11 April 2012

Legalism, Rights, and Volition

A GENEALOGY OF THE LIBERAL UNDERSTANDING OF RIGHTS

4.  How are rights understood in our social-political context?  A basic right is understood to be something fundamental about human moral agency: a kind of castle keep into which no moral judgment or exercise of political prudence can intrude.  Rights are a kind of entitlement, and the intrusion of any one or anything into the domain guaranteed by a right is an absolute moral evil.  Thus the contemporary language of rights implicitly postulates the existence of a sphere of perfect privacy within the person.  Within this space the person is separated from the world and exists apart from all truth and objective goodness and free from any constraints of nature, since none of these things are capable of rightful entry.

5.  On the face of it, we ought to sympathize with this kind of construction.  To deny the real interiority and independence of the human with respect to his self-determination and creative activity would be to do a great injustice to the reality of human nature.  However, problems arise in the application of this conception of right, because those who accept it mistakenly apply to justice — a virtue which concerns man's positive relations with others — considerations which actually belong in an analysis of the human will.  How does this happen?

6.  The idea of an "inner sanctum" of the human person actually arises from the concept of the will, specifically the notion of the voluntary in human action.  And this is the common understanding of the voluntary: An act is voluntary insofar as it proceeds exclusively from the interiority of the agent, without being constrained or affected by any external agent or accidental cause.

7.  The common understanding of volition paints a clear picture of human interiority.  The human being is embodied, has senses and knowledge and so on, but at the heart of the human there is a kind of impenetrable black box from which issue forth commands and directives.  Thus this black box (a.k.a. "the will") is the first principle of human activity, which governs everything else but is not dependent on anything but itself. 

8.  For convenience, let's refer to this conception of the human person as "voluntarism", because of its very high view of the voluntary.  Now, If the will is the first principle in human activity (as the voluntarist says), and is completely unaffected by anything outside itself, then indeed the earlier-mentioned inner sanctum (or "black box") seems to be a necessary consequence.  But from the existence of this totally independent seat of human action, it follows that acts can only really be judged on the basis of their external attributes.  Why?

9.  If the black box is governed by internal principles or causes, then the conception of freedom given by the voluntarist no longer applies.  Therefore either there will ultimately be no external, objective way of explaining human actions or choices, or human freedom must be sacrificed.  Obviously we prefer the former view, and accept the black box.  But this produces moral legalism.  How?

10. As we have already seen, the voluntarist cannot accept the possibility that moral judgment penetrates into the actions of the will, since these are indescribable. Thus the domain of morality (rightness and wrongness) includes only the non-volitional, that is, the external aspects of human activity. And therefore the merit or fault of an act must be contained solely in its external object. This tendency to reduce moral action to the object of the act, without concern for the character or intent with which it is done, is basically identical with moral legalism. Why is it called legalism?

11. Positive law describes only observable events, and is capable of describing all observable physical events. Thus, if the rightness or wrongness of an action is derived solely from its object (which is almost always an observable physical event, and always something reducible to a definite description), then the law can fully capture the moral quality human action and, from the legalist standpoint, moral casuistry and jurisprudence are potentially coterminous. The moral law is then distinct from the positive civil law solely in that the latter is the limited application of the former to matters which concern the common life of men. At this point, we can see the connection between the morality and law swinging to two opposite extremes:
12.  On one hand, one can take the path of some well-meaning but misguided counter-reformation casuists, and attempt to flesh out the full legal description of the human moral life.  This becomes strange very quickly.  Why?  The language of law is geared toward maintaining equity between persons in natural or contractual relationships.  Thus it tends to focus on entitlement and obligation.  However, many very important moral questions cannot be reduced to those terms.

13.  Take for example the question of romance.  In the legalist framework, one can reasonably ask how often one is obliged to give one's girlfriend a gift.  What proportion of one's weekly salary ought the gift be?  Or, to take a similarly bizarre case: how often is one obliged to express one's love for God in prayer?  Twice a month?  Three times?  Once a day?  And how grave is the sin of omitting this expression?  It's easy to see how absurd this gets, not to mention completely obliterating personal freedom of choice. (This, friends, is why virtue is so important.  A healthy virtue ethic recognizes the freely given nature of friendship and love.)  Let's call this "Legalism A".

14.  The opposite tendency ("Legalism B") runs as follows:  Law concerns equity between people in society.  But if the domain of morality is formally identical with the domain of civil law (i.e., if morality is simply a more detailed kind of law which covers the same sorts of things), then morality cannot concern acts that do not somehow affect the proper relations between people in society.  It follows that moral judgment is not only inapplicable to interior acts of the will, but also excludes judgment about the private acts of freely consenting persons.

15.  One final step is necessary to see how this latter tendency becomes modern liberalism.   The liberal follows voluntarism's moral implications through to Legalism A, which tends to reduce every act to the fulfillment an obligation.  This is unbearable and anathema to human freedom.  The liberal wants to preserve freedom, but at the same time, he accepts the voluntarist and legalist categories which seem to exclude it.  Hence his only way of salvaging freedom is by expanding the scope of the "black box" along the lines of "Legalism B".  He does this by means of the concept of right.

16.  Rights, in a liberal society, involve the absolute entitlement of an individual to autonomy within the "black box" of the private sphere.  Here no law or judgment can enter.  Now, where the mere voluntarist sees the private sphere as existing solely in the faculty of the will, the liberal expands it to consensual, non-communal activity.  Thus this expanded private sphere becomes the exclusive domain of "the will".

17.  The will (again, in a voluntarist conception), is the primary faculty of the human being.  It determines acts and creates identity.  Thus any impingement on the freedom of the will in its proper sphere is an assault against the voluntary nature of human acts.  If, then, any inequity in governance or distribution of wealth should create a limitation in the private exercise of freedom, we could properly complain about a violation of human dignity.

18.  It is, however, a basic principle that what is necessary for human existence is, in times of need, owned commonly by all.  A town of starving men is free, on the verge of death, to raid the mayor's grain stores.  But any lack of wealth or inequity within society is, according to the liberal mindset, a deprivation of what is necessary for one's existence as human.  And from this logic emerges a host of invented "human rights".

SOME CORRECTIONS AND RESOLUTIONS

19.  So much for the errors of our time.  I now want to offer a few short corrections to the voluntarist understanding right and volition.

20.  First off, right.  Right is the object of justice, and is the relation one has to others in natural, political or contractual communities, in which something is due.  Rights exist by association with another, and are characteristics of exchange.  They do not inhere in individuals.  They are not absolute.

20b.  Next, volition.  A voluntary act is not one that is free from all causal contact with the world.  This is absurd.  The voluntarist conception of human freedom reduces the will to a kind of random output generator, eliminates the meaningfulness of actions in relation to their context and intention, and ultimately closes off the understanding of what one does from one's own intellect.  A perfect illustration of the absurd conclusion of voluntarism is the philosophy of Jean-Paul Sartre, who taught that individual choices had no significance beyond the direct affirmation of one's freedom from moment to moment. 

21.  Rather, a voluntary act is one which proceeds from an interior principle of motion by means of knowledge of what one does as good, and as a goal to be pursued.  In other words, voluntary acts are caused by a person's attention to the goodness of the end for which they are done.  If an act is not caused by this attentiveness to the good end, then it is not voluntary.  Thus coercion and automatic action are not voluntary, but consciously desired acts are.  The human will is in constant cooperation with the intellect: directing the intellect to one or another object for consideration, and pursuing the good things which the intellect judges worthy.  (This is why the memory of smut is sufficient to excite lust and produce commensurate acts in the incontinent person.)

22.  Now, if coercion is opposed to the voluntary, and voluntary action is natural and essential to human nature, then the liberal is in a sense right to oppose the excessive paternalism of a moralizing state.  Justice properly extents only to the equity of relations within a community, and thus positive law is only competent to prescribe and proscribe actions are necessary for or detrimental to that equity.

23.  Moral action, is not as a whole within the sphere of positive law, but of natural law.  And human acts are more perfect when they arise out of understanding and not out of blind obedience.  Thus even though the state is responsible in legislating to promote the common good, the lawmaker is not competent to mandate a proper understanding of the good, or to enforce the development of virtue. 

24.  Rather, these tasks devolve upon parents, teachers, friends and spouses, who in acts of love and generosity help bind together communities for the mutual upbuilding of individuals and for the common good.  This is something no legislator can  bring about, and it is the natural good of human community as it tends toward the ultimate perfection of man.   So, my friends, if you want to improve community, restore the acts proper to individuals to those who ought to do them.  Try to undo the paternalism of large governments based on a faulty theory of rights and a legalistic conception of morality.


SOME LATER ADDENDA

A1.  This wasn't explicitly stated, but it's implicit in my rejection of voluntarism that I don't think there's any such thing as a "private sphere" as we think of it today.  There is nowhere that moral judgment cannot go.  There is no wrongful deficit in human behavior which is not punishable by the community for its injustice.  I.e., the community is free to legislate against whatever wrongful acts it likes, public or private.  In this sense there's no real limitation on the law, except that it reflect the natural law and be in accord with reason.

A2.  That said, it would be ineffective and perverse for the lawgiver to usurp certain functions that are natural exercised by individuals within the community: first, because it will do a worse job of them than those who ought to be doing them; second, because the logic of right and obligation which comes necessarily with positive law is anathema to certain important aspects of human life (parenting, teaching, etc.).  And really, we've all heard these truths before, just from the lips of strangers (i.e. classical liberals, who hit upon them accidentally, despite their misguided view of man).

A3.  The point of all of this is to promote freedom: genuine freedom, i.e., freedom for excellence and perfection.  The care of the lawgiver is to create general rules which guarantee equity and justice within the community.  But justice is not the only virtue of interest to the lawgiver: prudence is also essential to good government.  Where through the exercise of justice and (ideally) wisdom, the lawgiver is capable of seeing how everything should fit together within a community for the common good, the exercise of prudence is necessary to determine when and how the power of the state intervening in communal affairs can actually promote the good.  Since the power of the state is the power of the sword, we should see very clearly that these cases are limited.