March 1992By Philip E. Devine
Philip E. Devine teaches philosophy and Western civilization at Providence College in Rhode Island. He is the author of The Ethics of Homicide and Relativism, Nihilism, and God.
Rights Talk: The Impoverishment of Political Discourse. By Mary Ann Glendon. Free Press. 218 pages. $22.95.
In the background of this book lie parallel developments in American political theory and American political practice. In a classic statement of American liberalism, John Rawls attempted to derive principles of social justice under conditions of ignorance, not only of our own personal situation, but also of our ideal of life and the historical situation of our society. (One result of this attempt is a so-called thin theory of the good for human beings, limited to primary goods such as wealth.) He contended that political institutions must be judged by their impact on the worst off, but he neglected people in the middle in favor of the obligations of the rich and the needs of the poor.
Ronald Dworkin edited Rawls for judicial use; he conjured up the figure of Hercules the philosopher-judge, and argued that the aim of law was to enforce the rights Hercules discovered by Platonic recollection. One of Judge Hercules' tasks was to block, in the name of individual rights, the political expression of those external preferences that define human beings as members of a community.
Much of the subsequent history of American political thought has consisted in the critique of the Rawls/Dworkin synthesis from both the Left and the Right. This dismantling of Rawls and Dworkin has coincided with the decomposition of the Democratic Party. In an attempt at a rights revolution, the Democrats have virtually abandoned their traditional working-class constituency in favor of a variety of fringe groups, and have pressed these groups' causes with a zealous indifference to political reality. Meanwhile, the politically correct among the intelligentsia have carried some of Rawls's themes far further than Rawls himself would. They have (noisily, but for the most part unsuccessfully) attempted to make dogmatic and intolerant relativism the only acceptable belief in places like the university. Repeated Republican triumphs, and the rise of a neo-fascist movement, have been the predictable outcome of these strategies.
Mary Ann Glendon's book is a contribution to the philosophical, jurisprudential, and political debates the crisis in liberalism has engendered. Without attacking rights-language as such or any particular claim of right, Glendon focuses on the tendency of the language of rights to bring dialogue about matters of political importance to a halt.
American rights talk, Glendon argues, is set apart from that of other liberal democracies by its absoluteness, its hyper-individualism, its insularity, and its silence with respect to personal, civic, and collective responsibilities. A rapidly expanding catalog of rights not only multiplies the occasions for collision but risks trivializing the concept of a right itself. A tendency to frame every controversy in terms of rights prevents com-promise, mutual understanding, and the discovery of common ground.
Glendon and her fellow communitarians (e.g., Robert Bellah and his associates) argue as follows: Institutions are not things separate from the people who live within them, but rather are features of the way people live with one another. We cannot have good institutions if the people who live within them constantly find loopholes for behavior that runs contrary to their spirit. Institutions that work well for people disposed to control their instincts, and attend to the less obvious forms of harm their behavior might inflict, will work disastrously for people who lack one or both of these traits. People whose characters are formed in traditional religious settings may be better citizens of a liberal state than those raised in religiously liberal families. Hence, we cannot be indifferent to the effect of a set of institutions on the characters of those who live within them; if an otherwise excellent set of institutions corrupts the people who live within it by, say, encouraging hedonism, that fact alone is a ground for reforming or rejecting it.
We must attend to those institutions, of which the family is the chief, whose purpose is to form the characters of the rising generation, as well as to the oblique educational effects of institutions whose most visible purpose is dispute settlement and social control. Anyone who attempts to design a good society must therefore reject Rawls's thin theory of the good and take sides on disputed questions about the good life for human beings.
We need not consider ourselves in possession of a pre-written script for human life, as some moral majoritarians perhaps do. On the contrary, we may follow the Socratic tradition and hold that at least one element in the good life is the search for the good life. But the Socratic tradition rejects the life of comfortable conformity, and also the life of unreflective hedonism, and thus takes sides on disputed questions of value. This argument, which I take to be central to the thought of both Glendon and her fellow communitarians, is entirely sound.
But Glendon, in her attempt to promote community, obscures the conflicts of value which are a conspicuous feature of contemporary life. She discusses the recent case that held, over the vigorous dissent of Justice Blackmun, that there was no fundamental right to engage in homosexual sodomy. She writes: Even if the interests of [homosexuals] did not rise to the level of 'fundamental rights,' those interests were not so insubstantial as the majority opinion made them seem. Similarly, even if one shares justice Blackmun's view that [the homosexual plaintiff's] individual rights should have prevailed, one may lament that judge's disdainful brush-off of a community's interests in establishing and maintaining a cultural environment conducive to traditional moral standards.
Granted, it is possible to abolish sodomy laws without recognizing a fundamental right to engage in such conduct, or giving to those disposed to engage in it the status of a protected minority, with the consequences, such as demands for preferential treatment, likely to follow. But some people celebrate homo-sexual activity, including those forms least palatable to the majority, while others believe that homosexual practices are wrong because unnatural or forbidden by God, or that reprobation of homosexuality is necessary to a coherent and sustainable moral culture. A victory for one of these parties is necessarily a defeat for the other, and it is not the task either of law or of social philosophy to obscure that fact.
Glendon also obscures the deep conflicts of value at stake in the dispute over abortion, for downplaying rights-talk does not do much to help solve the abortion issue. Some people regard abortion as an atrocity, whereas others regard it as something necessary to the liberation of women in a way that tolerates no claims on behalf of the fetus. The language of murder and slavery that supplements the language of rights in discussions of abortion is every bit as confrontational.
Glendon risks encouraging the sort of character trait that refuses to acknowledge that two propositions or two courses of action exclude one another, and demands a private exemption from the laws of nature or even the laws of logic. This sort of character is as harmful in public as it is in private life.
The following lessons suggest themselves: First, communitarians need to face the question, what exactly they are about. Are they trying to save liberalism from its own fissiparous tendencies, or are they proposing to organize our institutions on radically different (authoritarian?) principles? If the former, they need to make sure that their residual liberalism does not undo their work that they do not make so many compromises as to leave their position without any real content.
Second, the persistence of conflicts about abortion, sexual ethics, and such do not come as a surprise to believers in original sin. Human beings are weak, selfish, and perverse. They also differ, in apparent good faith, about the requirements of justice and the good life (at least those of us who fear judgment ourselves dare not contend that our opponents are mere self-deceivers). We live in a fallen world, but our energies are likely to be expended in the struggle against the most obvious forms of evil before we can attempt to achieve any kind of ideal, harmonious society. But at the same time we may hope, both as individuals and as a community, for the unaccountable outpourings of God's grace.