A Life like Liberalism – Regulation & Liberty
“…it has been actually under deliberation how to make Man, by other Mediums than Nature has hitherto provided. Every Sect has a Recipe.”
This above epigraph, borrowing from Lord Shaftesbury’s The Moralists, speaks to a perennial problem within the history of ideas: What is our relationship to nature? Many philosophers tend to reject the very idea that man and nature are at all in harmony. Even more emphatic is their denial that there is anything about mankind and society that one could call natural. That which is “natural” implies something real, true, independent, and compelling. Society, by contrast, with its amalgam of moral and political imperatives, is today considered only the product of (arbitrary) tradition, consensus, practice, or authority. Rousseau, Seneca and Nietzsche argued that our man-made “constructs,” such as morality and political life, have no direct derivation from nature. Instead, society—man’s hallmark creation—is antagonistic to it.
Rousseau’s writings on nature are particularly apropos here. His famous Discourse on Inequality, after all, was responding to a question posed by the Academy of Dijon: What is the origin of inequality among men, and is it authorized by natural law? For him, inequality is contingent on the existence of society: That which mankind has built over the years, and is gradually improving, is manifestly artificial and goes against nature; as such, all that ails us is a result of this unnatural creation. Rousseau’s treatise on education, Emile, can be equally read as a work connected to the Discourse for his view that a child is better raised in nature than in society. For the Genevan, the dichotomy between the two options are clear: Either society or nature.
The question then becomes whether society’s relationship to nature is one of continuity or of disaccord. Then there’s a second question: Is our contemporary political tradition of liberalism—which created the very form of political society against which Rousseau’s Discourse on Inequality and Marx’s essay “On the Jewish Question” were aimed —natural (i.e. based on an understanding of human nature and human ends), or artificial? Something about liberal society became anathema to many seminal thinkers after Rousseau, despite it being a philosophical and political tradition allegedly derived from a realistic understanding of society and rooted in such concepts as natural law and natural rights. As the Academy of Dijon implicitly noted in their question, this relationship between society and nature is held together by a moral framework of society that we call “natural law.” If we are to make viable normative and epistemic claims about morals and politics and redeem their reputation as more than a sham, their authority cannot ultimately be a function of tradition or human artifice: It must derive from reason, which is to say, from what we are given by nature.
It is no surprise, then, that in their most recent book, The Realist Turn: Repositioning Liberalism, Douglas B. Rasmussen and Douglas J. Den Uyl use the natural law/natural rights tradition to defend the moral metaphysical—as opposed to moral artificial—underpinnings of the political order in which we pride ourselves as inheritors of the liberal tradition. They argue that to sustain the value of liberalism, understood in its classical sense that is based primarily on negative liberty, we need to rediscover the integral role that natural rights play in this tradition.
Liberty today is seldom defended on the basis of natural rights because our understanding of “nature” has become almost entirely removed from our political thought. The authors point to John Locke as a thinker who expressed natural rights as a “moral notion,” but morality for Rasmussen and Den Uyl is not simply a means to an end; or, as they put it, “a standard for conflict resolution.” Natural rights such as liberty have an ethical dimension that, for Locke as well as our authors, is an expression of the “moral law of nature.” Nature expresses “the very character of human beings, moral conduct, and society,” which means that natural rights are moral claims that exist prior to any agreement or convention. The “rights” that we espouse today, by contrast, grow directly from agreement and convention since they are primarily rights-claims that emerge from historical (that is, shifting) circumstances to which, so we argue, our governments should respond so as to facilitate our membership in society—these are better known as “positive” rights.
A rediscovery of natural rights, then, requires a rediscovery of nature and what it means for nature to precede social convention: One is permanent, the other transient. For us to know that natural rights are real and to be able to defend their existence as more than mere convention, the authors argue that we must look at natural rights through the long-ignored philosophical tradition of metaphysical realism.
The Realist Turn is predicated upon one ontological and one epistemological thesis to support metaphysical realism: That there are beings that exist and whose qualities exist regardless of our ability to know them; and that we can know the existence and the nature of these beings. Metaphysical realism as a philosophical framework has the potential to prove that humans have “basic, negative, natural rights to life, liberty, and property” and, more importantly, it can provide “a non-reductive naturalistic account of human good”—what the authors call “individualistic perfectionism.” The authors appeal to metaphysical realism because it suggests that a moral standard exists objectively and independently from our own thoughts and experiences, thereby supporting natural rights as the basis for political philosophy.
But to say that morality is not a social construct but rather something independent from us that is discoverable by reason is hardly considered a liberal argument today. Metaphysical realism poses plenty of challenges for the modern mind. Political theory today, including legal theory, is aimed at achieving that goal which usurped the place of natural rights: Justice. The contemporary understanding of justice, however, has been influenced politically by Romanticism and legally by the historical school of jurisprudence, both of which rendered justice the decision of a people in a particular place and time, making justice a malleable outcome whose righteousness evolves with the times. Instead, accepting metaphysical realism means accepting the primordial existence of certain phenomena like natural rights that no action, no matter how righteous, may hinder. Still, we increasingly create ideal circumstances for ourselves from fleeting notions about what is necessary to live satisfied in society, rather than seeking common ground from a realistic understanding of who we are and what it means to live happily and meaningfully. As a result, the fields whose aims are to resolve political conflict cannot help but resort to a positive form of rights claims to appease people. Does justice only take the form of positive laws, however? Is justice more important for politics than liberty? These are questions that Rasmussen and Den Uyl are apt to answer through their defense of natural rights by way of metaphysical realism.
Three of their claims stand out as particularly important for our day and age. The first of these claims is that liberty is more central to political philosophy than justice because liberty ties us back to natural rights, whereas justice has a tendency of accruing socially constructed rights to guarantee its own, changing end that results in a fundamental instability to guarantee justice. For example, if multiple democracies endorse the concept of subjective rights aimed towards justice, they will naturally disagree about the standard by which these rights ought to be exercised, or whether any such standard even exists. The absence of a standard for such rights only leads us further down a rabbit hole of incommensurability. The authors support a return to the negative natural rights approach because social justice cannot provide the ultimate standard of moral evaluation, for justice itself is held to other “moral” standards that are often socially constructed.
Then there’s the claim that natural rights are grounded in metaphysical realism, the importance of which lends itself to the third, most important, claim: That there is a moral law of nature that expresses the very character of human beings, human conduct, and society. Their approach, an avowedly Aristotelian one, views natural rights as an expression of reality that reflects an underlying order. The authors also argue in line with Locke, and contra Hobbes, that natural rights were not conceived ex nihilo from a thought experiment about the absence of a political order; what’s more, there is no conceptual distinction between this “state of nature” and society, or between “natural man” and “civilized man.” The state of nature and society are one and the same, for it is the nature of individual man, which is unchanging, that provides the standard or measure for the moral code from which society’s laws originate. This is the ultimate sense of “law,” they argue: Not “commands, conventions, or practices.”
Rasmussen and Den Uyl’s candid embrace of metaphysics despite its widespread rejection within contemporary political philosophy departments is commendable. They acknowledge the metaphysical presuppositions of natural rights not only because these concepts help us to better know and understand our current political problems, but also because they keep the concept of liberty and “rights” tethered to something more than social convention. Their project, then, is ambitious because it aims to fundamentally alter a paradigm of the modern world: That our political order and its moral and legal basis is but an artificial construct. This paradigm has allowed us to nonchalantly dismiss natural rights without realizing that, in so doing, we have discarded the method by which we can understand more about the natural order of the world and our connection to it. To appreciate the work that Rasmussen and Den Uyl have done in their book we need to bear in mind the radically optimistic view they raise: It is possible to climb out of this subjective hole that we’ve dug for ourselves in modernity.
Indeed, The Realist Turn comes at the right time. The academic scene is replete with criticisms of liberalism from left and right, and the modern problems with liberalism have been taken to the conclusion that liberalism itself is flawed. To be sure, liberalism is like funambulism most of the time, balancing the political tension between individual freedom and the collective good. But liberalism thrives in this tension, even when the tightrope seems to sway too far in one direction. Rasmussen and Den Uyl are themselves aware of this tendency, which they call liberalism’s problem: integrated political diversity. The authors are also well aware of the approaches championed by other scholars to rectify liberalism’s alleged faults. The book features discussions on contemporary thinkers like Alasdair MacIntyre, for his opposition to natural rights in the liberal political tradition, and Hilary Putnam, for his rejection of metaphysical realism for ethical knowledge, among several other philosophers with whom they engage. They assert, nonetheless, that a natural rights approach, grounded on metaphysical realism, is the best approach for defending liberalism and for pursuing a form of justice that respects individual liberty.
Given the importance and relevance of the topics discussed in The Realist Turn, the following comments should not be taken as criticism; rather, a continued engagement with a such a necessary book. Despite the historic relationship between natural law and natural rights, which the authors acknowledge by carefully referring to the “natural law/natural rights tradition,” they are confident that natural rights are better able to buttress liberalism. Referencing an earlier article, “Ethical Individualism, Natural Law, and the Primacy of Natural Rights,” the authors argue that natural rights should be considered an extension of the natural law tradition, but also a correction to its tendency to “reify the human telos and ignore individuating features of a person.” The problem with traditional natural law theory is how it fails to understand “the individual character of the good,” while natural rights theorists tend to reject the “teleological eudaimonism in ethics.” I’m not so sure that natural rights can go it alone.
True, the common link between natural law and natural rights lies in their shared corroboration of a moral order that exists independent of our social constructs but that we can discern through the use of reason. Natural law and natural rights, moreover, help to explain the nature of society, which in turn helps us understand the role of government. Our understanding of the responsibilities we derive from the existing moral framework of the world, however, comes from the natural law tradition. In other words, the tendency of natural law to “reify” human ends is less an intention to homogenize human diversity towards a singular end, especially since that end is broadly understood as the Good; it is more a reminder that achieving such an end requires recognizing certain responsibilities that are to be shared with the rights we derive from natural law in order to lead a meaningful life. To say that that all men have an end (the Good), and that natural law helps us to understand it, is to say that we cannot simply construct the own ends to our lives; instead, we can lead different lives that still follow the natural law. St. Thomas’ own two cents on this issue comes to mind, especially his reply to the objection of a singular or many precepts of the law of nature: “All the inclinations…of human nature…insofar as they are ruled by reason, belong to the natural law, and are reduced to one first precept (Good is to be done)…: so that the precepts of the natural law are many in themselves, but are based on one common foundation” (ST I-II, q. 94, a. 2, ad 2)
Heinrich Rommen wrote that the discernible reality of natural law is indicative of a metaphysical reality beyond our worldly reality, whose existence emerges when we take a critical look at history. The inherent diversity of all peoples does not reject, to use his famous phrasing, the “ethical foundation of the coercive power of the state’s legal and moral order.” Instead, it is natural law that serves as a common element across cultures that allows us and our governments to arbitrate between good and bad, or right and wrong, and establish what he calls “the moral basis of human laws.” As such, a society and government that espouses natural law must be committed to justice insofar as it should undertake the “concrete, detailed regulation” of natural law’s “general norms.”
Natural law, since William of Occam’s writings on the topic, has been considered an imposing form of positive law and divine will. This form of natural law might be the type that Rasmussen and Den Uyl criticize, but Rommen writes that natural law, as the Late Scholastics tried to redeem it (contra Occam), is grounded “in essence and reason” and it facilitates the “knowability of the essences of things and their essential order, their metaphysical being and the ordered hierarchy of values.” It is this type of natural law that serves as a necessary foundation for natural rights. After all, a government that espouses liberalism without natural law does not have the ultimate word on moral judgement; it only limits such judgement to arbitrating between citizens.
The authors may see no flaw with the above alternative. As they say, “statecraft is not soulcraft,” and, “following the laws that protect individual rights is not in fact a great moral virtue, and neither is it a great moral achievement.” Fair enough, but while it may not be the primary task of the state to inculcate virtue on its citizens, the state itself might need to assert the moral framework through which it establishes its character, which is the very character of its own people. We must ask ourselves why it is that we are trying to inculcate a sense of natural rights that is predicated on ethical dimensions and why we are trying to instill this belief in natural rights through a corresponding metaphysical and realistic moral order. Important as it is to explain natural rights as something independent of our conventions, it is equally important to explain morality in the same way, for people will only espouse a political system that they believe to be moral and good, either through its own, constructed definition of morality and goodness, or one derived from a higher standard of these qualities. Nietzsche was able to permanently lambast the credibility of social morality in his Genealogy of Morality in large part from knowing full well that society’s moral framework is inextricably tied to its political one, and that weakening one affects the other. The modern project to destabilize civil society, which is liberal society, is a project whose target is dually morality and politics. To concern ourselves only with the latter (statecraft and a-moral adherence to the law) is to neglect the other side of the same coin.
Rasmussen and Den Uyl, nonetheless, do an admirable job at adding an indispensable moral dimension to the contemporary conversation on natural rights, which they argue is the best way through which to defend liberty as an ethical norm. To do so, the authors raise an essential question: Is liberty as moral an element as those we typically consider the standards of morality, such as kindness, charity, or justice? Here, the emphasis on natural rights rooted in metaphysical realism is a helpful retort. They argue that liberty as a moral notion begins with Locke, and natural rights are moral claims that exist prior to any agreement or convention, regardless of whether someone is a member of a particular society, political community, or social contract. Rights do not begin from social contracts, moreover; they precede them. The authors view natural rights as deontic: Neither instrumental nor consequentialist, they are “the basis for the ethical evaluation of political and legal orders.” Liberty is thus inherently moralized, completing Locke’s known admonition against confusing “a state of liberty” with “a state of license.”
But to say that liberty is not license does not imply that liberty should be the only moral standard for liberalism. The authors share Lord Acton’s belief that liberty may not be the highest ethical end, but it is the highest political end. In practice, however, these two do not remain mutually exclusive. Lord Acton also wrote that liberty is more a question of morals than one of politics. Here, liberalism’s “problem” reemerges: What is moral for the state is not what is moral for the individual, and what is moral for the individual—say, to care for the collective good of our communities—will eventually put us as odds with a state mainly focused on upholding negative, natural rights. But this problem is only really a problem if we continue to disagree on the existence of a natural law that is connected to an overarching telos that accommodates human plurality and diversity. Our inherent ability to discover natural law and natural rights, moreover, indicates that it is possible to cater our different lives to achieving the Good. Put another way: The morality of liberalism does not rest in the morality of liberty; the morality of liberalism lies in the need for liberty to be preciously guarded as the way through which we can freely pursue the Good. Even our champion of natural rights, John Locke (who himself espoused natural law), ties man’s creation of governments to a higher end that transcends personal rights claims.
These thoughts by no means refute the arguments put forth in The Realist Turn; they only suggest placing an equal emphasis on natural law if we are to reclaim natural rights by way of metaphysical realism as a way to argue for their intrinsic moral value and, of course, their existence. Metaphysical realism may well redeem a view of natural rights that is meaningful for political philosophy by compelling us to develop a non-constructivist understanding of nature that is tied to society and its moral principles—indeed, this point marks the book’s greatest contribution for contemporary philosophy. Still, the synthesis of politics and morality, or of liberty and justice, rooted in a natural rights tradition will itself need to be rooted in a natural law tradition to provide a full picture of civil society and its place within a wider scheme of things. The goal of such a foray is to regain (and sustain) a realistic liberalism. It is a task well worth pursuing, and metaphysical realism is a promising framework through which to do so. As such, The Realist Turn provides a necessary philosophical compass to reorient liberalism.