Alexander Hamilton wrote in Federalist 78 that judges must regard the Constitution “as a fundamental law,” by which he meant that no legislative act contrary to the Constitution can be valid. The Constitution is the rule of law intended by the people. Of course, this “fundamental law” reflects certain underlying convictions. As the preamble to the Constitution of 1787 mentions, its goal was to effect a “more perfect union.” The framers and ratifiers did not create an all-purpose rule of law for humanity in general, but rather one for a people of diverse commercial interests, churches, and local traditions of self-governance. They were mindful that a republican order had never before been achieved on such a large scale.
A central question for the framers and ratifiers of this constitution was how to achieve an order of political reciprocities that is at once effective and just. There were two approaches to the problem. The first is to be found in the original Constitution. There we find that the institutions of the polity are designed according to a system of delegated and enumerated powers. As Madison argued, this approach facilitates political give-and-take while guarding against the perversion of the system by factions inimical to the common good. Another approach is to emphasize the existence of individual rights, which might be regarded as zones of immunity protecting citizens from ordinary politics. Although Madison himself contended that limited government and individual rights are part and parcel of the same proposition, it is nonetheless true that the original Constitution is remarkably silent about individual rights. (The word itself appears only once, with reference to patents and copyrights, in the unamended Constitution.)
With the addition of the Bill or Rights, both the structural and rights approaches to the problem became part of our “fundamental law.” Yet it is clear that they represent two different faces of the rule of law. If zones of immunity encompassed by individual rights are drawn too broadly, then democratic decision-making becomes irrelevant. We can imagine a people who have little or no interest in legislatures or in mutual decision-making, but who expect courts assiduously to protect individual rights. On the other hand, if the rule of law is exclusively devoted to the structural question of which organ of government has which power, then another perversion of democratic politics is apt to ensue. For the use of power cannot be made legitimate solely by virtue of a collective will that posits a constitutional system of enumerated powers. We also need to specify what it means to treat people rightly, according to moral or natural principles of justice.
We celebrate this year the bicentennial of the Bill of Rights. These ten amendments, along with the Fourteenth Amendment, have provided the main focus for legal and political theorists who emphasize the rights-based, in contrast to the structure-based, strategy for maintaining a rule of law. This, of course, is a matter of emphasis. In American political and legal theory one will be hard-pressed to find a pure example of either. Who, after all, would deny that the Constitution both enumerates and delegates powers, and also protects (at least some) individual rights against the will of majorities? Furthermore, insofar as the structure-based strategy reflects the contract theories of the Enlightenment, and the rights-based approach focuses upon the problem of the vulnerability of individuals or minorities to political majorities, each has an historical ground in what might broadly be called “liberalism.”
Our legal culture has evolved clearly in such a way that enormous weight is given to the rights-based conception of the rule of law. Although neither constitutionalism nor liberalism are unique to the United States, the evolution of our legal culture is remarkable because of the extent to which individual litigants can successfully mount, and sometimes win, what amount to natural rights claims within a system of positive law. Natural law is not merely a matter of certain background assumptions regarding the rule of law under a constitution. (That much can be said for Roman Catholic canon law.) Rather, American natural rights discourse has become a kind of first order vocabulary which has both an interpretive and a constitutive function within the law. Indeed, the language of rights has become an all-purpose way to talk about morality, whether private or public. The meaning of a “fundamental law” tends to suggest to us the notion of rights possessed by individuals rather than structural limits upon government.
It is perhaps appropriate, then, in this bicentennial year to survey some recent literature on the issue of rights, and in particular natural law and natural rights. In what follows, the literature is divided into legal and political themes. This classification is somewhat arbitrary, since the problem of rights invariably embraces both. Many of the books somewhat eclectically selected here have been published in the last year or so; others have been recently republished or newly issued in paperback. It should go without saying that our survey in not comprehensive. Indeed, the broad set of themes encompassing rights, liberalism, and natural law has received such considerable attention by scholars that it exceeds what can be reasonably surveyed here.
Rights and the Constitution
The Ninth Amendment guarantees that “The enumeration in this Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” It has become one of the most controversial of the amendments in the original Bill of Rights. The meaning and scope of the Ninth Amendment has been of particular interest to jurisprudes and scholars since Griswold v. Connecticut (1965), when Justice Goldberg, in a concurring opinion, cited the amendment in support of a “right of privacy.” Since Griswold, the Ninth Amendment has been cited in over 1,000 cases throughout the judicial system. Indeed, Roe v. Wade (1973) first emerged out of Texas as a Ninth Amendment case. Many legal theorists believe that citing the Ninth Amendment is a sloppy and jurisprudentially unprofessional way to enter into the issues of constitutional law. As the adage goes, when all else fails, one needn’t pound the table but only cite the Ninth Amendment.
On the other hand, it does raise some interesting questions about the relationship between what we have called the structural and rights-based approaches to “fundamental law”: Did the framers and ratifiers consider it to be a source of judicially cognizable rights beyond those specifically mentioned in the text of the Constitution? If so, are these unenumerated rights natural rights? If not, are the rights to be viewed as positive rights already secured in the states? Is the Ninth Amendment more similar to the First Amendment, and hence to be regarded as a source of legitimate rights claims against government; or should it be paired with the Tenth Amendment (“powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”), in which case should we interpret it as clarifying a structural point about those powers which are not conferred upon the national government?
The Rights Retained by the People: The History and Meaning of the Ninth Amendment (George Mason University Press), edited by Randy E. Barnette, contains not only a broad survey of scholarly opinion on the amendment but also includes important source documents such as James Madison’s speech to the House explaining the proposed amendments, Roger Sherman’s original draft of the Bill of Rights, the Amendments proposed by state ratifying conventions, and Justice Goldberg’s concurring opinion in Griswold. In the first essay, “James Madison’s Ninth Amendment,” Barnett contends that for the framers and ratifiers, rights (whether enumerated or not) represent a constitutional presumption in favor of individual liberty. Thus, for example, when legislation operates to restrict free speech, such legislation is subjected to meaningful scrutiny by a neutral third party—the judiciary. So, too, the Ninth Amendment establishes a constitutional presumption in favor of other (unenumerated) rightful activities on the part of citizens.
According to Barnett, the Ninth Amendment does not require the judiciary to legislate new rights, but rather to take a critical stance toward governmental abridgment of liberties. “By presuming the immunity of rightful conduct from government restriction, it forces the government to credibly articulate its purpose and to defend any exercise of government power as both necessary and proper.” In short, Barnette contends that the framers and ratifiers of the Ninth Amendment believed that it was necessary to acknowledge, but unwise to spell out comprehensively, the conviction that the rights which limit government are not confined to those enumerated in the text. When the judiciary adopts this presumptive method, it acts in accord with the Ninth Amendment. How this critical or presumptive stance can fail to launch the judiciary into the business of inventing and then “legislating” new rights is a question that Barnett acknowledges, but does not solve.
Even if we accept Barnett’s presumptive method, we can reasonably ask whether some kinds of unenumerated liberty are more worthy of the presumption of legitimacy than others. Should these unenumerated rights be construed as natural, or fundamental rights? In his essay “Natural Rights and the Ninth Amendment,” Eugene Van Loan emphasizes that Madison and the ratifiers believed in substantive natural rights. He argues that only this species of rights could have provided the restriction on government implied by the Ninth Amendment. Only natural rights fit the bill because, Loan reasons, it would have been a contradiction in terms for the framers and ratifiers to have protected unenumerated legal or positive rights, which have force by virtue of statute and express agreement.
Van Loan proposes that this view helps to solve at least part of the puzzle concerning the applicability of the Ninth Amendment to the states. Since the Ninth Amendment refers to unenumerated natural rights, those rights must be universally applicable across jurisdictions. The use of section one of the Fourteenth Amendment to incorporate the Ninth Amendment against the states is only a technique authorized by the deeper insight that rights which are properly fundamental apply to the entire range of governmental action vis-Ã -vis individuals. If Van Loan is correct, then when the Court invokes the Ninth Amendment its method must be guided by something more than a broad presumption in favor of unenumerated liberties; the presumption should properly involve substantive natural rights. This, of course, moves the problem toward the substantive issue of how a judiciary is to distinguish between unenumerated liberties and unenumerated natural rights. Surely there must be a principled way of distinguishing between liberties and natural rights. Otherwise, everything concerning which human beings are free would represent a natural right, from which it would seem to follow that everything enacted by government would in some respect or another violate natural rights.
The Barnett volume contains other essays—by Raoul Berger, John Hart Ely, Edwin Corwin, Knowlton Kelsey, Nennet Patterson, Norman Redlich, Simeon McIntosh, Russell Caplan, Calvin Massey, and Charles Black—which examine various angles of the problem posed by the Ninth Amendment. Some address the original meaning of the amendment, while others focus upon the problem of how to interpret and apply it. Raoul Berger, in particular, interprets the Ninth Amendment in structural terms. When seen in conjunction with the Tenth Amendment, Berger urges us to view it not as a source of judicially cognizable unenumerated rights, but rather as textual record of the premise that those powers not explicitly conferred to the federal government are retained by the people. As other of the authors point out, the problem with this interpretation is that it must regard the Ninth Amendment as either needlessly redundant or a half-baked prolegomenon to the Tenth. While Barnett’s collection contains a broad spectrum of opinion, on the whole the essays are weighted toward the view that the Ninth Amendment refers to natural rights.
The debate over the meaning and scope of the Ninth Amendment might be regarded as an academic exercise since, historically, it was not the Ninth Amendment, but rather the Fourteenth Amendment that provided the constitutional touchstone for judicial activism under the banner of individual rights. One reason for this is that the original Bill of Rights represented limits upon the national government rather than the states. The Fourteenth Amendment, passed on the heels of the Civil War, gave Congress authority to supervise certain areas of justice in the states. While there is considerable debate over what authority this gave to the judiciary, section one of the Fourteenth Amendment eventually opened the door to incorporating the original Bill of Rights against the states. We know in hindsight that this incorporation encouraged litigation over the proper use of state power and hence broadened both the power of the judiciary and the field of issues which come before it. Rights claims were drawn to the Fourteenth rather than the Ninth Amendment, and the vast majority of such claims attacked state, rather than federal, laws.
As with the Ninth Amendment, we find opinion generally divided along the lines of those who take a structural or procedural reading of the Fourteenth) Amendment, and those who look to section one of the amendment as a source either for amplifying old rights or for concocting new ones. William E. Nelson’s The Fourteenth Amendment: From Political Principle to Judicial Doctrine (Harvard) steps back from the partisan debates about the amendment in order to take an historical measure of the issues. His thesis is twofold. First, Nelson argues that a variety of natural law theories not only set a general background for the deliberations of the abolitionist Congress but also entered into the formulation of what kind of justice the amendment envisaged. This part of his account helps to fill a gap in the literature by establishing how vigorous and deeply rooted was natural law theory in mid-nineteenth-century America. Moreover, Nelson shows decisively that the authors of the amendment understood these natural principles of justice to be applicable beyond matters of race. Second, Nelson argues that the authors of section one did not wish to collapse the house of federalism by so amplifying the power of the national government that the states would become mere administrative jurisdictions of the federal government.
Nelson suggests that the abolitionist Congress wanted to have its cake and eat it too. That is to say, the authors of the amendment wished on the one hand to translate natural principles of justice into a law applicable to the states, and at the same time to preserve the tradition of federalism. Interestingly, Nelson emphasizes that it was the Northern press that was most alarmed at the possibility that the Fourteenth amendment would facilitate the reconstruction of the South at the price of diminishing the power of state governments who were loyal to the Union. The upshot of his study is that the amendment sought to achieve a precarious balance between the structural requirements of federalism and the recognition of natural principles of justice that pertain to individual rights. This balance, he notes, left undetermined precisely how to frame judicial doctrines. Nelson takes us to the threshold of the so-called “substantive due process” era, when, at the turn of the century, section one of the Fourteenth Amendment was used by the judiciary to vindicate individual rights claims against local governments along libertarian economic lines.
What we have somewhat carelessly termed “liberal” and “conservative” views on constitutional interpretation are typically keyed to differences of opinion on the judicial use of the Fourteenth Amendment. Yet there are deeper differences which concern how we ought to view the relationship between moral reasoning and the rule of law. This dispute is sometimes characterized under the rubric “interpretivism” versus “non-interpretivism.” The former represents the opinion that the authority of legal judgment is drawn exclusively from the written text and from what can be fairly inferred from it. The latter position holds that—at least under special circumstances—legal judgment must avail itself of external moral principles. While interpretivists usually agree that a natural law of rights stands as a background to constitutional order, and may properly be used in formulating legislation, a judge has no express authority to cite such principles as a reason for a holding. The rule of law, they argue, requires that the written Constitution controls legal judgment. Noninterpretivists, on the other hand, emphasize that the written Constitution gave the judiciary power over all cases “in law and Equity arising under the Constitution.” Equity, in particular, cannot be accomplished without moral reasoning, for it concerns judicial adjustment of law. Some noninterpretivists explicitly align themselves with the tradition of natural jurisprudence, while others distance themselves from the term “natural law.”
Beyond the Text
It is interesting and even paradoxical that in our legal culture, the natural law tradition is associated with a “liberal” conception of judicial activism. In Beyond the Constitution (Princeton), Hadley Arkes reverses our expectations in this regard. For although Arkes does not fuss one way or the other about the semantics of “natural law,” he wants to give an account of the moral structure of law which is, on the whole, rather like the conceptions of natural law discussed by Nelson in connection with mid-nineteenth-century abolitionist thought. Arkes acknowledges that conservatives have understandably recoiled from judicial appeals to natural rights, which “have had a remarkable way of making natural rights coincide with the current liberal agenda, from affirmative action to abortion.” Arkes, however, asks, “And yet why should the conservatives allow this exercise to give natural rights, for them, a bad name? Why not, rather, celebrate this willingness on the part of liberal commentators to accept the tradition of natural rights, and the moral postulates that come along with that tradition? And why not then take it, as the mission of conservatives as well as liberals in the law, to restore the discipline of moral reasoning that has ever been a part of the tradition of natural rights?”
Arkes contends that there is a “radical separation between the jurisprudence of the Founders, and the jurisprudence offered by conservatives and liberals in our own day.” While liberals appeal to moral ideals in order to launch legal judgment not only beyond (or even against) the text of the Constitution but against the requirements of moral logic itself, conservatives are apt to adopt one or another version of the thesis that moral propositions are matters of individual or private conscience which ought to have no role in legal adjudication. Arkes wants to give a properly considered account of the relation between the logic of morality and jurisprudence in order to explain why moving “beyond” the text of the Constitution is required by a moral logic that neither contemporary liberals nor conservatives appreciate. In the first several chapters he examines the jural reasoning of various judges and statesmen (including, among others, Alexander Hamilton, John Marshall, Abraham Lincoln, and the first Justice Harlan) in order to clarify how particular cases, policies, and political issues evoke the question of how to relate principles and instances of principles. Arkes wants to clarify why jurisprudence and morality both involve the logic of practical reasoning.
Taking a variety of cases which have raised the problem of jurisdictional boundaries—the most interesting of which involve the Baby Doe cases—he reasons that it is impossible that a first order moral principle be conceived of as applying exclusively to one sector of government or to only one level of positive law. Arkes argues that those who would retreat from the moral logic of first principles to the “convenient formulas of federalism” do not finally provide a sound understanding of the jurisdictional limits of governmental bodies. Instead, they encourage indirect uses of power which proceed without being guided by, or tethered in, moral principle. His argument challenges the “conservative” assumption that the proper principle for braking the liberal juggernaut can be found simply in the institutional formulae that govern the allocation of powers and the lines of jurisdiction between federal and state governments.
The subject of natural law and natural rights can also be fruitfully explored in terms of comparative law. In Form and Substance in Anglo-American Law: A Comparative Study in Legal Reasoning (Oxford), P.S. Aityah and R.S. Summers undertake a general comparison of the American and English legal cultures. They compare the two along a broad range of topics, including (to mention only a few) the relationship between courts and legislatures, deference of courts to police authority, the extent to which legal holdings rely upon academic literature, the function of law schools, and the social and class membership of the judiciaries. The book’s main thesis is that whereas English law emphasizes the formal requirements of law (e.g., the validity of sources), American law emphasizes its substantive criteria (e.g., whether a law is good or right). Aityah and Summers argue that the commitment to one or another theory of natural law is the chief thing that distinguishes American law from its English cousin. They provide philosophical, historical, and sociological reasons for legal positivism’s inability to establish itself in American legal culture—at least to the same extent as its triumph in England. This book is especially useful not so much for its philosophical formulation of the issues surrounding natural law theory as for its historical and sociological analysis. That is to say, the authors are interested in drawing our attention to the fact that the (often tiresome) debate between natural lawyers and legal positivists can be freshly reexamined if we study the theories in their cultural and institutional contexts.
Likewise, Mary Ann Glendon’s Abortion and Divorce in Western Law: American Failures, European Challenges (Harvard), and Laurence Tribe’s Abortion: The Clash of Absolutes (W.W. Norton), step back from the philosophical debates and the normative moral doctrines which are in collision on the issue of abortion in order to examine the social assumptions which are brought to the problem. Both authors want to understand why compromise is so difficult, and why Americans use the law in terms of a win/no-win game on issues like abortion, sexual conduct, and the family. Tribe’s book is disappointing, for although it is, in his words, “in search of a compromise,” and while he wants to take into account the complicated social relations which obtain among the various players in the situation (mother, fetus, society, etc.), he finally adopts a position that is arguably more “absolute” and less nuanced sociologically than what the main line of pro-choice opinion would avow.
For example, Tribe suggests that even if technology permitted the safe and convenient preservation of the unborn (by extraction and artificial incubation), the woman must be regarded as having a right not to be a mother; that is to say, the right to an abortion is nothing other than the right unilaterally to choose or to relinquish a social role. Hence, even were we able to save the fetus, the woman has a right to reject any course of action which would saddle her with the lifelong prospect of knowing that she was a mother. The woman, in short, would seem to have a right to a dead fetus. Of course, this is not an unintelligible position and may indeed represent the final logic of a certain pro-choice stand, but it hardly counts as a sociologically nuanced treatment of the issue, much less a search for some common ground beyond what is usually expressed in the language of individual rights. It does, however, make very clear the problem of how difficult it is to delimit the scope of the rights-based approach to the rule of law. Since rights trace out areas of invulnerability against society, it is not easy to see how law, on this issue, can mediate a social conversation between individuals and the polity. It would rather seem to be the way to stop one.
Mary Ann Glendon more successfully tackles the issue in terms of social theory and comparative law. She asks why Americans are less willing to regulate abortion and divorce than their European cousins. Glendon notes that Western Europeans are no less liberal or secularized than Americans, yet virtually all of these countries have placed limits on abortion which our Court has routinely invalidated. Even Sweden, she points out, requires a woman to consult with a social worker before having an abortion after the twelfth week. Glendon explains that the unwritten premise of individualism in America is the difference between American and European legal cultures; it influences our legal habits far deeper than what is usually revealed by legal doctrines. Interestingly, she shows why in America the legal issue is not only (or perhaps not even primarily) whether a woman can procure an abortion, but whether it can be had as a unilateral right, that is, on demand. The rights claim to abortion on demand can be seen as an effort to suppress the context of ordinary social relationships and reciprocities—even those contexts which would permit, as the result of deliberation, abortions to take place.
Glendon notes that women in most Western European countries have no problem procuring an abortion. Therefore, according to her analysis, the law protecting abortion on demand should not be viewed in merely instrumental terms as a law that facilitates the enactment of the choice to have an abortion. It is not merely result oriented. Rather, the law is also symbolic of a commitment to a particular medium of choice—namely, the individual emancipated from social complexities. Glendon’s book does not resolve any of the moral problems concerning abortion and divorce; it makes no concrete policy recommendations; nor does it try to settle the constitutional status of particular cases. Nonetheless, it is a model for how to engage the project of comparative law and demonstrates how that method can illumine legal and moral issues—particularly the problem of what can happen to a polity when the language of individual rights becomes the vernacular for both the private and public spheres.
Rights in Political Theory
Some of the most persistent issues and problems which can be brought to liberal theory—for example, the meaning of the rule of law and constitutionalism, the existence of individual rights, the division between the private and public spheres, the status of functional in contrast to teleological reasoning, and the ideal of toleration, to mention only a few—lead to the doorstep of John Locke’s philosophy. That is to say, our estimation of the cogency of liberal theories of government requires a verdict on Locke. It is not surprising, then, that in the general area of studies on liberal political theory we note a surge of recent scholarship on John Locke.
Ruth Grant’s John Locke’s Liberalism (University of Chicago) takes the reader on a general tour of the disputed issues in Locke’s political philosophy. The book is valuable, in the first place, because Grant furnishes (in both the text and notes) a clear and quite useful survey of the tremendous range of scholarly opinion on Locke. She also focuses upon those problems which are especially important to contemporary liberals and their critics. Grant argues that, contrary to the interpretations of some Straussians and Marxists, Locke’s work aims at a coherent and orderly demonstration of moral standards. Locke, she contends, conducted a serious effort to demonstrate that only a certain kind of state (the liberal state) can meet the natural and rational standards of human freedom. In other words, Locke was not an ideologue who manipulated moral rhetoric for the purpose of rationalizing certain political and economic practices. While conservative and radical critics of Locke have pointed out that his teaching on morality and law in the Essay Concerning Human Understanding is at odds with, if it does not actually contradict, the Second Treatise on Government, Grant proposes that there is a coherence between Locke the epistemologist and Locke the political theorist.
She acknowledges that there are unresolved tensions and theoretical loose ends in Locke. His natural law theory, for example, comprises rationalist, voluntarist, and utilitarian elements which do not necessarily fit together as a consistent theory. Nevertheless, Grant portrays Locke’s philosophy, loose ends and all, as a “cautious liberalism” that sought to avoid the extremes of absolutism and skepticism with respect to our knowledge of morality. The reader might be disappointed to discover, however, that Grant almost entirely neglects the problem of religious toleration—a subject concerning which Locke’s liberal via media is at once brilliant and troublesome.
Andrzej Rapaczynski, in Nature and Politics: Liberalism in the Philosophies of Hobbes, Locke, and Rousseau (Cornell), also argues that although Locke’s philosophy presents what might seem at first glance to be a “patch-worklike façade,” it is really a “coherent and sophisticated body of ideas.” Locke, he says, was a systematic theorist whose ambition it was to “write a modem equivalent of Aristotle’s Politics.” Rapaczynski’s thesis is that the central philosophical problem for Enlightenment political theorists was how to supply a balanced view of human authority and freedom given the fact that the emergent science explained nature mechanistically. The classical model for political theory was, of course, keyed to human nature. To what extent could this model be retained when human nature is conceived as a stimulus-response mechanism rather than something bearing an intrinsic teleology? Rapaczynski tries to answer the question by contrasting John Locke’s solution to the problem with that of Hobbes and Rousseau. The latter theorists, he argues, either buried human nature in its mechanisms (Hobbes) or proposed that human freedom must take flight from nature (Rousseau). Hobbes and Rousseau produced the theoretical bases for liberalisms, which, as Rapaczynski shows, have not had happy endings, and ought to be carefully distinguished from the liberal tradition based upon Locke’s philosophy.
Nature and Politics includes a very thorough analysis of Locke’s texts on the problem of the relationship between nature and freedom. Even those who are apt to believe that Locke is more the problem than a solution to modern political theory will have reason, after reading Rapaczynski, to reconsider his philosophy. Despite the fact that some contemporary liberal theorists (e.g., Dworkin and Rawls) peremptorily dismiss the idea that a principled account of liberal polity must rest upon a doctrine of human nature, Rapaczynski suggests otherwise. Whether we focus upon the legal facet of individual rights, or the background institutional issues which properly concern political theory, the problem of nature and natural standards is never far from the surface. While modern writers perhaps do not draw together the issues of nature, freedom, and politics with the same synthetic aim found, for example, in the tradition of scholastic Thomists, Rapaczynski demonstrates that the seminal philosophers of liberalism (especially Locke) did not evade the problem of interrelating nature and politics.
A less flattering view of Locke’s contribution is found in Edward Andrew’s Shylock’s Rights: A Grammar of Lockean Claims (Toronto). The book begins as a study of Shakespeare’s The Merchant of Venice, which, the author suggests, contains in dramatic form many of the moral and political tensions of modernity—in particular, the transition from the Christian conception of charity to the modern preoccupation with power. The book quickly becomes a syllabus of the errors of liberalism, chief among which is the alleged right to do wrong, which Andrew identifies as its moral core. Locke is taken to be the central figure and purveyor of the “amoral moralism” embedded in modern discourse about rights. Andrew means by “amoral moralism” the effort to give moral arguments in support of rights, the substance of which have no moral specifications. This book cannot be recommended as a scholarly treatment of Locke, since Locke is used as a foil for some more general things which the author wants to say about modernity. Nevertheless, Andrew does manage to formulate in fresh ways some of the most troublesome attributes of contemporary liberalism.
This issue concerning the right to do wrong is not a minor problem. Ian Shapiro’s The Evolution of Rights in Liberal Theory (Cambridge), also takes its bearing from the welding together in contemporary liberal theory of the English contract tradition’s emphasis upon subjective interest and natural liberty with Kantian deontology—precisely, the sort of “amoral moralism” discussed by Andrew. More carefully than Andrew, Shapiro argues that the contemporary effort to give Kantian moral foundations to Hobbesian and Lockean theories of rights is the distinctive feature of Anglo-American liberal theory, and that this effort amounts, finally, to an ideological rather than philosophical account of the relationship between morality and rights. The book is divided into a study of the classical modern period of rights theories (emphasizing Hobbes and Locke), and the modem arguments (emphasizing Keynes, Rawls, and Nozick). On the whole, Shapiro’s book covers much of the same ground, while arriving at quite a different conclusion from Rapaczynski’s study.
For two recent, though very different, treatments of liberal moral and political theory, the reader might look at Jeffrey Reiman’s Justice and Modern Moral Philosophy (Yale), and Joseph Raz’s The Morality of Freedom (Oxford). Both books work from within the liberal tradition but target various elements in need of philosophical correction. Reiman’s book is a remarkably well-written and lucid presentation of the standard liberal theses concerning the sovereignty of the individual and the primacy of justice. Although he defends a position not unlike Rawls’, Reiman spells out the assumptions this position must make about human nature and rationality. For Reiman, the central task for liberals is to explicate, rather than to cover over, the premise that “personal sovereignty” is a “natural fact” about human beings. Properly worked out, this “natural fact” is the basis for a liberal conception of rights and political institutions.
Joseph Raz also takes the autonomy thesis as central to liberalism. Raz, however, is careful not only to distinguish between various meanings of autonomy (for example, moral and personal), but also to distance liberalism from the notion that the ideal of an autonomous life requires the availability of morally repugnant options for individual choice. That is to say, “autonomy is valuable only if exercised in pursuit of the good,” and therefore “the ideal of autonomy requires only the availability of morally acceptable options.” The implications of this position are not unimportant for liberalism. If personal autonomy must be measured morally by right reason in relation to the good, then the public order does no violence to autonomy when it removes certain kinds of options for choice on moral grounds. Raz not only rejects the notion that agents can have a right to do moral wrong but also the subsidiary claims which tend to cluster around that idea: for instance, that law is morally neutral, that pluralism is a good to be advanced without any moral specifications, and that individual rights are to be asserted in advance of any consideration of what truly, and not merely apparently, satisfies the ideal of autonomy. Raz’s book, written sympathetically from within the liberal tradition, is one of the most searching and critical recent accounts of that tradition.
Unavoidable Rights
Presumably, the Bill of Rights has a moral and legal meaning that stands both upon the Constitution and upon the tradition of our institutions and practices. That is to say, the rights-based strategy for securing liberty is not immediately dependent upon the various, and quite often sharply divergent, scholarly opinion surveyed in this essay. Yet to the extent that our legal culture has so heavily vested its energies in the vindication and expansion of individual rights, philosophical opinion about rights is important. Several of the books surveyed in this essay propose that the American conception of the rule of law is unique, not simply by dint of the ideal of constitutionalism, nor even by its liberalism. Rather, it is chiefly to be characterized, either for good or ill, by its commitment to individual rights. If this be true, then it would appear that one or another doctrine of natural rights is unavoidable, certainly for political theory, and perhaps for legal theory as well. Having become a standard part of our practical repertoire, the philosophical problem is whether there are reliable ways to sort out good and bad theories about the nature of rights, and by this we mean sorting out not only what works and what doesn’t, but what is true or false about rights claims. Surely when the authors of the original Bill of Rights affirmed that rights signify principled grounds for the protection of individual liberties, they likewise assumed that we have criteria for ascertaining reasonable and unreasonable rights claims. But how these assumptions, mediated now by two centuries of practices and theories, should be considered philosophically is no easy matter. Oliver Wendell Holmes taught generations of legal theorists to wash the law “with cynical acid and expel everything except the object of our study, the operations of law.” Recent interest in natural law and natural rights, at both the scholarly and practical levels, testifies to the failure of the Holmesian effort to wash the law clean of moral and philosophical disputes.