Politics, virtue, and the right to do wrong: Assessing the communitarian critique of rights

Journal of Social Philosophy

Volumn 28, Issue 3, 1997, Pages 101-122

  Lund, William R ^a  

^a NONE

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[No Author keywords available]

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EID: 0039668793     PISSN: 00472786     EISSN: 14679833     Source Type: Journal    
DOI: 10.1111/j.1467-9833.1997.tb00390.x     Document Type: Article

References (66)

1. For the "ontological" criticism, see Charles Taylor, "Atomism," in Alkis Kontos, ed., Powers, Possessions, and Freedom: Essays in Honor of C. B. Maqpherson (Toronto: University of Toronto Press, 1979), pp. 39-61.
2. Michael Sandel, "The Procedural Republic and the Unencumbered Self," Political Theory 12 (Feb. 1984): esp. 93-94
3. and Benjamin Barber, Strong Democracy: Participatory Politics For a New Age (Berkeley: University of California Press, 1984), pp. 142-43, emphasize the democratic costs of rights.
4. For Rawls, the basic point of "political" liberalism is to provide a "political conception of justice" that is independent of "comprehensive religious, philosophical or moral doctrine[s]"; see his Political Liberalism (New York: Columbia University Press, 1993), pp. 274,11-15
5. see also Charles Larmore, "Political Liberalism," Political Theory 18 (August 1990): 339-60.
6. In his "Foundations of Liberal Equality," in Grethe Peterson, ed., The Tanner Lectures on Human Values, vol. 11 (Salt Lake: University of Utah Press, 1990)
7. Ronald Dworkin rejects a purely "political" approach in the name of a foundational liberal ethic that can justify substantive liberal political conclusions. However, I shall include his work in this discussion, both because he shares important substantive conclusions with "political" liberals, such as using his "challenge model" of ethical value to reject the legitimacy of moralistic or paternalistic restrictions on individual choices (p. 114), and because his analyses of rights and their role in a legitimate politics continue to be a primary target for communitarians. For a "romantic" liberal's denial that rights can function as a "complete system of political morality," see George Kateb, 77i Inner Ocean: Individualism and Democratic Culture (Ithaca: Cornell University Press, 1992), p. 11.
8. Michael Sandel, "Morality and the Liberal Ideal," New Republic (May 7,1984): 15.
9. See, e.g., Jeremy Waldron, ed., "Nonsense Upon Stilts": Bentham, Burke and Marx on the Rights of Man (London: Methuen, 1987).
10. Amy Gutmann, "How Liberal Is Democracy?" in Douglas MacLean and Claudia Mills, eds., Liberalism Reconsidered (Totowa, NJ: Rowman and Allanheld, 1983), pp. 25-50;
11. see also, Benjamin Barber, "The Reconstruction of Rights," The American Prospect (Spring 1991): 36-46.
12. Michael Sandel, "The Political Theory of the Procedural Republic," in Robert Reich, ed., The Power of Public Ideas (Cambridge: Ballinger, 1988), pp. 117-20.
13. Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse (New York: The Free Press, 1991), p. X.
14. Alasdair Maclntyre, After Virtue, 2nd ed. (Notre Dame: University of Notre Dame Press, 1984), p. 52.
15. Benjamin Barber, "Liberal Democracy and the Costs of Consent," in Nancy Rosenblum, ed., Liberalism and the Moral life (Cambridge: Harvard University Press, 1989), p. 63.
16. For a critique of the view that liberalism is a result of skepticism, see Ronald Dworkin, "Liberalism," in his A Matter of Principle (Cambridge: Harvard University Press, 1985), p. 203.
17. Holmes's warning is cited approvingly in Fred Siegel, "Nothing in Moderation," The Atlantic Monthly (May 1990), p. 110.
18. On the supposed abuse of Blackstone and its "infantile" consequences, see Glendon, Rights Talk, pp. 22-24,45.
19. Michael Sandel, Liberalism and the Limits of Justice (Cambridge: Cambridge University Press, 1982), pp. 31-32.
20. Siegel, "Nothing in Moderation," p. 110
21. Glendon, Rights Talk, pp. 101-102, 77 and chap. 4 generally. A sound justification of "Good Samaritan" laws might lie in coupling a positive conception of the victim's right to life with a view of the potential rescuer's omission to act as a direct harm. See A. John Simmons, The Lockean Theory of Rights (Princeton: Princeton University Press, 1992), pp. 336-52
22. for a defense of such "positive" rights, and Alison Mclntyre, "Guilty Bystanders? On the Legitimacy of Duty to Rescue Statutes," Philosophy & Public Affairs 23 (Spring 1994): 157-91, for criticisms of such efforts. In any event, Glendon seems more concerned with the virtue of beneficence than with multiplying rights claims.
23. Charles Taylor, "Cross-Purposes: The Liberal-Communitarian Debate," in Liberalism and the Moral Life, pp. 178-79.
24. Joseph Raz, "Right-Based Moralities," in R.G. Frey, ed., Utility and Rights (Minneapolis: University of Minnesota Press, 1984), pp. 44-45.
25. Rawls, Political Liberalism, pp. 291,294.
26. John Rawls, A Theory of Justice (Cambridge: Harvard University Press, 1971), pp. 114-17, 333-42.
27. Ronald Dworkin, Taking Rights Seriously (Cambridge: Harvard University Press, 1978), p. 11, and chaps. 7 and 12.
28. Dworkin, "Foundations of Liberal Equality," p. 9
29. and Ronald Dworkin, Life's Dominion: An Argument About Abortion, Euthanasia, and Individual Freedom (New York: Knopf, 1993), pp. 24-27.
30. Will Kymlicka, Liberalism, Community and Culture (Oxford: Clarendon Press, 1991), pp. 12-13.
31. See also Christine M. Korsgaard, "Commentary on G.A. Cohen and Amartya Sen"' in Martha Nussbaum and Amartya Sen, eds., The Quality of Life (Oxford: Clarendon Press, 1993), p. 56, on an "ethical individualism" in which "the goodness of a life essentially depends on its being chosen and constructed by the person who lives it." This is, of course, a contentious metaethical view, but many liberals argue that honoring the constitutive relationship between inner persuasion and value is our best bet in an unsettled area since the alternative-using public authority to enforce one or another perfectionist view-not only risks real goodness, but also offends against fairness and equality. For a perfectionist's concerns
32. see Thomas Hurka, "Indirect Perfectionism: Kymlicka on Liberal Neutrality," The Journal of Political Philosophy 3 (March 1995): 36-57.
33. For a discussion of the pluralism embedded in much rights-oriented liberalism and a critique of the view that liberalism and pluralism are incompatible, see William R. Lund, "Egalitarian Liberalism and the Fact of Pluralism," Journal of Social Philosophy (forthcoming).
34. Jeremy Waldron, "A Right To Do Wrong," Ethics 92 (Oct. 1981): 37
35. see also Dworkin, Taking Rights Seriously, pp. 188-89.
36. See, e.g., Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974), p. 30, note
37. and Charles Fried, Right and Wrong (Cambridge: Harvard University Press, 1978), p. 10.
38. Dworkin, A Matter of Principle, pp. 357-58
39. and Dworkin, Life's Dominion, pp. 151-54.
40. Jeremy Waldron, "Introduction," in Waldron, ed., Theories of Rights (Oxford: Oxford University Press, 1984), pp. 10, 12, emphasis in original. See also Raz, "Right-Based Moralities," p. 43
41. Thomas Scanlon, "Rights, Goals, and Fairness," in Stuart Hampshire, ed., Public and Private Morality (Cambridge: Cambridge University Press, 1978), pp. 93-111
42. Waldron, "Introduction," p. 12
43. Joel Feinberg, Rights, Justice, and the Bounds of Liberty (Princeton: Princeton University Press, 1980), p. 152.
44. Waldron, "Introduction," p. 20.
45. On the "correlativity" thesis and its limits, see Rex Martin and James Nickel, "Recent Work On the Concept of Rights," American Philosophical Quarterly 17 (July 1980): esp. 165-67
46. and Simmons, The Lockean Theory of Rights, Chap. 2.
47. See, e.g., Tom Regan, The Case For Animal Rights (Berkeley: University of California Press, 1983), p. 282
48. and Kateb, Inner Ocean, p. 33.
49. On whether all rights-imposed duties can be met by noninterference, compare Waldron's negative answer in Nonsense, pp. 196-97
50. to Feinberg, Rights, pp. 154-55.
51. Judith Shklar, Ordinary Vices (Cambridge: Harvard University Press, 1984), pp. 4-5.
52. John Tornasi, "Individual Rights and Community Virtues," Ethics 101 (April 1991): 533
53. see also Neera Badhwar, "The Circumstances of Justice: Pluralism, Community, and Friendship," The Journal of Political Philosophy 1 (Sept. 1993): 250-76.
54. Allen Buchanen"'Asessing the Communitarian Critique of Liberalism," Ethics 99 (July 1989): 852-82.
55. Waldron, "A Right To Do Wrong," pp. 38-39,29
56. Michael Sandel, "Moral Argument and Liberal Toleration: Abortion and Homosexuality," California Law Review 77 (1989): 521.
57. See William Galston, "Practical Philosophy and the Bill of Rights: Perspectives on Some Contemporary Issues," in Michael Lacey and Knud Haakonssen, eds., A Culture of Rights: The Bill of Rights in Philosophy, Politics, and Law-2791 and 1991 (Cambridge: Cambridge University Press, 1991), pp. 215-65.
58. On his general intention to carve out "a coherent alternative to both liberal neutrality and its communitarian critics," see William Galston, Liberal Purposes: Goods, Virtues, and Diversity in the Liberal State (Cambridge: Cambridge University Press, 1991), p. 9.
59. William Galston, "On the Alleged Right to Do Wrong: A Response to Waldron," Ethics 93 (Jan.1983): 321, 323.
60. Ibid. pp. 323-24, emphasis in original. In Liberal Purposes, Galston also refers to the connection between persuasion and goodness (p. 179) but ultimately concludes that liberalism "is about the protection of diversity, not the valorization of choice" (p. 329, n. 12).
61. Galston, "Practical Philosophy," p. 254. Galston's explicit justification of rights makes them relative to a universal notion of human flourishing. In Liberal Purposes, p. 280, on the other hand, he also wants them to be relative to "certain moral principles and public virtues or institutions" thought to be "functional" to the common good and the reproduction of our particular community. The potential for conflict between these universal and particularistic accounts of the good warrants further analysis, but the point here is that he relies on teleological accounts of both the human and the common good to reduce the range and stringency of rights generally and to reject specifically a "right to do wrong."
62. See William R. Lund, "Communitarian Politics and the Problem of Equality," Political Research Quarterly 46 (Sept. 1993): 577-600, for an elaboration of the link between the communitarians' teleological views and their disenchantment with rights.
63. William Galston, "Putting Children First," American Educator 16 (Summer 1992): 46.
64. see his remarks in Gerald Marzorati, et al., "Forum: Who Owes What To Whom," Harpers (Feb.1991): 48-49,53.
65. See the separate articles by Sara S. McLanahan, Arlene Skolnick and Stacey Rosencrantz, and Richard Weissbourd in a forum on "Family Fractures," in The American Prospect (Summer 1994): 47-72.
66. William Galston, "A Liberal-Democratic Case For the Two-Parent Family," The Responsive Community 1 (Winter 1990/91): 15.