RIghts and Wrongs: A Crisis of Liberal Jurisprudence as a failure Political (a)theology

“All significant concepts of the modern theory of the state are secularized theological concepts not only because of their historical development – in which they were transferred from theology to the theory of the state, whereby, for example, the omnipotent god became the omnipotent lawgiver – but also because of their systematic structure, the recognition of which is necessary for a sociological consideration of these concepts. The exception in jurisprudence is analogous to the miracle in theology. Only by being aware of this analogy can we appreciate the manner in which the philosophical ideas of the state developed in the last centuries.”  – Carl Schmitt, Political Theology

“At the foundation of moral thinking lie beliefs in statements the truth of which no further reason can be given.”  – Alasdair MacIntyre, After Virtue

“You right to free speech does not mean a right to heard” – anonymous facebook commenter

We start with three presumptions here:  secular logic is the dominant mode of jurisprudence in modern liberal democracy, that the problem of non-contradiction should lead to either rejecting or synthesizing evidence within an apparently contradictory situation.  Then, however, we shall add three complications:  the idea that for material reasons logic of prior theological thinking haunts secular logic, that values are axiomatic, and that the individual is not “self-created” and thus sui generis on one’s own accord.   Can such situations be logically reconciled without appealing to some authority beyond itself to accord universality to the claim?  What would the implications of this these correlates actually be?

The look at one case to explore this, let us look at one particular problem in jurisprudence: human rights.

From Whence It Came

Two documents are foundational for the modern conception of human rights for those in the Anglo-American sphere of influence: the Declaration of Independence, which functions as a statement of principle for US government but is not a legal document in any de jure sense, and the Preamble to the Universal Declaration of Human Rights.  The key statement as a definition of most functioning premises involving human rights comes from the Preamble, which can be seen as a document of secular liberalism as opposed to Deist or Christian Humanist liberalism of moderate parts of the Enlightenment.   We will come back to that in a minute though.   Let’s look at statement I mentioned:

“The ideal of free human beings enjoying civil and political freedom and freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his civil and political rights, as well as his social, economic and cultural rights.”—International Covenant on Civil and Political Rights and the International Covenant on Economic Social and Cultural Rights, 1966

One can already see problems of vagueness and under-determination: what are political and civil rights beyond the context of either legislative or common law?   What are social, economic, and cultural?  How can they be enjoyed in all cases if some of those rights objectively conflict?   Who arbitrates?   Etc.   To make matters more complicated, UN charter was clarified this to include to concepts of classical liberal philosophy:

“All human rights are universal, indivisible and interdependent and related. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis.”—Vienna Declaration and Programme of Action, World Conference on Human Rights, 1993

All human rights are 1) universal (and by implication unalienable), meaning that they should be consistently applicable in all times at all places without conflict because they are 2) indivisible and interdependent, meaning that justly or logically broken down into parts or only partly maintained, which leads to three “must be treated . . . in a fair and equal manner, on the same footing, and with the same emphasis.    Now, this logic DOES have  a precedent before either the declaration of the rights of man in France, or the declaration of independence, or the U.N. charter of human rights.   This precedent, however, is far more problematic for secular jurisprudence than it seems.

In terms of pure categories, let’s take a simple problem:  A left-liberal-leaning close friend of mine posted an article on her wall, Does Free Speech Mean That Women Are Obliged To Endure Harassment?  A quick read of the article highlights what is at hand,

The plantiffs in the lawsuit are arguing that their free speech rights entitle them to get in someone’s face and harass them. There’s a lot of tap-dancing around the issue, both in terms of minimizing what anti-choice harassers do at clinics and by trying to equate consensual interactions with non-consensual interactions. They’re doing this first by putting a couple of elderly women at the front of the case and hoping to exploit sexist, patronizing stereotypes about how old women are “harmless” to sell the case. They’re also trying to make it seem like an abortion clinic is simply a platform to “debate” the issue between various sides, instead of a medical center where some people are there to help the patients and some people are there to hurt them.

We cannot ignore nor condemn the motivated language of the post. We, however, should address it.   One, this article, like most political articles, takes the lazy and obviously propagandistic way priming the reading instead of dealing with the jurisprudence at hand.  The problem is not its lack of pretense of objectivity, but the problem does not even pretend to argue with a strong form of the opponents argument.  What is bothersome about this is also not really “fairness” but that it leads to weaken thinking that does not even pretend to deal with logic, however motivated that logic by be.  Two, the psychologization actually avoids the issue the article says its about which is the logic of human rights and the problems of jurisprudence around it.    It’s a distraction from the argument however righteous the actual cause of the argument is.   The actual argument of the brief gets to a key problem:

The law bars everyone from entering or staying in fixed buffer zones around entrances to reproductive health care facilities. There are exceptions for people going into or coming out of the building, people using the sidewalk to get somewhere else, law enforcement officials and the like, and clinic employees.

That last exemption, for clinic employees, tilts the scales in favor of their point of view, said Mark L. Rienzi, a lawyer for Ms. McCullen and other protesters.

“The government does not have the ability to decide,” he said, “that its public sidewalks are open for speakers on one side but not speakers on the other side.”

If we accept the definition of “human rights” as interrelated, individual, and equally valid as the UN charter dictates that we should, it is logically inconsistent to declare that exceptions can be made even with some extreme mitigating heuristic like possible prior intention to harm.  Still if we allow for free speech in this case, which frankly by liberal jurisprudence, we have we have a conflict which, by the logic of human rights enumerations and jurisprudence as accepted by all signatories to the UN charter of human rights, should not be able to happen.  How do we “arbitrate” this case?

Now my harsh criticism towards this article may lead you to think that I am on the side of the abortion protestors.  I am not, but I do realize the profundity of the problems at hand.  I actually do not sympathize with the “anti-choose” argument here, and I do see that there are limits on free speech as a de jure and de facto condition of law.  There is still a problem, however, given the definition established for human rights becomes incoherent here very quickly. Let’s look at the article:

Except that the front of the clinic is not a debate platform where everyone gets to stand up and make their arguments about abortion for an audience to decide. It’s a clinic. Both sides are not the same and not equal. For one thing, clinic workers aren’t “speakers” for any side. They’re not trying to persuade women. On the contrary, the evidence actually shows that abortion clinic workers by and large are not invested in the final outcome of a woman’s decision and are only there to help a woman get the ends she has determined for herself are the best. If a woman comes in and, after talking to the doctor and getting an ultrasound, decides to change her mind (exceedingly rare, by the way), then that’s fine. Anti-choicers would love to pretend that women coming into clinics are just confused and that there’s “two sides”—one pushing for abortion and one pushing against—that need to be heard out. That’s simply put, a lie. The “two sides” are people who are there to help women make the best decisions for themselves and people who are there because they wish to harass women whose personal medical decisions they disagree with. If a bunch of people felt entitled to, say, get up in men’s faces and scream at them as they entered a heart clinic in order to get their cholesterol measured, this would not be even remotely confusing.

The claim that the other side is not speech true, but the two-sided argument actually is not as relevant as it appears.  The motivators and fallacies of the “anti-choicer” may be relevant morally, but they are not relevant legally.  Particularly when “rights” are stated by UN charter to be both unalienable and equal.  There is no way to arbitrate without violating the very principle that established the rights in the first place.

Is Good Ol’ Isaiah to Rescue?

“It follows that a frontier must be drawn between the area of private life and that of public authority. Where it is to be drawn is a matter of argument, indeed of haggling. Men are largely interdependent, and no man’s activity is so completely private as never to obstruct the lives of others in any way. ‘Freedom for the pike is death for the minnows’; the liberty of some must depend on the restraint of others.” – Isaiah Berlin, Two Concepts of Liberty

One particularly attempt interlocutor may assert that the protesting women and doctors have a negative right to be free from harassment.  This seems justifiable and true.  Ignoring the U.N. charter for a second, let’s accept this divisibility in human rights.  Obviously the court should place the onus on the those claim a positive right to harass.

Again we have a problem:  no one considers the right to speech a positive right, and outside of rulings that have been contested primarily by libertarians and liberals, few people consider public property to have such speech codes baring explicit, not implicit, threats of violence.  So the protestors are also claiming a negative right in their own view: the right to speak out on public property and sidewalks.

Berlin’s distinction’s oft loved by libertarians and conservatives actually don’t help either case.  The clarity of what is a positive right and what is a negative right in cases where interests are directly conflicted on the very grounds of rights itself: the category is harder to parse.   Berlin himself said, “Freedom for wolves means death to sheep.”

“You have a Right to Speech, but not to be heard,” Or You don’t actually have a right to speech

We should return to genealogy in a moment, but we should look at some of the lay-responses first.  I saw three primary arguments: “You have the right to speech, but not the right to be heard.”  Well, actually, silencing is a denial of speech and to return someone inaudible is, de facto, the denial of speech as its primary purpose.  If one reads the NY Times article, and not the Raw Story diatribe, then one can see that many abortion supporters recognized the problems in jurisprudence this kind of thinking creates:

Floyd Abrams, a First Amendment lawyer, said the Massachusetts law was no better than the one upheld in 2000.

“The protections of the First Amendment do not evaporate the closer one comes to an abortion clinic,” he wrote in an email. “Access must be protected; so must speech.”

The 2000 decision was decided by a 6-to-3 vote, with Chief Justice William H. Rehnquist and Justice Sandra Day O’Connor in the majority. They have been replaced by Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., and their votes may alter the balance.

Many feminists would rightly say, however, the ability to have access is not the only issue. Harassment is.  I saw many people saying that the issue is one of consequences of actions: but such as free speech zone is not about consequences of actions that have happened, it’s pre-emptive. The same legal logic as a pre-emptive strike.  There are laws that cover violence, direct threats to violence, and physical obstruction.  The responsibility for future events is generally covered by other principles in law.

One of my friends called the freedom of speech, “supposed.” Which is just patently false in context of US law, but also highly selective when it comes to rights.   The problem is of course someone is realizing that all this is problem and putting their values first.   The thing is the concept of “rights” doesn’t all that.  It doesn’t move that way.  It is universal concept, or it is just the arbitration of the various competing interests in a society.

Look at the Genealogy, Behold Lex Naturalis.

Thinking in terms of rights when people have abandoned natural law as a teleos leads to all sorts of logical and legal absurdity and contradiction. Until most people who say that, I do not think that is an argument for “natural law” but the fear of abandoning notions of human rights when as a culture and a jurisprudence the logic that originally underpinned those rights has long been abandoned has led to the mess of the legal system we have now. The origin of the concept of human rights was not originally “dignity” which seems like a debased rationalization since dignity is a hyper-vague concept itself.  It was that natural law established by a deity developed that certain things were innately unalienable and to violate them was a violation of the divine will as manifested in the law of nature.   Even Locke grounds his conceptions of property and human right in this notion explicitly.  Governments, for Locke, were a contract to better protect and enshrine the natural rights which were logical outgrowths of natural law, which itself was an outgrowth of a both teleological and theological principles.  The indivisibility is predicated not on logic, but divine consistency and the idea of a moral universe.

In the early days of development of liberal jurisprudence, even Deists and Freethinkers more or less accepted this logic. If they did not, they paid lip-service to it.  One can see in the phrase in the US constitution that “the separate and equal station to which the Laws of Nature and of Nature’s God entitle them”.  This not only pulled from Locke, but also from Hugo Grotius who based all international law on divine and natural law, which in Grotius’s view ensured things like Protestantly-modified version of Catholic just war theory and freedom of the seas (and presumably the air).   These liberal enumerations of rights probably had material impetus in the collapse of the English Civil War, the beginning of mercantile development, and the increasingly decadence and irrelevance of the aristocratic class to the production of society.   That said, the specifically Christian assumptions and slant to these values didn’t go away:  the formal legal equity being based on partly on the necessary of economics (and limited to the upcoming classes as well as the old regime), but also on ideas one finds in the Pauline epistles, which would literally be nonsensical to most polities which where based on both political philosophies and theologies which had no such universalism presumptions.

As these principles were secularized, even thinkers such as J.S. Mill realized the problem:  without an absolute grounding, the indivisibility and universality of the claims would immediately fall apart if they conflicted, and Mill first proposed that was the function of the legislator, and then embraced and refined a utilitarian calculus.  Still lingering, however, in the claims of utility was that the value which underpinned utility remained a teleos: was that value pleasure, harm reduction, happiness, the ability to fulfill pluralistic ideas like that of G.E. Moore, what it preference satisfaction?  Did that group include the community? The nation? The “race”?  The whole of humanity? All mammals with large brains?  All mammals?  All sentient life?

Not only did this not solve a problem of irreconcilable goals, it just hid the communal definition and the teleos (or meta-ethics to use more modern language) in equations about hedons and dolors.

Still the universal declaration of rights continued and expanded in the liberal polities, even while the “left” increasingly abandoned the conception.   As concepts such as “species being” and “de-alienation” faded away into “iron laws of value” favored the “collectivist” side of the Marxist dialectic as expressed in the Theses on Feuerbach, the idea of a centrally planned new man through the mechanism of the party apparatus replaced the idea of human capacity to change its social relations through mass action of workers in their individual and collective best interest.  This idea may have been abandoned for sound historical reasons.   Regardless, the idea of sociological processes and necessary for states of exception to remove the need for such exceptions increasingly have become part of the logic of liberal polity.

These ideas, as well as Schmitt’s now all somehow co-existed as explanations for rights and their exceptions (since the concept can’t be applied consistently).   The sociological context and the idea of specific consciousness adding the list of possible suspensions to avoid the realization that outside of its original context, this line of thinking turns arbitration into the arbitrary battle for cultural and material hegemony.  As one says in the both Raw Story and NYT articles, “The only thing that has changed is the make-up of the court.”  In such contradiction, how could anything else happen?

Of what one cannot speak:

The universal nature of human rights and freedoms is beyond question.

—2005 World Summit, paragraph 121

Have I had this debate much?  The answer is no.  Many of the people who inspired this post and my others like it have simply refused to engage.  It’s not a conversation they want to have for a variety of reasons, some of which can’t be known to me.  What I have learned is that the limits of what one can speak about is the limit of one’s self conception. If this cannot be questioned or discussed, it may not be because the person has no argument–one should not assume that. It may be that it is too crucial of an idea to risk the argument for.  In other words, it remains a taboo which question results in the pain of cognitive dissonance and terror management at the fear of losing one’s identity.

I will leave one with several quotes that seem to contradict, but I don’t think actually do at all:

“A humanitarian God cannot be demonstrated from the world we know: today you can be compelled to admit this much. But what conclusions can you draw? ‘He cannot be demonstrated to us’: epistemological skepticism. You are all afraid of the conclusion: ‘from the world we know, a very different god would be demonstrable, one who at any rate is not humanitarian’ – and, in short, you hold fast to your God and devise for him a world we do not know.”
– Friedrich Nietzsche

“There is no way to understand the character of the taboo rules, except as a survival from some previous more elaborate cultural background. We know also and as a consequence that any theory which makes the taboo rules … intelligible just as they are without any reference to their history is necessarily a false theory… why should we think about [the theories of] analytic moral philosophers such as Moore, Ross, Prichard, Stevenson, Hare and the rest in any different way? … Why should we think about our modern use of good, right and obligatory in any different way from that in which we think about late eighteenth-century Polynesian uses of taboo?”
― Alasdair MacIntyre, After Virtue: A Study in Moral Theory

“The concept of humanity is an especially useful ideological instrument of imperialist expansion, and in its ethical-humanitarian form it is a specific vehicle of economic imperialism. Here one is reminded of a somewhat modified expression of Proudhon’s: whoever invokes humanity wants to cheat. To confiscate the word humanity, to invoke and monopolize such a term probably has certain incalculable effects, such as denying the enemy the quality of being human and declaring him to be an outlaw of humanity; and a war can thereby be driven to the most extreme inhumanity.” ― Carl Schmitt

“Kant was right; morality did in the eighteenth century, as a matter of historical fact, presuppose something very like the teleological scheme of God, freedom and happiness as the final crown of virtue which Kant propounds. Detach morality from that framework and you will no longer have morality; or, at the very least, you will have radically transformed its character.” ― Alasdair MacIntyre
The chief defect of all hitherto-existing materialism…is that the thing, reality, sensuousness, is conceived only in the form of the object, or of contemplation, but not as sensuous human activity, practice, not subjectively. Hence, in contradiction to materialism, the active side was developed abstractly by idealism—which, of course, does not know real, sensuous activity as such – Karl Marx
“Does it require deep intuition to comprehend that man’s ideas, views and conceptions, in one word, man’s consciousness, changes with every change in the conditions of his material existence, in his social relations and in his social life?” – Karl Marx
The simple slogan “to be real is to be admitted by an accepted theory” is too liberal to justify the introduction of theoretical entities unless supplemented by other considerations. In addition to that slogan, a specifiable further consideration must be satisfied. Given an appropriately holistic view of science, an ontological commitment made by an admitted theory in a given field might well be rejected if it leads us in the direction of a less unified global conceptual scheme. –  W.V. Quine
Originally published here.
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