Liberalism reevaluated II

Liberalism stands or falls with the concept of Right.  Jefferson:  “The foundation of justice and rights, and, hence, of equality, lies in the special creation of man and in the divine endowments he was given.”  Very much like the wording in the Declaration:   We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable Rights…”  To Jefferson, Right, then, derived its existence from an appeal to God’s eternal truths.  He believed this was necessary to avoid falling into the nightmare of Right as proceeding from the powers of government or the tyranny of the majority.  And indeed, without God and his conceptual equipment it becomes inescapable to conclude that where there is no enforcement, there is no right.  In the real world, Right can only exist by recourse to Law.  We might go back to Bentham to try to divine the origin of such a nebulous term as Right.  His conculsion is notorious:  “In proportion to the want of happiness resulting from the want of rights, a reason exists for wishing that there were such things as rights.  But reasons for wishing there were such things as rights, are not rights–a reason for wishing that a certain right were established, is not that right–want is not supply–hunger is not bread.”  Margaret MacDonald, Oxford pedagogue, in her influential paper “Natural Rights” (1946), averred:  “It seems a strange law which is unwritten, has never been enacted, and may be unobserved without penalty, and peculiar rights which are possessed antecedently to all specific claims within an organized society.”  And “I affirm that no natural characteristic constitutes a reason for the assertion that human beings are of equal worth.”  As such, Macdonald falls back on mere sentiment, and we have returned full circle to Bentham’s pessimistic conception.  Jefferson himself made ultimate recourse to a nebulous “moral sense” in justfying the concept of right.  This takes us out of the realm of the idea of self-assertion typically associated with the concept of right and places us firmly in that of duty and obligation, which rejects a theoretical foundation in self-interest by its very nature.  Jefferson:  “Essentially, virtue [which forms the foundation of Jefferson’s concept of Right] is the manifestation of man’s moral and social nature which is of divine rather than natural origin.”  Or consider the position of Antonio Rosmini, eminent legal theorist of the early 19th century:  “Justice is to be ascertained by reference to God’s eternal reasons and not by our intralegal estimation of the possibilities inherent in positive law.  Right, therefore, cannot exist except as an emanation of God’s intentions.”  This places Duty as anterior to Right.  Carl Schmitt, the German political theorist with decided affinities to authoritarianism, as embodied in the legal practices of National Socialism, put it this way: “Through the acknowledgement of the suprapersonal dignity of the State….the single, concrete individual disappears.  For the State is a servant either of the indvidual or of Right.  Since only the latter is correct, the State is prior to the individual, just as Right is prior to the State; and just as continuity of the State preceeds only from Right, the continuity of the individual who lives in the State flows only from the State.”  Liberalism is, according to such a nexus of views, wholly other than what it purports to be on its surface, since it is only through excluded identities such as that of the prostitute or other type of person classified as “criminal” that it constitutes its claim to universality.  There is a point at which the universalizing dialectic of liberalism fails to fully incorporate difference–and difference remains, even if only in the spectral form of the un-man, as a radical excess which escapes its logic.  As a result, liberalism operates by constructing the individual around a certain subjectivity which desires its own domination, in its quest to fulfill within itself the liberal idea of the essential qualities of humanity, through the concept of Right, which, as was established above, issues at bottom from Duty and God’s eternal reasons and not from any appeal to the prerogatives of the individual.  Behind the language of rights, freedoms and universal ideals, there is a covert network of disciplinary technologies and normalizing practices; this is made necessary, from a logical point of view, by liberalism’s ultimate dependence on Rationalism, which privileges the universalized abstraction over the concrete individual.  As Karl Lowith summarizes it:  “The State is not a human construction but, on the contrary, the State makes a construction out of every human being.”


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