a convergence toward a single form of life as objectively the best, there is the basis for the recognition of the profound ethical significance of a liberal polity whose aim is not the creation of virtuous citizenry but the protection of liberty. We have sought to show that such a liberal polity is the proper political expression of a eudaimonistic reclamation of liberalism. Though such a polity does not guarantee that its citizens will be self-directed, much less conduct their lives in a self-perfecting ways, it does, through a legal system dedicated to the protection of the basic right to liberty, protect the possibility of their self-direction, and in this way provide a connection between ethics and politics.62

61. Nor does eudaimonia require that we assume that the goods of all individuals ideally exist in some complementary interrelationship. 62. Norton does discuss the concept of ‘‘self-direction,’’ but he seems to confuse it with ‘‘self-perfection.’’ See Democracy and Moral Development, 7.

Chapter Eleven the structure of the argument for individual rights ‘‘Rights’’ are . . . the link between the moral code of a man and the legal code of a society—between ethics and politics. —ayn rand, ‘‘man’s rights’’

The temptation in political philosophy to turn expressions of ethical perfectionism into some form of political perfectionism is very great. Indeed, most accounts of human flourishing actually require a political perfectionist program. Admittedly, such programs generally do not involve the political/legal order in every aspect of morality, but whatever the limits placed on the range and depth of that involvement, they are only practically based. Ethical perfectionism is usually not considered fertile ground for developing principled limits on the activities of political/legal orders. We have, however, provided an account of human flourishing that not only rejects political perfectionism, but also requires the development of the most principled of limitations on political/legal orders—namely, individual rights. We proceed in this chapter to set out in a step-by-step manner how our argument for individual rights proceeds. We are concerned here with the logic of our position—that is, putting in order much of what we have fleshed out in previous chapters. In doing so, it is our hope that our position on the nature and justification of individual rights will itself become clearer and more fully developed. We will start from our account of human flourishing, but before beginning, it is imperative that we explain the nature of the principles we are trying to establish.

Individual Rights as Metanormative Principles As we have noted in earlier chapters, we do not think that either critics or proponents of individual rights have adequately grasped their character. Individual rights are certainly ethical principles, but they are different from

266

defending liberalism

the standard normative principles usually encountered. Individual rights are not concerned either in attaining self-perfection or in achieving in general the conditions that make it possible. They are not even concerned with either requiring or making it possible for persons to act so as to give others their ‘‘appropriate due.’’ Nor, for that matter, are they concerned with establishing ‘‘justice among persons,’’ at least as this phrase is often understood. In fact, the difference between individual rights and other ethical principles is not even that rights are nonconsequentialistic.1 Rather, it is that they are of a different type and pertain to a different ethical order. Individual rights are principles that have to do with securing, maintaining, and, most important, justifying that condition in society necessary for the possibility that the various forms of human flourishing are not in structural conflict. As such, they are concerned with providing the ethical basis (or rationale) for the framework (or backdrop) necessary for the possibility of social life in which any and every person might be self-directed and thus might pursue a self-perfecting life. Individual rights are thus to be thought of as being concerned with justifying and determining the context necessary for the possibility of social life in which persons and groups can conduct themselves according to normative principles. Individual rights are metanormative principles. Though our justification for individual rights arises from the nature and character of human self-perfection, it by no means follows that the aim of the political/legal order is to be understood in terms of such self-perfection. To better appreciate this point,2 we should carefully consider our overall argumentative schema: 1. Rights are certainly nonconsequentialistic ethical principles, but that alone does not explain their nature. Other ethical principles are such as well. Indeed, if, as we argued in Chapter 6 as well as in Liberty and Nature: An Aristotelian Defense of Liberal Order (La Salle, Ill: Open Court, 1991), 58–62, human flourishing is both the ultimate good (a way of being) and how one ought to conduct oneself (a type of activity), then a natural end or virtue ethics in general, and an individualistic perfectionism specifically, transcend the traditional deontological/consequentialist approach to how we determine moral obligations. Moral obligation is determined neither apart from a consideration of human flourishing nor as a mere means to it. Further, the role of practical wisdom becomes crucial to the process of determining what one ought to do. Yet if this is the preferred approach to ethical obligation, where do rights fit in? Why do we need to have an irreducible concept of rights? We explicitly address this question in Liberty and Nature, 101–15. In this work, it is our account of liberalism’s problem that explains why we need such an ethical concept as ‘‘rights.’’ 2. The distinctions noted in the next three paragraphs, as well as our account of liberalism’s problem developed in steps 13–20, are also offered as a response to the concerns John Hasnas has expressed regarding the relationship between human flourishing, self-direction, individual rights, and political liberty when he considered our earlier work, Liberty and Nature. See Hasnas, ‘‘Are There Derivative Natural Rights?’’ Public Affairs Quarterly 9, no. 3 (July 1995): 215–32.

the structure of the argument for individual rights

267

1. Assume that self-perfection is the goal of any and every human being. 2. Next, assume that obtaining some set of conditions, call it political liberty, which is defined and morally sanctioned by individual rights, prohibits coercion—the nonconsensual use of persons by other persons. 3. Further, assume that coercion is incompatible with the nature of selfdirection. 4. And, finally, assume that self-direction is necessary for the possibility of self-perfection. To hold (2) and/or (3) does not mean or require that if one suffers coercion, then one’s self-perfection is impossible, because there might be other areas of one’s life where one has self-direction, and this might be enough to allow one to fashion a self-perfecting life. Also to hold (2) and/or (3) is not the same as saying that political liberty (or the absence of coercion) functions to produce self-direction or that political liberty (or the absence of coercion) ought to function to produce self-direction. Even if we expect political liberty (or the absence of coercion) to produce self-direction more often than not, it does not follow that it functions to produce self-direction as a sufficient condition for self-perfection. And obviously, if political liberty (or the absence of coercion) is a necessary condition for self-direction, then there may be other necessary conditions. And even if it were necessary and sufficient for self-direction, it does not follow that political liberty (or the absence of coercion) functions to produce self-perfection, since self-direction is only necessary for self-perfection, not sufficient. Thus, even if assumptions (1) through (4) are true and support a political/legal order based on individual rights, this does not require that the argument for such rights be based on there being some necessary relationship between ethical perfectionism and political perfectionism. One can advocate ethical perfectionism without having to advocate political perfectionism. As we have continually stressed, an order founded on individual, basic, negative rights will not necessarily secure for its citizens either human flourishing or its conditions. The necessity and need for individual rights does presuppose an account of human flourishing, but that does not mean that individual rights are justified in terms of either achieving or encouragFinally, they also pertain to the objections Richard Kraut expressed in his review of Liberty and Nature, in ‘‘Aristotelian Libertarianism,’’ Critical Review 11, no. 3 (Summer 1997): 359–72.

268

defending liberalism

ing that ultimate end, or even, in general, making it possible.3 The connection between individual rights and human flourishing is neither direct nor isomorphic.4 In Chapter 6 we set out our account of human flourishing, and in Chapter 7 we defended this account against some common criticisms. In Chapter 8 we differentiated our understanding of human flourishing from that endorsed by many natural law theorists. We also offered criticisms of new and traditional natural law conceptions of the common good of the political community and presented our own approach to this concept. Further, in Chapter 9 we argued that the self-ownership thesis is not sufficient to ground the claim for individual rights, and in chapter ten we responded to communitarian and conservative critics. It is to the structure and some of the fine points of our argument on behalf of individual rights that we now turn.

From Human Flourishing to the Natural Right to Liberty In Section I of what follows, we schematize our account of human flourishing. In Section II we do so with respect to what we have called ‘‘liberalism’s problem.’’ It should become evident in this discussion, if it is not so already, that our account of liberalism’s problem and the importance we give it arises from our conception of human flourishing. It does not come from any antecedent commitment to political liberalism. Further, we do not suppose that one can justify a liberal political order, or any political order, without recourse to a deeper ethical vision. The notion of ‘‘justificatory neutrality’’ in political philosophy is strictly illusory. Thus, we see ethical relativism and skepticism to be as inimical to political philosophy as they 3. The aim of individual rights is to secure the possibility of human flourishing, but only in a very specific way: through seeking to protect the possibility of self-direction among others. 4. There is a subtlety here that is worth pointing out. Although individual rights are not justified in terms of the achievement or encouragement of self-perfection, it is the case that (a) individual rights are justified because we are self-perfecting beings; and (b) the ethical framework that gives self-perfecting beings their normative principles is the same one that justifies individual rights. But this is not perfectionist politics because (a) politics is not in the service of self-perfection in any direct way and indeed allows for ⬃self-perfection; and (b) saying that because the theoretical framework is defined in terms of self-perfection that therefore a part of that framework (politics) must also be so defined is to assume that what is true for the whole must also be true for the part. Yet this is to commit the fallacy of division. That the self-perfection theory gives the political theory its context and legitimacy is not to say that the political theory is itself a theory of self-perfection—that is to say, a perfectionist theory.

the structure of the argument for individual rights

269

are to ethics. In Section III, we provide the steps showing how self-direction is the key to solving liberalism’s problem. In Sections IV and V, we give the steps in the argument for individual rights understood as metanormative principles and thus show that they provide the ethical basis not only for a liberal political/legal order, but also for politics itself. Throughout this discussion we use the term ‘‘self-perfection’’ to be synonymous with ‘‘human flourishing.’’

I. Human Flourishing: Individualized and Profoundly Social 1. Self-perfection is the good and the goal of any and every individual human being. 2. Since self-perfection is the goal, everyone, to the best that they are able, ought to conduct themselves in ways that will allow for its achievement. The first principle of practical reason is, as Aquinas noted, ‘‘good is to be done and evil is to be avoided’’—with what is ‘‘good’’ being what is self-perfecting. 3. Although there are generic goods and virtues that define human flourishing for any and every human being, in reality it is both individualized and agent-relative. This means two things: first, that one person’s concrete form of flourishing is not the same as someone else’s; and second, that it is realized, and thus only real, by individual action. It is not some common good. 4. Ethical obligations are a function of the determinations of practical wisdom. They are the product of rational judgment and rational acceptance of normative principles. But because of step 3, ethical reasoning is not agent-neutral or impersonal. Thus, ethical obligations are not necessarily universal. 5. Since the pursuit and achievement of one’s own concrete form of self-perfection is the moral purpose of each individual, and since there is no guarantee that one individual’s concrete form might not be substantially different from another’s, there can be morally legitimate differences among human beings in the way they pursue their self-perfection. That is to say, even if all human beings acted in a totally morally righteous manner, there could be ethically legitimate and substantial differences between them. 6. If P1’s good should diverge from P2’s good, the ability to universalize ‘‘P1 ought to pursue his good’’ to ‘‘Any and every person ought to pursue his or her own good’’ is not sufficient either to establish that

270

defending liberalism

P1’s and P2’s goods are the same, or to give a reason for either P1 or P2 to sacrifice the pursuit of his or her good for the other’s good. Universalizability is not sufficient to establish common goods. Nor does the nature of human flourishing offer any basis for an agentneutral or impersonal reason to prefer one form of self-perfection to any other. 7. It does not follow, however, that self-perfection is either a solitary pursuit or unshared. That all values must take shape within an individual agent’s nexus and according to the agent’s judgments does not imply the absence of others or that conceptions of values and the steps needed to achieve them cannot be shared with or influenced by others. 8. Self-perfection is not atomistic. Human beings are social animals not merely in the Hobbesean sense of needing others, because individuals are virtually powerless on their own, but in the fuller sense of human flourishing requiring a life with others. The self-perfection of any and every individual requires the actualization of potentialities that are other-oriented. It may also be the case that the perfection of self-oriented potentialities requires the presence of others. Philia in all its forms is central to the self-perfecting life. 9. To think that individuals can self-perfect independently and apart from others commits the fallacy of reification (in this case, of the individual) just as much as does thinking that human nature or society can exist independently and apart from individuals. 10. Acknowledging the need for philia, as well as social and community life in general, does not imply either that individuals must merely accept the status quo or that they are passively shaped by it. Human flourishing requires that a community’s values must also be processed by individuals and not merely blindly accepted by them. Individuals thus must adapt to, change, or exit from communities in order for self-perfection to be reached; but any of these choices can be described as a way of incorporating community into one’s flourishing. 11. In order to leave or change one’s community, it must be possible in principle for individuals to have relationships with others with whom there is only a potential for shared values. In other words, human beings are the sorts of beings for whom additional numbers of persons are not excluded a priori from sharing an agent’s values,

the structure of the argument for individual rights

271

nor is an agent excluded a priori from formulating values that accord with others. 12. The nature of self-perfection requires that it be possible for there to be relationships with others with whom no values are as yet shared, because human flourishing is an activity and not a static state. Hence, being concerned with one’s own flourishing requires continual reflection upon the nature and conditions for social life in a most open-ended or cosmopolitan sense.

II. Liberalism’s Problem 13. Any and every human being needs to discover and achieve his or her own form of self-perfection in an appropriate community and culture; but the divergent forms of self-perfection require a social context open to such divergent forms. Such a context is best understood as one that is open-ended, pluralistic, and cosmopolitan—a ‘‘Great Society,’’ as F. A. Hayek has called it. 14. The need for a cosmopolitan environment opens up the possibility that the divergent pursuit of ends may result in conflict among agents. If the conflict is of the sort that prevents the very possibility of pursuing self-perfection, that conflict should not be a structural feature of any social system. 15. How, then, is the appropriate political/legal order—the order that provides the overall structure to the social/political context—to be determined? What is its ethical basis? Since the structure provided by the political/legal order will rule over all equally, how can the universalism of political/legal structural principles square with the pluralism and self-direction required by human flourishing? Hence, how is it possible to have an ethical basis for an overall or general social/political context—a context that is open-ended or cosmopolitan—that will not require, as a matter of principle, that one form of flourishing be preferred to another? How, in other words, can the possibility be achieved that various forms of human flourishing will not be in structural conflict? The issue that results from trying to provide an answer for these questions we have labeled ‘‘liberalism’s problem.’’ 16. Liberalism’s problem arises from a consideration of the nature, character, and requirements of human flourishing. There is no agent-

272

defending liberalism

neutral preferable form of self-perfection, and no ‘‘artifice’’ of common universal norms or commands (for example, Leviathan) can be constructed to solve liberalism’s problem.5 17. If our account of human flourishing in Section I holds, then the ethical basis for a solution to liberalism’s problem must meet all of the following interrelated conditions: a) it must not structurally prejudice the overall social context more toward some forms of human flourishing than others—that is, it must respect the moral propriety of individualism; b) it must be universal or equally applicable to all forms of flourishing—that is, it must be social in the open-ended or cosmopolitan sense; c) it must be concretely present in any and every form of self-perfection—that is, it must be grounded in some common critical element that runs through any and every form of self-perfection (or its pursuit); d) it must appeal to some aspect of self-perfection in which every person has a necessary stake—that is, it must provide an agentrelative reason for a person to follow any principle that meets these other conditions; e) it must recognize the ethical obligation of individuals to pursue and achieve their own form of human flourishing—that is, it must recognize that different forms cannot be ranked independently of the agents that pursue them, and hence it must reject what we have graphically called ‘‘moral cannibalism’’; and f) its requirements of human conduct must be ones that any and all human beings can in principle fulfill—that is to say, these requirements must be realistic or nonutopian. 18. Together, conditions 17a–f do not constitute the basis for an ethical norm that offers guidance to individuals in seeking self-perfection. Rather, they constitute the basis for an ethical principle that regulates conduct so as to establish conditions that secure and maintain the possibility of individuals seeking their own forms of self-perfection 5. Leviathan can ‘‘solve’’ liberalisms problem by simply commanding a norm or set of norms to be followed by all. While this gets rid of the pluralism in a political sense, it does so at the cost of some versions of self-perfection itself. Indeed, the focus is not self-perfection at all, but order. For since the plurality does not disappear by limiting the set of permissible forms of self-perfection, it is actually not to self-perfection at all that Leviathan is looking, but to order for the sake of order.

the structure of the argument for individual rights

273

among others. This ethical principle is not used to guide conduct in pursuit of self-perfection because it does not consider the particular situation, culture, or nexus of persons—be they of a person’s self, others, or interrelationships. Indeed, this ethical principle is transcultural, transpersonal, and universal. It provides the general social context for the individualistic pursuit of self-perfection. Together, conditions 17a–f constitute the basis for an ethical metanorm. 19. A metanorm offers guidance in the creation, maintenance, interpretation, evaluation, and justification of the overall or general social context that secures the possibility of individuals pursuing their own forms of human flourishing. Ethical principles that meet conditions 17a–f are metanormative principles. 20. The solution to liberalism’s problem requires a metanormative principle.

III. Finding an Ethical Basis for Metanormative Principles A. Self-Perfection, Constituent Goods and Virtues, and Money 21. Self-perfection either exists conceptually in an abstract and universal manner or it exists in reality in an individualized and agent-relative manner. Attempting to make the state of being self-perfected the basis for a metanormative principle necessarily involves either (a) trying to employ some abstract and universal account of self-perfection or (b) using some specific form of self-perfection. If (a) is accepted, then one must try to determine from an abstract consideration of self-perfection alone what the proper weighting or balance of the generic goods and virtues are for any and every human being. This is, however, impossible. There are no a priori universal rules dictating the proper weighting or balancing for everyone— there is no agent-neutral weighting or balancing of generic goods and virtues. The generic good and virtues of human flourishing only have reality, determinacy, and value in relation to an individual’s nexus and through an individual’s excellent use of practical reason. Hence, even if (a) were not impossible due to individualizing generic goods, conditions 17c and d would be violated if (a) were employed. If (b) is accepted—that is to say, if some particular weighting of generic goods and virtues were used—then this would violate conditions 17a and 17b. Moreover, since one person’s form of self-perfec-

274

defending liberalism

22.

23.

24.

25.

26.

tion is not the same as another’s, conditions 17c–e would be violated as well. Finally, since many concrete goods are needed to secure a specific form of self-perfection and since providing these is beyond the abilities of some human beings, condition 17f would be violated. The state of being self-perfected, therefore, cannot be an ethical basis for a metanormative principle. No constituent virtue of self-perfection can suffice as a basis for a metanormative principle. Even though all individuals, if they are to flourish, must display, for example, integrity, courage, and justice in their lives, how these virtues are applied, to what and to whom they are applied, and their manner of integration with the other goods and virtues of human flourishing vary from person to person. Their worth and reality come only in relation to the individual’s nexus and through the individual’s exercise of practical wisdom. Such virtues are the same for everyone only from an abstract consideration, but concretely they are diverse. Hence, constituent virtues of self-perfection cannot be a basis for a metanormative principle. They violate conditions 17c and d. No constituent good of self-perfection—for example, friendship, pleasure, or knowledge—can suffice as a basis for a metanormative principle. The reasons for this are the same as those stated in step 22. Seeking to secure biological or physical well-being—which can be understood as the generic good of health—cannot be a basis for a metanormative principle because even this value only has worth in relation to an individual’s nexus and through his or her agency. An Olympic athlete perhaps exercises to perfect physical health, but it does not follow that the rest of us should sacrifice other goods to follow such a regimen. It would violate conditions 17a–d. Seeking to secure mere biological or physical survival cannot be made a basis for a metanormative principle, for this too only has worth in relation to considerations of an individual’s nexus. Indeed, sometimes, in certain situations, it can be better for particular individuals to greatly reduce their efforts to achieve survival for the sake of other generic goods, even if this increases the chances of death. So seeking to secure mere survival also would violate conditions 17a–d. Making mere biological or physical survival the end of all human conduct in order to find a basis for a metanormative principle is not an acceptable option either, for this would violate condition 17e. There is no ethical justification for asking individuals to conduct

the structure of the argument for individual rights

275

themselves in ways that do not express or achieve, or are otherwise unrelated to, their own form of self-perfection. 27. Seeking to secure a fungible good such as money cannot be a basis for a metanormative principle. Since money is a medium of exchange and store of value, it only has worth in relation to how it is used in a person’s life. The worth of an individual’s money to that individual is found only in the particular way it is used by him or her in fashioning a self-perfecting life. This varies greatly from person to person. Indeed, having money may not even be necessary to certain forms of human flourishing. Because money has no inherent worth, it cannot be a constituent of flourishing, for it has value only as a means to it. Thus, it would violate conditions 17b–d. 28. Yet if an ethical basis for a metanormative principle is to be found, it must be grounded in some inherent feature or constituent of selfperfection. Otherwise, it will not fulfill conditions 17b–d. Yet, it must also be a constituent that meets conditions 17a, e, and f. B. Practical Wisdom, Practical Reason, and Self-Direction 29. Self-perfection is an activity constituted by many goods and virtues that are final ends, but not all of these constituents are on the same order. There is an overarching final end that is more fundamental than all the others. This is the exercise of practical wisdom (phrone¯sis), the virtue that achieves, integrates, and unifies all the other ends that constitute human flourishing.6 It is through its exercise that the proper weighting or balancing of basic goods and virtues for the individual is determined. Without its exercise, no constituent end could be actual, determinate, or truly valuable—indeed no conduct could be right or appropriate, nor could any end be good or excellent. Practical wisdom is a human being’s unique excellence—areˆte— and first principle of operation. 30. Although practical wisdom is the proper use of practical reason, it is 6. It is important to note here something about why practical wisdom has priority for us. Since we allow for the possibility that one’s form of self-perfection is the life of theory, that would mean that the theoretical life is the end for that person. But that person must come to the recognition of that form of living as the end for her- or himself and maintain that conclusion. This puts practical wisdom—which determines the form of integration of one’s ends—at the center of all forms of self-perfection, making it, in some relevant sense, the end. We believe this must be the case with the inclusive-end versus the dominant-end approach to human selfperfection.

276

31.

32.

33.

34.

defending liberalism

nonetheless an exercise of practical reason,7 and the exercise of practical reason is not automatic. Regardless of one’s level of learning or degree of ability, one must initiate the activity of practical reasoning. The act of using one’s practical reason is an exercise of self-direction, and conversely the act of self-direction is an exercise of practical reason. They are not the separate acts of two isolated capacities, but distinct aspects of the same conscious act. Thus, practical wisdom cannot be passive. It cannot exist or be what it is unless individuals exercise their practical reason, unless they are self-directed. The capacity for self-direction is inherent to any physically normal human being, but its exercise is something that individuals must do for themselves. It is, by its very nature, not something that others can provide. Further, individuals do not choose to be self-directed as some separate act; rather, choice is self-direction. Self-direction is human agency and is primary. Self-direction is not ‘‘autonomy’’ as Mill or Kant would define it. Nor is it necessarily the proper use of practical reason, namely, practical wisdom. Finally, self-direction is not self-perfection. It is simply the act of bringing to bear one’s reason and judgment on one’s surroundings, making plans to act within or upon them, and conducting oneself accordingly. It may or may not issue in or be proper conduct. Nonetheless, our account of self-perfection shows that any and every human being ought to be self-directed. They ought to exercise their practical reason and thus think and act for themselves. Self-direction is appropriate for individuals not because of its consequences or proper exercise, but rather because it is the very condition for the possibility of any individual in any circumstance being practically wise and thus self-perfecting. Self-direction is the formal essence of any version of self-perfection.8 Generally speaking, being told that one ought to be self-directed or that one ought to exercise one’s practical reason is of little assistance

7. Not all uses of practical reason are instances of practical wisdom, but all instances of practical wisdom are uses of practical reason. See our discussion of practical wisdom in Chapter 6. 8. It is the analysis of the very nature of human flourishing that reveals the propriety or rightness of self-direction. As stated in Chapter 4, self-direction is the central necessary constituent or ingredient of human flourishing. No other feature could be a constituent or ingredient without self-direction. Self-direction is what makes human flourishing a personal activity, rather than simply a behaviorial act, on the one hand, or a static, nonrelational state of being, on the other.

the structure of the argument for individual rights

277

when it comes to normative ethics. Normative ethics is concerned with one’s choosing well or using one’s practical reason in a proper manner. Normative ethics is not concerned with simply choosing or exercising practical reason. Yet, there is a context in which this ethical advice is very important, and it pertains to our search for an ethical basis for a metanormative principle. C. Self-Direction as the Basis for Metanormativity 35. Providing conditions that will assist people in enhancing selfdirection9 —for example, providing people with educational opportunities—will not, however, constitute an ethical basis for a metanormative principle. a) What is being called self-direction in this case may in fact not really be so, but rather may be similar to Kantian or Millean ‘‘autonomy,’’ and, if this is the case, then self-direction is being considered as more or less equivalent to self-perfection abstractly considered or some particular version thereof. Accordingly, trying to enhance self-direction in this sense would be subject to the objections noted in step 21. b) Further, if human beings are purposeful actors, what conditions may assist one person’s exercise of self-direction may not necessarily assist another’s. If the proposed conditions for assistance are universalized, they will build in a structural bias toward some particular way of expressing an end—thus violating condition 17a. If they are not universalized, then they may not assist at all or stand in conflict with what might assist some individuals—thus violating condition 17b. The only form of ‘‘assistance’’ that could be universalized without structural bias would be nondirectional and context-providing assistance. And even such assistance would still have to meet and be interpreted in light of conditions 17a–f. 9. Samuel Fleishacker argues for this option in A Third Concept of Liberty: Judgment and Freedom in Kant and Adam Smith (Princeton: Princeton University Press, 1999). He states that ‘‘if the making of judgments is essential to liberty, then a government concerned to protect the liberty of each of its citizens must provide the conditions for those citizens to develop their judgments, and not merely stand aside to let them act on untutored desires’’ (19). T. L. Zutlevics, ‘‘Libertarianism and Personal Autonomy,’’ Southern Journal of Philosophy 39.3 (Fall 2001), 469 also makes this point. But see the section ‘‘Making Self-Direction Possible for the Extremely Poor’’ in Chapter 12.

278

defending liberalism

c) The connection between the provided assistance and someone’s exercise of self-direction is only contingent and particular. So the provided assistance could neither meet conditions 17b–c, that is, equal applicability to all forms of human flourishing, concretely present in every form of flourishing, nor meet condition 17d, namely, be something in which every person has a necessary stake. d) If there were a necessary connection between such assistance and self-direction, this would end up destroying the very character of self-direction. e) Indeed, it is one thing to help someone in achieving one of the constituent goods of self-perfection, and it is quite another to assist someone in being self-directed. Again, it seems that selfdirection is being used equivocally and is really but another name for the right exercise of practical reason, rather than simply the exercise of reason itself. If we are truly speaking of self-direction, it is not something for which one can provide assistance. 36. On the other hand, if we merely seek to protect the possibility of self-direction in a social context—that is to say, if we merely seek to establish the political/legal structural conditions that protect the possibility of self-direction in a social context—then the following holds true. a) We do not structurally favor or prejudice one version of self-perfection over any other because it is the act of practical reason that is being protected, not the achievement of its object. There is no conflict with the moral propriety of individualism. b) Something that is not only common to, but indeed required by, every form of human flourishing is protected. Every form involves the excellent use of practical reason, and to use practical reason is to exercise self-direction. In protecting the possibility of self-direction, we protect something that is equally applicable to all forms of self-perfection and is thus social in the open-ended or cosmopolitan sense. c) We protect something that is concretely present in every form of self-perfection. It is through practical wisdom that generic goods and virtues achieve reality, determinacy, and value for an individual, and it is through the agency of the individual that this most basic virtue functions. Self-direction is thus central and necessary to the nature of self-perfection. It is both common to all acts of

the structure of the argument for individual rights

279

self-perfection and peculiar to each. It is the common critical element that runs through all forms of self-perfection. d) An aspect of human flourishing in which every individual has a necessary stake is protected. Regardless of one’s form of flourishing, it is good for one to be self-directed. Everyone’s flourishing necessarily involves exercising self-direction, without which nothing could be good-for an individual. Thus, everyone has an agent-relative reason to be self-directed and have the possibility of his or her self-directedness protected. e) We recognize that each and every individual ought to pursue and achieve their own form of human flourishing and that no form of flourishing is objectively or naturally superior to any other. Protecting the possibility of self-direction in a social context does not require that any form self-perfection be preferred to another; for as noted above, it is the act of self-direction that is protected, not the achievement of its object. 37. Protecting the possibility of self-direction in a social context clearly meets conditions 17a–e, and we shall see in Section IV how it meets condition 17f. We have found no other aspect of or means to human flourishing that meets these conditions.10

IV. Individual Rights: Protecting the Possibility of SelfDirection Among Others 38. Though speculative and practical reason are both self-directed, our primary concern is with practical reason, where self-direction involves making one’s own judgments and conducting oneself in accordance with them.11 10. Even if we were to find some other aspect of self-perfection that met conditions 17a–f, that aspect could not be more fundamental than self-direction and thus would have to be compatible with self-direction’s requirements. 11. The extent to which these judgments are influenced by urges, passions, or desires—be they fleeting or enduring—are of ethical interest, but these considerations do not by themselves render one’s conduct not one’s own. Being moved by one’s desires is not sufficient of itself to eliminate the exercise of practical reason. It should be acknowledged, however, that it is possible for one to be in situations where extreme environmental or psychological pressures cause emotions that produce reactions for which one is not responsible. Further, there may be situations where one is still responsible for one’s conduct, but the degree of self-direction is mitigated by circumstances. Determining whether or not one is self-directed can be a highly complicated matter in certain situations. Also, such issues as whether or not one is responsible for being in these extreme situations can be pertinent. However, since our concern is political, we need not consider these issues here, but see Chapter 4, note 16. See also our discussion in section ‘‘Desires

280

defending liberalism

39. Moreover, since human beings are not noumenal selves, self-direction pertains not merely to psychic events, but to the conduct in space and time of individual flesh-and-blood beings as well. 40. Self-direction does not exist for an individual when another person directs that individual without her or his consent. A person being used in this way is not able to follow his or her choice. 41. The single most basic and threatening encroachment on self-direction is the use of physical force.12 42. Since protecting the possibility of self-direction in a social context solves liberalism’s problem—that is, it fulfills conditions 17a–e (and, as we will see, condition 17f as well)—and since using persons without their consent is incompatible with the possibility of self-direction, a principle that required that individuals not be used or directed without their consent—a principle that banned the initiation of physical force by some persons against others in all its forms13 and authorized such force only for the protection and preservation of the possibility of self-direction—would be a metanormative principle. 43. The individual, basic, negative right to liberty prohibits all forms of nonconsensual use or direction of persons. That basic right provides the ethical basis for legally proscribing all forms of initiatory physical force and authorizing the use of physical force only for the protection and preservation of the possibility of self-direction in society. 44. The individual right to liberty is a metanormative principle. This right regulates human conduct regardless of considerations of situation, culture, or nexus.14 This right is based on something that every concrete form of human flourishing must have. 45. This right is an individual right because it is possessed by individuals. This right is also basic in the sense that it is not the result of the exercise of some more basic right. Further, it is ‘‘negative’’ in that it and Self-Direction’’ in Chapter 7, as well as Jonathan Jacobs’ excellent discussion of these and related issues in Choosing Character: Responsibility for Virtue and Vice (Ithaca: Cornell University Press, 2003). 12. See Chapter 4, note 15. Further, for a helpful discussion of many of the conceptual issues involved in an analysis of coercion, see Michael J. Gorr, Coercion, Freedom, and Exploitation (New York: Peter Lang, 1989); and Alan Wertheimer, Coercion (Princeton: Princeton University Press, 1987). 13. Murder, assault, battery, rape, kidnapping, robbery, theft, extortion, and fraud are the sorts of activities proscribed. 14. This is not to say that the range of applicability of the concept of rights is unlimited. ‘‘Rights’’ only have a point where social and political life is in principle possible. On this point, see Liberty and Nature, 144–51.

the structure of the argument for individual rights

281

imposes an obligation of restraint on how individuals must be treated by others—specifically, it requires that others refrain from using or directing their lives, resources, or conduct without their consent. 46. It should be clear that the only type of right we possess that is consistent with a solution to liberalism’s problem is the basic negative right to liberty.15 What so-called positive or welfare rights seek to provide violates conditions 17a–f. Further, such ‘‘rights’’ require that the lives, resources, and conduct of individuals be used or directed without their consent. They encroach upon the self-direction of persons, interfere in their lives, and treat individuals as objects for nonconsensual use by others. 47. The basic negative right to liberty recognizes two fundamental ethical facts: first, that individual human beings are ends in themselves whose own mode of self-perfection is their moral purpose; and second, that individuals are social beings whose self-perfection requires the possibility of a social context that is open-ended or cosmopolitan. a) Socially, this basic negative right to liberty translates into compossible and equal freedom for all. This freedom must be equal in the sense that it allows for the possibility of diverse modes of human flourishing and, therefore, must not be structurally biased in favor of some forms of flourishing over others. It must be compossible, which is to say, the exercise of self-directed activity by one person must not encroach on or diminish that of others. b) With respect to the individual, this basic negative right to liberty is not directly concerned with the promotion of self-perfection itself, nor with the consequences to oneself or others, but only with the political/legal condition for the possibility of self-direction. The individual remains solely responsible for his or her selfperfection. 48. It is conceivable that one may violate another’s rights and produce a chain of events that leads to consequences that could be to that other’s apparent or real benefit, or that one may not violate another’s 15. It should be emphasized that this basic negative right to liberty is concerned with protecting the condition under which self-perfection can occur among others. Obviously, securing the basic condition for the possibility of self-perfection is logically prior to and distinct from the actual pursuit of self-perfection. In addition to the restraint imposed upon others by the right to liberty, securing the condition is essentially ‘‘negative’’ for two other reasons: (a) self-directedness does not imply or guarantee self-perfection; and (b) one person’s self-perfection is not exchangeable with another’s. In other words, the aim of the right to liberty is not directly and positively to secure self-perfection, but rather to protect, and thus prevent encroachments upon, the condition, that is, self-direction, under which self-perfection can exist.

282

defending liberalism

rights and produce a chain of events that leads to one’s apparent or real detriment. The negative right to liberty is independent of consequentialist considerations. 49. This negative right to liberty imposes on persons the obligation to refrain from initiating physical force in any or all of its forms against other persons. Since this only requires that persons not use or direct others without their consent—in effect, that they do nothing—this is an obligation that everyone in society is in principle able to respect.16 Protecting the possibility of self-direction in a social context thus fulfills condition 17f. 50. Even though this argument for individual rights makes no appeal to a state of nature, the basic negative right to liberty is nonetheless a natural right. It is so because it is a moral claim that exists prior to any convention or agreement, regardless of whether someone is a member of a particular society or community, and because it is due to the possession of certain natural attributes by virtue of which someone is said to be a human being. This right is linked to our natural capacity for and need to choose, reason, and be social. 51. The individual, basic, negative, natural right to liberty defines and sanctions the political/legal conditions that constitute liberty. Political liberty protects the possibility of self-direction in society and is thus the solution to liberalism’s problem.

V. Justifying the Political/Legal Order: The Question of Legitimacy 52. If a political/legal order is to have any legitimacy, it must have some connection to ethical concerns or principles, for legitimacy itself is an ethical concept. 16. Creating and maintaining the political/legal order that protects and enforces this basic obligation is, however, quite a complicated matter. But we are here only concerned with noting that respecting the basic negative right to liberty is a demand that is in principle possible for individuals to follow and not with issues concerning the actual implementation of such a political/legal order or the importance of a culture that values the basic negative right to liberty. (For a discussion of the value of creating a culture that understands the meaning and importance of liberty, see ‘‘The Challenge of Communitarianism’’ in Chapter 10.) Yet, we do think our approach to politics has the virtue of steering a middle course between the two extremes of political idealism and political cynicism. It is not necessary for the political/legal order to attempt to create moral excellence or engage in soulcraft in some form or other in order to get people to respect the basic negative right to liberty. The most that is required of individuals is orderly conduct (see our discussion of the distinction between ‘‘moral excellence’’ and ‘‘orderly conduct’’ in Chapter 4), and perhaps not even this, for all that may be necessary is that people

the structure of the argument for individual rights

283

53. Yet, it cannot be assumed a priori that there is any connection between the ethical order and the political/legal one. Indeed, it might be the case that there can be no morally legitimate political/legal orders. 54. Further, even if there is some connection between the two, it does not follow that the connection is either direct or isomorphic, and certainly there is no basis for assuming, at least at the start, that the two orders are identical. So, determining the nature of the connection between these two orders is the central task of political philosophy, because the determination of this connection provides the basis for the ethical legitimation of political/legal orders. 55. Thus, it is never sufficient in political philosophy merely to show that doing X either ought or ought not to be done. Rather, it must also be shown why doing X ought to be a political/legal concern. It cannot validly be assumed that politics is simply ethics writ large. 56. Since a political/legal order is concerned with enforcing principles that regulate the conduct for everyone in society, a morally legitimate political/legal order must be based on a metanormative principle, given our account of self-perfection. Thus, finding a solution to liberalism’s problem is in essence finding a solution to the problem of political legitimation. 57. Further, since the individual, basic negative right to liberty is a metanormative principle, and since this right (which can also be expressed in other ways, for instance, as either the basic negative right to life or private property [see Chapter 5]) is the only such principle we have, then this right provides the basis for the solution to the problem political legitimacy. It determines the nature of the connection between the ethical and political/legal orders. The moral purpose of such orders, and thus the standard by which they should be judged, is political liberty. 58. If the foregoing argument is sound, then there is a perfectionist basis for the individual, basic, natural, negative right to liberty and thus a moral basis for the classical liberal claim that the political/legal order’s purpose is not to engage in soulcraft. That is to say, there is a perfectionist basis for non-perfectionist (and nonmoralistic) politics.

conduct themselves according to what the legal system requires with little or no appeal to moral principles and only with regard to what they understand as their perceived advantage. See our discussion of this issue in Liberty and Nature, 193–98 and 224–25.

Chapter Twelve defending individualistic non-perfectionist politics Indeed, a major aim of the liberal is to leave the ethical problem for the individual to wrestle with. The ‘‘really’’ important ethical problems are those that face an individual in a free society—what he should do with his freedom. There are thus two sets of values that a liberal will emphasize—the values that are relevant to relations among people, which is the context in which he assigns first priority to freedom; and the values that are relevant to the individual in the exercise of his freedom, which is the realm of individual ethics. —milton friedman, capitalism and freedom (emphases added)

We heartily accept the spirit of Friedman’s description of liberalism here, but we differ with him when it comes to his grasp of its exact nature. The context in which freedom is given priority over all other values does indeed pertain to relations among people, but this is not sufficient to set the context in which freedom is given first priority. Robinson-Crusoe-without-Friday reasoning is not adequate to capture the nature of individual ethics. Individual human flourishing is in its very nature social, not something isolated. Further, friendship, and various forms of other-concern are necessary features of self-perfection. In addition, there are other human goods and virtues that can outweigh liberty when it comes to deciding what must be done for an individual to flourish among others. Thus, it cannot be that the social dimension alone defines the context where freedom or liberty is given first priority. Something more is needed to characterize the context in which liberty is to be given such priority. We have argued that the proper context for the prioritization of liberty can only be seen in light of a problem that a thorough examination of the nature of human flourishing reveals. In Chapter 11 we described this problem as follows: How is the appropriate political/legal order—the order that provides the overall structure to the social/political context—to be determined? What is its ethical basis? Since the structure provided by the political/legal order will rule over all equally, how can the universalism of political/legal structural principles square with the pluralism and self-direc-

defending individualistic non-perfectionist politics

285

tion required by human flourishing? Hence, how is it possible to have an ethical basis for an overall or general social/political context—a context that is open-ended or cosmopolitan—that will not require, as a matter of principle, that one form of human flourishing be preferred to another? How, in other words, can the possibility be achieved that various forms of human flourishing will not be in structural conflict? This is ‘‘liberalism’s problem.’’ Further, we noted in the previous chapter that a solution to liberalism’s problem requires an ethical principle that meets conditions 17a–f.1 These interrelated conditions result from our analysis of human flourishing and constitute the basis for an ethical principle that regulates conduct so as to secure and maintain the possibility of individuals seeking their own form of self-perfection among others. Such an ethical principle is not used to guide conduct in pursuit of self-perfection, because it does not consider each individual’s particular situation, culture, or nexus. Rather, such an ethical principle provides the general social context for the individualistic pursuit of self-perfection. It pertains to a different ethical order and is thus of a different type. It is a transcultural, transpersonal, and universal principle, an ethical metanorm. Finally, we have argued that only a principle that protects the possibility of self-direction among others could meet conditions 17a–f and that the basic, negative, individual right to liberty is such a principle. It is a metanormative principle. This right is concerned with providing the ethical basis (or rationale) for the framework (or backdrop) necessary for the possibility of social life in which any and every person might be self-directed and thus might pursue a self-perfecting life. Individual rights are concerned with justifying and determining the context necessary for the possibility of social life in which persons and groups can conduct themselves according to normative principles. This is our view of both the context that requires that liberty be given first priority, and the principle that gives it ethical meaning, and it is also the reason we have given for liberalism being a political philosophy of metanorms. We have yet, however, to consider specific criticisms of our view. What follows is a consideration of objections to our argument. These objections have in some cases been suggested to us,2 and in other cases, they 1. See Chapter 11, 272. 2. N. Scott Arnold, Alessandro Biasini, Colin Bird, Travis Cook, David Copp, David Forte, Paul Gaffney, Gerald Gaus, M. P. Golding, David Gordon, John Hasnas, Lester Hunt, CarrieAnn Biondi Khan, Loren Lomasky, Roderick Long, Tibor R. Machan, Eric Mack, Fred. D. Miller Jr., Christopher W. Morris, Jan Narveson, Tom Palmer, Jeffrey Paul, David Schmidtz, John

286

defending liberalism

simply occurred to us in the process of formulating our argument. We will state each objection and offer our response.

The Metanormative Dilemma Objection: Metanormative principles are primarily supposed to define a legal or constitutional framework, but have at best a tangential role in individual deliberation about the good life. They do not guide individual action in any direct way, and may in fact be completely divorced from action-guiding norms applied by individuals in their private conduct. With this in mind, the metanormative approach seems to be caught in a dilemma. On the one hand, it would seem to be the case that rights do not provide individuals with reasons to act in certain ways. That is, suppose person A has a basic right not to be coerced by person B, one that the legal order recognizes and enforces. Does or can A’s possession of this right itself give B a reason not to coerce (apart from the disincentives provided by the threat of punishment)? If it does or can, then it seems that metanormative principles can enter into B’s practical deliberation as to how B should behave as a private agent. But then the line between the merely normative and the metanormative blurs significantly and may disappear from view completely. Suppose, on the other hand, A’s right really is deeply metanormative, such that it cannot provide B (a private person) with a reason not to coerce A, but is only intended as a structural guideline for those formulating constitutional ground rules for a just society. In this view, statecraft (applying metanormative principles) and soulcraft (pursuing agent-relative flourishing) are completely insulated from each other. But then the theory being proposed is radically out of kilter, not just with philosophical theories of rights, but also with the actual practice of rights enforcement in a liberal legal order. Consider, for example, legal responsibility for a crime; if the legal right that was violated by the criminal was not something that gave the criminal a reason not to do it (because legal rights are metanormative and therefore do not bear upon private deliberation about how to act), how can we fairly regard that individual as legally responsible for the violation? Criminal Tomasi, Peter Vallentyne, and Michael Zuckert have suggested in various contexts possible objections to our views.

defending individualistic non-perfectionist politics

287

responsibility presupposes that agents are able to internalize legal rules and to recognize their reason-giving force in their daily conduct. Reply: This objection presupposes that there can only be one type or category of ethical reason for conduct, which, of course, would make sense in an equinormative framework. Yet, this framework can be rejected, as we have seen, because it is possible for human flourishing to be the basis for all ethical principles without all ethical principles being reduced to the same modality or function. Human flourishing reveals the need for an ethical principle that will provide the basis for the overall structure of society compatible with the individualized, social, and self-directed character of human flourishing. This is another type or category of ethical principle, since it is not concerned with the issue of flourishing directly. This category is what we have termed metanormative. We can thus avoid this dilemma by noting that our reasons for acting within a legitimate political/legal order are based upon the stake we each have in there being such a legitimate order, rather than the stake we have in following principles that exhibit moral perfectibility or flourishing. It is true that the link to both sorts of ethical principles (the metanormative and the normative) is self-direction, but self-direction is purposeful, suggesting that the reasons for conduct can be different because purposes can be different. Protecting the possibility for self-direction among others is one possible ethical concern, but what it requires and the problem it addresses is something far different than what is necessary for human flourishing. The ethical purposes for our conduct, though based in the character of individualistic self-perfection, can thus be different. This is perhaps a logical way out of the objection. Still, it might be tempting to say that in respecting another’s rights according to the principles of metanormativity we are, in that very act itself, exhibiting a form of moral perfectionism that blurs the distinction between principles that guide us toward self-perfection or flourishing and those that have no bearing upon it. For it would seem that B has to be in some sense ‘‘good’’ in making the decision to respect A’s rights—the same goodness that appears in ordinary cases of moral perfectibility. This sort of argumentative move should, however, be resisted, because of its flattening effect upon the nature of morality—that is, in its tendency to reduce all forms of ethical conduct to one type of roughly equivalent value. In particular, it supposes that all of

288

defending liberalism

the ethical principles generated by individualistic self-perfection must function in the same way or manner. But this is by no means necessary. The simple fact is that respecting rights, although certainly a matter of following an ethical principle, is neither the essence of the moral life nor a particularly noteworthy accomplishment of moral perfection. If, however, we ignore what we have said so far in response, the objection still does not tell against the distinction between metanormative and normative. We have never claimed that the metanormative is divorced from ethics, so the intentional following of appropriate action-guiding principles will have some structural similarities in both the normative and metanormative cases (that is, they were both willingly and knowingly chosen). But this in no way affects the distinction. For to say that one obeys the rules of a baseball game while playing is quite different from saying one is a good player or even that one really understands what it takes to play well. Consequently, while it can be said that one who respects the rights of others is a morally ‘‘better’’ person than one who does not, this is a sign that one is a player in the moral universe within a social context, not that one is yet a good player, or even that doing so is an instance of good playing. That one leaves the field when one strikes out rather than running to first base is an instance of respecting the rules, but not an instance of good baseball playing. Similarly, respecting metanormative rules is necessary for the moral game to be played, but it is not an instance of playing it well or even playing it much at all. For just as it is action within the rules of the game that calls forth principles of ‘‘proper’’ (that is, optimal) conduct within a baseball game (for example, bunting in this situation, hitting a sacrifice fly in that), so performing our obligations and achieving moral perfection take place within the metanormative framework. In sum, the structural materials of ethical life are similar to appropriate metanormative conduct—namely, principled, chosen behavior occurs in both. But the ends of such actions are quite different between the metanormative and normative, and metanorms are not standards of moral excellence.

Once Again, Why Respect Rights? Objection: If rights are metanormative principles that concern the basic structure of a civil order, how can they be said to provide any moral guidance to individuals? If one person murders another, for example, does not the one violate

defending individualistic non-perfectionist politics

289

the other’s rights, and is it not appropriate to say that one ought not to do such a thing? And if one is told not to do such a thing, is it not the case that an ordinary moral norm has been provided and that one is under an ordinary obligation to refrain from such actions? Further, would not one have this obligation irrespective of the presence of the state (as Locke suggested) in the sense of there being a natural right on the part of each of us against such actions? Reply: At the risk of some repetition, it is important that we be clear about the status of rights in answering these questions. Rights are not ethical principles in the sense of guiding us toward the achievement of our self-perfection. And contrary to appearances, they are not ordinary interpersonal normative principles either. Rights express the ethical principle that must obtain if we are to reconcile our natural sociality with diverse forms of flourishing. We need, in other words, social life, but we also need to succeed as individuals approaching a particular form of flourishing. Norms or ethical principles that specify how to live among others and the obligations one is likely to incur in such a life are one thing; norms or ethical principles that define the setting for such interactions and obligations are quite another. The ‘‘obligations’’ one has to another in the latter case are due to a shared need to act in a peaceful and orderly social/political context.3 The obligations one has in the former case are a function of what is needed to live well and cannot be generated apart from the particular actions, context, culture, traditions, intentions, and practices in which one finds oneself acting. Those actions and contexts call forth evaluative norms by which success, propriety, and merit can be measured and judged in particular cases. Metanorms (which for us turn out to be basic, negative, individual rights) are not, however, called upon by the progress of a culture or individual, but rather depended upon. From our perspective, then, it is likely that something multifaceted4 is taking place in the example where one person murders another. 3. In our earlier work, Liberty and Nature: An Aristotelian Defense of Liberal Order (La Salle, Ill.: Open Court, 1991), 144–51, we discuss those situations where normative principles and metanormative principles are in conflict, as well as where social and political life is impossible. 4. We mean by this that there can be overlapping obligations. A person can be obligated not to steal or murder because of considerations of self-perfection, for example, what the virtue of justice requires, and a person can as well be obligated not to steal or murder because of the requirement of basic rights—that is, on the basis of a metanormative principle. Thus, a person can have obligations from both sources. Yet the reasons for these obligations remain distinct. See our brief discussions of the virtue of justice in Chapter 7 as well as in our response to the

290

defending liberalism

At one level, the person’s natural rights are being violated. That is, by our nature as social and diverse creatures, the action in question is not suited to setting an appropriate context for human flourishing; nor does it seem likely that it will be conducive to actual progress toward flourishing itself. The latter aspect, however, is very much tied up with moral elements other than those needed to set a basic context (for example, considerations of country, family, friends, fellow citizens, the law, and so forth). The moral norms at work here presuppose an environment where moral conduct is possible. In addition, they specify the sort of conduct that will be considered appropriate or worthy or justified. In the case of basic, natural rights, by contrast, the obligations are not so much to individuals per se because such rights are fashioned independently of particular practices, circumstances, and agents. Basic rights are ethical principles that apply to no one in particular and to everyone equally. In this respect, the standard sort of state-of-nature analysis may actually confuse the issue, rather than help clarify it. We are tempted to abandon the social and ask what one would be obligated to do if there were no law, society, culture, or political authority around one to define any duties. If one person does injury to another in such a state of nature, it looks as though only one level of obligation is present, since, by definition, there is no particular society or political context to offer any other. The normative and metanormative seem to collapse into the single duty of respecting another’s natural rights. Securing the setting (noninterference), in other words, appears to be the same as undertaking appropriate conduct itself. It may be, of course, that we are obligated to take some actions because of their necessary connection to achieving an appropriate context for ourselves and others. In this respect, metanormative obligations would be no less important and binding than any others. But injuring another in a state of nature recalls more than simply signifying conduct in violation of actions needed to secure and maintain the appropriate conditions for the possibility of flourishing in a social context. Such an action calls forth a whole normative tradition about the proper treatment of persons. This is fine provided that we distinguish the metanormative from the normative elements. But a state-of-nature analysis does not allow us to do this well. Murobjection titled ‘‘Rawls, Justice, and Metanormativity: Are there Other Metanormative Principles than Rights?’’ in this chapter. The virtue of justice is, of course, a most difficult and complicated subject, and its usefulness for political philosophy is highly limited. To gain a sense of some of the problems to be found in trying to ground rights on the basis of respecting everyone, or giving everyone their due, as ‘‘ends in themselves,’’ see Chapter 9.

defending individualistic non-perfectionist politics

291

der, for example, is usually defined by particular social, political, and cultural contexts. To abandon these for the state of nature gives us the illusion that society is only marginally relevant to a determination of what will count as murder and that all norms or ethical principles are context-setting norms (for example, rights). Individuals must, therefore, respect the natural rights of others not because they will be better persons or be ‘‘doing the right thing,’’ but because their very ability to act jointly as persons depends upon securing the conditions necessary for such action.5 A state-of-nature approach may help us identify those metanormative principles, but it does next to nothing toward generating the normative rules or obligations that are equally necessary for a life of moral excellence. For that, one needs actors in concrete social settings. Consequently, if the metanormative conditions are threatened or destroyed (for example, by a Nazi takeover), the language of natural rights would not be inappropriate. It is both right by nature (that is, by appeal to human nature) that a certain context for human action be secured and a right (in the sense of a claim about a certain sort of treatment due one) that one not be treated in certain ways in light of what is necessary to secure that context. What one cannot do is pretend that when one refers to murder in a state of nature the reference is devoid of any conception of social life. The full horror of a violation of someone’s natural rights comes precisely because one has an idea of how human beings should treat each other both in civilized society and with respect to what it takes to establish such a society. Our point here, then, is that state-of-nature analysis is usually parasitical upon civilization.6 No one unfamiliar with civilized life could disseminate Hobbes’s rules for peace as found in chapter 15 of Leviathan.7 Part of the problem we are addressing arises because we are under the illusion that we can imagine ourselves as asocial beings. Asocial beings might worry about why they have any obligations at all toward others. One 5. Joint conduct is a requirement of flourishing given our social nature. Thus the problem of providing a framework for social interaction is therefore inescapable as much as it is beneficial. We refer the reader back to Chapters 4 and 6 and also to Chapter 8, where this issue in connection with the idea of the common good of the political community is discussed more fully. 6. This is, of course, the essence of Rousseau’s critique in Contrat Social of Hobbes’s discussion of the state of nature. We, however, reverse the point here to some extent. Rousseau says that Hobbes’s state of nature is full of civilized men. We are saying that the moral revulsion at natural rights violations imports ideas of proper treatment in a civilized setting. 7. Indeed, Hobbes is perhaps the major historical culprit for conflating normative and metanormative ethical principles.

292

defending liberalism

would then have to conjure up arguments as to why it might be in someone’s interest to respect another’s rights. Social beings, by contrast, would never have a radical worry about why they should concern themselves with others because they come, as it were, already concerned. A social being, in other words, is not likely to wonder why he or she should be concerned about setting the context for his or her own flourishing. We do not deny the heuristic value of state-of-nature thought experiments, but with Aristotle, we do deny their value as a fundamental platform for moral analysis and understanding. In any case, liberalism per se does not require the radicalized version of such an approach (where morality itself is generated by a ‘‘contract’’); and it is arguable in most cases whether the fathers of liberalism (for example, Locke) saw the moral as being exclusively understood in terms of the mechanisms for leaving the state of nature. The problem we have been addressing, in any case, can be put another way: How can liberalism retain any connection to a substantive moral philosophy and demand so little politically? We need not repeat what we have said throughout this book in response to this question. All that needs to be noted here is that there can be a strong connection to a substantive moral position (the neo-Aristotelian account of human flourishing) without lapsing into a moralistic politics. Liberalism cannot afford to close off the path to a rich moral posture any more than it can remain a liberalism while politically dictating a particular form of moral living.

Conceding Rights Objection: How does our previous argument show why one should concede to another a rights claim? Reply: In the first place, the problem of rights for us would not be framed in terms of whether one person should concede to another a rights claim. Such an approach is fundamentally contractarian and therefore not particularly suited to a neo-Aristotelian orientation. We are bound to conceive of rights not within a system of competing claims, but with respect to the obligation of self-perfection. The contractarian approach seems to push one either in the direction of expressing rights in terms of universal agreement or in the

defending individualistic non-perfectionist politics

293

direction of seeing rights as a function of some objective or genuine good. The former makes no direct appeal to self-perfection and can therefore be rejected. The latter, however, appears compatible with a neo-Aristotelian approach. While appeals to genuine or objective goods are quite consistent with our neo-Aristotelianism, they do not exactly represent our own way of dealing with the issue of rights. The point is not to find a genuine good that all claimants would have some reason to recognize as a right, but rather to ask what the purpose of rights might be in the first place. Since our framework already presupposes a commitment to and recognition of the social character of individuals, it is not the purpose of rights to create sociality by arbitrating potential disputes among claimants. That is, again, the contractarian way. Instead, one must discern the role rights should play in conditions of social life where flourishing is understood to be individualized and pluralistic. What one is looking for, then, is not one possible genuine good among others upon which to hang a theory of rights, but rather a principle with a connection to the good that both looks to the obligation of self-perfection and meets certain other conditions, such as having some real theoretical work to do and being of a form that respects the pluralistic and individualized nature of self-perfection. The central problem here, and thus the central condition to be met, is to find a principle that not only looks to selfperfection but also can be characterized as being truly universal. That is to say, we look to the universal not just with respect to persons in general (or persons merely abstractly considered), but with respect to each and every act that may become a part of their flourishing. In this fashion, like the contractarians, we appeal to a good that applies to each and every individual, but while a good, it is not the good, or the only good, or an ordinary moral good to which we appeal. And to assure that some modes of flourishing are not given preference over others, the principle chosen also must not give an institutional bias to certain forms of flourishing. It is our contention that only self-direction meets these stringent conditions. If the problem were really one of choosing one or more appropriate genuine goods from among a possible list of such goods, then it would be correct to claim that whatever one chooses is just as likely to support positive rights as it is negative ones. In other words, if, in Rawlsian fashion, we had to select from among a list of primary goods which ones would ground basic rights, then some of those goods are as likely to call for positive action as they are forbearance. Hence self-direction, respect, food, and wealth might all be candidates (among other things) for our allegiance in living the

294

defending liberalism

good life and in providing standards for proper moral conduct. But what if, as we are arguing, rights are not essentially the most obligatory of our ordinary moral precepts; indeed, what if rights should not be conceived as belonging to the class of ordinary moral principles at all, but function instead to provide the necessary constraints upon social interaction that create the conditions so that the pursuit of ordinary moral conduct might be undertaken? Viewed in this way, it is irrelevant to note that primary good X is needed for P’s (or anyone else’s) flourishing because rights are not norms that help define the terms of appropriate conduct, but rather metanorms that define the conditions under which the pursuit of any of those goods will take place. Again, it is not any ‘‘genuine good’’ that will keep this distinction sharp, but rather it is one whose own content is supplied in the concrete by the pursuit of particular ends while being in the abstract neutral with respect to various forms of flourishing. Such is the nature of self-directedness.

A Worry About Neo-Aristotelianism and Rights Objection: Does not the commitment to pluralism and individualism advocated here end up with a ‘‘minimalist Aristotle’’ that is in danger of being unable to distinguish desire from right desire, and if this is so, does not our conception of rights lack sufficient ethical grounding to do what rights must do— namely, provide an ethical justification for the moral territory or space that is each person’s own and precludes nonconsensual trespass? Reply: Regardless of how nontraditional our conception of perfectionism might be, we do not think there is any justification for thinking that our account of individualistic perfectionism cannot make or justify the distinction between desire and right desire. The important thing to be aware of is that the distinction between desire and right desire is not directly relevant to the question of rights. As we conceive of rights, they are not designed to either discriminate between desire and right desire or promote the latter over the former. Indeed, rights for us are not even designed to promote or otherwise secure self-direction.8 Instead, they are the conditions necessary to protect 8. See Chapter 4, note 16, Chapter 11, note 11, and our discussion of ‘‘Desires and Self-Direction’’ in Chapter 7.

defending individualistic non-perfectionist politics

295

the possibility of self-direction among others. When and if any given individual chooses to act on right desire or chooses to be, in some fuller or selfactualizing sense, ‘‘autonomous’’ is not a concern of rights. So, there is no direct connection between actions based on right desire and actions to which one has a right. This worry seems to want the connection between right desire and rights to be much more direct, because it is really a stalking-horse for the claim that the same moral considerations that justify negative rights might also serve to justify positive rights. Indeed, this might be true if moral considerations in an ordinary sense were the foundation for rights; but the point of our theory and our locution of ‘‘metanormative’’ is to suggest that ordinary moral principles do not serve such a function. If we stick strictly to normative ethics for the moment, the thinking behind this objection wants to treat self-direction as one good among a possible set of goods, which one might want more or less of depending on one’s life plans and circumstances. One might, for example, trade a little self-direction for more health by letting the government determine the extent to which one is allowed to smoke. While there are undoubtedly ways of understanding self-direction in this one-good-among-many fashion, this does not represent our own conception. When we say that self-direction is the necessary condition for flourishing we do not mean that it is merely the first good among many that one must acquire before one can acquire other goods; rather, we mean that for any good to be good, that is, to become a constituent part of our eudaimonia, it must be chosen by us. In this sense, self-direction is the condition through which any good becomes a good for a person and thus a constituent part of a person’s eudaimonia. It is not something that can be traded off for other goods, because for those goods (even health) to be goods for me, I must incorporate them into my nexus of goods by some act of choice. This is what it means for value to be agentrelative. Yet, almost paradoxically, this setting for the agent-relativity of value means we do not have to know how self-direction stacks up (or compares to other basic goods) in a variety of possible concrete pictures of eudaimonia. In a concrete situation, self-direction transforms an abstract or generic good to a good for some concrete person. Self-direction understood in this way can be identified independently of anyone’s particular form of eudaimonia because it is through self-direction that particularization itself occurs. At this juncture it might be tempting to point to lives where ‘‘self-direction’’ has been restricted and yet eudaimonia apparently achieved. It can be

296

defending liberalism

argued that some people may need more ‘‘paternalism’’ in their lives than others to achieve their well-being. There are a number of points to be made about this sort of concern. First, noticing that some people’s flourishing might require more otherdirection does not go very far in determining what rights people might have. This is especially the case with our theory of rights, since rights do not function to directly promote anyone’s good. Second, from our perspective, ethical theory is not in a good position to predict a priori which acts of paternalism will lead to the desired end (and to what extent). Not only does our commitment to individualism and pluralism tell against such predictions, but the central role that practical wisdom must play in ethical conduct does as well. It is not that paternalistic generalizations have no utility, but rather that they should be treated as just that—generalizations about a possible means to an end and not as a constituent part of an individual’s flourishing. Finally, paternalism is a factor in an individual’s flourishing only if that individual incorporates its effects, methods, or object into his or her nexus of values by some self-directed act. We reject what might be called ‘‘church ethics’’ whereby if one just does the right things bliss will come whether one wants it to or not.9

Rawls, Justice, and Metanormativity: Are There Other Metanormative Principles Than Rights? Objection: Why must metanormative principles be confined to individual rights? In Chapter 7 we spoke of ‘‘metanormative justice,’’ and if we consider the conditions for metanormativity—namely, conditions 17a–f from Chapter 11— would not Rawls’s two principles of justice be metanormative principles? After all, Rawls observes that ‘‘justice is the first virtue of social institutions.’’10 Moreover, is not our search for principles to govern interpersonal and social relations in a cosmopolitan context but another way of respecting the freedom and equality of all human beings, and is this not the whole point of Rawls’s original position with its ‘‘veil of ignorance’’—that is, to provide a procedural interpretation of Kant’s idea that we are all free and equal rational beings with the liberty to choose? Thus, despite our protesta9. See ‘‘A Major Objection Considered’’ in Chapter 4. 10. John Rawls, A Theory of Justice (Cambridge, Mass.: Belknap Press of Harvard University Press, 1971), 3.

defending individualistic non-perfectionist politics

297

tions to the contrary, is not the presentation of liberalism’s problem and the search for metanormative principles nothing more than a device to bring Kantian moral insights in through the backdoor? Reply: This objection is marked by much confusion. Accordingly, we will begin our response by explaining our view of justice in greater detail. In Chapter 7, we noted that there are at least two senses of justice. There is Platonic justice, which refers to a person whose dispositions are properly formed and hence has a rightly ordered soul. Such a person conducts him- or herself rightly or appropriately and is, so to speak, well-adjusted or true. This is an overall description of a person and is equivalent to saying that the person is well integrated. In this sense, justice is a way of living that is the ultimate human good and is more than any one of the virtues and goods it comprises. Rawls is certainly not speaking of justice in this sense. Justice can, however, also be spoken of in an interpersonal or social sense. Yet this sense of justice can be divided into two forms: (1) There is justice as a constituent virtue of human flourishing, which is giving others their appropriate due, and as such is a necessary part of the self-perfecting life. This virtue pertains to specific relationships among individuals and, by extension, to relations with and among sets of individuals—for example, to groups, associations, and organizations. At the individual level, this virtue can range from not slighting a friend, to refusing to take advantage of someone’s weakness, to providing someone unfairly treated or disadvantaged by circumstances with assistance; and, at the group level, it can, mutatis mutandis, require similar conduct. Regardless of the level of analysis, the complexity, the depth, breadth, and nuance of rendering someone (or some set of persons) her or his ‘‘appropriate due’’ requires knowledge of the conduct and character of the individual (or set of individuals) as well as the circumstances. Further, since this virtue is but one among the many virtues that constitute human flourishing, it needs to be integrated with all of the others in order to achieve a proper balance or mean for the person. Justice cannot be followed at the price of destroying other constituent virtues and goods. It must be integrated into the overall whole that is an individual’s flourishing life. As we have noted in Chapter 7, justice in this sense is not an ‘‘all-or-nothing’’ affair. Justice in this sense is not the major virtue of the self-perfecting life. That belongs to practical wisdom. Practical wisdom is the central integrating virtue. Justice can be practiced only through practical wisdom’s insights into

298

defending liberalism

the particular and contingent. Justice in this sense cannot be blind or impersonal, but must consider particularities of persons or sets thereof. Their nexus, their culture, and their situations cannot be ignored. What the virtue of justice calls for someone to do in one situation for one person or group may be very different in another situation or for another person or group.11 As such, this virtue cannot suffice as the basis for equal and common moral treatment of everyone without regard to differences and is not the basis for any principle by which to structure social and political institutions.12 We have labeled justice in this sense ‘‘normative justice.’’ This is also not the sense of justice that concerns Rawls. (2) Since human flourishing is not some Platonic form or impersonal good, but is essentially individualized and agent-relative, the possibility of differing versions of self-perfection requires that attention be given to how to create and maintain a social/political context that is in principle both open to divergent forms of self-perfection and consistent with all. Thus, Fred D. Miller Jr.’s claim that ‘‘justice is necessary for the individual good, but not merely instrumentally; for justice is a necessary feature of co-operative activity which is a constituent of the good life’’ is certainly correct, but his conclusion, ‘‘Therefore, a practically rational agent pursing the good life ought to choose to enter into a just system of co-operation,’’ is problematic.13 The question facing political philosophy is how to determine what justice is for a ‘‘system of cooperation’’ that encompasses a social context that is open-ended or cosmopolitan, and the virtue of justice, as we have noted, cannot provide this. Further, no shared set of values or commitments can be assumed. One knows only that one is dealing with another human being, and hence the context must be as universal as possible. Here justice seeks to regulate human conduct so as to establish conditions for the possibility of individuals seeking their own form of human flourishing among others. Its aim is twofold: to preserve the open-ended or cosmopolitan character of human sociality and to respect the individualized, selfdirected, and agent-relative character of human flourishing. Justice seeks to 11. It might be objected here that this claim is true only insofar as one is talking about what the virtue of justice requires a person to do, but that this claim is not true when it comes to what the virtue of justice requires a person not to do. See our response to the objection, ‘‘Is the Concept of ‘Metanormative Principles’ Really Necessary?’’ in this chapter. 12. Also, this does not provide a basis for so-called positive rights. That persons ought to have some treatment does not show that they have a right to this treatment. Duties have a wider range of applicability than rights. 13. Fred D. Miller Jr., Nature, Justice, and Rights in Aristotle’s ‘‘Politics’’ (Oxford: Clarendon Press, 1995), 376.

defending individualistic non-perfectionist politics

299

provide the appropriate basis for the political/legal order’s structuring of the overall social/political context. This is again what we have called ‘‘metanormative justice.’’ The interpersonal or social issue that concerns metanormative justice is none other than what we have called ‘‘liberalism’s problem.’’ Thus, since individual rights provide the solution to liberalism’s problem, metanormative justice amounts to respect for basic, negative, individual rights. Thus, there are two forms of interpersonal or social justice: normative justice, which is a virtue of the self-perfecting life, but not something that can be used for solving liberalism’s problem, and metanormative justice that regulates conduct, which may or may not be self-perfecting, but respects individual rights. These two forms of social justice should not be confused. Rawls’s view of justice as the first virtue of social institutions might seem to be an instance of metanormative justice.14 Yet, Rawls’s view of the ‘‘original position,’’ which reflects his justice-as-fairness conception and from which he develops his two principles of justice, starts by ignoring and discounting facts that we take as central to the shaping of metanormative justice—namely, the role of nexus in the conduct of the moral life. Rawls remarks that ‘‘we think of the original position as the point of view from which noumenal selves see the world.’’15 This perspective precludes particular knowledge of one’s social reality, natural assets, abilities, strengths, psychology, life-plan, and conception of the good. Provided by the ‘‘veil of ignorance,’’ this perspective is adopted in the name of the moral point of view. Accordingly, any fact that is not applicable to each and every human being is morally arbitrary and cannot be allowed to play a role in determining what metanormative justice requires or, what can be the same thing, what basic rights people have. With our conception of individualistic perfectionism, we have argued against this understanding of ‘‘the moral point of view’’16 and thus reject 14. In his ‘‘Outline of a Decision Procedure for Ethics,’’ Philosophical Review 60 (1951): 177– 97, Rawls states that ‘‘the problem of the justice of actions, as a theoretical question, is essentially the problem of formulating reasonable principles for determining to which interests of a set of competing interests of two or more persons it is right to give preference’’ (191).This is a revealing statement, and it helps to indicate how Rawls’s approach to justice and our approach are fundamentally different. First, Rawls fails to recognize clearly anything like a distinction between metanormative justice from normative justice. Second, he sees justice as essentially an attempt to balancing interests fairly, where individual considerations are ignored; and third, the notion of what is one’s due is also absent. In our view, he has an adequate conception of neither metanormative nor normative justice. 15. Rawls, A Theory of Justice, 255. 16. See our discussion of impersonalism and agent-neutrality in Chapter 6, as well as Douglas B. Rasmussen, ‘‘Liberalism and Natural End Ethics,’’ American Philosophical Quarterly 27

300

defending liberalism

both the cogency and need for the ‘‘original position.’’ Individuating facts should not, and indeed cannot, be excluded from the process by which an individual determines his or her obligations. Also, such facts are crucial to determining normative justice as we have explained it. Finally, when it comes to metanormative justice, individuating facts must not be discounted either.17 The question that lies behind so much contemporary political philosophy, and indeed contemporary liberalism, that needs to be addressed is: Does being committed to interpersonal living in the open-ended sense require that one take on the viewpoint of a noumenal self and/or adopt ethical impersonalism? Does interpersonalism require impersonalism? If one takes human flourishing to be the good of each and every human being, if this good is understood to be individualized and agent-relative, and if one recognizes the primary ethical obligation of individuals to pursue their own forms of self-perfection, then the answer to this question must be ‘‘no.’’ Thus, the task for the political philosopher should be seen as that of trying to find some feature of human flourishing that can accommodate both the moral propriety of individualism as well as the profoundly social character of self-perfection. This must be done by finding that feature of human flourishing in which all human beings share and in which all human beings are equal18 —namely, their capacity for self-direction. Yet, we do not have to theorize in a Kantian fashion or reason as if human beings are noumenal selves or suppose that morality must be cashed out in impersonal moral (April 1990): 153–61; and Rasmussen, ‘‘Political Legitimacy and Discourse Ethics,’’ International Philosophical Quarterly 32 (March 1992): 17–34. 17. Individuating facts are necessary to the process of determining a basis for metanormative justice precisely because these facts create the individualized character of human flourishing and thus ground the moral propriety of individualism. This, in turn, dictates what manner of abstraction is to be employed in finding a solution to liberalism’s problem. In order to discover the common critical element that runs through all forms of human flourishing that provides the basis for metanormativity, one must consider the full context of what is involved, and this means that one must not treat the human flourishing of individuals as if it were not individualized. Rather, one must employ conceptual procedures that can find the common critical element in all the various forms of individual human flourishing but nonetheless still not separate what should be only be distinguished or deny what should only be treated as implicit. See our discussion of abstraction in Chapter 7, note 3. 18. Obviously, there can be beings who are classifiable as ‘‘human,’’ but through birth defect, illness, or injury have no capacity for self-direction or agency. So, we must note this exception. But it is important to realize that the reason that such beings are classifiable as human, and not considered another species, is because they are nonetheless understood in terms of their being deprived of the capacity for self-direction. So even in such terrible instances, self-direction remains something that applies to all human beings at a basic level, even if it is only understood in terms of a privation that is suffered.

defending individualistic non-perfectionist politics

301

prescriptions. We do not slip Kantian considerations in through the back door precisely because we do not consider individuality as morally irrelevant to the determination of either normative or metanormative justice. Accordingly, we do not need to paper over the real and legitimate differences among the goods and personal projects of individual human beings by appealing, as Rawls and many other contemporary theorists do,19 to an impersonalist understanding of the moral point of view. Individuality matters morally. It matters when it comes to the nature of human flourishing, and it matters when it comes to addressing liberalism’s problem or, in fact, determining any principle of social justice that is supposed to apply to every human being. Regardless of how inconvenient it may be, individuality, as we have explained in previous chapters, ought not to be ignored by political philosophers.

Is the Concept of ‘‘Metanormative Principles’’ Really Necessary? Objection: Why cannot liberalism’s problem be solved by an appeal to what the virtue of justice requires of flourishing individuals not to do—namely, not murder, steal, extort, defraud, or engage in any form of nonconsensual use of persons and their property? Certainly if ‘‘giving others their appropriate due’’ means anything, it must require that individuals not treat others in these ways. Is not all that is needed to solve liberalism’s problem simply a matter of seeing that the virtue of justice understood negatively—that is, according to the maxim ‘‘injure no one’’—can suffice as a solution? Indeed, does a mother need to appeal to the concept of ‘‘metanormative principles’’ in order to explain to her son that he should not steal his schoolmate’s bicycle? Reply: This objection really ignores the fundamental questions of political philosophy, because in order to show that the nonconsensual use of persons is the only relevant sense of injuring someone that needs to be considered, and indeed to show why it is of fundamental importance to be so concerned, requires understanding the context that gives rise to such a concern. It 19. On this very point, see Rasmussen, ‘‘Liberalism and Natural End Ethics,’’ for a discussion of Rawls and Dworkin, and Rasmussen, ‘‘Political Legitimacy and Discourse Ethics,’’ for a discussion of Habermas.

302

defending liberalism

requires looking beyond the virtue of justice to a problem that results from the highly individualized but profoundly social character of human flourishing—namely, to liberalism’s problem. This is, of course, the reason we distinguished between normative and metanormative ethical principles and spoke of ‘‘normative justice’’ and ‘‘metanormative justice.’’ This distinction allows us to consider how the virtue of justice involves many considerations that go beyond what a solution to liberalism’s problem requires, an thus should not be ignored when asking questions that deal with an individual’s pursuit of self-perfection. Yet at the same time, it allows us to see that the virtue of justice does not address the fundamental problem of political philosophy, namely, finding a political/legal structural principle that allows for the possibility of the pursuit of self-perfection in a social context by everyone. The proscription to ‘‘injure no one’’ gives one no sense of this context, irrespective of any disputes of what ‘‘injury’’ might mean. This is especially important once one realizes, as we have noted, that my being an end in myself for me does not imply that you are an end in yourself for me (and vice versa). That realization immediately brings to the forefront the question of why not injure others? The prescriptions and proscriptions of the virtue of justice thus simply do not suffice because they themselves must be seen in a context. The propensity today to treat them as primitive is a latent form of a command approach to ethics, and one as teleologists that we reject. In practice, following the advice of this objection would certainly get us most of the way there, but as a substitute for the normative/metanormative distinction it does not suffice. In this connection, it is important to realize that the distinction between normative and metanormative ethical principles, as we noted earlier, is a distinction, not a separation. Normative and metanormative principles do not apply to separate worlds of human conduct any more than the principles of hitting and fielding well in baseball and the principles that one must follow in order to play that game apply to separate activities. Thus, what is important to recognize is that normative and metanormative principles are intermingled in our ethical understanding of both ourselves and our situations. For example, such terms as ‘‘murder’’ and ‘‘thievery’’ get their meanings from both normative and metanormative principles. Thus while there is no need for a mother who is trying to morally educate her son to work out the theoretical distinction between the two sets of principles, it is nonetheless to these basic principles of civilized interpersonal living—namely, individual negative rights—that she is appealing, as well as to the virtue of

defending individualistic non-perfectionist politics

303

justice, when she tells her son he ought not steal his schoolmate’s bicycle. There is indeed a difference between what is involved in moral education and what is involved in the theoretical justification for political/legal orders. Yet since moral education is concerned with the whole human being, which includes the political dimension, it is appropriate that this education include an appeal to individual negative rights when it comes to determining how to conduct oneself in an ethical manner among others. We need not assume that the distinction between normative and metanormative principles precludes them from applying to our lives as a whole. Hence when we teach our child not to steal, we are not simply teaching a moral lesson, but a political one as well. Keeping that distinction—as expressed through the normative/metanormative framework—is what we have been arguing is necessary for keeping the protection of liberty in the forefront. And liberty must be in the forefront for the political and the moral to reside together harmoniously. Justice is thus neither everything, nor absent of anything, and that is the message we should be conveying to our children.

Making Self-Direction Possible for the Extremely Poor Objection: If protecting the possibility of self-direction in a social context meets the conditions that constitute the basis for an ethical metanorm (conditions 17a–f of Chapter 11), then the basic negative right to liberty (in all of its forms) cannot be the only, or even the foundational, metanormative principle, because the extremely poor have no concrete possibility for self-direction. People who suffer extreme poverty lack the minimal material and social resources that are required to have the psychological ability for engaging in practical reasoning and conducting themselves accordingly. Thus, if their self-direction is to be achieved, more is needed than protecting them from having their lives, conduct, and resources used or directed without their consent. Coercion is not the only reason why people are prevented or fail to exercise their capacity for self-direction. Positive action to provide these people with the minimal resources is also required. Furthermore, though it is nonetheless true that the these people are, of course, human beings and thus, unless they have suffered physical impairment, have the capacity for self-direction, this ontological claim does not suffice to establish that it is really or concretely possible for the extremely poor to exercise their self-direction, or at least utilize it effectively, or in

304

defending liberalism

anything like the manner in which people with sufficient resources do. In an important sense of the term, the extremely poor lack the ‘‘self’’ that is necessary for self-direction. Our argument ignores this fact, because, despite our claims to have rejected atomism, we have continued to portray individuals as if their ‘‘selves’’ are essentially untouched by their physical and social environments. Finally, this objection cannot be avoided by claiming that what is required to protect the possibility of self-direction is much less than what is required to protect the possibility of self-perfection, because the distinction between self-direction and self-perfection that has been used throughout this work to argue for the political/legal priority of the basic negative right to liberty is too neat. Self-direction is, as has been argued, the central necessary activity of human flourishing and as such is not merely something of instrumental worth. Indeed, to protect the possibility of self-direction is to protect the possibility of the central and necessary activity of human flourishing. Thus, despite the distinction between self-direction and self-perfection and all the talk of metanormative as opposed to normative ethical principles, the aim of the political/legal order according to our argument is really to assist people in their human flourishing in a most minimal way, that is, to protect the possibility of self-direction. Statecraft is minimalistic soulcraft. Yet, this requires two things: protecting people from being used without their consent and enabling the extremely poor, who lack the resources, to be self-directed. When self-direction and self-perfection are thus considered in their fullest form, we are really not far from the Rawlsian approach to social and political justice, and this needs to be acknowledged by our argument. Reply: This objection also involves much confusion. Our reply needs to be made at three levels: first, in terms of the claim that is made about the extremely poor; second, in terms of the charge of perfectionism against the argument that we have advanced in this book; and third, in defense of the distinction between self-direction and self-perfection. However, before offering our replies, some crucial terms need to be clarified. The use of the term ‘‘possible’’ can be understood in either a metaphysical or epistemological sense. Metaphysically, it means that given the nature of the entity in question, that entity can do something—in this case, given the nature of a human being, a physically normal person can exercise their self-direction. Epistemologically, it means that there is some evidence, even

defending individualistic non-perfectionist politics

305

if very little, to expect that a particular entity will do something—in this case, there is some evidence that a particular human will exercise his or her practical reason. Now, this objection is using the term ‘‘possible’’ in an epistemological sense; that is, there is no evidence, and therefore no reason to expect, that those who are debilitated by extreme poverty, will exercise their capacity of self-direction. That is to say, there is no real or concrete possibility that they will be self-directed. There seem to be four ways to understand the term ‘‘poor.’’ These are: (a) relatively deprived compared to others in the culture or society; (b) as defined by some governmental agency, for example the United Nations; (c) failing to meet a certain level or amount of resources as determined by natural law ethics or some other normatively objective standard; and (d) any material, moral, or social conditions wherein individuals fail to exercise their self-direction. Obviously, if (d) is used, then this objection succeeds by defining ‘‘poor’’ in such a way that it is tautologically impossible for the poor to be self-directed. Yet, such a definitional triumph is hollow and only begs the question. If (a) is used, then this objection is clearly false, for the ‘‘poor’’ in this sense, as in a society such as the United States, are selfdirected and exercising their practical reason, though some may, of course, be living morally unfulfilling lives. If (b) is used, then we still have no understanding of ‘‘poor,’’ because we need to know the standards by which a government agency defines ‘‘poor.’’ Thus, the only real contender for providing an understanding of ‘‘poor’’ must be (c), and this is the understanding that lies behind this objection. However, the issue is quite complex, for it concerns not whether or not poverty interferes with self-perfection, but whether or not it interferes with self-direction. The term ‘‘self-direction’’ has been used throughout this work to refer to the agency of an individual human being that is necessary for the operation of reason. Further, although we noted that self-direction is necessary for the theoretical or speculative use of reason, we have concentrated on practical reason—that is, reason that is used to guide conduct. Finally, we have clearly differentiated the exercise of practical reason that is the guide for human conduct from the excellent use of practical reason—that is, practical wisdom—and we have also made it clear that individuals can be self-directed, or exercise their practical reason, and still not be engaging in morally appropriate or self-perfecting choices and conduct. Thus, to focus on self-direction is to focus on what is involved for individuals being authors of their own action and conducting themselves according to their own lights, but it is not necessarily to focus on individuals conducting

306

defending liberalism

themselves in a righteous or worthwhile or morally excellent manner. Thus, it is one thing to say people are so poor that they will not achieve selfperfection, and it is quite another thing to say that they are so poor that they will not exercise their practical reason or be self-directed. One other point needs to be noted. We do not use the term ‘‘self-perfection’’ to mean the same thing as being ‘‘better off’’ materially. There is in fact no necessary connection between any given level of material well-being and self-perfection, though there may indeed be a greater ‘‘probability of success’’ for self-perfection if one is materially better off. The point at this stage is logical. To improve someone’s material state may or may not contribute to the person’s self-perfection. If there is no necessary connection between a given level of material well-being and self-perfection, then since self-direction is of the essence of self-perfection, there would seem to be no necessary connection between self-direction and a given level of material well-being either. That is, movements up or down the resource ladder do not correspond to movements up or down in degrees of self-direction. One may be as self-directed in bankruptcy as in successful investing. The point is that to draw any necessary connection between material well-being and self-direction one would have to ignore the differences between two very distinct kinds of realities—that is, intentional action and material goods— and it is difficult to conceive what might provide a necessary connection between these. Furthermore, this difficulty is even illustrated in the most extreme case. For surely, having the nutrients sufficient for functioning as a biological organism is necessary for an individual to have the ability to form an intention, but even that still would not establish a necessary connection between a given level of material well-being and self-direction. An individual could still fail to exercise his or her ability to self-direct. So, unless biological survival is what is being advocated here as the goal upon which to evaluate ethical and political principles,20 avoiding conflating intentional action with material goods would seem to be a pivotal issue in assessing this objection’s merits. Having clarified these matters, we may now move on to refuting this objection. First reply: It is not at all obvious, given the above distinctions, that there 20. As indicated in Chapter 6, biological survival is not the telos of human conduct. Yet, some level of material well-being is, of course, necessary for self-perfection as well as for the exercise of self-direction, though not necessarily the same level. Further, what this appropriate level is for either self-perfection or self-direction also varies from person to person and is hence not useful when it comes to determining fundamental political/legal principles that need to apply across individuals equally.

defending individualistic non-perfectionist politics

307

is no basis to expect the extremely poor to exercise their self-direction and engage in practical reasoning, Indeed, nearly all such people do! Throughout the world, we find extremely poor people choosing and engaging in various forms of conduct, trying as best as they can to better their situations.21 The exercise of self-direction is a common and near-universal phenomenon. Of course, they may not be utilizing their capacity for selfdirection effectively or to as desirable an outcome as those who have greater resources, and it may also be true that the constraints upon their actions are greater. Yet it is simply not true that most have no concrete possibility to engage in self-direction. Indeed, the poor make choices every day about how to maximize the values they have given the constraints they are under. This objection thus moves from its initial interesting but false claim that the poor have no real possibility to exercise their self-direction, to the true and unfortunate claim, but not relevant for this context, that the poor may not have the resources necessary for probable success in self-perfecting lives. Of course, human selves are not ‘‘inner citadels’’ that are incapable of being touched by their environments, and we do not for a moment suppose that people cannot be affected by their surroundings. Thus, there may be some individuals who are extremely poor, who, because of their circumstances, do indeed fail to exercise their capacity for self-direction and engage in practical reasoning. Whether or not such a failure pertains to every aspect of their lives is, however, extremely dubious, but we will, for the sake of argument, allow for this possibility. Yet, what might prevent one extremely poor person from being self-directed may not for another. What remains true of the extremely poor person and the wealthy one alike is that each self-directed act that is undertaken in light of the perceived possibilities for obtaining an end within a framework of constraints has implications for making a contribution to the agent’s self-perfection. What resources are at hand are irrelevant to this point, although they may be relevant to an assessment of the probabilities of success in living a fully self21. One, but by no means the only example, of the extremely poor exercising their selfdirection in attempts to better their existence were those individuals who were squatters in the large and horrific garbage dump of Manila, called ‘‘Smokey Mountain,’’ in the Philippines. In this environment they managed not only to use the garbage they found to eke out an existence but also to develop products from it to sell. Ironically, these squatters are now gone. They were forcibly removed by the police as a cosmetic effort when Manila was preparing for a Pacific Rim summit. See Paul Krugman, ‘‘In Praise of Cheap Labor: Bad Jobs at Bad Wages Are Better than No Jobs At All,’’ The Dismal Science (March 21, 1997), available at: http://slate.msn.com/id/1918/ .

308

defending liberalism

perfected life. The difference of degree of resources at one’s command is distinct from the agency exhibited in utilizing those resources. To say otherwise is in effect to say, despite this objection’s claims to the contrary, that the extremely poor are not agents or actors. Yet, it is precisely because human beings are not selves incapable of being touched by others, but physical beings whose self-direction is carried out in space and time, that makes the question of whether or not physical force is used against persons—be they extremely poor or not—crucial to their status as agents or actors. When William literally moves, uses, directs, or otherwise physically treats Mary in ways to which Mary has not consented, then Mary is not self-directed, and this is true for any and every human being and does not vary from person to person. How effective threats of such treatment are may vary from person to person, but the fact that such treatment is incompatible with self-direction is the same for everyone.22 It is this that makes the prohibition against such use of physical force and threats of coercion so paramount when it comes to determining the structural principles of the political/legal order. This brings us to our next point. Second reply: This objection fails to make some important distinctions: (a) between protecting the possibility of self-direction and securing the exercise of self-direction; and (b) providing the overall structure to the social/ political context that is necessary for the possibility of self-direction and providing the many and various social conditions that might be necessary for the possibility of self-direction for some extremely poor persons. Our argument only shows that the political/legal order should protect the possibility of self-direction, not secure its exercise. Our reason for this is basic. The exercise of the innate capacity of self-direction by individuals is not something that can be secured or guaranteed by others. Regardless of the depth and breadth of the resources provided to the extremely poor, there is no guarantee that they will be self-directed. In an important and fundamental sense, it is still up to them. Further, if providing sufficient resources could guarantee their being self-directed so that it would be impossible for the poor to fail to exercise their capacity for self-direction, then such support would be self-defeating, for it would no longer be selfdirection. Finally, such a guarantee ought not to be provided even if it 22. This point seems not to be considered either in Serena Olsaretti’s analysis of voluntariness or in her contention that the notions of liberty and choice, as used by defenders of free markets, require the elimination of income inequalities. Olsaretti, Liberty, Desert, and the Market: A Philosophical Study (Cambridge: Cambridge University Press, 2004), 137–61. See also Chapter 4, note 15.

defending individualistic non-perfectionist politics

309

could, because since human flourishing is inherently a self-directed activity, such support would ex hypothesi eliminate any sense in which the actions of the extremely poor were their responsibility and thus of possible ethical worth. Interestingly, more respect for the poor is shown by seeing them as selfdirected agents for whom material aid would ease their burden (and perhaps increase their chances for self-perfection) than by seeing them effectively as nonagents who owe their newly found agency to someone other than themselves. And if it were possible for agency to be given by material means, presumably once sufficient resources were achieved there could be no argument for continuation of that aid by the terms of this objection, for the poor would have achieved the desired agency. Further, if material benefits could confer agency, then either we have a survival threshold after which the newly formed agent is like all others, or there must be a system for permanent maintenance of the material benefits. The latter would be equivalent to permanent servitude, since their agency would be owed to their benefactors. The former case is little better, for it too creates a debt that could not possibly be returned. It would be like the debt a child owes a parent without the possibility of ever returning the favor and taking care of the parent. There would be permanent moral subservience. Thus if one really wanted to advocate welfare for the extremely poor, a better strategy would seem to be one that considers the poor to have agency from the beginning and welfare be given because they are agents like us, for that at least preserves respect for the poor as persons. And since the extremely poor are persons and since in nearly all cases it is epistemologically or concretely possible for them to be agents, the fundamental importance of protecting their lives, conduct, and resources from being used or directed without their consent remains, just as much for them as for those who are not extremely poor, the fundamental and foremost function of the political/legal order. The claim that the political/legal order should attempt to provide the many and various material and social conditions that might be said to be necessary for the self-direction of some extremely poor persons to be possible is not justified.23 The reasons for this have already been stated in earlier 23. Yet, this is not to say that social and political life is always possible and that there may not be situations, for example, natural disasters like famine or earthquakes or floods, in which the aim of the political/legal order is reduced to securing life and limb of as many as possible. Nor is this to say that there might not be situations where, although social and political life is still in principle possible, a person in extreme poverty may morally have to act contrary to the principles that the law requires. See Liberty and Nature, 144–51.

310

defending liberalism

chapters where we spoke of placing a restriction on systematic bias of benefits to particular groups or persons. Consequently, trying to provide the extremely poor with certain material resources that might allow them greater possibility of or more effectiveness in exercising their self-direction fails to meet the requirements that constitute the basis for an ethical metanorm, and this is so for basically the same reasons as those indicated in conditions 17a–f (and in steps 35a–e that pertain directly to this issue) as presented in Chapter 11. We need not repeat them in any greater detail here, but it should be clear that our argument for determining the structural principles of a political/legal order is not perfectionist even in the minimalist sense of attempting to provide the various conditions that might be necessary for the self-direction of some extremely poor persons to be possible. To protect the possibility for self-direction is still not the same as creating, inducing, or inciting self-directed actions. Since providing those conditions does not meet the requirements for a metanormative principle, they become particular and exceptional and thus outside of the scope of a political/legal order that is concerned with human sociality in its most open-ended or cosmopolitan sense. We would therefore expect that ‘‘exceptional’’ cases of need would be handled with ‘‘exceptional’’ contributions of resources on a voluntary basis so that the restriction against systematic bias is not violated at a structural level. Yet, our refusal to become consequentialistic in terms of determining metanormative principles comes neither from a deontological commitment to basic negative rights nor ‘‘rule worship,’’ but rather from the need to square the universalism of the political/legal order’s structural principles with the pluralism and self-direction required by self-perfection. Therefore, we cannot look to what may be necessary for the possibility of self-direction for some extremely poor persons, but to only what is necessary and common to every concrete form of self-perfection of individuals. In terms of this objection, this means, then, looking to what does not vary in protecting the possibility of self-direction for any and every person, and this is quite simply the prohibition against the initiatory use of physical force and coercion. As important as concern for the extremely poor is—and we do not wish to diminish this in the slightest—this concern does not translate into a metanormative concern and certainly does not transcend the importance of liberty. Third reply: Saying that because self-direction is the central, necessary activity of human flourishing and, as such, is not merely something of instrumental worth simply does not show that the distinction between selfdirection and self-perfection is too neat and thus cannot be maintained.

defending individualistic non-perfectionist politics

311

Our argument has always noted that self-direction is an inherently valuable activity and that its value is of crucial importance for solving liberalism’s problem, but it is also at the same time insufficient as an ethical guide for conduct. Moreover, we have also argued that there cannot be a complete disconnect between the two or the legitimacy of the liberal order would have no foundation. It is precisely that legitimacy that we have sought to protect here. And while no systematic state aid for the extremely poor may seem unsympathetic to some, it is the principled approach, and it furthermore reinforces our claim that not all of what should happen in ethical life—namely, in this case charitable activity—is, or should be, a function of the political.

The Bonded Flourisher Argument Objection: Self-direction plays a central role in our argument for rights, but the presence of self-direction seems quite compatible with certain rights-violating situations. Epictetus seems to have flourished as a slave, and many great artists and thinkers have lived in times that were less than free. Furthermore, this point tells against our notion that forms of flourishing must be compossible both because it looks like people can flourish in any type of social order and because it looks like compossibility doesn’t much matter to flourishing in any event, since people seem to flourish no matter what type of coordinated arrangement society offers. Reply: Let us start with the last part of this objection first, because to understand our theory correctly one must not interpret our position to be one where the function of the state is to ensure a compossibility of flourishers. For us, compossibility is not a material condition, but a structural one; it is not a positive goal, but a negative constraint. In other words, how flourishing works out in practice as to what flourishers emerge and how compatible with each other they may be is a function of a number of factors outside the purview of the state and beyond what concerns the assignment of rights. If, for example, a community of retirees exists where the ‘‘flourishing’’ of its members relies upon an unobstructed view of the sea, and a newcomer with a legitimate property right builds a house obstructing the view of these individuals, then we are not saying that the state should ensure compossi-

312

defending liberalism

bility by requiring the individual to build elsewhere, or that his or her right to build exists only so long as no disequilibrium occurs among the other flourishers. Compossibility for us, as we have tried to stress, occurs at the front end. It is structural in nature and not an end-state to be achieved. Thus, whether the compossibility of flourishers actually results is a matter of historical practice that is dependent on a number of factors. We are, in other words, not out to create a certain pattern of flourishers or manage their interaction. Doing so would be inconsistent with the point of our overall argument, which is to secure the possibility for the pursuit of flourishing among others, rather than flourishing itself. This means that when we think of compossibility, we must do so, in some significant sense, before we have any actual flourishers. We must therefore think in terms of general rather than specific types of flourishing—because our solution to liberalism’s problem requires universalism in its rules—and we must undertake the negative strategy of not allowing some forms of flourishing to be prevented a priori. This approach is opposed to the positive strategy of encouraging or coordinating various forms of flourishing. We must take this negative strategy because of the type of pluralists we are, holding that flourishing in the end is a function of nexuses of diverse individuals in diverse circumstances. Accordingly, (a) we cannot know what sorts of circumstances produce flourishing (or produce it without favoring some forms over others); and (b) the individual can only arrive at flourishing through his or her own efforts at managing his or her own nexus. In the case of (a), we deny there is a Leibnizian world of compossible flourishings that we might choose from or model our own interventions into society after. And as to (b), that is a self-direction point to be addressed momentarily. In general, this objection really assumes that compossibility must be considered at the actual level, whereas we contend that it should only be considered at the structural level. At the latter level we cannot allow some forms of flourishing to be diminished or destroyed as a function of generalized rules governing society. This brings us to the main part of the objection. That some forms of flourishing can take place under repressive circumstances is the main objection to our theory here, and it too is beside the point in the end. Our claim has never been that politics or political order is either the only or the most important factor in the nature or promotion of human flourishing. If that were the case, it would be impossible to escape political perfectionism. There are many diverse factors that would contribute to flourishing. Politics is critical to the possibility of the pursuit of flour-

defending individualistic non-perfectionist politics

313

ishing among others,24 but it is of little or no value to the actual achievement of flourishing itself. Thus our focus politically is not on the production of flourishing or flourishers. Consequently, that some individuals might flourish under the most repressive of orders is a tribute to human adaptability and inventiveness, but not an argument against our political theory. Remember that it is quite possible to have our preferred political order and no flourishers existing in it, because no one has made the appropriate effort to do what it takes to flourish. Our theory of rights is strictly and narrowly concerned with the appropriate political conditions that take into account the self-directed character of flourishing—not with all factors that may or may not contribute to flourishing. We would expect, as a matter of empirical evidence, that flourishing is more likely in free social orders, or that those with freedom in repressive regimes are more likely to flourish than those without. But we admit that flourishing has often managed to poke through the most repressive ceilings.

The Need for Agent-Neutral Values Objection: Why cannot there be agent-neutral values, and if so, are they not ipso facto moral, especially socially moral? Reply: That we can act on agent-neutral values, and that such values exist, is possible for us; but such values are neither moral values nor foundational for ethics. The only values that qualify as moral or ethical values are agentrelative ones. Values may be agent-neutral and may be a motivation for one to act because they are coercive (universally legislated by an authority in power), cultural, traditional, authoritative, or customary and habitual, but in none of these cases are such values moral ones. Most conduct presented as ‘‘moral’’ is not such, as Spinoza saw,25 but rather various guises of conventionalism in the ways just iterated. Accordingly, not all ‘‘value-predicates’’ or ‘‘oughts’’ with which we are presented should be accepted at face value, but must instead have their foundations explored. 24. We are differentiating here between the social and the political. As noted before, we reject the notion of the ‘‘polis,’’ precisely because it conflates these two considerations. See Liberty and Nature, 154, and Miller, Nature, Justice, and Rights in Aristotle’s ‘‘Politics,’’ 357–66. 25. For example, E4P36Schol.2.

314

defending liberalism

Most contemporary ethicists—at least of the analytical variety—are, however, reluctant to engage in such exploration because when it comes to these matters they are, methodologically speaking, mostly intuitionists. This is to say that they accept two premises, both of which we reject (at least to some extent): (1) that there is an independent order or propositional framework that constitutes the moral or ethical; and (2) that our intuitions are reliable tools for discerning the nature of that moral order and useful means for testing our theories about it, because we have nothing else. In our view, by contrast, the moral order is not independent, but is itself predicated upon a theory of human nature. There is no subject matter called ‘‘ethics’’ that can be examined independently of, and without reference to, philosophical anthropology. To attempt to do so brings on two dilemmas: the first is the intuitionists’ dilemma, which is that there is no way to decide in favor of an agent-relative versus an agent-neutral theory of values or, more important, any intuitive principle for their integration. The reason for this, as shown by the work of some contemporary philosophers,26 is that both are forcefully presented to our intuitions. This dilemma then is a philosophical one: either give up intuitionism, which would then force ethics back into the classical (‘‘outdated’’) mode of it being derived from philosophical anthropology and committed to some form of foundationalism; or let ethics remain with both agent-neutral and agent-relative values with no basis for their integration or priority. The latter side of the first dilemma is a function of the second—the dilemma of substance: in an intuitionist, nonfoundationalist ethical framework, agent-relativism always comes at the expense of agent-neutralism and agent-neutralism at the expense of agent-relativism. If they are held jointly (said to both be true of the ethical order), then they coexist not in harmony, but only in tension. It is important to note that in our own theory agent-relativism derives not from our ethical theory, but, as presented in Chapter 6, from our philosophical anthropology. We should note here as well that in a teleological eudaimonistic framework, the material, formal, final, and efficient causes that constitute human flourishing lie ultimately within the individual human being him- or herself (see Chapter 9 for our discussion of this topic). But our acts in the pursuit and maintenance of our flourishing need not be considered only in terms of the ontological level of our telos. They can be viewed at various levels of 26. See, for example, Mark C. Murphy, Natural Law and Practical Rationality (Cambridge: Cambridge University Press, 2001), especially chap. 5.

defending individualistic non-perfectionist politics

315

abstraction and, accordingly, can have different formal properties and be motivated in different ways, thus allowing us to use the language of the four causes in different ways to categorize and analyze acts within our nexus.27 Those different levels of analysis do not, however, ever lose sight of their relationship to our telos; but they need not in every respect refer to or identify their relationship to that telos. So, if we consider simply the causes of human action, not the ontological basis of the human telos, we see that the main difference in the formal nature of actions is between those whose direct benefits accrue to others and those that accrue to self.28 By the same token, one may be moved by considerations that lie outside of oneself or by those that stem directly from one’s own present desires. That is to say, the reasons upon which we act may result from being moved by others (efficient) and having their well-being serve to define the structural character of an action (formal), even though one is the agent (material) taking the action that fits within the purview of what contributes to one’s own flourishing (final). In this way, the agent is the beginning and end (material and final causes) of an action’s value to the agent’s nexus, but the agent may be moved to an action because of what others do, say, or adhere to in their own beliefs and patterns of action (efficient); the agent may also undertake actions that cannot be said to be structured for the agent’s own benefit (formal), though their reason for being of ethical value was because they were made such by the agent as an individual and contribute to the agent’s flourishing. For example, an agent (material cause) may be moved (efficient) by the general social opinion and shared social norm of providing for his or her child’s education. But the act of setting money aside for his or her child’s college years is not structurally an act that benefits the agent (formal). Rather, it is one that benefits the child. Thus there can be ‘‘agentneutral’’ reasons for actions in the sense of an agent’s being moved by principles that make no special reference to the agent and in the sense of there being forms of conduct where others besides the agent are the beneficiaries 27. On this very point see the following articles by Julius M. E. Moravcsik: ‘‘Aristotle on Adequate Explanations,’’ Synthese 28 (1974): 3-17; ‘‘Aitia as Generative Factor in Aristotle’s Philosophy,’’ Dialogue 14 (1975): 622–38; and ‘‘What Makes Reality Intelligible,’’ in Aristotle’s ‘‘Physics’’: A Collections of Essays, ed. Lindsay Judson, 31–47 (Oxford: Clarendon Press, 1991). 28. At the ontological level of our telos it could be said, in other words, that all actions either benefit the self or not, because as we have just noted (and have noted often elsewhere) it is the telos of the individual that is ultimately the subject of any discussion of human flourishing. But at some level of analysis and abstraction, to understand every action in terms of how it ‘‘benefits’’ the self is to over generalize and thus fail to see important particular aspects of a phenomenon that need identification.

316

defending liberalism

of an action (‘‘good parents set aside money for their children’s education, and that’s what I did’’ or ‘‘one ought to give to charities, and every year I make a contribution’’). But left in this fashion, these values and actions— though common enough—do not yet qualify as moral or ethical values29 — they require being chosen by the agent herself (material) and being successfully integrated into and defined by the nexus of the agent.30 One final point should be noted. We agree with Adam Smith that we are largely other-oriented from the beginning, or at least as much other-oriented as self-oriented. Our understanding of what we are, our own options, and our place in the world is significantly determined by an other-directed orientation that is natural to us. So there is no significant problem of the other, any more than there is a problem of the self. Our sentiments run in both directions, as Smith shows. For agent-relativists like ourselves the problem of the other is not one of figuring out how to turn oneself into another, so as to really capture the other in that person’s otherness and not reduce the other to a function of oneself. As social beings in the Aristotelian sense, we are cognitively and dispositionally oriented toward others, as others, by nature. Thus we do not begin as Cartesian or Hobbesean egos. Consequently, our real problem is one of learning how to develop the self, and what that means is that we need to figure out how to bring the other into the self—that is, finding ways to integrate our other-orientation into our own nexus. The Smithian position of developed sentiment is not a solution. We never integrate others into ourselves by sentiment even if they ‘‘correspond.’’ This is why Smith must employ the device of the ‘‘impartial spectator’’ as a deus ex machina of ethical integration to get it to work. In our 29. For the action to qualify as a moral action, the agent must make the effort to integrate the action into his or her understanding of a eudaimonic life for that agent (final). If the agent does not make that effort (that is, if he or she does it because society requires it or will ostracize him or her if he or she doesn’t), the action of setting aside the funds is, from an Aristotelian perspective, a form of conventionalism. Lacking a clear contribution to the agent’s eudaimonia because not properly integrated within the agents nexus, the action may be problematic from and Aristotelian moral perspective. Ethics requires integration, and only individuals integrate. 30. In this connection it is quite possible for actions that look desirable in ‘‘agent-neutral’’ form to actually violate the other conditions of not being chosen (material), as in the case of taxation as a form of charitable giving, or not fitting the flourishing nexus (final) as when one gives too much and undermines one’s ability to achieve some other significant value in one’s nexus. By the same token—consistent with traditional moral opinion—it is possible to conform to ‘‘agent-neutral’’ values and yet not be moral, as when one is moved by social opinion (people should help the less fortunate) but undertakes the action to benefit oneself (‘‘I am going to give something because people will think I’m charitable, thus making me look good in their eyes’’). Integration within one’s own nexus is a function of the real nature of an action, not its apparent nature to oneself or others.

defending individualistic non-perfectionist politics

317

view, the integration can only come through the practical reason or practical wisdom of the agent as applied to the agent’s own project of eudaimonistic flourishing.31

The Absent Telos Objection: Suppose one’s private, agent-relative value system is profoundly utilitarian and anti-Aristotelian. The individual does not believe in a telos for anyone and holds that all that matters revolves in the end around pleasure and pain. How can such a utilitarian accept our account of metanormative principles as legitimate? We are very careful to say that these principles aren’t derived from, or themselves reducible to, claims about the good, or human flourishing. That is, after all, one way in which they are metanormative. So the problem here is not that our theory requires the utilitarian to buy into some particular theory of human flourishing in order to sign on to these metanormative principles. Still, the category of the metanormative is itself defined relative to a conception of agents as private pursuers of their individualized conceptions of human flourishing. But the utilitarian thinks this image of individuals as each having a personal telos to realize is a falsification of reality. He thinks that all there is to the normative world is individuals and their pleasures and pains. So even if we are not asking him to accept our theory because a particular conception of the human good is correct, we are still making assumptions that the utilitarian will be unable to accept. If that is true, one can worry that this theory of metanormative principles violates the idea that the principles of statecraft be acceptable to all citizens, regardless of their conception of the good, or reasonable moral views. Reply: First of all, in order to make this objection telling, the utilitarian would also have to believe that self-directedness is not necessary for moral conduct. This is left ambiguous in the objection. Some utilitarians might require self31. This solution of ours may seem inadequate when considered from the point of view of the legislative model that pervades ethical thinking today. Since most are unlikely to integrate so well, we cannot rely upon the process of proper integration to ensure harmony among agents and a sufficient amount of other-oriented concern to produce that harmony. But this for us is a social problem, one we believe is best solved by leaving people free to associate with others based on mutual interest. This is also, we believe, the only solution compatible with the nature of the integration required for a truly moral sense of other-orientedness.

318

defending liberalism

directedness and others might not so long as overall utility is maximized in some way. Second, political theories are not things we believe are decided by vote, so it is not the case that our position depends on someone finding the theory ‘‘acceptable.’’ The truth of the theory is not a function of its acceptance. Presumably then the point would be something like ‘‘unless someone holds to our theory, they cannot (or may not) have a reason for respecting the rights of others. Without that reason, the claim that protecting self-direction is a reason to act for every individual in all situations is put in jeopardy.’’ There are complicated philosophical issues here, but it may be the case that ‘‘having a reason’’ for something is not necessarily a function of having an actual commitment to the theory that makes the reason plausible. I may, for example, have a reason to wear a seatbelt even if I do not recognize (or deny) that driving an automobile is a life-threatening activity. We can say that one may have a reason, provided that ‘‘having a reason’’ does not mean merely ‘‘desiring’’ or ‘‘wanting’’ or ‘‘moved by.’’ To suppose, in other words, that we would have to convince every doubter of the truth of our theory in order for them to ‘‘have a reason’’ to respect rights seems an undue burden, or at least one that could be said of any theory, thus paralyzing them all. Thus that self-direction is critical for moral conduct and moral perfection is a truth we assert in a manner that is not dependent on any agents’ acceptance of our theory. Having said this, it does seem to be the case that one could walk a long way with us if one believes that self-direction is central to moral action, for this is a fairly minimalist requirement that could be accepted by approaches other than Aristotelian. Yet what would be missing in saying just this is the agent-centeredness of the good that is part of our theory, but may not be part of other theories, or even other Aristotelian theories. So the objection now might be that if one denies the agent-centered nature of the good, one need not accept our version of metanormative principles, an objection we will soon address. Before we do, we should note in general that it is common enough for ethical theories to deny any form of teleology in ethics. For us, however, this is a pathology of modern ethical theories. Be that as it may, how far one has to go with our Aristotelianism is somewhat of an open question. One might see the importance of metanormative principles for liberalism based on some other theory. What seems to us most critical for generating these principles is the centrality of self-direction, the agentcenteredness of the good, open-ended natural sociality, and the plurality of the good. Our neo-Aristotelian theory reinforces these points and adds a

defending individualistic non-perfectionist politics

319

dimension of ethical completeness and context to liberalism that other theories do not provide. While we believe that the telos-absent theories of modern ethics have helped to undermine liberalism in some ways, that argument is rather different from the one needed for metanormative principles. There is a final part of the original objection to which we must attend—namely the claim that our politics holds that ‘‘principles of statecraft be acceptable to all citizens.’’ We will deal with that claim in a separate response.

Agent-Centeredness Objection: Continuing from the last objection, it would seem that metanormative principles require a strong commitment to agent-centeredness and pluralism of values. But both of these can be, and have been, denied by ethical theories, the latter especially by forms of Aristotelianism that take flourishing to be identical across agents. This suggests that not only are our principles not acceptable to all, but they are even controversial within our own chosen framework of analysis. Reply: The immediate answer to an objection like this is that for any theory to have content it must be opposed to other theories that some people accept; consequently, to base an argument for the acceptance of a theory on universal allegiance is, as already noted, an impossible demand. Truth is not a function of acceptance, except in some versions of pragmatism. More important, however, is the question of whether in a theory like ours it is necessary to recognize the truth of the theory for the argument of the theory to be applicable. In other words, if someone denies the centrality of choice to ethics, is one thereby outside of the realm of agents to whom the theory applies? The act of denial cannot, of itself, be sufficient to move one outside that realm, for the reasons for denial could have nothing to do with the merits of the theory. Let’s assume, therefore, that an alternative theory has some plausibility and thus some theoretical appeal. One important point needs to be made at this juncture: metanormative principles are not applicable because they are accepted, but accepted because they are applicable. Even if we have failed somehow to show that our answer to this type of Euthyphro question is the right one, one also does not thereby have license

320

defending liberalism

to beg the question in favor of the other side of the Euthyphro question and suppose either that an alternative theory is true or that acceptance must serve as a standard. So where does that leave us? We have never argued that metanormative principles are validated by their acceptance, but only that they are everywhere applicable. So the force of the objection must be twofold: (1) our theory is so far from the norm (because of its commitment, for example, to teleology) that accepting it is risky or implausible on the face of it; and (2) gaining allegiance to our theory is structurally a part of the theory having applicability. With respect to the first part of the objection, theories of political philosophy do have Kuhnian features such that the further they are from the norm, the riskier they seem and the more they are ignored or rejected. This is not an irrational response, given the enormous investment needed to promote and accept theories of this nature. Still, we can do nothing about it. Either our arguments have merit or they do not. We cannot worry about the sociology of the theory itself. We would say, however, that the failure of other theories to defend liberalism—or even to come up with a plausible alternative political philosophy—has opened the door to our approach and has diminished the Kuhnian risks; for although there are a number of new features in what we say, we are still within a venerable philosophical tradition in our mode of theorizing. The more theoretical objection is the second. Must individuals give theoretical allegiance to a political theory for it to be applicable? The answer must be, clearly, ‘‘no.’’ Theories are about a reality; they do not create it. The validity of a political theory, therefore, is in some significant way independent of anyone’s acceptance of it or allegiance to it. But it might still be objected that in the arena of politics, theories that are not accepted (or alternatives that are) are sources of political division, making acceptance of a theory significant to orderly politics. Thus, other than fringe theories, politics requires the general acceptance of a theory as part of any claim to its superiority over alternatives. Furthermore, the metanormative theory in particular requires allegiance because it is committed to the idea that rights respecting behavior depends in the end on reasons for the individual to respect rights. That means that each individual must have a reason applicable to him- or herself as an actual individual in order to respect rights. Thus, unless the theory can appeal to individuals, they will not have the reason they need to carry out its prescriptive conclusions. Of course, in one obvious sense this sort of objection has to be immediately qualified, for to expect individuals to be fully conversant with an

defending individualistic non-perfectionist politics

321

entire theory before it can be considered as sound is both unrealistic and itself theoretically debatable. But let’s suppose that our citizens are theoretically sophisticated. Even under that assumption, a number of things are being confused. First of all, as a theorist, a citizen’s acceptance of our theory per se is not the issue. The issue is the truth of the theory, so the lack of acceptance of any theory is presumably a function of perceived defects in that theory, which would apply to our own, as well as any of the competing theories. Here, then, objection and response is the appropriate modality, not acceptance, because we in turn hold that opposing theories are defective in some way and that our theory is still applicable to the theorist who denies it. The adherent of another theory may live his life by that theory, but as a theorist his acceptance per se is of little interest. If we take the holder of another theory as a nontheorist, that is, as merely a citizen attached to a particular political ideology, we must look at the issue in terms of values and beliefs. Looking at it this way puts the other person who adheres to another theory in a different relationship to our own. For we have never said that this person or any other must accept our theory, but rather that based on what the person is as a human being living in society and the nature of human action, our theory is applicable to him (and others) and that he thus has reasons to accept it. It is not the theory qua theory that gives him a reason to respect another’s rights, but what the theory identifies—namely, the role of self-directedness in ethical conduct and the need for metanorms given our social nature. What this objection trades upon, then, is the fact that if most people don’t accept some of the basic conclusions of our theory (or any other), then the norms the theory advocates will not be in force in society. People do have to accept theories to that extent. But this problem is not special to our theory. Finally, it might be that that this objection is meant to suggest that our theory is predicated upon the good as self-oriented, whereas alternative theories are ones where the good is fundamentally not about oneself. In other words, there is a fundamental chasm between incommensurable political philosophies: one where the good is self-oriented versus ones where the good is other-oriented. But if there is a chasm, it is not at this political level, but at the metaphysical level—namely, whether or not individuals are the basic unit of analysis when it comes to understanding the nature of the good. If individuals are not, then the politics might indeed be incommensurable. Since our theory does not prevent or in any way discourage otherorientedness per se—even on the community level—but rather only makes such goods the goods of individuals, the burden of proof in this case really

322

defending liberalism

rests on the opponent of such a position. For simply because politics concerns itself with groups or ‘‘the collective,’’ it does not follow that the group is thereby the basic unit of analysis. Indeed, it is important to resist such a confusion, for the implications are far reaching. Imagine that we reverse the theoretical roles here and ask the collectivist theorist—that is, one who takes the group or collective as the basic unit—what would be done about theorists like ours in their regime? The answer would seem to have to be some version of ‘‘forcing us to be free’’—in other words, working to purge from us our individualist propensities as well as our mistaken theory. The twentieth century witnessed the practical implications of some of this sort of politics. Our approach, by contrast, asks neither that one give up one’s individuality nor that one refrain from group identifications. All that is at stake is a theoretical commitment, which makes the main danger one of confusing one’s theories with the reality they are supposed to portray.

The Acceptability Problem Objection: At the end of the absent telos objection we noted that there was the issue of what to do with alternative theories when our politics holds that ‘‘principles of statecraft be acceptable to all citizens.’’ We need to take up this issue now. Reply: We believe that the bulk of this objection was handled in our response to the agent-centeredness objection. We do not accept acceptability per se as a criterion for theoretical validity, and we are not committed in principle to acceptance as a political principle. It remains only to elaborate on the latter. If ‘‘acceptance’’ is equated with ‘‘democracy’’ or ‘‘democratic processes,’’ then our position would be that the form of government and the processes it employs should be what is most conducive to securing and maintaining the metanorms, given the particular circumstances and character of the group to whom they will apply. ‘‘Democracy’’ may have many advantages, for if governing principles are not widely accepted, they have little chance of working, as we noted above. But that a procedure is or is not ‘‘democratic’’ is not decisive of much of anything in itself for us. We are open to a variety of political forms, and are not completely wedded to democratic processes if for no other reason than in practice they often mask an under-

defending individualistic non-perfectionist politics

323

lying rule by social elites that may be quite an anathema to the maintenance of appropriate metanorms. In any case, statecraft is often best displayed by decisions that are unpopular at the time, and certainly voting or other usual expressions of popular will do not necessarily produce optimal results in this respect. The main point, however, is the one made above—because of what we are and how we must live, the reasons for respecting the rights of others are not centrally defined by acceptability. The principles we advocate are, we hold, worthy of acceptance.

Metanorms Are Biased Objection: There are two main forms of this objection. One is that in giving the right to liberty a central place, we have simply prejudiced the argument in favor of ‘‘liberty rights’’ over all other types of rights—for example, ‘‘positive rights’’ or rights to welfare or social goods that are reflective of collective preferences rather than individual ones. Therefore, our claim to neutrality with respect to forms of flourishing is biased by giving a preference to modes of flourishing encouraged by respecting liberty rights, rather than to those that might be encouraged if some other right was central. The second form of the objection is that even if there is no systematic form of bias (as in the first form of the objection), the fact remains that this rights structure will encourage some forms of flourishing more than others and will thus have a de facto form of bias. Reply: The first form of the objection contains a number of confusions and question-begging assumptions, and in looking at them we may also address some of the worries of the second form of the objection. In this respect it is important to keep in mind that we argue not for absolute neutrality among forms of flourishing, which is sometimes called ‘‘liberal neutrality,’’ but rather that there can be no a priori and formal (we often say ‘‘structural’’) bias in favor of one form of flourishing over another. There is, then, no a priori bias against those having ‘‘community preferences’’ as their form of flourishing—that is, against forms of flourishing that look to the welfare of groups or communities. Those individuals whose form of flourishing is more oriented toward activities directed at the well-being of others are in the same formal need of freedom of action as those whose form is

324

defending liberalism

more self-centered. Liberty does not give any formal, structural, or a priori bias to self- or other-oriented forms of flourishing, unless (and we suspect this is being smuggled in without acknowledgement) one assumes a view of human nature that holds that given freedom, people will concern themselves exclusively with self-oriented projects and goals to the detriment of, and at a rate lower than appropriate for, other-oriented projects and concerns. This Hobbesean picture of man is a structural feature of much of modern thought, and however useful it may be to theorize about human beings using this model, first, it is an arguable proposition, and second, nothing follows from it with respect to our main point. For since we are trying to establish that it is not the role of the state to make people moral, the predisposition toward ‘‘immorality’’ that human beings may possess, or may possess in more cases than not, does not thereby imply correction or involvement by the state. Even less is it the case that a structural bias has been built in by us; for a numerical preponderance is not structural— although it may be a de facto bias. It is our position, in any case, that we are unwilling to accept the Hobbesean premise, if that means that a dominant focus on personal projects is necessarily reflective of underdetermination of concern for others. It may be that a preponderance of focus upon one’s own projects is actually the right amount of concern for self vis-a`-vis others, or that such a preponderance among people generally is better and more appropriate than any alternative. These questions remain open. It might be objected to this response that these are rebuttals to an empirical interpretation of the original objection. Theoretically, we can imagine some point (whatever it is) that is beneath some imagined threshold of a minimally appropriate amount of social virtue, and if a particular social system grounded in metanorms could never rise to or above that threshold, then would there not be a formal bias in favor of some form of flourishing (for example, those forms that do well in ‘‘corrupt’’ societies) or against some forms of flourishing, if not flourishing itself? The answer to this form of the objection is still ‘‘no.’’ That an inappropriate amount of self-concern (or insufficient other-concern) resulted from securing metanorms does not necessarily show a structural bias. The most it shows is that the starting point from which the members of society begin their pursuit of flourishing is not so hospitable to a certain conception of flourishing as originally hoped. It does not show that those ‘‘nonflourishers’’ cannot alter their orientation and either do not need, or are unable to possess, the requisite freedom of action to do so. It also does not show that the same pattern for nonflourishing will be present in each situation where this ‘‘low’’ threshold

defending individualistic non-perfectionist politics

325

appears. And even if it could be shown that some virtues were more systematically disadvantaged under the given threshold, the bias is not structural but effective. An effective bias lends itself to countermeasures that do not alter the structure but do diminish the effects. We, of course, do not accept the notion that the set of interpersonal obligations required by a social system based on metanormative rights offers a threshold that is too low or burdensome for flourishing. We find it no accident that the nation dedicated to the ‘‘pursuit of happiness’’ (and that means individuals pursuing their own conceptions of happiness) is also the most generous of nations and the one with the most intermediary social and charitable organizations and associations. It is worth noting in this connection that while Aristotelian man is not exclusively Hobbesean, he knows Hobbesean man well. Indeed, it is possible to look at Aristotelian man as a modified version of Hobbesean man—modified by more of a concern for others, and modified by a broader, more enlightened conception of self-concern. What is not lost in Aristotelian man, however, is the predominance of self-orientation in one’s projects and actions. More important, then, is the de facto version of the objection. If it should be the case that in implementing a system of metanormative rights, someone’s conception of flourishing is not encouraged or sought after by the society he lives in, or if the installation of metanorms continues to create a certain type of human character, then it looks like we have favored some type of ‘‘flourishing’’ over others. With respect to the first part of this objection (that a society does not encourage flourishing), any society will likely take some shape as it evolves, and presumably that may be more or less conducive to any particular form of flourishing. At the metanormative level we are not interested in this or that form, or even in ensuring that a given society remain neutral between the forms of flourishing. We take seriously the idea that the state is not in the business of encouraging any flourishing, which means, in this case, that the question of whether or not flourishing is sufficiently promoted is outside the bounds of theoretical concern. Provided both that there is no a priori attempt to structure rules so that a form of flourishing will result and that the norms have some connection to flourishing, the metanorm of equal liberty will have no systematic bias even if actual practice encourages some form more than others. With respect to the second part of the de facto objection, we will note below that we are skeptical about the predominance of claimed consequences likely to result from our version of a liberal order. Nevertheless, putting that response aside for the moment and supposing a repeated trend

326

defending liberalism

favoring some versions of flourishing over others, it must still be noted that predominance is not exclusion. Individuals will still have the chance to flourish in their own ways under our version of liberalism, although the obstacles to such may be increased. General predominance of flourishing does not lock any given individual into a necessary commitment to it. Nor is predominance in itself a sufficient reason for making it the basis for political theory. Statistical normalities may or may not be a proper foundation for political theory. One cannot say, in response to this last point, that we should pick the social/political framework that makes society generally better off in some way, because that is to beg the very roots of the question we are debating—namely, that the state or its theorists are in the business to make us better or good, either individually or collectively. It is important to reiterate once again how radical our position is: we do not hold that the role of the political philosopher, any more than the role of the state, is necessarily to imagine his preferred society in some abstract and theoretical way as a prelude to reconstruction in the real world according to the theorist’s plan or ideal. That would make all political philosophy and every political philosopher perfectionistic. Rather, the political philosopher is concerned simpliciter with the appropriate rules or governing norms of political society. It must, at the start, be an open question as to whether or not the improvement of society is the theorist’s standard for determining what rules are appropriate. In other words, that is a subject of debate and study within political philosophy and cannot be presumed at the outset, however common that assumption may be. Recommending the appropriate rules or norms for a society is not necessarily equivalent to recommending the ideal society or recommending that society should take on a particular look for the benefit of its members. Moreover, since we believe that societies, unlike individuals, do not have a telos, it cannot be said that the ‘‘purpose’’ of society (or the aim of the political theorist) is necessarily the good or well-being of the society. The aim may be instead, as we have argued, to provide a legal/political structure such that the well-being of those in need of such structures might be pursued.32 It is important, too, in this connection to realize that we are not advocating ‘‘liberty rights’’ over some other rights or that we are even advocating liberty rights at all. So-called liberty rights, as conceived in the first form of this objection, turn out to be treated as a solution to a problem, but not as a grounding principle of a political philosophy. In other words, the pre32. See Rasmussen and Den Uyl, Liberty and Nature, 162–65.

defending individualistic non-perfectionist politics

327

sumption is that liberty rights are one tool among many to be used to solve a set of social problems somewhat vaguely articulated, but presumed to be understood. But metanormative rights are foundational. Social problems occur within a social structure that needs a framework to even exist as a society. We are at the foundational level, not at the level of solving social problems, except in the sense of solving the problem of political society in general. To suppose that liberty rights are one tool among many is to have a vision of what society should be like and how it should be structured such that a given solution is either of value to promoting that end or not. But that begs the question we are trying to address. There is, in addition, no body of rights out there in some Platonic heaven such that the game to be played is picking the world that one believes works best and then defending its accompanying set of rights against some other possible set of rights. Whatever sets there are must themselves be defined in terms of foundational structural principles of social order. Also with respect to the original formulation of the bias objection above, there is an equivocation here on the meaning of the phrase ‘‘collective preferences.’’ ‘‘Collective preferences’’ are very different from preferences that ‘‘have collectivities as their subject.’’ The latter are still held by individuals and thus subject to all the strictures and arguments we muster. Our comments above deal with this usage as applied to the question of bias. The former understanding of the term implies that collectivities can have preferences that are either not related to individual preferences summed in some way or to the conclusion of a process in which individuals jointly engage (for example, voting). We deny there are collective preferences outside of these forms and that accrue to collectivities as distinct entities with wishes, desires, goals, and preferences of their own.

The Issue of Symbolism Objection: There is a prevalent view that treats politics as a kind of managerial problem—that is, as a problem of providing citizens with certain public goods. This perspective, let us admit, is extremely subject to libertarian objections that offer alternative arrangements for the provision of such services. But politics may not be, in the end, about the provision of services. Instead it is possible to look at politics as that institution through which the values of a society are reflected and debated. In this way of looking at things, it is less

328

defending liberalism

whether garbage removal is completely privatized or provided by the city than it is whether those in office are reflecting the values of the citizens. Now if it is the case that politics is primarily the means through which values of common interest to members of the community are displayed, supported, and debated; and if it is the case that human beings are creatures that need to identify with communities as a whole—with the leaders of those communities representing them in some way as symbols of their values—then it would seem that our thesis about liberalism divesting itself of substantive morality is in serious jeopardy. For people will never escape seeing their leaders as embodiments of values and this will in turn mean that politics can never divest itself of morality. Reply: This is a most serious objection to our position and one that gets easily confused with an issue about liberal neutralism, to which we referred in our response to the previous objection. We say that liberalism requires that the political order must remain neutral with respect to forms of flourishing. This we believe we have given reasons for and is quite consistent with our theory as well as being conceivable in itself. The symbolic objection, however, is of a different character. Instead of being an argument about how politics ought to approach society, this objection refers to how people in society are in practice going to imbue something into politics. In essence, the objection is that the people in a society will never allow politics to be liberal—that is, devoid of substantive moral direction. Two quick points must be made in response, both of which are important for answering this objection, but neither of which really completely tackles it. One is that people can learn to identify with smaller groups or associations for the values they care about. This is done all the time with respect to the various voluntary associations in which one may seek membership. Indeed, this can be done to such a level that some have lamented the ‘‘narrow’’ focus of citizens with these groups and the lack of identification with political issues of a more general nature. It might be said that these narrowly focused individuals are ‘‘free-riding’’ on the concern and attention given by others who do attend to the social order as a whole. Second, we should note that it is not difficult to imagine separating a ruling and administrative body from individuals and groups with which one does not expect substantive guidance concerning particular actions and goals. One may recognize the United States Golf Association as the rule-making body and center for settling disputes in golf without seeing it as the exem-

defending individualistic non-perfectionist politics

329

plar of the values one holds as a golfer. Most golfers do not even know who serves in the USGA, for the symbols of its values are the noted players of the game or the office holders of its particular clubs. Still, it might be argued that this is not a good enough example, since it may be parasitic also upon those who care about the issues affecting the community in general. Moreover, we must be a bit careful before moving too quickly, because there is a difference between a dispute about metanorms and a dispute about some normative issue. Perhaps whether to continue to require players to walk in a tournament rather than ride in carts, or whether to allow titanium golf clubs, are more like normative disputes, as opposed to whether touching the ball during address is to count as a stroke, which seems a more metanormative question. In short, disputes about what may be significant for the playing of the game are still distinct from disputes about what is to be allowed in playing it well, fairly, or in the spirit of the game itself. Of course, metanorms are ethical principles and do have a claim upon our conduct just as principles from normative ethics do, and it is this similarity that causes confusion. It may be easy in practice for people to confuse the two and thus pressure the system to move more in the normative direction. This does seem to us an inherent danger of practical politics versus the realm of clean theory. Moreover, there may be gray areas where it is not exactly clear when one is doing one or the other. The important point to make at this juncture, then, is that we are not Cartesians. We do not believe that political theory can or should settle all disputes or questions from the point of view of theory. This is one reason why we are not libertarians who believe that theoretical ethical and market principles alone are sufficient for guiding the political/legal order. There will always be discussion and dispute about the meaning and interpretation of various guiding structural norms in particular contexts and in light of particular circumstances. Our theory asks only that one keep in mind the purpose of politics as being one of securing those conditions where moral action is possible without prejudice to diverse forms of flourishing. Beyond that, we can ask little else as theorists, because we do not know in advance all of the questions that may arise about whether or not a particular rule in question is doing that.33 33. Regarding the relationship between political theory and political practice, Chandran Kukathas has developed a matrix of liberalism to show how a system might diverge from a norm of ‘‘pure liberalism.’’ Although we significantly differ from Kukathas on the meaning of ‘‘pure liberalism’’ (for us it is the system of metanorms and not pure toleration), his matrix is useful in delineating the ways in which the practical world might diverge from a theoretical ideal. There

330

defending liberalism

Self-Sufficiency Objection: The theory we advance stresses the idea that human flourishing can only come through actions that are the results of one’s own efforts. There are three possible concepts surrounding such a claim that need to be distinguished: self-directedness, self-sufficiency, and ‘‘well-functioning.’’ The claim itself seems to equivocate at least between self-sufficiency and selfdirectedness, if not between all three. As a self-sufficiency claim it is false, yet our argument for rights seems to presuppose this false claim. For is not the argument for basic rights that they maintain individuals’ freedom by guarding them against coercion? If that is true, how can it be that human flourishing is the result of one’s own effort? One’s freedom—an essential precondition for flourishing—is partially a gift of the state that enforces the basic right to liberty. In this admittedly minimal sense, we are dependent on the legal order for our flourishing, so we are not self-sufficient. Perhaps, then, we are simply self-directed, which means we may not be self-sufficient or well-functioning. If we might attach a pacemaker to a heart that is not functioning well, why, by analogy, does that not open the possibility for corrections to be made for those who are not well-functioning when it comes to flourishing? For we don’t want to say that we should not attach pacemakers to unhealthy hearts just because they are unhealthy. Rather, we want to say that in this case the fact that the heart can no longer beat regularly on its own gives us a reason to intervene to try to restore as much of its proper natural (well) functioning as human technology and artifice allow. Applying this logic to the analogy of preconditions for human self-direction, the example seems to support those forms of paternalism necessary to preserve (at a minimum) individuals’ capacities for free choice when they are threatened by coercion and manipulation (and possibly an individual’s own earlier bad choices), or (more ambitiously) to enhance the abilities of individuals to use their practical reason wisely and properly. Notice also a further point that arises here; the argument we advance for a basic right to liberty seems to depend on the idea that the capacity for self-direction is the only precondition for human flourishing that is shared will always be pressures moving real political/legal orders away from pure liberalism, and it would be a mistake to suppose that in our responses to objections here we are claiming that our doctrine covers all the contingencies of practice. Kukathas, ‘‘Anarcho-Multiculturalism: The Pure Theory of Liberalism’’ (forthcoming, 2005).

defending individualistic non-perfectionist politics

331

across all individuals. As such, the state can protect self-direction because to do so does not discriminate between different conceptions of the good. But is it clear that self-directedness is the only nondiscriminatory or nonbiased precondition for flourishing? What about education or a certain level of material security and prosperity? How would the provision or encouragement of these other preconditions discriminate unfairly between different conceptions of human flourishing? Reply: In some senses of the concept ‘‘self-sufficient’’ there is virtually nothing that is such, since all things rely upon something else to exist or function (if nothing else, the sun, gravitational fields, and so forth). In an Aristotelian sense of self-sufficiency, however, one is self-sufficient when one’s actions proceed from an understanding of the principal components of what one is doing and why one is doing it. That understanding does not preclude the possibility of recognizing that we may rely upon many other things and persons as we undertake our actions.34 In this sense, self-sufficiency is linked to well-functioning as an alternate, though not exhaustive, description of what it means to flourish as a human being. The state, then, does not protect self-sufficiency or well-functioning but only the possibility of its pursuit among others. In this connection the pacemaker analogy has only limited value. It is designed to show that functional arguments are neither mysterious nor uncommon and that they can form the basis of what we understand as suc34. The best succinct statement we have found on Aristotelian self-sufficiency is the following from Henry B. Veatch: ‘‘It is true that one can be helped in a variety of ways in attaining one’s natural perfection. Friends, family, the various institutions of society—even good fortune—can all contribute mightily to a person’s attaining his goal or natural end; but the actual business of attaining the end—living wisely and intelligently—is something that only the individual can do. Moreover, he is able to do it only by coming to understand what his natural end is and then by figuring out what steps need to be taken to achieve such a goal, as well as bringing himself to act on the judgments that he has determined with respect to what he ought to do and be and how he ought to go about doing it and being it. In other words, it is precisely the acquisition and the exercise of the intellectual and moral virtues that is the do-it-yourself job that is incumbent upon every human being, simply as a rational animal. How else can we characterize this fourth feature of the good life for a human being unless by calling it an autonomous life, or a life that is freely determined upon and carried out by the individual himself? Indeed, no human being can ever be said to live well, or to live as a human being ought to live, unless it is on the basis of his own decisions and choices made in light of his own understanding of what is best for him and what the good life demands.’’ Veatch, Human Rights: Fact or Fancy? (Baton Rouge: Louisiana State University Press, 1985), 84–85.

332

defending liberalism

cessful or even normal behavior. The analogy between well-functioning hearts and well-functioning human beings is only that in both cases what is done is in accord with the natures of each. Human well-functioning, however, involves a good deal of self-creation and adaptation to varying circumstances and conditions. External factors may make choices and actions easier or even possible, but they cannot be attached to the action itself to actually constitute the action, as a pacemaker can be attached to regulate the rhythm of the heart. This is because the ‘‘attachments’’ one might add in a process of flourishing must go through an act of incorporation by the agent. Without that, those attachments remain outside the agent, and while they may control his behavior they are not yet a feature of him until he endeavors to incorporate them. Consequently, and as we have noted in earlier chapters, one cannot simply attach material goods, education, or health care, for example, and achieve flourishing. The best one could do is to say that provision of such things offers the tools for flourishing, but not the flourishing itself. Acts of self-directed incorporation are needed. It should be noted that our theory does not ask the state to ‘‘attach’’ self-direction to individuals either. The state provides the framework for self-directed action, which allows for the possibility of flourishing, since self-direction is a feature of every act of flourishing. And because specific material goods, or education, or even health care are not of themselves necessarily incorporated, or incorporated in the right ways, or appropriately incorporated by different individuals in the same way, there is no way to ‘‘provide’’ these things—even as tools of flourishing—and guarantee incorporation in the way that one might guarantee that a heart will beat regularly when a pacemaker is added.35 In addition, there are the problems involved in ranking generally the tools of flourishing or how they could be provided without diminishing the self-direction of some in favor of others. Of course, the temptation is to retreat into the response that all of our foregoing arguments are fine, but all that this objection really advocates is providing some help for most people most of the time even if it wouldn’t guarantee flourishing as a result. Yet even if we accept this as a possibility, it suffers from a certain vagueness and thus an openness to abuse; it fails to recognize the tension that exists between the universalism inherent in the rule of law and the partialism it advocates, and it doesn’t in the end provide any sort of reason for overriding the metanorm of equal liberty. 35. It might be argued that this still does not preclude the political/legal order from providing information to assist individuals in flourishing, but even this will not work, for the proper utilization of information by persons is not necessarily accomplished in uniform ways.

defending individualistic non-perfectionist politics

333

What if Men Were Angels? Objection: It might be objected that our theory must rely upon the idea that people are essentially and predominantly prone to selfishness and conflict— otherwise they would not need metanorms. This objection might not look like much of an objection to our theory in particular because, following Madison, the need for government has always been held to require granting the fact that men are not angels. But for our theory, this objection takes on a special significance not so important to non-Aristotelians. Although highly unlikely, the possibility must be left open that a community could exist entirely of moral flourishers, because we claim this is a possibility for each of us. Moreover, the reason metanorms exist in the end is to protect the possibility of flourishing among others. This makes the theory, in its essence, positive and not negative—that is, it is not grounded in human imperfection, but instead takes perfection as its impetus. Metanorms, however, seem to be Hobbesean in nature—that is, mechanisms for ensuring peace and cooperation under conditions that threaten them. But this suggests a basis other than flourishing for their defense—indeed, it suggests an opposite basis; thus a deep tension or contradiction could be said to be lurking in our theory. Reply: In answering this objection we shall leave the term ‘‘government’’ somewhat ambiguous. It means for us here the institutional means for securing metanorms, and may cover both a centralized coercive authority and ‘‘protection agencies’’ provided there was some constitutional structure of metanorms in place. Thus Madison’s notion that there is no need for government among angels is analogous to saying there is no need for government among flourishers. What the objection seems to suggest is that there would be no need for a central body of rules to adjudicate disputes or to provide a political/legal structure because the flourishing angels would either know what to do in cases of disagreement, already agree on matters of principle, seek to reconcile, defer, or compromise their behavior to accord with others, and/or tolerate and avoid interaction. With respect to this issue we are much indebted to Greg Kavka’s analysis of this problem;36 36. Gregory S. Kavka, ‘‘Why Even Morally Perfect People Would Need Government,’’ Social Philosophy & Policy 12, no. 1 (1995): 1–17.

334

defending liberalism

most of what he says as part of a response we ourselves could endorse from our rather different framework. We shall not repeat Kavka’s analysis here except to note a few differences that might, for the most part, be considered additions to what he proposes. In defining ‘‘angels’’ Kavka says they meet three conditions: (1) they have a systematic, substantive, coherent, and consistent moral framework; (2) they act conscientiously out of that framework; and (3) they are like the rest of us in every other respect. It is important to note here what Kavka alludes to, but does not say explicitly—namely, that moral perfection by these criteria must be distinguished from omniscience. These are actors with limited knowledge and information about themselves, the world around them, and circumstances and motivations of others. Given this, Kavka notes the many ways in which there can be honest disagreements among people that do not result from malicious intentions or willful efforts to violate moral rules, but arise from the nature of diversity and limited knowledge. Yet although Kavka claims to be combating the model that sees government as necessary because we are inclined to violate the rights of others, his view is not sufficiently distinguished from (indeed it endorses) the view that government is necessary to avoid conflict. If angels can conflict, which seems possible given Kavka’s account of what it means to be an angel, then there is a need for government. This seems right to us, but we want to make an additional point that even without disagreement and conflict, metanorms are still necessary. This is so both because we are interactive beings and need a framework for interaction, and because actions within that framework require interpretation, whatever degree of benevolence or cooperative spirit there may be among actors. In the first instance of us being interactive beings, the very notion of a disagreement implies a framework of analysis from which the disagreement proceeds. Otherwise all disagreements are essentially at the constitutional level, that is, disagreements over the basis for framing disagreements themselves. Without that basis one person may want it this way, and another that, but they will have nothing further to appeal to for resolving the disagreement beyond the power one may have to force another to go along. Thus we do not need a constitutional or foundational set of norms solely to avoid or minimize future disagreements, but to define the context of legitimate interaction itself as well. But given this, the best angels could do would be to establish the major premises of the constitutional argument. The diversity of circumstance and modes of flourishing would never give them the minor premises needed for establishing institutions without discussion. In addition, they would be

defending individualistic non-perfectionist politics

335

without any way of considering the effects of proposed procedures on others. Two angels might agree that they should noncoercively interact, but what exactly that might mean more concretely does not have to be framed in terms of any actual disagreement or fear of certain types of future ones, but from the desire for a defined framework itself. We need the framework because we need to interact in a world filled with diverse flourishers whom we must recognize as such and who must have some mutually recognized basis for seeing their interactions as legitimate and not as an imposition of some upon others. This desire for principles can exist independently of an actual conflict. One might reply that angels would not need government for this, but simply the ‘‘natural law’’ or some jus gentium to guide them. But even if we were to grant that with angels the principles of ‘‘natural law’’ would be clearly and commonly perceived by all, the interpretation and implications of those principles in specific context among specific individuals would still be necessary. Good intentions about clearly defined principles do still not equal omniscience.37 A second response must be made to this objection as well. We may, without any disagreement or conflict being present, need to adjudicate or interpret some event in order to continue pursuing acts of flourishing. An analogy might help. Suppose two character friends are playing tennis. Each, of course, wants to win, but not at the expense of the other; that is, each wants to win fairly within the rules of the game. Suppose a ball has been hit close to the line. Neither player is certain if it was ‘‘in’’ or ‘‘out.’’ We need not interpret this scenario as being one where A argues it is ‘‘in’’ while B argues it is ‘‘out.’’ Neither one is really certain. They wish only to get the correct call so that the game might proceed. Both, since they are character friends, are completely at peace if the call goes ‘‘against’’ them, because continuing the game is what is important. They thus appeal to a third person sitting on the sideline to adjudicate the matter. There is no conflict or disagreement here, but there is a need for a ruling. We might add that we should resist the temptation to say that if no third party is present they will argue. More than likely they will play the point over. Now suppose the third person understands nothing of tennis but says that he saw the ball hit the line. The two parties get ready to continue playing having happily accepted the judgment of the other party. Suppose at that moment another person comes by and says, ‘‘I overheard the discussion. I was not able to see whether the ball was ‘in’ or not, but I did notice that the person who hit it 37. See our discussion of constitutional contracts in Liberty and Nature, 191–206.

336

defending liberalism

did so after it bounced twice.’’ Notice that this makes whether the ball was ‘‘in’’ or not irrelevant, because whether ‘‘in’’ or ‘‘out,’’ it is out of play after the second bounce. The point of this last scenario is, of course, to suggest the importance of some structural principles to give a particular interaction legitimacy as an interaction. It is important to recognize here that the point does not logically depend on a second-order preference to cooperate—what Kavka discusses as the ‘‘reasonable liberal’’ position—that puts cooperation and tolerance ahead of all first order values one may have. No, rather the metanorms exist precisely to avoid having to put individuals in the position of subsuming first-order values (playing well and winning) under secondorder values (accommodation). This is the central fallacy of communitarianism.38 The point is especially relevant to Aristotelians whose moral theory is not defined in terms of benevolence or altruism as being the central or highest good. These values, when given primary standing, as opposed to standing within a broader moral framework, tend to make personal projects derivative by making the meaning of those projects for oneself dependent upon the state of others. Regarding one individual’s pursuit of flourishing, the well-being of others can form an important part. But others cannot define flourishing for oneself, for they cannot flourish for oneself. Again, those ends required for flourishing must be chosen and integrated as one’s own, which is to say they must become first-order goods in some way. Consequently, whether the individual is distracted from flourishing by having to be primarily concerned with the conditions for flourishing rather than flourishing itself, or by having no content in one’s personal projects beyond what has been given by others, the primary obligation to flourish has been given secondary status. The point just made is the main one that separates us from the approach 38. In other words, the fallacy of communitarianism is that it asks us to replace our firstorder preferences with second-order ‘‘preferences’’ for community. We are not, however, saying that thinking of community first is a bad thing. Rather, we are saying that whatever one’s firstorder preferences (which may include the good of others), they depend upon structured context of principles that exist to make it possible to act on first-order preferences. If ‘‘cooperation’’ was a structural principle that made acting on first-order principles possible, then to make it itself a first-order principle would be to override the difference between norms and metanorms. Of course, ‘‘cooperation’’ is not a metanorm for us, but if it were, to transform it from a metanorm to a norm would nonetheless leave the need for having a metanorm under which cooperation could take place. To attempt to obliterate the distinction altogether is an effort, in our view, to obliterate the notion of agency or at least the notion that our telos is individuated. Given the metaphysical character of this claim, it is fair to say we have begun an argument for it here, but have hardly completed it, given the topic of this book. There is more to do, and saying this also allows us to note once again how the political cannot finally be divorced from the metaphysical.

defending individualistic non-perfectionist politics

337

that guides most political theorists, and at some level even Kavka himself. We can admit that there should be government as a prudential means for stemming rights violations and adjudicating disputes, but the final cause of government is the realization that flourishing is individualized and diverse and, as a consequence, that neither human flourishing nor social cooperation is served when first-order preferences are subsumed by the general problem of cooperation or when first-order values are displaced by the need to turn the second-order value of general cooperation into a firstorder one. The normative and the metanormative are both necessary and distinct and should not be conflated. There is one final point to note about this problem, a point that was one of Madison’s main concerns when he made the statement about angels and government. For it was not just that we don’t live in a society where everyone is an angel that moved Madison, but that we were also prone to corruption, however good we might be at any given time. The main corruption Madison feared was the corruption that comes from the possession of power: namely, its abuse. A properly formed government, to his thinking, was a way of checking arbitrary power both inside and outside of government. Notice that this worry remains if our arguments above are convincing, for since there would be some government according to those arguments, the chance for the allures and effects of power would remain. But even with no government, the opportunity or need for power might exist in social life generally. Kavka’s criteria for being an angel do not speak to the issue of corruptibility. The second criterion of angelhood about conscientious action might be read as meaning ‘‘all the time, without fail.’’ Yet even if we are always conscientious, corruption is often brought about in an incremental fashion that may stem from our partiality, and the third criterion requires us to be like all others and thus partial. The problem with power is that it lulls us into thinking that we have a comprehensive perspective when in fact we do not or that our desires are the same as the good. Madison’s system of checks and balances in government was one way to halt that tendency. Government itself may be said to exist to enforce impartiality where such is needed. If we are tempted to interpret Kavka’s second criterion as meaning that conscientiousness is imperviousness to corruption, then perhaps these ‘‘angels’’ are not really us with a heightened sense of moral awareness, but different creatures altogether. In any case, in siding with Madison here, we are not claiming that government is thereby less a potential source for the corruption of power than is society. That is a separate question. We are only claiming, with Locke, that it might be thought

338

defending liberalism

of as a way of solving certain problems of partiality and abuse to which we might be naturally prone. It is not our intention here to settle the archyversus-anarchy debate.

Conclusion We have sought to defend liberalism by linking modern politics with a premodern moral tradition. As we suggested in Chapter 1, this combination may itself be a kind of postmodernism. The reason for this claim can now be readily seen. We embrace many views that are frequently thought to work against modern political theory. For example, we hold that human beings are naturally social; that ethical relativism is an inadequate moral theory; that practical reasoning is not merely instrumental and is crucial to ethics; that the abstract universalism of ethical rationalism fails to recognize the role in determining proper conduct of the particular and contingent (for instance, particular customs or traditions that happen to accrue to specific communities); that abstract universal norms are of only limited use in guiding ethical conduct that relies upon situated norms and practices; that impersonal or agent-neutral moral theory can neither ground nor motivate moral conduct; that liberty cannot be defined or understood without an ethical commitment; that any theory of rights capable of motivating human conduct must ultimately be based on a conception of the human good rather than simply being a matter of right; and that rights are not ethically fundamental. We have, however, shown that these claims, despite their premodern or even communitarian character, do not lead to the usual identification of politics with ethics, either in the moral sense of viewing politics as simply ethics writ large, or in the managerial sense that sees ethics as primarily concerned with the establishment and maintenance of a certain form of social order. Rather, it is in finding a solution to liberalism’s problem, which is in essence also finding a solution to the problem of political legitimation, that we find both the proper province of politics and the point at which politics and ethics interface. Contrary to the tendencies of modern philosophy, both the understanding of and the solution to liberalism’s problem are based on an understanding of the human good, specifically, a neo-Aristotelian understanding of human flourishing, and thus they have a moral foundation. Appealing to such a new deep structure for liberalism does not, however, make the con-

defending individualistic non-perfectionist politics

339

nection between politics and ethics either direct or isomorphic. As we observed in the penultimate paragraph of the final chapter of Liberty and Nature: The paradigm of the two basic world views (modern and classical) we have presented is not so rigid as we have made it seem. Liberalism actually leaves the possibility of moral perfection open. All it says is that we must first solve the problem of social conflict before we can worry about perfection. And antiquity is not necessarily opposed to the idea that perfection must be achieved in stages and that such stages may involve certain preconditions that must be met and maintained if further advancement is to be achieved. Furthermore, antiquity is not necessarily committed to the notion that the state must be the vehicle by which people are directed to their proper ends. The logical openings in both traditions make our position possible. What we have done is to take advantage of them and to indicate a possible means of reconciling morality and liberty.39 The openness of liberalism to an ethics of self-perfection and the idea that self-perfection must be achieved in stages led us in our earlier works, and even more so in this one, to see that the key to understanding and defending liberalism is found in the language of metanormativity. The basis for this understanding and defense is the realization that although the value of self-direction is of comparatively little importance in helping an agent to apply normative principles or make practical judgments, it is of supreme importance when it comes to determining the ethical basis for the structural principles of the political/legal order that provide the overall or general conditions for civil order and thus what the proper function of individual rights is. To find something that will allow social life in its widest sense to be possible, despite all of the varieties of human flourishing, and yet not require the lives and resources of some to be at the service of others, is the aim of rights and remains the principal reason why liberalism so understood is a precondition for civilized social life and the possible pursuit of self-perfection.

39. Rasmussen and Den Uyl, Liberty and Nature, 224–25.

Epilogue from metanorms to metaphysics

If I keep from meddling with people, they take care of themselves, If I keep from commanding people, they behave themselves, If I keep from preaching at people, they improve themselves, If I keep from imposing on people, they become themselves. —lao-tzu

We thought of using these lines from Lao-tzu as the epigraph for this book. But we eventually realized that doing so might undermine the seriousness with which we could hold to our political non-perfectionism.1 After all, it would seem that by endorsing these lines we would also be endorsing the view that political orders should bring about certain desirable social ends, that is to say, a kind of perfectionism. This criticism seems plausible to us. But are we not already too late? If we were tempted by these lines from Laotzu in the first place, are we not being disingenuous in our anti-perfectionist stance? Are we not, in other words, being secretly perfectionist in our politics while dogmatically adhering to a non-perfectionist political doctrine for the sake of consistency rather than truth? These questions in turn raise an interesting philosophical one. If we believe that the minimal state, as we have argued for it here, would actually produce the results described by Lao-tzu above, would we necessarily contradict our non-perfectionist politics? To answer this question, we believe we must consider more directly the relationship between metaphysics and political theory. The position held by contemporary political philosophers seems to be that there is no necessary or needed connection between metaphysical and political theories. Not only does someone like Rawls, as we noted earlier, 1. Elaine Sternberg’s commentary on our argument helped us to come to this realization.

from metanorms to metaphysics

341

wish to separate politics from ‘‘comprehensive’’ philosophy, but virtually no political philosophers feel a compulsion to outline a metaphysical theory or identify their chosen metaphysical framework before engaging in political philosophy.2 We did otherwise in our opening chapter, although all of the things that we are committed to when we identify ourselves as ‘‘neoAristotelian’’ may need further development. Some of the elements of what we are committed to have been, of course, filled in during the intervening discussions; but another work on more metaphysical and epistemological themes would seem to be a required sequel to this one, if we are serious about there being a connection. Yet even if we undertook such an endeavor, is it clear how a discussion of, say, the problem of universals would have any direct implications for political philosophy? It is certainly true that a discussion of a metaphysical topic, and indeed even the arguments employed during such a discussion, may have little or nothing to do with political theory. But it does not follow from that admission that the conclusions one draws or argues for are not much more relevant to what can plausibly be said about the political. It may very well be that at least some conclusions one draws in the metaphysical realm—for example, conclusions about the nature and purpose of human beings—have rather direct relevance to politics and political theory. But a certain prima facie skepticism about even this should remain, for do we not find thinkers with rather similar metaphysical commitments having rather different sorts of politics? Are we ourselves not an example of this, given that most neo-Aristotelians are not classical liberals? But to repeat a point made in Chapter 12, the fact that theorists differ is not an argument that a theory may imply different contradictory conclusions. Therefore, it is perhaps a useful bit of information that most neo-Aristotelians are not classical liberals, but it is certainly not decisive of anything. Consequently, we make no headway toward determining whether or not metaphysical commitments need be considered for political theorizing by knowing that people 2. The case of political theorists—using the distinction between political philosophers and political theorists to generally and respectively separate those in philosophy departments from those in political science departments—is more complicated. They often wish to identify a thinker’s more general philosophical theories with their politics drawing the implications of one to the other. But while this is done while studying the political philosophies of great philosophers, it is unclear to us whether any commitments of this sort are thought to be requirements for the contemporary theorist as positive theorist. Of course, we need to recognize that certain philosophical positions may be taken for granted by theorists. For example, there might be a general presupposition against teleology. Such presuppositions may imply certain latent metaphysical background conditions, thus necessitating a link between metaphysics and politics. We believe this is often, if not always, the case. But to say that here would be to beg the question.

342

epilogue

with differing politics may have like metaphysical commitments. Presumably, then, also we do not get very far by noting that most theorists do not act as if it is very important to identify their metaphysical commitments or that they believe they need not make many or any such commitments. That too would be a kind of ad hominem. We seem to be back to square one. Would we be contradicting ourselves if we believed both in non-perfectionist politics and in the outcomes and their ‘‘causes’’ as described by Lao-tzu? Yet we might well ask why we are speaking of ‘‘metaphysics’’ at all here. Are not Lao-tzu’s claims rather straightforward simple social/political claims? And if so, would we not be contradicting ourselves if we held, on the one hand, that the legal/political order or state has no aim or purpose beyond providing the structural conditions for the possibility of the pursuit of human flourishing among other persons, while on the other hand we held that such an order or state exists to ensure that people are cared for, orderly, flourishing, and self-fulfilled? That would indeed be a contradiction. Yet since we believe also that what Lao-tzu predicts is a likely outcome of a liberal order, how is that possible without a contradiction? Our answer is that the connection between these claims—which we will refer to as ‘‘Lao-claims’’—is a metaphysical one, not a political one. That is to say, if there is a connection between our politics and Lao-claims, it is due to the nature of truth, being, and goodness—not politics. Moreover, we must be open to the possibility that while certain metaphysical commitments may not imply, or even point to, certain political positions, it may nevertheless be true that certain political positions, when understood within a context of certain metaphysical commitments, may lead one to expect certain features of that combination in reality itself. There are thus two possible ways in which metaphysics might be linked to politics: first is the stronger claim that a correct understanding of certain metaphysical commitments directly implies either a certain sort of politics or rules out a class of possible political conclusions. Second, the weaker claim is that a political position understood within a certain context of metaphysical commitments may lead one to have certain other expectations about social processes and consequences than are strictly entailed by the political theory itself. We may hold to both the weaker and the stronger theses, but only the weaker has in any way been called upon in the preceding pages. In any case, we only have time in a short space to say something about the weaker thesis here. We wish to explore this thesis for a moment, not simply in order to begin a discussion about the relationship between metaphysical

from metanorms to metaphysics

343

themes and politics, but more importantly to clarify why it can be the case that one might expect and hope for the good of society without thereby committing oneself to perfectionist politics. First, however, we need to have some idea of how the weaker thesis works, and this is a complicated matter. We can only explain it in the briefest of terms. The weaker thesis does not appeal so much to what is or is not implied or entailed by a proposition or some set thereof. Rather, it is based on the idea that there is a context in terms of which we understand and interpret theorizing. Indeed, without a context, theorizing is not only groundless but unintelligible. For example, the meaning that makes the marks on these pages ‘‘come alive’’ and thus become words neither comes about nor is explained through a purely formal logical operation or an introspective analysis, for the marks must be about something. Such operations and analyses thus only presuppose what they attempt to explain. A context is needed. Further, the weaker thesis requires that the context be of a certain sort. It must be a context that is itself not a function of theorizing. Unless this is achieved, we have only moved in an increasingly wider circle of theorizing and have understood nothing. We find ourselves in endless disputes over competing intuitions and participation in intellectual games whose only limit is the coherence of one’s imaginings. And since there is nothing upon which to base one’s commitment to such theoretical games, then even the limit of coherence on imaginings becomes a point of dispute: ‘‘Why play this game?’’ ‘‘Why must we be coherent?’’ and ‘‘What is wrong with these questions, including this one, being self-contradictory?’’ Without attempting to provide, let alone acknowledging the need for, a context that is itself not a function of theorizing, which regrettably much of political and ethical theorizing in analytic philosophy has done, we face the specter of not only skepticism but nihilism as well. So, finally, the weaker thesis commits us to confronting an even larger context—namely, philosophical anthropology—and yet a larger one still—metaphysics and epistemology. We can only note here the broad essentials of these larger contexts in which our understanding of liberalism, individualistic perfectionism, metanormativity, and individual rights is embedded. To begin with, our endeavors as individuals and as members of societies belong to a certain form of life, that is, human life, and this form of life, which is our understanding of human nature, is a certain kind or type of life. It is not infinitely malleable.

344

epilogue

A human being is not a formless reality. A human being has both inherent powers and limitations, and it is in terms of these powers and limitations that the achievement of both goodness and truth is to be understood. Further, that human nature exists and is of a certain kind or sort is connected in turn in our context with the following deeper claims: (1) that there are individual living things whose fundamental mode of causality is teleological; (2) that there are individual human beings who, besides being living things and teleological in nature, also have the ability to cognize their surroundings, that is, reality, in conceptual terms; (3) that reality is inherently intelligible; and (4) that reality is absolute and ultimate—beings exist and are what they are independent and apart from human cognition. Moreover, reality is not composed of isolated beings that have no relation to other beings. Indeed, some beings cannot be what they are apart from some relationship (or set thereof) to other beings. They are ‘‘internally’’ related. Yet, not all beings are so related, and so although reality is a network of related beings, it does not compose a single whole or unity.3 The natures of most beings are what they are they apart from others. Reality is thus neither simply one nor simply many. When we speak of the perfection of reality—of goodness and truth in an ontological sense—we can only do so by understanding goodness and truth as achieved through the actions of certain beings and not as something that can be said of the whole of reality, except possibly in an analogous sense. Given this larger context, we can say that knowledge of reality is possible, and that human beings can succeed in making themselves, their societies, and their world better. This is the context in which we find human flourishing or self-perfection to be possible and in which we find Lao-claims acceptable. For if people are left free to care for, behave, improve, and become themselves, then there is nothing in reality that in principle precludes their success. That is to say, the universe is not so ordered as to guarantee defeat of their efforts, and certain arrangements of it may actually encourage their success. This is our metaphysical basis for endorsing Laotzu’s predictions. Indeed, there is a basis for metaphysical optimism. Ontologically, we do 3. We thus regard the description of the positions that can be taken regarding the ontology of social life as either atomistic or holistic as a false dichotomy and, perhaps, question begging. See, for example, Charles Taylor, ‘‘Cross Purposes: The Liberal-Communitarian Debate,’’ in Liberalism and the Moral Life, ed. Nancy L. Rosenblum, 159–82 (Cambridge, Mass.: Harvard University Press, 1989). We discuss this issue in our forthcoming essay in The Review of Metaphysics, ‘‘The Myth of Atomism.’’

from metanorms to metaphysics

345

not live in a ‘‘veil of tears’’ because reality allows, for the most part, ample opportunity for most people to find fulfillment, at least to some extent, if they will but exercise the effort to use their minds and develop the appropriate virtues, and if there are political/legal orders whose structural conditions protect liberty. Protecting the possibility of self-direction is vital; for that is necessary for the economic and moral entrepreneurship required for material prosperity, human flourishing, and civil society. It can be said as well, that protecting the possibility of self-direction accords with human nature. While our politics is not perfectionistic, it does not follow from that that we are pessimists about human flourishing or that we regard it as a random affair. As Aristotelians we believe there is a propensity in human nature toward flourishing. Holding that position in no way compromises our anti-perfectionistic politics. Indeed, we hold with Madame de Sta¨el that it is not just the intellectual and moral virtues that reflect the flourishing of human nature, but the propensity for liberty itself is deeply imbedded within us. As she notes: Without doubt knowledge is requisite to enable us to soar above prejudices: but it is in the soul also that the principles of liberty are founded; they make the heart palpitate like love and friendship, they come from nature, they ennoble the character. One connected series of virtues and ideas seems to form that golden chain described by Homer, which in binding man to heaven, delivers him from all the fetters of tyranny.4 If we have to put a label on this ultimate larger context, that is, on our metaphysical basis for adopting Lao-claims, we shall simply call it ‘‘realism,’’ because it is in the nature of realism to adopt this qualified optimism. Indeed, Roger Trigg has described the importance of realism for issues such as these most aptly: It is a paradox that man can demand the centre of the stage, insisting that everything should depend on him and yet in the end find that in doing so he has lost his rationality and freedom. Realism takes the possibility of error and ignorance seriously, but it also gives men the chance of notable success in extending the range of 4. Madame de Stae¨l, ‘‘Considerations on the Principal Events of the French Revolution,’’ vol. 3, part 6, chap. 11, 403, in On Politics, Literature, and National Character, trans. and ed. Morroe Berger (New Brunswick, N.J., and London: Transaction Publishers, 2003).

346

epilogue

their understanding. It gives them something to reason about, while acknowledging that they are free to make mistakes.5 If we can understand the world around us, it is possible to act successfully within it because it is possible to know how to act. That is no guarantee of success. Yet from the start and throughout this work, we have not been concerned with success. We have not even been concerned with what in general makes success possible in a political and social setting. Rather, we have been concerned only with protecting the possibility for the pursuit of human flourishing. Yet, since reality is intelligible and human knowledge possible, we as humans can not only live with that—we might even live well.

5. Roger Trigg, Reality at Risk: A Defense of Realism in Philosophy and the Sciences (Sussex: Harvester Press; and Totowa, N.J.: Barnes & Noble Books, 1980), 197.

Index

abstraction theory: Gray’s dismissal of perfectionism and, 180–83; human flourishing and, 154–56; MacIntyre’s communitarianism and, 233n.12; self-perfection and, 274–75 acceptability problem, non-perfectionist politics and, 322–23 Ackrill, J. L., 112–13, 129n.47, 130nn.48–49, 137n.58 actions: justice and, 299n.14; metanormative dilemma of, 287–88; non-perfectionist politics and agent-neutral values, 316n.29; private property rights and consequences of, 101–7; rights and non-perfectionist politics and, 290–92; self-direction and, 90n.16 Acton, John Emerich Edward Dalberg-, 255–56 After Virtue, ix; communitarian principles in, 226n.1; individualistic perfectionism and, 112 agent-centered ethics: extreme poverty and possibility of self-direction and, 305–11; non-perfectionist ethics and, 319–22; perfectionism and, 114–15 agent-neutrality: human flourishing and, 81n.6, 135–38; metanormative principles and, 84; natural law conservatism and, 252–56; non-perfectionist ethics and, 313–17; objectivity and, 190–91; practical reason and, 158–60 agent-relative good: eudaimonic conservatism and, 260–64; Gray’s dismissal of perfectionism in, 175–83; human flourishing and, 80n.5, 134–38, 190–96, 269–71; liberalism and, 23n.6; non-perfectionist politics and agent-neutral values, 314–17; in political community, natural law and, 199–205; practical wisdom and, 147–52; private

................. 11426$

INDX

property rights and concept of, 102–7; selfownership thesis and, 215–22; universality and, 153–56 Anarchy, State, and Utopia, 209n.8 Annas, Julia, 112, 169n.30 Anscombe, G. E. M., 112 antifoundationalism, Gray’s dismissal of perfectionism and, 182n.51 Aquinas, Thomas, 69; on cognition, 157; on common good, 256n.48; MacIntyre’s communitarianism and, 233n.12, 240–41; on perfectionism, 153; practical reason principles of, 186, 269; on reason, 140n.67; in rerum natura concept and, 99n.8; on selfdirectedness, 87n.14 Ariew, Andre´, 119–20 Aristotle, ix; absence of telos and theories of, 318–19; agent-centered ethics and theories of, 319–22; aitia concept of, 120n.24; bias in metanormative principles and work of, 325–27; causation model of, 120; common good and philosophy of, 256n.48; human flourishing and work of, 79–83; inclusiveness of human flourishing and, 131; individualistic perfectionism and works of, 112, 151–52; influence on MacIntyre of, 227, 233–44; Kant compared with, 52–53; liberalism in framework of, 14–17, 34n.32, 38–41; on politics and morality, 40, 53–62, 92n.17; private property rights in work of, 107; on self-direction, 138–41; selfsufficiency and work of, 331n.34; sociality in works of, 141–42, 162n.13; teleology in works of, 120–21, 121n.26; unity of virtues concept of, 172n.38; universality and agent-relativity in works of, 154n.3 assertoric hypothetical imperative, perfectionism and, 125–27 assimilationist ideology, natural rights and, 65–75

08-10-05 09:13:46

PS

PAGE 347

348

index

atomism: liberalism and, 20–21; socialization of ethics and, 30 autonomy: rights and, neo-Aristotelian ethics on, 295–96; role in liberailsm of, 27–28; self-direction and, 276–79; self-ownership and, 207 Balme, D. M., 120n.24 Becker, Lawrence C., 97n.3, 99n.5 Berlin, Isaiah, 35, 170–71; Gray and, 173, 249; self-ownership thesis and, 209 biocentric teleology, 121–27; extreme poverty and possibility of self-direction and, 306n.20; function argument in, 169–70; human flourishing and object of desire in, 128–29; self-perfection and, 274–75 body, self-ownership of, 208–22 Bolt, Robert, 76 bonded flourisher, non-perfectionist ethics and, 311–13 British empiricism, socialization of ethics and work of, 29–30 burden of proof concept: natural law conservatism and, 254–56; private property rights and, 101–7 Calvin, John, 28n.19 capitalism: MacIntyre’s communitarianism and, 236–44; reciprocity in, 236n.21 categorical imperative, perfectionism and, 125–27 Catholic Church, socialization of ethics and, 28n.19 causation models, teleology and, 119–27 choice: common good in political community and role of, 204–5; extreme poverty and possibility of self-direction and, 308–11; Gray’s dismissal of perfectionism and limits of, 180–83; human flourishing and role of, 126–27, 141; MacIntyre’s communitarianism and role of, 238–44; practical wisdom and, 147–52 circularity, in self-ownership thesis, 220–22 civil society: agent-centered ethics and, 320–22; Gray’s discussion of, 245–50; MacIntyre’s communitarianism and role of, 242–44; symbolism and, 328–29 coercion: ethics and, 61–62; extreme poverty and possibility of self-direction and, 308–11; government intervention and, 333–38; natural law conservatism and role

................. 11426$

of, 251–56; pursuit of virtue and, 255n.43; self-direction threatened by, 280–82 cognition: recognition of good and, 157–58; wealth and, 99n.6 collective preferences, bias in metanormative principles and, 327 collectivist paradigm: MacIntyre’s communitarianism and, 239–44; private property rights and, 103n.14 common good: eudaimonic conservatism and, 261–64; natural law and, 184–205; of political community, natural law and, 197– 205; rights and, 256n.48 communitarianism: attacks on liberalism by, 225–44; basic principles of, 9–10; crisis of liberalism and, 6–17; defense of liberalism against, 225–64; ethics and, 32–33; firstversus second-order values and, 336–38; Gray’s discussion of, 245–50; individual rights and, 92, 94–95; liberalism as moral philosophy and, 42–43; natural law versus natural rights and, 72; pluralistic form of, 244–50; self-ownership thesis and, 209 community: Gray’s rejection of liberalism and role of, 248–50; human flourishing and need for, 82–83, 270–71; liberalism as threat to, MacIntyre’s discussion of, 229–44; metanormative justice and, 300– 301; political community, natural law and common good of, 197–205; role of choice in, 238n.24; self-perfection and, 270–71; sociality and role of, 142–43 compatibility, of natural law with natural rights, 69–75 complementary interrelationship of goods, eudaimonic conservatism and, 263–64 concrete virtue, Gray’s dismissal of perfectionism and, 180–83 conditionalist thesis, common good in political community, natural law and, 200–205 conduct: desire and self-direction and, 165–67; human flourishing and, 156; metanormative dilemma of, 286–88; as moral excellence, fallacy of, 94–95; right to liberty as regulation of, 280–82; self-ownership thesis and constraints on, 218–22 consequentialism: inclusiveness of human flourishing and, 132; perfectionism and, 112n.2; self-ownership thesis and, 216–22 conservatism: crisis of liberalism and, 7–17; defense of liberalism against, 225–64; eudaimonic conservativism, challenge of,

INDX

08-10-05 09:13:51

PS

PAGE 348

index 257–64; individual rights and, 92, 94–95; natural law and challenge of, 251–56 Constant, Benjamin, 223 constituent goods and virtues, metanormative principles of justice and, 297–301 contingent/necessary relationship, 94–95 contractarianism, perfectionism and, 112n.2, 113 conventionalism: agent-neutrality and, 159–60; MacIntyre’s communitarianism and, 230–33; non-perfectionist politics and agent-neutral values, 316n.29 Cooper, John, 112, 139n.62, 172n.38 cooperation: liberalism and ethics of, 47–62; socialization of ethics and, 32–33 crime, individual rights and, 93n.18 Cunliffe, John, 206 De Anima, 138 Delbru¨ck, Max, 121n.26 democarcy, acceptability problem of, 322–23 Democracy and Moral Development, 257–64 d’Entre`ves, A. P., 71–73 Den Uyl, Douglas J., 5 deontological theory: defined, 65n.41; natural rights and natural law in, 65–75; perfectionism and, 112–15; self-ownership thesis and, 219–22; tendency toward good and, 24–28, 27n.15 Dependent Rational Animals, ix, 234–44 descriptive ethics, liberalism and, 19–20 desire: human flourishing and object of, 127–29; moral virtue and, 172–73; nature of liberalism in, 45–47; rights and, neoAristotelian rights and, 295–96; self-direction and, 163–67, 279n.11; self-sufficiency and, 332 de Stae¨l, Madame, 345 Discourses (Rousseau), 73 distribution of goods and services, private property rights and concept of, 102n.11 divine law, nature of liberalism and, 46–47 duties: self-ownership thesis and, 219–22; as source of natural rights, 65–75 economic issues. See also money: crisis of liberalism and role of, 8; extreme poverty and possibility of self-direction and, 305–11; liberalism and study of, 19; MacIntyre’s communitarianism and, 236–44 egoism, agent-relativity and, 138 emotions and feelings, human flourishing and moral virtue and, 79n.4, 171–73

349

Enlightenment: crisis of liberalism and failure of, 6–17; good versus right during, 26–28; Gray’s dismissal of perfectionism and acceptance of, 180–83 ‘‘enough and as good’’ principle, private property rights and, 101–7 Epictetus, 311 Epstein, Richard A., 13n.9 equal opportunity, private property rights and concept of, 102n.11 equivnormative systems, liberalism and, 34–41 essentialism: function and, 169–70; Gray’s dismissal of perfectionism and, 182–83; individualistic perfectionism and, 116–17; teleological principles and, 121–22 ethical rationalism, human flourishing and, 144–52 ethics: crisis of liberalism and role of, 8–17; Gray’s dismissal of perfectionism in, 174–83; history of perfectionism in, 112–15; human flourishing and, 79–81; individualistic perfectionism and, 112–15; individual rights and, 78–79, 92; justification for political/legal order and, 85–86; legislative pathology of, 151n.88; in liberalism, 18–41; metanormative solution to liberalism and, 33–41; philosophical context of, 127n.39; political/legal order and, 14–17, 253–56; self-ownership thesis and, 213–22; socialization of, 28–33; teleological eudaimonism in, 62–75 Ethics and the Limits of Philosophy, 112 eudaimonia: Aristotle’s concept of, 86; conservatism andch, 257–64; Hursthouse’s discussion of, 112, 126n.39; inclusiveness of human flourishing and, 131–32; individualistic perfectionism and, 111–27; intellectualist interpretation of, 115n.7; neoAristotelian rights and, 295–96; nonperfectionist politics and agent-neutral values, 316n.29; self-direction and, 139–41 evil. See also goods; morality: pursuit of good as avoidance of, 190n.19; self-ownership thesis and avoidance of, 217–22 existentialism: moral theory and, 61n.31; private property rights and, 99n.5 exploitation, private property rights and, 100–107 fanaticism, natural law theory and, 193–94 Finnis, John, 64–68, 72; on common good, 197–201; natural law theory and, 188–92, 188n.14; perfectionism and works of, 112

350

index

First Treatise (Locke), 73 Fleishacker, Samuel, 277n.9 Foot, Philippa, 112, 119n.19, 122, 126n.39, 128 force: extreme poverty and possibility of selfdirection and, 308–11; impact on selfdirection of, 89–91; moral excellence imposed by, 94–95; self-direction threatened by, 280–82 freedom: of association, political community and common good in, 200–205; MacIntyre’s communitarian critique of liberalism and role of, 229–44; self-direction and, 90–91 Friedman, Milton, 284 friendship (philia): human flourishing and, 81–83, 141–43, 155–56; self-ownership thesis and, 214–22; self-perfection and, 270–71 fulfillment, human flourishing as, 194–96 function, individualistic perfectionism and concept of, 117n.1, 118–27, 119n.19, 167–70 generic goods and virtues: Gray’s dismissal of perfectionism and, 177–83; Gray’s rejection of liberalism and, 249–50; human flourishing and, 150–52, 269–71; metanormative principles based on, 274–75; self-ownership thesis and, 211–12; teleology and, 118n.17 Geneva, 28n.19 George, Robert, 72, 118n.18, 189–90, 251–56 Gewirth, Alan, 25n.10 Gilder, George, 236n.21 giving and receiving relationships, MacIntyre’s communitarianism and role of, 236–44 goods: avoidance of evil and pursuit of, 190n.19; basic goods, natural law theory concerning, 188–96; common good, natural law and, 184–96; complementary interrelationship of, 263–64; desire and selfdirection in pursuit of, 164–67; eudaimonic conservatism and, 260–64; evolutionary biology and concept of, 119n.19; function argument for, 169–70; Gray’s dismissal of perfectionism in, 174–83; human flourishing and, 79–81; inclusive human flourishing and, 129n.47; individualization of, 132–34; intractability of, 21–22; MacIntyre on practices and production of, 230–31; moral versus nonmoral, 25n.9; new natural law theory concerning, 186–96; ontology of, 122–27; in political

community, natural law and common good in, 199–205; practical wisdom and, 147–52; private property rights and voluntary transfer of, 105–7; Rawls on right versus, 56–57; recognition of, 157; right versus, 22–28; traditional natural law view of, 194–96; universality and agent-relativity concerning, 153–56 government intervention. See also political/ legal order: community institutions and, 241n.30; non-perfectionist politics and, 333–38 Gray, John, 6; critique of liberalism by, 21–22, 244–50; ethics critiqued by, 35; individualistic perfectionism and, 153; on liberty, 245–50, 255; perfectionism dismissed by, 173–83 Green, T. H., 47–50 Grisez, Germain, 72, 194 Hampton, Jean, 17n.13 happiness, cluster concept of, 171n.35 Hasnas, John, 266n.2 Hayek, F. A., 39n.41, 225; ‘‘Great Society’’ of, 271; origins of liberalism and, 43; private property rights discussed by, 103–4 Hill, Jason D., 61n.31 Hobbes, Thomas, 28–29; atomistic theory of, 141–42, 270; metanormative principles and, 324–27, 333–38; natural law theory of, 47n.5, 73, 291n.6; normative/metanormative dichotomy, 291n.7 homo economicus concept, liberalism and, 20–21 human flourishing: agent-neutrality and practical reason in, 158–60; agent-relative good and, 80n.5, 134–38; anthropological basis for, 119; bias in metanormative principles toward, 323–27; bonded flourisher argument and non-perfectionist politics, 311–13; desire and self-direction and, 164–67; eudaimonia as, 111–15; extreme poverty and possibility of self-direction and, 303–11; function argument and, 167–70; Gray’s critique of liberalism and, 246–50; Gray’s dismissal of perfectionism in, 173–83; human nature’s response to, 123–27; inclusiveness of, 129–32; individualistic perfectionism and, 113–27; individual rights and, 132–34, 265–68, 269–71; justice and, 160–63, 297–301; liberalism’s problem and, 93–94, 271–73; MacIntyre’s

index communitarian critique and, 230–44; metanormative dilemma of, 287–88; metanormative principles and, 83–84, 333–38; moral virtue and, 171–73; natural right to liberty and, 268–83; necessity of metanormative principles and, 301–3; neo-Aristotelian rights and, 295–96; new natural law theory and, 187–96; non-perfectionist politics and agent-neutral values, 314–17; objective but plural aspects of, 79–81; object of desire and, 127–29; pluralism and, 79–81, 134, 144–52, 170–71; in political community, natural law and common good in, 198–205; practical wisdom and, 79n.4, 143–52; private property rights and, 98–107; self-directedness of, 86–88, 93–94, 138–41, 276n.8, 277–79; self-ownership thesis and, 211–22; self-perfection and, 274–75; self-sufficiency and, 330–32; sociality of, 81–83, 141–43, 269–71; teleology of, 123–27; traditional natural theory and, 194–96; universality and agent-relativity and, 153–56 Hume, David: origins of liberalism and, 43, 57; socialization of ethics and work of, 29–31 Hurka, Thomas, 118n.18 Hursthouse, Rosalind, 112, 126n.39 impartiality: individualistic perfectionism and, 112; new natural law theory and role of, 191 impersonalism, metanormative justice and, 300–301 inclusiveness, of human flourishing, 129–32 incommensurability, Gray’s dismissal of perfectionism and, 175–83, 249–50 incompatibility: Gray’s dismissal of perfectionism and, 178–83; of natural law and natural rights, 69; pluralism and human flourishing and, 170–71 individual agency thesis, common good in political community, natural law and, 200–205 individualism: abstraction of, 141–42; agentcentered ethics and, 320–22; bias in metanormative principles and role of, 326–27; crisis of liberalism and, 7–17; eudaimonic conservatism and, 257–64; Gray’s dismissal of perfectionism and, 176–83; of human flourishing, 132–34, 269–71; metanormative justice and, 300n.17; metaphysics and, 343–46; natural rights and, 63–75;

................. 11426$

351

new natural law theory concerning, 189–90; in non-perfectionist politics, defense of, 284–339; non-perfectionist politics and agent-neutral values, 315n.28; in political community, natural law and common good in, 197–205; private property rights and concepts of, 99–107; rights and non-perfectionist politics and, 288–92; ‘‘rights-primitive’’ versus ‘‘responsibilities-primitive’’ concept of, 258–64; role in liberalism of, 26–28; selfownership thesis and, 208–22; socialization of ethics and, 30; underdetermination and, 145–52 individualistic perfectionism, x–xi. See also self-perfectionism; agent-neutrality and practical reason in, 158–60; defense of, 153–83; desire and self-direction in, 163–67; function argument in, 117n.1, 118–27, 119n.19, 167–70; Gray’s dismissal of, 173–83; justice and, 160–63; metanormative justice and, 299–301; moral virtue and, 171–73; natural law and, 184–85; objectivity and, 156–58; pluralism and, 170–71; practical wisdom and, 143–52; principles of, xiii, 111–52 individual rights: communitarianism versus liberalism on, 6–7; MacIntyre’s discussion of, 227–44; metanormative principles as, 76–96, 265–68; morality trumped by, 92–94; obligations and, 91–92, 266n.1; private property rights as, 97–107; self-direction and, 79, 90n.16, 266–68, 279–82; selfownership thesis and, 208–22; self-perfection and, 265–68; structured argument for, 265–83; understanding of, 91–92 ineluctablism, teleology and, 118 in rerum natura concept, private property rights and, 99–107 intuitionism, self-ownership thesis and, 220–22 joint conduct, human flourishing and, 291n.5 judgment: MacIntyre’s communitarianism and role of, 231–32; private property rights and role of, 102–7 justice: ethical norms and, 27–28; human flourishing and, 160–63; metanormative principles and, 161–63, 296–301; rights and non-perfectionist politics and, 289n.4; self-ownership thesis and, 209, 217n.23; socialization of ethics and, 31–32 justificatory neutralism, liberalism and, 56–57 justificatory neutrality, 268

INDX

08-10-05 09:13:59

PS

PAGE 351

352

index

Kant, Immanuel: agent-relative good and human flourishing and, 135n.56; categorical imperative of, 35n.34; ethical reasoning and works of, 146; good versus right and work of, 24, 57–59; metanormative justice and philosophy of, 300–301; noumenal theory of, 216; on politics and morality, 47–48, 51–62; Rawls compared with, 54– 56, 296–97; self-direction and work of, 88– 89, 276–78; self-ownership thesis and theories of, 211, 216, 220–22; socialization of ethics and work of, 30; universalizability test, 65n.41, 112n.2, 211 Kant: Political Writings, 51–52 Kavka, Geoge, 333–37 Kenny, Anthony, 154 Khawaja, Irfan, 129n.46 knowledge: ethics and role of, 149–52; society and uses of, 26n.11 Kraut, Richard, 130n.48 Kukathas, Chandran, 329n.33 Kymlicka, Will, 26n.12 language of liberalism, deconstruction of, 243–44 Lao-tzu, 340–46 leftist philosophy, crisis of liberalism and, 6–17 legal order. See political/legal order legitimacy: extreme poverty and possibility of self-direction and role of, 310–11; of political/legal order, 282–83 Leibniz, Gottfried Wilhelm, 69 Lennox, James G., 119–20 Leviathan, 47n.5, 73, 291 liberalism: Aristotelian ethics and, ix; communitarian and conservative attacks on, 225–64; in crisis, 5–17; defense of, 223–24; ethics and, 18–41; good versus right and, 22–28; Gray’s discssion of, 244–50; historical roots of, 19, 42–75; MacIntyre’s critique of, 226–44; nature of, 44–62; as political doctrine, 109–10; political order and, 1–3; structural paradox of, 12–13 Liberalism, Community, and Culture, 26n.12 Liberalism Defended: The Challenge of PostModernity, ix, 5–6 liberalism’s basic tenet: Gray’s rejection of, 247–50; MacIntyre’s critique of, 237–44; natural law conservatism and, 253–56; properties of, x, 225 liberalism’s problem: individual non-perfec-

................. 11426$

INDX

tionist politics and, 285–86; individual rights and, 271–73; MacIntyre’s communitarianism and, 243–44; metanormative justice and, 300n.17; metanormative principles and, x–xi; morality trumped by individual rights and, 92–94; natural rights as principles of natural law and, 63–75; necessity of metanormative principles and, 301–3; political legitimation and, 283; political order and, 1–3; rights as metanormative principles and, 78–79 libertarianism: liberalism versus, 11; selfownership thesis and, 207–22 liberty: as basic right, 76–77; bias in metanormative principles toward, 323–27; Gray’s discussion of, 245–50, 255; individual rights and, 78–79, 266–68; justification for political/legal order and, 85–86; liberalism and meaning of, 10–11; MacIntyre’s communitarianism and role of, 229–44; natural law conservatism and, 255–56; natural rights and, 66, 268–83; possiblity of human flourishing and, 90–91; self-direction and, 89–91; self-sufficiency and, 330–32 Liberty and Nature: An Aristotelian Defense of Liberal Order, ix, 63, 74, 212–13, 236, 256n.48, 257, 289n.3, 339 life, right to: liberty and, 77; self-ownership thesis and, 209–22 living things (life-forms): functionalism of, 168–70; teleology of, 122–23 Locke, John: natural rights and natural law theory of, 62, 73, 75; origins of liberalism and, 43, 292; private property rights and, 97, 101; on role of the state, 289; selfownership thesis and, 206–7, 209n.8, 222 MacDonald, Scott, 130n.49. 141n.70 MacIntyre, Alasdair, ix, xii, 6, 11–12, 248; communitarian critique of liberalism by, 225–44; individualistic perfectionism and, 112; on liberalism as moral philosophy, 42–43; metaphysical biology concept of, 118, 225–26 Mack, Eric, 23n.6, 209–10, 213–14, 219n.28 Madison, James, 333–34, 337–38 Marxism: MacIntyre’s communitarianism and, 240–41; self-ownership thesis and, 209 Maslow, Abraham, 112 material conditions: common good and, 200–

08-10-05 09:14:04

PS

PAGE 352

index 205; extreme poverty and possibility of self-direction and, 306–11; non-perfectionist politics and agent-neutral values, 316n.30; self-ownership thesis and, 215n.20; self-sufficiency and, 332 Mavrodes, George, 99, 102, 104–5 maximization, practical wisdom and role of, 147–52 ‘‘metamoral’’ rules, 59 metanormative principles: absence of telos in, 317–19; bias in, 323–27; dilemma of, 256n.47, 286–88; ethical basis for, 273–79; ethical typology of, ix; extreme poverty and possibility of self-direction and, 304–11; Gray’s critique of liberalism and, 247–50; human flourishing and, 83–84, 333–38; individual right as, 76–96, 265–83; justice and, 161–63, 296–301; liberalism in context of, 15–17, 36–41, 242–44; liberalism’s problem and, 272–73, 285–86; liberty and, 256; MacIntyre’s communitarian theory and role of, 229–44; necessity of, 301–3; normative principle versus, 15–17, 94–95; political order and, 1–2; practical wisdom and reason, and self-direction, 275–77; private property rights and, 100– 107; requirements for, 83–84; rights as, 78– 79, 288–92; self-direction as basis for, 88–89, 277–79; self-perfection, constituent goods and virtues, and money, 273–75 metanormative solution: defined, 1; liberalism and ethics and, 33–41 metaphysical biology: MacIntyre’s discussion of, 225–26; perfectionism and, 118–19 metaphysics: basic issues in, 185n.2; MacIntyre’s communitarianism and, 238–39; perfectionism in context of, 115–27; political theory and, 340–46; private property and concepts in, 104–7 Meyer, Susan Sauve´, 124n.35 Mill, John Stuart, 25n.10, 27, 249–50; agentrelative good and, 134–35; self-direction and work of, 88–89, 276–79; socialization of ethics and work of, 31 Miller, Fred D. Jr., 69, 138n.61; metanormative justice and, 298; perfectionism and, 112 minimalism, crisis of liberalism and, 13–17 ‘‘moderate realism,’’ teleological principles and, 121n.27 Modrak, Deborah K. W., 138n.61 modus tollens logic, communitarianism and, 10

................. 11426$

353

money, metanormative principles and, 273–75 moral capacity solution, natural law versus natural rights and, 69–70 moralist fallacy, natural rights and, 66–75 Moralita¨t, MacIntyre’s communitarianism and concept of, 233 morality. See also evil: absence of telos and, 318–19; bias in metanormative principles toward, 324–27; legitimacy of political/ legal order and, 283; non-perfectionist politics and agent-neutral values, 313–17 Morality of Freedom, The, 112 moral theory: eudaimonic conservatism and, 258–64; good versus right in, 22–28; human flourishing and, 171–73; individual rights and, 76–77, 92n.17; 92–94; liberal framework for, 14–17; liberalism and ethics in relation to, 19–41; MacIntyre’s communitarian critique and role of, 229–44; natural law conservatism and, 251–56; new natural law theory concerning, 187–96; perfection in, 333–38; political/legal order versus, 47–62, 94–95, 254–56; self-ownership thesis and, 209–22; self-perfectionism and, 124–27 Mulhall, Stephen, 226n.1 Murphy, Mark C., 241n.28, 314n.26

INDX

natural disasters, extreme poverty and possibility of self-direction and, 309n.23 naturalism, MacIntyre’s communitarian theory and, 234–35 naturalistic fallacy, perfectionism as, 112–15, 118–27 natural law theory: Aquinas’s doctrine of, 69; common good and, 184–205; conservatism and, 251–56; crisis of liberalism and, xi, 7, 13n.9; eudaimonic conservatism and, 257–64; Hobbes’s work on, 47n.5; men as angels model and, 335–38; natural rights as principles of, 63–75, 202n.42; new and traditional principles in, 185–96; political community, common good in, 197–205; self-ownership thesis and, 212–22 natural philosophy, basic issues in, 185n.2 natural rights: liberalism and, 62–75; to liberty, human flourishing and, 268–83; metanormative justice and, 163n.15; natural law and, 63–75, 202n.42; negative individual right to liberty as, 282; private property rights as, 97–107; self-ownership as, 206–22

08-10-05 09:14:09

PS

PAGE 353

354

index

natural teleology, principles of, 119 negativity: of individual rights, 267–68; private property rights and concept of, 103–7; right to liberty and, 76–77, 280–82; in selfownership thesis, 219n.28 Neill, Thomas P., 64 neo-Aristotelian ethics, x; absence of telos and, 318–19; communitarianism and, 9–17; concessions on rights and, 292–94; function argument in, 169–70; individualistic perfectionism and, 2, 44, 113–27; liberalism and, 12–17; moral virtue and practical wisdom, 173; perfectionism and, 127–43; postmodernism and, 338–39; practical wisdom and, 146–52; private property rights and, 103n.14; role of rights in, 294–96; self-ownership thesis and, 211–22; sociality and role of, 142–43 neutrality: bias in metanormative principles and, 323–27; ethics and liberalism and, 39–41; liberalism and, 11–12 new liberalism, ethics and, 28n.17 new natural law, basic principles of, 185–96 Nicomachean Ethics: desire and self-direction in, 166; human flourishing in, 139–41; practical wisdom and, 146–52 Nietzsche, Friedrich, ix nonconsequentialistic principles, individual rights as, 266 non-perfectionist politics: absence of telos in, 317–19; acceptability problem and, 322–23; agent-centered ethics and, 319–22; agentneutral values and, 313–17; bias in metanormative principles and, 323–27; bonded flourisher argument in, 311–13; concessions on rights and, 292–94; contradictions to, 340–46; extreme poverty and possibility of self-direction and role of, 303–11; government and, 333–38; individualism in, defense of, 284–339; metanormative dilemma of, 286–88; postmodernism and, 338–39; rights and, 288–92; self-sufficiency and, 330–32; symbolism and, 327–29 nonrelational value, private property rights and concept of, 99–107 normative principles: abstract/universalized norms, 26; defense of liberalism and, 34– 41, 242–44; eudaimonic conservatism and, 258–64; function and, 168–70; Gray’s dismissal of perfectionism and, 181n.48; history of perfectionism in, 112–15; individual rights and, 91–92; justice and, 161–63, 298–

301; metanormative principles versus, 15– 17, 94–95; morality and role of, 21–22; necessity of metanormative principles and, 302–3; neo-Aristotelian rights and, 295–96; rights and, 289–92; self-direction and, 276–77; self-perfectionism and, 268n.4; symbolism and, 328–29 Norton, David L., 112–13, 249–50, 257–64 noumenal theory: MacIntyre’s communitarianism and, 233; metanormative justice and, 300–301; self-ownership thesis and, 216, 219 Nozick, Robert, 101n.9; self-ownership thesis and, 208–10 objective pluralism, Gray’s concept of, 245–50 objectivity: human flourishing and, 79–81, 190–96; individuality and, 156–58; right to liberty and, 79; of values, eudaimonic conservatism and, 260–64 obligations: inclusiveness of human flourishing and, 131–32; individual rights and, 91– 92, 266n.1; negative individual right to liberty and, 282; practical wisdom and determination of, 269; rights and non-perfectionist politics and, 289–92; self-ownership thesis and, 216–22 Ockham, William of, 69 Olsaretti, Serena, 308n.22 ontology: of good, 122–27; of human flourishing, 129; metaphysics of political theory, 344–46; self-ownership thesis and, 208–22 ‘‘open-question argument,’’ goodness and, 122n.29 opportunity, private property rights and concept of, 100–107 orderly conduct, as moral excellence, fallacy of, 94–95 ‘‘Outline of a Decision Procedure for Ethics,’’ 299n.14 ownership: private property rights and concept of, 97–107; self-ownership thesis and concept of, 209–10 passivity, human flourishing and, 139n.65 perfectionism: Gray’s dismissal of, 173–83, 249–50; history of liberalism and, 44; individualistic perfectionism, xiii, 111–52; men as angels model, 333–38; method and metaphysical context for, 115–27; neoAristotelian ethics and, 127–43; political

index legitimation and, 283; self-ownership thesis and, 213–22 personality, natural law and, 63n.35 Pettit, Phillip, 226n.1 philosophical anthropology: basic issues in, 185n.2; ethics and political philosophy in context of, xi–xii; self-ownership thesis and, 216–22 philosophy, ethics in context of, 127n.39, 183n.53 phronesis. See practical wisdom physical well-being, nature of liberalism and, 45–47 Plato: creation myth of, 119n.22; human flourishing and work of, 79; metanormative principles of justice and, 297; on political structure, 40 pluralism: communitarianism and, 244–50; Gray’s dismissal of perfectionism in, 174–83; human flourishing and, 79–81, 134, 144–52, 170–71; practical wisdom and, 149–52 polis: bonded flourisher argument and, 313n.24; MacIntyre’s interpretation of, 236–40; philosophical interpretations of, 236n.22; sociality and, 162n.13 political/legal order. See also government intervention; statecraft: absence of telos in, 317–19; extreme poverty and possibility of self-direction in, 303–11; human flourishing and role of, 146–52; justification for, 84–86; Lao-tzu’s philosophy and, 340–46; legislative pathology of ethics and, 151n.88; legitimization of, 282–83; liberalism and, 1–3; liberalism’s problem and, 271–73; MacIntyre’s interpretation of, 233–44; metanormative dilemma of, 286–88; metanormative justice and, 299–301; morality and, 59–62; natural law and common good of, 197–205; natural law conservatism and, 253–56; necessity of metanormative principles and, 302–3; negative individual right to liberty and, 282n.16; self-sufficiency and, 331–32; symbolism in, 327–29 political liberalism, Rawls’ doctrine of, 56–57 Political Liberalism, 22n.5 political theory: agent-centered ethics and, 320–22; bias in metanormative principles and, 326–27; crisis of liberalism in, 6–17; equinormative systems and, 34–41; Gray’s dismissal of perfectionism and, 181n.48; individual non-perfectionist politics, 284;

355

individual rights and, 78–79, 92; justification of political/legal order and, 84–86; liberalism as, 109–10; MacIntyre’s communitarianism and, 228–44; metaphysics and, 340–46; morality versus, 47–62, 94–95; nature of liberalism and role of, 45–47; necessity of metanormative principles and, 301–3; non-perfectionist politics and, 340–46; right versus good in, 55–62; as search for truth, xii; symbolism and, 327–29 politics: ethics and, 14–17, 93–94; as prescriptive ethics, 27–28 Politics (Aristotle), 107 positive rights: bias in metanormative principles toward, 323–27; metanormative justice and, 298n.12; negative individual right to liberty versus, 281–82; private property rights as, 102–7 possession, private property rights and concept of, 97–107 postliberalism, communitarianism and, 8–9 postmodernism, non-perfectionist politics and, 338–39 poverty, possiblity of self-direction in, 303–11 power hierarchies, MacIntyre’s communitarian theory and, 235n.17 practical wisdom (rationality): agent-neutrality and, 158–60; ethics and, 62, 269; Gray’s dismissal of perfectionism and, 179–83; human flourishing and, 79n.4, 143–52; MacIntyre’s communitarianism and, 240–44; as metanormative principle, 275–77; moral virtue and, 172–73; new natural law theory concerning, 186–96; selfdirectedness of human flourishing and, 87–88, 279–82; self-ownership thesis and, 217–22 prescriptive ethics: liberalism and, 19–20; politics as, 27–28 Principles for a Free Society: Reconciling Individual Liberty with the Common Good, 13n.9 private property rights. See also self-ownership: liberty and, 77; as natural rights, 97– 107; political order and, 2 production, private property rights and rules of, 98–107 prolematic hypothetical imperative, perfectionism and, 125–27 prudence, justice in place of, 31 ‘‘pure liberalism,’’ symbolism of, 329n.33 ‘‘purpose-independent’’ rules, 39n.41

356

index

radicalism, natural law versus natural rights and role of, 71–72 Rand, Ayn: on individual rights, 265; on property rights, 97; on self-directedness, 87n.14; on social systems, 184 Rasmussen, Douglas B., 5 rationality. See practical wisdom (rationality); reason Rawls, John, 22n.5, 26n.12; individualistic perfectionism and, 112; metanormative principles of justice and, 296–301; political theory and work of, 54–62, 340–41; selfownership thesis and, 209 Raz, Joseph, 112, 181 realism, human flourishing and, 345–46 reason. See also practical wisdom (rationality): agent-neutrality and, 158–60; Aquinas’s discussion of, 186; desire and self-direction and, 165–67; Gray’s dismissal of perfectionism and limits of, 181–83; human flourishing and role of, 140, 144–52; MacIntyre’s interpretation of, 236–44; as metanormative principle, 275–77; natural law conservatism and, 252n.41; natural law versus natural rights and role of, 71–72; self-directedness of human flourishing and, 87–88, 279–82; self-ownership thesis and, 210–11, 220–22; telos of human nature and, 123–27; universality versus universalizability of, 158n.9 reasonable liberalism, non-perfectionist politics and, 336–38 Reason and Morality, 25n.10 Reformation, socialization of ethics and, 28n.19 regime structure, liberalism’s impact on, 40–41 reification fallacy, human flourishing and social interactin, 82–83 Reiss, H. S., 51–52 relationship networks, MacIntyre’s communitarian theory and, 234–44 relativism, Gray’s rejection of, 249–50 relevant differences, individualistic perfectionism and, 151–52 religion: nature of liberalism and role of, 46–47; socialization of ethics and, 28n.19 repetition, defense of liberalism and risks of, xi ‘‘responsibilities-primitive’’ individualism, 258–64

right: good versus, 22–28; natural law conservatism and concept of, 251–56; Rawls on good versus, 56–57 ‘‘rightly ordered soul’’ concept, human flourishing and, 161–63 rights: common good and, 256n.48; concessions on, 292–94; eudaimonic conservatism and, 258–64; Gray’s discussion of, 245–50; individualistic non-perfectionist politics and, 288–92; language of, 32–33, 64; liberal theory and concept of, 1–2; liberty and, 76–77; MacIntyre’s discussion of, 227–44; as metanormative principles, 78–79; natural law conservatism and concept of, 251–56; natural rights, ethics of, 62–75; neo-Aristotelian ethics and, 294–96; private property rights, 97–107; self-sufficiency and, 330–32 Rommen, Heinrich A., 63n.35, 64, 66–68, 73 Ross, William David (Sir), 135n.56, 211 Rothbard, Murray, 206–7 Rousseau, Jean-Jacques, 73, 291n.6 rules: extreme poverty and possibility of selfdirection and, 310–11; Gray’s dismissal of perfectionism and limits of, 181n.48; metanormative dilemma of, 287–88; metanormative principles and, 39–41; private property rights and role of, 101–7 Salin, Pascal, 1 Sandel, Michael, communitarianism and, 6 security, nature of liberalism and, 45–47 self-actualization, eudaimonic conservatism and, 261–64 self-direction: absence of telos and, 318–19; agent-centered ethics and, 320–22; basic principles of, 89n.15; bonded flourisher argument and, 311–13; desire and, 163–67; eudaimonic conservatism and, 258–64; exercist of, 90n.16; extreme poverty and possibility of, 303–11; force as threat to, 280–82; Gray’s critique of liberalism and, 246–50; Gray’s dismissal of perfectionism and, 176–83; human flourishing and, 86– 88, 93–94, 138–41; impact of physical force on, 89–91; individual rights and, 79, 90n.16, 266–68, 279–82; justification for political/legal order and, 85–86; metanormative dilemma of, 287–88; metanormative justice and, 300n.18; metanormative principles based on, 88–89, 277–79; natural

index law conservatism and protection of, 253–56; neo-Aristotelian rights and, 295–96; practical wisdom and, 275–77; private property rights and, 98–107; protection in others of, 89–91; protection of, x; self-ownership thesis and, 213–22; self-perfection and, 118–27, 266–68; self-sufficiency and, 332; social interaction and, 82–83; teleological eudaimonism and, 62n.32 self-ownership: as natural right, 206–22; property rights and, 2 self-perfection: abandonment of, 31; concessions on rights and, 292–94; ethics and, 114–15; eudaimonia as, 111–15; extreme poverty and possibility of, 304–11; individualized and social human flourishing and, 269–71; individual rights and, 265–68; MacIntyre’s communitarianism and, 227–44; metanormative principles based on, 273–75; natural rights and pursuit of, 65–67; neo-Aristotelian ethics and, 294–96; practical wisdom and, 275–77; right to liberty and, 281–82; self-ownership thesis and, 210–22 ‘‘self-realising’’ principles, Green’s concept of, 49n.10 self-regarding virtues, socialization of ethics and, 30 self-satisfaction, role of state in creation of, 49 self-sufficiency, non-perfectionist politics and, 330–32 Shaftesbury (Lord), 29 Sidgwick, Henry, 114–15, 134–35 sin, self-ownership thesis and role of, 209–10 Sittlichkeit, MacIntyre’s communitarianism and concept of, 232–33 skepticism, crisis of liberalism and, 7, 13–17 Skepticism and Freedom: A Modern Case for Classical Liberalism, 13n.9 slavery, private property rights and, 102–7 Smith, Adam, 26n.14; on ethics and jurisprudence, 34n.33; non-perfectionist politics and agent-neutral values, 316–17; origins of liberalism and, 43; socialization of ethics and work of, 30 ‘‘Smokey Mountain’’ squatters case study, extreme poverty and possibility of selfdirection and, 307n.21 social contract theory: good versus right and, 24–28; natural law versus natural rights

357

and role of, 71–72; self-direction and extreme poverty and, 303–11 sociality: bias in metanormative principles toward, 324–27; common good in political community and, 203–5; of human flourishing, 81–83, 141–43, 269–71; individual right to liberty and, 79, 281–82; justice and, 161–63; MacIntyre’s communitarianism and role of, 233–44; non-perfectionist politics and, 290–92; private property rights and, 103–7; self-direction and, 93–94 socialization of ethics, liberalism and, 28–33 social management, ethics as, 114–15 social science, liberalism and, 19–20 sociological reductionism, MacIntyre’s communitarianism and concept of, 233 Socrates, 127, 154n.3, 249–50, 260 Solzhenitsyn, Aleksandr, 94 Southern agrarianism, crisis of liberalism and, 7 ‘‘species-being,’’ self-ownership thesis and, 209 Spinoza, Benedict de, 18–19, 34n.33; on nature of liberalism, 44–47; on role of state, 42 statecraft. See also political/legal order: acceptability problem or, 322–23; Kant on role in morality of, 51–52; metanormative dilemma of, 286–88; morality and role of, 47–62; natural law and common good in, 197–205; as soulcraft, 94–95; Spinoza on role of, 42 state-of-nature theories: common good in political community and, 204–5; liberalism and, 20–21; MacIntyre’s communitarianism and, 239n.25; rights and nonperfectionist politics and, 290–92 Sternberg, Elaine, 241n.30 Strauss, Leo, 18, 257 Straussean theorists, crisis of liberalism and, 7 subjectivity: agent-neutrality and, 159–60; crisis of liberalism and, 7; natural rights theory and, 73; prioritization of goods and, 188–90 subordination: human flourishing and relation to, 130–32; MacIntyre’s communitarianism and imposition of, 237–44 super- and sub-erogation, good versus right and, 24–25 Swift, Adam, 226n.1 symbolism, non-perfectionist politics and, 327–29

358

index

Taylor, Charles, 6; communitarian views of, 228; on liberalism and moral values, 36 teleological eudaimonism: defined, 62n.32; ethics and, 62–75; function argument and, 167–70; individualistic perfectionism and, 114–15, 117–27, 129n.44; natural rights theory and, 73–74 teleology (telos): human flourishing and, 343–46; liberalism and, 59–62; natural law theory and, 185–96; non-perfectionist politics and agent-neutral values, 315–19; selfownership thesis and, 210–12 theism, teleology and, 118 Theory of Justice, 22n.5, 54–55, 112 Third Concept of Liberty: Judgment and Freedom in Kant and Adam Smith, A, 277n.9 Tierney, Brian, 69–71 Timaeus, 119–20 ‘‘tomato juice’’ model, private property rights and consequences of, 101n.9 Tractatus Theologico-Politicus, 34n.33; nature of liberalism in, 45–47; political theory in, 45–46; religion in, 46–47 traditional natural law: basic principles of, 185–86; common good in political community and, 202–5; human flourishing and, 194–96; self-ownership thesis and, 212–13 transformation, private property creation and production and, 101–7, 103n.13 Trigg, Roger, 345–46 true good, liberalism and role of, 25–28 truth: agent-centered ethics and, 319–22; new natural law theory concerning, 186–96 underdetermination: defined, 145n.78; human flourishing and, 144–52 Unger, Roberto, communitarianism and, 6 unity of virtues (Aristotle), 172n.38 universality: agent-relativity and, 153–56; individualistic perfectionism and, 151–52; morality and, 59–62; private property rights and concept of, 103–7 universalizability principle: individualized human flourishing and, 270–71; new natural law theory and, 191–92; practical wisdom and, 144–52; self-direction and, 277–79; self-ownership thesis and, 211–22; test of, 65n.41, 112n.2 universal law, Kant’s discussion of, 59–60 universal rights, doctrine of: crisis of liberalism and, 7–17; good versus, 22–28

utilitarianism: ethical reasoning and, 146; good versus right in, 25–28, 26n.12; individualistic perfectionism and, 112n.2, 113; non-perfectionist politics and, 317–19 value hierarchy, for basic goods, 194–96 value pluralism, Gray’s concept of, 245–50 value(s): eudaimonic conservatism and, 260–64; first- versus second-order values, 336–38; Gray’s discussion of, 173–83; human flourishing and pluralism of, 82– 83, 170–71; non-perfectionist politics and agent-neutral values, 313–17; private property rights and concept of, 99–107; selfownership thesis and role of, 210–11; symbolism and, 328–29 Veatch, Henry B., 64–68; on Aristotle, 184; on function, 169n.30; human flourishing and work of, 140n.68; individualistic perfectionism and, 112; on recognition of good, 157–58, 261–64; self-ownership thesis and, 212, 218; on self-sufficiency, 331n.34; traditional natural law theory and, 202–5 virtue ethics: coercion and adoption of, 94–95, 255n.43; Gray’s dismissal of perfectionism in, 174–83; human flourishing and, 79n.4, 171–73; Hursthouse’s discussion of, 126n.39; individual rights and, 92n.17, 132–34; justice and, 289n.4; metanormative justice and, 298–301; self-ownership thesis and, 215n.20; socialization of ethics and, 29–30; state creation of conditions for, 50–62 vital forces, causation and, 120–21 vitalism, teleology and, 118n.17 voluntary transfer of goods, private property rights and, 105–7 Wall, Steven, 78n.2 wealth: extreme poverty and possibility of self-direction and, 306–11; giving and receiving relationships and, 236n.21; private property rights and, 99–107 welfare rights, individual right to liberty versus, 281–82 Whiting, Jennifer, 86, 140 Wild, John, 73 Wilkes, Kathleen V., 165–66 Williams, Bernard, 112 Wolff, Christian, 69–70 Wolff, Robert Paul, 252n.41