Has the postmodern revolution gone full circle?

By Colin Turfus

While discussions about the philosophical foundations of judgements of right and wrong are often framed in terms of rational versus irrational perspectives, viz. those based on the enlightened values of science and reason as opposed to those based on authority or faith, this is not altogether an accurate view of where the real centre of moral debate currently lies. The game-changer has been the arrival of postmodern ideology and the hegemony which it has established over most debate about public policy and morality. This assertion may come as a surprise to many who are aware of the existence of a philosophical perspective called “postmodernism” but do not see it as having much to do with how they frame their moral judgements or how society around them is ordered. They would I suggest probably be wrong to believe so.

In understanding postmodernism, it is important to recognise that it arose not as a logical corollary of the efforts in the “Enlightenment” period to establish a rational foundation for addressing moral dilemmas and resisting the tyranny of religious and traditionalist worldviews in the 18th and 19th centuries, but as a rejection of that project. While Hobbes, Locke, Bentham, Hume, Kant, Hegel and Feuerbach vied with one another to provide a theoretical foundation for moral discourse, ultimately none was able to prevail.

The great prophet who was ultimately to sound the death-knell of the enlightenment was probably Friedrich Nietzsche in his portrayal of the madman running around with a lantern proclaiming that God was dead. His suggestion was that the madman represented the enlightenment philosophers who, in their critique of traditional values, looked to construct in their place a system of values which pared away the superstition and retained the essence; but that there was no such essence. Freed from the constraints of the prior expectations of our peers, we are free to steer whichever course we choose.

Postmodernism builds on this insight pushing the corollary that there are no objective standards of right and wrong, only differences of perspective. According to the Encyclopaedia Britannica:

Reality, knowledge, and value are constructed by discourses; hence they can vary with them. This means that the discourse of modern science, when considered apart from the evidential standards internal to it, has no greater purchase on the truth than do alternative perspectives, including (for example) astrology and witchcraft. Postmodernists sometimes characterize the evidential standards of science, including the use of reason and logic, as “Enlightenment rationality.”

This point of view is often portrayed as moral relativism, but to do so is to miss an important feature of the postmodernist position: although it holds that there is no one correct point of view on questions of right and wrong, all points of view are not necessarily equal in validity. Indeed, echoing Orwell’s critique of communist society in his Animal Farm, some points of view are in practice “more equal than others.” For, as stated above, values are seen as arising in practice in “discourses” taking place in different social groups or communities. And some groups have greater power or “hegemony” to impose their view on other relatively disempowered groups. Without taking a position on whose views are more correct between the relatively more or less powerful group, postmodernists argue that it behoves us to take the side of the relatively disempowered group so as to help redress the intrinsic injustice of the situation.

So, the conversation moves from one about being right to one about having rights. While a traditional perspective on human rights would be to argue that all human beings possess rights equally, the postmodernist position is that greater rights have to accrue to the relatively disempowered and so greater emphasis given to defending their values. Thus, is born the concept of group rights: women’s rights, gay rights, transgender rights, black rights, Muslim rights, etc. It is one of the great achievements of the postmodernist agenda that, without any need for moral discourse, it has become possible to dismiss almost any moral position which is portrayed as disrespectful of any of those group rights, particularly if that moral position can also be portrayed as promoting the interests of some relatively more powerful group.

Not surprisingly, this approach leads quite quickly to inconsistency and even incoherence. For example, it is often argued in the corporate environment that “diversity” policies are necessary to ensure that the best people are chosen, by which is meant a sufficient number from relatively disempowered groups. But if that is one’s position, one needs to argue that members of different groups bring different talents and perspectives to the table by virtue of their belonging to those different groups, so there is a fundamental inequality between groups that demands to be recognised. This it would appear is acceptable if one were to suggest, say, that women bring a greater degree of empathy into leadership than men and should on that basis be favoured more than at present. But if one were to say something suggesting that men by virtue of being men are more likely to have some quality or qualities that qualify them for leadership, there would be outrage and claims of sexism or misogyny. Whether any of the supporting claims has a basis in truth or not is entirely irrelevant. The morality of the issue is determined by whose interests are served by taking a claim seriously.

Thus, is the new irrationalism born, where matters of fact and evidence are swept aside in favour of identity politics which is elevated as the determining principle in all disputes between competing moral perspectives. Just as within 19th century European society, as Nietzsche argued, Christianity exercised hegemony on the basis of authoritarian structures enforcing a morality which society internalised as the natural order of things, postmodernism has, by virtue of backing up its strictures with laws and regulations which carry stringent penalties and ensuring that its point of view is taught in all educational institutions, often even to the exclusion of parental rights to assert an alternative position, achieved a similar hegemony.

Basing its power on an enforcing authority backed up with persistent indoctrination, it has effectively managed to marginalise dissenting opinions and severely curtail moral debate in the public space. It is the new orthodoxy with divine-like authority to make truth claims on the basis of consistency with its asserted principles which are immune to disproof or falsification by reason or evidence. Indeed, those seeking to bring evidence to contradict its claims are routinely vilified and marginalised. Thus, have we come full circle in recreating the very conditions that the Enlightenment set out, but on its own terms failed, to address.

Happily, the inconsistency and incoherence of the postmodernist perspective is increasingly being challenged by a new generation of thinkers from across the political spectrum. For example, Ken Wilber in his Trump and a Post-Truth World notes how postmodernism has played itself out and in attempting to create a new basis for determining truth has ultimately undermined it:

And thus, postmodernism as a widespread leading-edge viewpoint slid into its extreme forms (e.g., not just that all knowledge is context-bound, but that all knowledge is nothing but shifting contexts; or not just that all knowledge is co-created with the knower and various intrinsic, subsisting features of the known, but that all knowledge is nothing but a fabricated social construction driven only by power). When it becomes not just that all individuals have the right to choose their own values (as long as they don’t harm others), but that hence there is nothing universal in (or held-in-common by) any values at all, this leads straight to axiological nihilism: there are no believable, real values anywhere. And when all truth is a cultural fiction, then there simply is no truth at all—epistemic and ontic nihilism. And when there are no binding moral norms anywhere, there’s only normative nihilism. Nihilism upon nihilism upon nihilism—“there was no depth anywhere, only surface, surface, surface.” And finally, when there are no binding guidelines for individual behaviour, the individual has only his or her own self-promoting wants and desires to answer to—in short, narcissism. And that is why the most influential postmodern elites ended up embracing, explicitly or implicitly, that tag team from postmodern hell: nihilism and narcissism—in short, aperspectival madness. The culture of post-truth.

Wilber looks forward to an evolution beyond postmodernism to a developmental model which is more “integrated” or “systemic”. His view is that when a system is broken, as ours currently is, it reverts back to the last point at which it functioned effectively. Let’s hope he is right. Such ideas are a welcome breath of fresh air in a political culture in which the discourse revolves less and less around facts and evidence and consists more and more of ad hominem attacks on detractors and dissident voices launched from within the relative security of group identity siloes. Voices of those who like Wilber are critical of the failings of postmodernism and emphasise the need for new ideas are increasingly being heard, particularly on social media where many of the new currents in popular thought are increasingly finding receptive audiences. It will be interesting to watch how all this plays out.

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Legality and Morality: Can Both be Served (and Justice Preserved)?

By Colin Turfus

The rules of morality are not the conclusions of our reason, David Hume

It is often suggested that obedience to the law is a virtue and by implication that respect for the law is a requirement of morality. But is this necessarily the case? Although this might at first might appear obvious, I would suggest the issue turns out on closer inspection not to be so at all. In the inherited concept of Common Law in the UK, what is required or enforced in law corresponds to established practice in society. So there is a natural coincidence between the requirements of legality and of morality. No problem there.

However, many laws on the statute book were not a consequence of the way ordinary people chose to live their lives or of publicly accepted standards they were expected by their peers to live up to, but rather represented an imposition by the powerful upon the weak. Examples of this were the iniquitous Corn Laws, the permitting of profiteering through the trading of slaves and the denial of full legal personality to women. It took vigorous campaigning over many years for the law to be changed in these areas. Few if any these days would suggest that the people who challenged these laws and sought to have them struck down or modified were not acting virtuously and in accordance with the requirements of morality (although aspects of the former have been reintroduced in the guise of EU agricultural policy and we are at risk of backsliding on the latter as the pressure grows to accept Sharia Law principles in the UK). Of course, that did not prevent those who did campaign against these injustices being characterised by many of their peers as agitators and subversives.

Fast forward to the present and we have what many would see as the 21st century equivalent: the Equality Acts 2006 and 2010 which enshrine rules preventing discrimination in a wide range of areas on the basis of a considerable number of properties such as race, age, belief, sex, etc. Ostensibly this can be viewed as a continuation of the same process of eliminating injustice from society and giving greater rights and protection to the oppressed. But does this characterisation stand up to scrutiny?

In terms of the intent it is hard to argue against such laws, whether from a moral or other perspective. But there is one clear difference here from the cases I mentioned above from the 19th and early 20th centuries: it was very clear in those earlier cases which injustices were being corrected in what situations, whether that be the principle that no human being can be the property of another or that the right to inherit wealth or to vote should not be denied one on the basis of being female. The more problematic aspect of the Equality Acts is hinted at in their name: that intrinsic to the legislation is the idea that everyone is “equal” and should be treated as such in society.

Whereas it is a rather binary thing whether women have voting rights or not, it is not so clear how a society can by legislation be transformed from one where people are not equal (and if they were, what need would there be for legislation?), to one where they are. In the first case, the act of discrimination or denial of rights is clearly defined and its violation easily identifiable: specifically, if or when a women is prevented from casting a vote at a public election. The unequivocal success of the older acts is evidenced in the number of people who have been prosecuted for violations in recent years (none) and, in the case of slavery, the fact no significant new legislation was considered necessary until the enactment of the Modern Slavery Act in 2015, nearly two hundred years later.

So, we might ask, does society today embody “equality” as envisaged by the acts? Few would suggest that it does. But, if it does not, who should be prosecuted and/or what remedial action should be taken? Here we start seeing the problematic of the idea of legislating for “equality”. For one, before the ink was even dry on the 2006 act, new protected characteristics were being added. This process was further extended by the 2010 act followed by an amending act in 2011 and another in March of this year (2017) which among other things imposed a duty on public authorities to publish data showing compliance with all provisions and indeed of actions they are taking to enhance compliance. This has given rise to a controversy over the the NHS’s recent edict that doctors should henceforth interrogate all patients about their sexual preferences and record responses in their medical history. It is argued that this is intrusive and an infringement of rights of privacy. But the NHS administration in acting thus is arguably only seeking to comply with the duties imposed by the Equality Acts. Are we as a consequence of all this nearer to an agreed state of equality or is the targeted end-state receding ever further into the distance? Who can say (especially since the NHS is yet to prepare and publish their data; and good luck to the people whose job it is to interpret it!)?

Then we have to start looking at the number of court cases which have been and continue to be engendered by such legislation, many of which have gone all the way up to the European Court of Human Rights, often visiting the front pages of the tabloids several times along the way. Numerous alleged violations have been successfully prosecuted. But equally, in many other cases individuals have lost jobs, important privileges and personal reputations without any court case occurring, often to protect the company employing them after allegations have been made, and frequently on the basis of actions taken or comments made entirely outside of any work context. Such may or may not have been the intention of those drafting the legislation, but it has been the result.

The challenging question we then have to ask ourselves in relation not only to Equality law but all law is: does the law as it stands conform to our moral perspective? Should we celebrate each time someone falls foul of its provisions and believe that through this our society has become just a bit more equal, and therefore better? Or is there not need for us to stand back and scrutinise the legislation, whatever its intent, for the outcomes that flow therefrom, and make an independent judgement based not only on the intent but also on the effect? And is there not a case also to challenge even whether the intent is coherently enough defined and/or sufficiently attainable by the proposed legislative means to merit our moral consent in the first place?

But to do this requires an independent moral perspective; and clearly that cannot happen if we conflate legality with morality. Ultimately the latter must be defined by what people, society, believe to be right and wrong. There must be flexibility here as, self-evidently, not everyone has the same perspective. But changing the law to define something to be illegal, does not make it wrong in people’s minds. And while it may force people to behave as if it were, there is no guarantee that people’s perspective will change over time.

The difference, I believe, with the big issues from the past which I discussed previously is that there were independent compelling arguments which people in their conscience found difficult to resist (even though they found themselves harmed economically) and which eventually won the day. The problem with legislation which is not enforcing a binary distinction but rather initiating a process towards an (often ill-defined) end state, is that it is much more difficult, impossible even, to adduce compelling moral arguments in its support.

Also, at the heart of politics has always been a tension between equality (emphasised on the left) and freedom (emphasised on the right), which reflects a difference in outlook which is ultimately personal. To favour one over the other in legislation is to politicise the moral realm and potentially to invade the sacred space of individual conscience, which is of course itself protected as a human right.

Colin Turfus has a PhD in applied mathematics and works in risk management. He is co-founder of the website Societal Values.

Foundations of the Moral Order

By Colin Turfus

Part 2: Rethinking the Moral Order

Part 1 of this essay dealt with the fundamental principles of the grand political project which is the European Union, that is solidarity and subsidiarity, and at how those principles have been either undermined by the nature of the project or remain unimplemented. In part 2, the deeper tradition of European thought is explored for its contribution to an examination of the Good Life, and a re-examination of the Aristotelian idea of telos considered as an alternative to the impasse of human rights to which Europe has committed itself.

The Limits of Our Knowledge?

The epithet attributed to Albert Einstein that the more he learned the more aware he became of how little he really knew has been oft repeated since, and probably also before, he pronounced it! It is a thought-provoking and humbling perspective on humans’ place in the universe. Although the observation was originally made in the context of scientific knowledge, it might be argued that it is more applicable to the social sciences and philosophy, particularly in relation to questions about how we should live our lives and order our society. For these questions have been debated down through the centuries and whatever wisdom is uncovered in the process invariably has a precarious existence as the reversals of fortune turn yesterday’s heroes into tomorrow’s villains, and vice versa.

At the heart of this questioning is the search for the foundation of value, or values. Its heyday was probably the Enlightenment, with numerous philosophers, most memorably Bentham, Kant and Hegel, looking to set out a universal basis while others, in particular David Hume, argued for the impossibility of this task. The interest in a universal foundation for values continues to this day notwithstanding that the clear trend in modern philosophy, and indeed society, seems to be towards an ever-increasing proliferation of mutually incompatible value perspectives competing for attention.

One of the most influential attempts historically to address this problem (or rather a previous manifestation thereof) was that of Aristotle. He, in his Eudemian Ethics, identified the good for a person with the pursuit of his (or her) telos – an ultimate immutable set of aims and goals toward the fulfilment of which a person moves by nature. For Aristotle, one’s telos was fixed as it were biologically: what Marx might later have referred to as “species-essence”. The major shortcoming of Aristotle’s account of ethics was of course seen subsequently to be its rootedness in 4th century BC Athenian society. Even relative to the perspectives in neighbouring Greek city-states, there were significant differences in accounts of what the telos consisted in. Also Aristotle was unable to attribute to slaves the same telos as he counted free Athenian males as possessing. So it was that Aristotelian philosophy has ultimately been judged to have failed in its attempt to identify a universal conception of “the good”.

However, his views were to enjoy a revival across Europe in 13th century European society following the rediscovery of classical Greek texts through contact with the Islamic world. Here the homogeneity of perspective that had been imposed by the Roman Catholic Church in Western Europe and the widespread influence of Augustinian theology made the situation ripe for a revival of Aristotelian ethics. The successful integration of Aristotelian philosophy with the prevalent Augustinian theology has been attributed to Saint Thomas Aquinas (1225-1274). He identified the human telos with the fulfilment of the specifically Christian virtues of fides (faith), spes (hope) and caritas (love), and the Aristotelian virtues of sophia (wisdom), andreia (courage), sophrosune (prudent caution) and dikaiosune (justice).

The hegemony enjoyed by Aquinas’ synthesis was itself of course destined not to last, albeit that many adherents both of the Augustinian school and of the Aristotelian tradition did come to make their home together for a time in the grand edifice Aquinas had constructed for them. The rise of humanism in the ensuing Renaissance starting in the following century laid the grounds for an alternative approach. This led in turn to the Enlightenment and its grand project to refound moral science on a purely rational basis and, by the time this had run its course, that grand unified world view which had been Aquinas’ legacy stood in ruins. The story has been told many times and does not need repeating here. The accounts given by Alasdair MacIntyre in his trilogy of monographs on the subject [1, 2, 3] are, in this author’s opinion, particularly incisive and we shall return to them below.

Kant and Human Rights

So we return to the question of whether we have in the last few hundred years made progress in the quest for a universal foundation for human values or merely become more confirmed in the intractability of the project. One would have to be forgiven on the basis of surveying the detritus left in the wake of the philosophical critiques and counter-critiques of all the big ideas from the Enlightenment onwards that it should be expected there is not much left of the original edifices. But that is not the whole story. For while postmodernism has turned the focus explicitly away from unified interpretations of the human state towards group narratives unburdened by the onus of any requirement for mutual compatibility, a metasystem has yet managed surreptitiously to establish itself as the backdrop against which incompatible claims can look to be mediated.

The foundations of this metasystem I would identify as Kant’s categorical imperative, the first formulation of which impels us to “Act only according to that maxim whereby you can at the same time will that it should become a universal law without contradiction.” Although this principle has not been able to give rise in practice to a universal foundation for ethics and human values, it has been successful in providing a philosophical underpinning for the establishment of human rights. The Universal Declaration of Human Rights (1948) is premised on a Universalist claim that “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.” The charter has been enacted and ratified as international law in most countries, most notably in Europe through the European Convention on Human Rights.

I believe a consequence of this has been that ethical questions which relate to rights protected, or deemed to be protected, under the European Convention are no longer addressed through philosophical considerations but through human rights law, i.e. legal considerations. This has its attractions in facilitating (or imposing?) a consensus solution to what might otherwise be an intractable ethical dilemma. But it has at the same time a number of significant drawbacks which have become evident in recent years.

* Incompatibilities have arisen between rights wherein some are necessarily deemed to have priority over others in certain contexts. In particular, it is often argued that freedom of conscience is protected only insofar as it is not used as a justification for what is claimed to be an infringement of the rights of other individuals or groups, in particular if discrimination is alleged on the basis of some protected attribute such as gender or sexual orientation.

* What were originally seen as requirements constraining the behaviour of states and the upholding of the rule of law have increasingly encroached into the private realm to the point where private thoughts have to be policed in order that it can be determined whether disregard for a protected right motivated an (otherwise legal) action. Such could of course arguably be construed as an infringement on freedom of thought/conscience. But it would be unwise to imagine that such a defence would be upheld in a court of law or even protect one from arrest if a complaint is made to the police.

* The effective removal of private moral intuition from that part of the ethical sphere deemed to be under the jurisdiction of human rights has meant that a distance has opened up between the two to the point where individuals can find that conformity with human rights legislation can bring them into conflict with their conscience or vice versa.

* The increasing complexity of human rights law has meant that it is not possible for individuals to know definitively which behaviours are compatible with human rights and which not without a court ruling. The backlog of cases waiting to be heard by the European Court of Human Rights makes the establishment of a decision a lengthy and time-consuming procedure.

* Two further consequences of the previous point are that the occupation of the moral ground through use of human rights law can become the province of the rich and powerful; further, we are all (governments included) likely to feel compelled to make conservative interpretations of human rights law on the basis that facing and potentially losing a challenge in court can be extremely expensive and result in significant loss of reputation.

* There have been frequently repeated allegations of judicial activism laid against the European Court of Human Rights. Court decisions to prevent extradition of individuals charged with terrorist offences to the US and other countries and to require that voting rights be afforded to UK prison inmates have in recent years caused particular public outrage. See [4] for a description of how the court is able to exert its influence despite its limited power to enforce its decisions, and how it is able and likely to exert greater control over states with better human rights records. Within the European Union, the problem is compounded by the role of the European Charter of Fundamental Rights which sets out rights similar to but further-reaching than those of the European Convention. The former is under the jurisdiction of the European Court of Justice which is widely recognised as having an activist socio-political agenda exceeding the scope of that pursued by the European Court of Human Rights. See for example [5].

* Non-ratification in Islamic cultures on the basis of incompatibility with Shariah Law can lead to and has led to tension and potentially intractable conflicts with Islamic migrants in Europe. Interestingly the experience of countries such as France and Britain which had a substantial degree of immigration of Muslims a generation ago report that the tensions resulting from issues around incompatibility of local law with their interpretation of the requirements of Shariah law are more of a problem with the second generation than with their parents’ generation, despite the fact much accommodation has been made in the meantime.

For these and other reasons there is a growing frustration with human rights legislation and courts as an effectively unchallengeable means of determining the ethical foundations of our society and shared moral life.

The Good Life Revisited

So, if as I have suggested there are indeed grounds in this postenlightenment era for making new sense of Aristotle’s notion of a human telos, how reasonable is it to take the next step of arguing that this telos can be given content in such a way as to apply in a general or universal way to humans as a species, rather than separately to each individual person?

The first and most obvious challenge we must confront is the fact of the diversity of alternative standards of justice and right which have been put forward since the inception of the Enlightenment and even before. Some of these were radical attempts to argue from principles of pure rationality. Others sought to justify current practice and belief. Many sought to supplant the need for theistic belief in arriving at answers to questions of the good. Others again sought to prove the necessity of religious belief in finding such answers. What emerged from the successive failures of each attempt to overcome the limitations and shortcomings of its predecessors was a widespread recognition of the impossibility of any such enterprise ever succeeding in achieving a definitive victory, not over all of its rivals, but even over one of its rivals. This is the problem of what MacIntyre refers to as incompatibility and incommensurability [4]; that is that, although in terms of a tradition of inquiry A it may be possible to show that the adherents of tradition B are in error on a particular point, it may be equally possible to show, within the scope of tradition B, that it is precisely B’s rivals who are misled by the fallacies implicit in tradition A. Worse, it may be that adherents of tradition A, for reasons of differences of language, cultural background, etc. find themselves simply incapable of comprehending what it is the adherents of tradition B are trying to say to them. (To illustrate that this is not a trivial problem I would cite the fact that Roger Scruton, one of the most eminent conservative philosophers in Great Britain today, feels precisely this way about the existentialist philosophy of Heidegger [6, p. 260].)

Such incompatibility or incommensurability is a serious obstacle to our present project, although not, as MacIntyre [1] has shown, an altogether insuperable one. For Aquinas, in his grand synthesis of Augustinianism and Aristotelianism discussed above, was able to resolve an apparent dichotomy and show Augustinians to their satisfaction how his reinterpretation and expansion of Aristotle’s philosophy was able to resolve problems which they had previously had to view as intractable from within their own tradition and vice versa (see [2] for details, in particular Chapter X, “Overcoming a Conflict of Traditions”). This offers some grounds for hope as it indicates that, even in the face of myriad conflicting mutually incompatible claims, it may yet be possible to maintain a coherent notion of progress in moral science.

Nonetheless, since such successes proved to be few and far between, the conclusion which has widely been drawn from surveying the fruits of the Enlightenment project is that it was fundamentally misconceived and that the best we can realistically hope for is the establishment of a level playing field upon which advocates of rival versions of the good life can compete with one another for power, influence and adherents – the so-called “liberalist” position. But MacIntyre is right, I believe, in pointing out [2, pp. 326-48] that, in the absence of any consistent justification for itself or of self-evident principles governing how a truly liberal régime should be operated, liberalism itself has difficulty in refuting the allegation that it is no more than one other tradition of inquiry among many competing versions, to whose validity there exist no particularly compelling a priori reasons to give one’s assent. He reserves special criticism for that most celebrated creation of this tradition, the so-called “liberal university”, whose introductory courses on “Great Books” he characterizes as not a “reintroduction to the culture of past traditions” but, on account of their prior commitment to a level playing field, “a tour through what is in effect a museum of texts, each rendered contextless and therefore other than its original by being placed on a cultural pedestal” [2, p. 386] (for his counterproposal, see [3, pp. 216-36]).

But I digress. The important question we should address is what to make of this antinomy with which liberalism confronts us. One response is that initiated by Friedrich Nietzche, which MacIntyre has variously dubbed the “perspectivist” fallacy [2] or “genealogy” [3]. This view has in recent times achieved some notoriety through its popularization in the writings of the so-called “postmodernist” school of thought. Its proponents hold that all attempts, liberal or otherwise, to give an account of “the good life” are misguided since there is and can be no such thing as a concept of the good life for people as such; indeed there is not even any such thing as the good life for any one person, except for what that person deems to be such of her own volition. It is MacIntyre’s [3] main thesis that both the protagonists of the Enlightenment project and the proponents of the genealogical view participate in a common fallacy, namely the view that values and moral perspectives are to be deduced out of abstract principles of rationality: the Enlightenment illustrates the impossibility of ever fulfilling such a goal; genealogy draws the apparently justifiable conclusion therefrom that there are no such things as values-as-such.

It is MacIntyre’s argument that, rather than seeking to ground our values in abstract reasoning, we should seek a more historically-based evolutionary account of human values. This MacIntyre has initiated with his account of practices, virtues and traditions. The former he defines as:

“any coherent and complex form of socially established cooperative human activity through which goods internal to that form of activity are realized in the course of trying to achieve those standards of excellence which are appropriate to, and partially definitive of, that form of activity, with the result that human powers to achieve excellence, and human conceptions of the ends and goods involved, are systematically extended.” [1, p. 187]

Two things are worthy of note in his definition. First, what is considered “good” is to be determined in the course of practising, not by abstract reflection. Secondly, what is considered a good or worthwhile end is not fixed but can be systematically extended through participation in the practice. Thus the notion of goodness implicit in practices is inherently evolutionary. Of course the exercise of reason, being required as it normally is to participate in a practice, is not excluded from the process. But the relative importance of the role which it plays is to be decided by the practitioners themselves in the light of the history of the practice. A virtue is then tentatively identified as:

“an acquired human quality the possession and exercise of which tends to enable us to achieve those goods which are internal to practices and the lack of which effectively prevents us from achieving any such goods.” [1, p. 191]

This definition has the virtue of simplicity, but is clearly too wide in its scope; neither does it allow us to compare the relative importance of the virtues associated with different practices. To overcome this shortcoming, MacIntyre points to the need to relate practices to what he calls the “narrative” of a human life or lives, in the sense of their self-understanding. Arguing that it is a fundamental characteristic of human life that it possesses or seeks a consistent self-understanding which is furthermore always directed towards the future, he suggests that such a self-understanding or “narrative quest” naturally provides us with our conception of the good life (to use Aristotle’s phrase), in the sense of identifying the good to which other goods must contribute if they are to be meaningfully integrated into a whole life. Locating practices in such a context then allows us to sharpen the above tentative definition of a virtue by excluding those human qualities which are judged incompatible with the practice of the good life; and it allows us, in principle at least, to compare the relative importance or merits of the virtues associated with different practices.

The criticism may be raised at this point that the viewpoint I have identified appears not too different from that imputed to the perspectivists. But one further qualification needs to be made. The good life is never lived in isolation but always shared in community with others. Thus one’s conception of the good for oneself has to be framed in such a way that one’s life does not interfere unduly with the capacity of others to live out their good life. Such is of course far easier said than done, but we are assisted at this point by the existence of what MacIntyre calls “traditions.” These are precisely the historically determined shared understandings and beliefs of those who engage together in a given practice. And since the good life is lived out by definition through practices (in MacIntyre’s sense), this is always in the context of some tradition or another.

A not dissimilar viewpoint was advanced by British moral and political philosopher Michael Oakeshott [7]. He distinguished conceptually two forms of moral life: the “habitual” and the “reflective”. The first of these emerges not by “consciously applying to ourselves a rule of behaviour, nor by conduct recognized as the expression of a moral ideal”, but rather by simply “acting in accordance with a certain habit of behaviour”. The “reflective” moral life is by contrast determined by a “self-conscious pursuit of moral ideals” or through “the reflective observance of moral rules.” Oakeshott emphasizes that the moral life is necessarily lived in practice as some combination of the habitual and the reflective modes. Yet there is a tendency for societies where the first of these two poles holds sway, such as was the case with the pre-Socratic Graeco-Roman world or in early Christian communities, to become increasingly concerned with the formal codification of their values and ideals and so to drift towards the second pole.

Oakeshott finds this trend unfortunate insofar as he associates this second pole with a “denial of the poetic character of all human activity.” He denigrates its advocates and practitioners by means of allegorical critique. For example he compares the capacity for moral cultivation of a man caught up in deliberations about how to balance conflicting moral ideals which press upon his mind with the capacity of a farmer to cultivate the land when he is “confused and distracted by academic critics and political directors.” He compares this situation also to that of a literature in which criticism has usurped the place of poetry, or in a religious life in which he pursuit of theology offers itself as an alternative to the practice of piety. The parallels with MacIntyre’s [1] emphasis on the centrality of practices in determining the form of the good life cannot be missed.

So we find that we have returned to where we began with the twin principles of solidarity and subsidiarity as the foundations of the moral order. But whereas we started out examining these principles form the top-down approach pursued by the European Union and more generally by the rationalist tradition, we have returned to them from a bottom-up perspective more aligned with the empiricist tradition. In the process of making this transition I believe our understanding is deepened concerning the origins of some of the problems we currently face, and our ability to think more clearly about the foundations of the moral order enhanced.

References

[1] A. MacIntyre: After Virtue – A Study in Moral Theory, 2nd ed., 1985 (Duckworth, London)

[2] A. MacIntyre: Whose Justice? Which Rationality? 1988 (Duckworth, London)

[3] A. MacIntyre: Three Rival Versions of Moral Enquiry, 1990 (Duckworth, London)

[4] S. Dothan: Judicial Tactics in the European Court of Human Rights, 2011, Public Law and Legal Theory Working Paper No. 358, University of Chicago, Department of Law

[5] H.-W. Micklitz: Judicial Activism of the European Court of Justice and the Development of the European Social Mode in Anti-Discrimination and Consumer Law, 2009, European University Institute Working Papers, LAW 2009/19.

[6] R. Scruton: A Short History of Modern Philosophy: From Descartes to Wittgenstein 1984 (Routledge & Kegan Paul, London)

[7] M. Oakeshott: The Tower of Babel in “Rationalism in Politics” 1962 (Methuen), first published in 1948 in Cambridge Journal, vol. 2

[8] Ben Ryan: A Soul for the Union, 2016, Theos Think Tank Report http://www.theosthinktank.co.uk/publications/2016/01/21/a-soul-for-the-union

[9] http://eur-lex.europa.eu/summary/glossary/subsidiarity.html

[10] David Goodhart, 2013, The British Dream: Successes and Failures of Post-War Immigration

 

Human rights: ‘nonsense on stilts’ or an axiom of human community

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Depending on one’s perspective the origins of human rights can be traced back to Cyrus the Great, Magna Carta or to Immanuel Kant’s Categorical Imperative. Like all important social concepts it has been implicit in human institutions before being given greater philosophical clarity. Whatever its origins, there can be little doubt that the twentieth century was a high watermark in the development of human rights and their embodiment in political and legal institutions through the UN Declaration of Human Rights at the end of the Second World War, as both a statement of modern democratic civilised values, and a measure by which to evaluate one’s own nation’s progress and, perhaps more commonly, to criticise other cultures or regimes that did not meet its standards.

By contrast, while the twenty-first century has witnessed an acceleration of human rights legislation in the West, and Europe in particular, the status of human rights as a mark of civilised culture is increasingly threatened. This has happened externally through the rise of China as a world economic and political power that does not adhere to the ideology of human rights, nor observe them in practice, certainly not the rights of free speech and expression of dissident views. The rise of political Islam and its rejection of democracy and Western legal systems in favour of its frequently extreme interpretations of Sharia, has also dented the idea of human rights as a human universal given. Sometimes, even the West’s own stance on human rights has been compromised, for example by the acceptance of torture in the ‘War on Terror’ and by attitudes towards the present influx of migrants arriving from Africa and the Middle East.

Some would consider the greatest damage, though, is that which has been seemingly self-inflicted by an almost endless stream of legal judgements that are said to offend common sense, standards of decency, conscience and national sovereignty, and which threaten to bring the very notion of human rights into disrepute. The recent report by a UN working group on arbitrary detention, which asserts that the WikiLeaks founder Julian Assange has been unlawfully detained was met, certainly within the establishments in Britain and Sweden, with incredulity, a feeling widely shared by the press and most of the public; after all, how could someone who had voluntarily taken refuge in the embassy of a third country with which neither the UK nor Sweden has an extradition treaty, be considered to be ‘detained’ in any meaningful sense of the word. Examples like this have, over the past few years, tarnished the image of human rights among the general public, though this has not precipitated as much serious analysis of rights as their widespread permeation into our institutions and discourses deserves.

The critique of rights is not peculiarly recent, however. From the inception of its use in the modern sense, probably with Locke’s ‘Vindication of the Rights of Man’, the status of the whole idea of universal rights has been questioned. Bentham famously excoriated what were then referred to as natural rights as ‘nonsense on stilts’. Bentham was not objecting to the idea of ‘securities against misrule’, something that had been established in thinking on rights since the signing of the Magna Carta; what he objected to was the idea that rights have a foundation in human nature (Schofield, 2003). It was this latter idea, advanced by some of the thinkers and ideologues behind the American and French revolutions and that was destabilising governments across Europe, that Bentham and others in the Empiricist tradition decried (Smith, 2012).

The contemporary English philosopher Roger Scruton, in a recent lecture on natural rights (Scruton, 2011) has undertaken an analysis of the various components of the human rights issue, which is exemplary in its clarity and exposition of the various distortions and consequences to which it has given rise in the law courts. He follows, though not necessarily in the same language, the tripartite division of rights introduced by the Czech jurist Karel Vasak (1979) into three ‘generations’: first-generation, ‘civil-political’ rights; second-generation, ‘socio-economic’ rights; and third-generation, ‘collective-developmental’ rights of peoples and groups. For Scruton and others following in the Benthamite tradition only the first of these, civil-political rights, has any validity. Scruton offers a plausible definition of rights as having ‘the function of enabling people to claim a sphere of personal sovereignty: a sphere in which their choice is law’ (2011, para 33). These spheres ‘define the boundaries behind which people can retreat and which cannot be crossed without transgression’ (ibid). It is the compromises between free and sovereign individuals that constitute the ‘cement of society’ and it is this sovereignty that needs to be protected against incursions of the state. The only valid understanding of human rights, therefore, is as ‘instruments which safeguard sovereignty’ (ibid, para 35).

Scruton puts forward three objections to socio-economic and collective-developmental rights: 1) they create a sense of obligation, to respect the right, where no relationship, no reciprocity and, therefore, no obligation exists; 2) they result in the enlargement of the state to provide the economic and social benefits to which people are thereby entitled, in the absence of a specified entity or person upon whom this obligation falls; 3) legal judgements based on rights result in a zero-sum game rather than a reasonable compromise, thus loosening the ‘cement of society’. He also notes that, despite the increasing frequency of such judgements, the term ‘human rights’ is used indiscriminately and unreflectively in most cases.

Though I cannot fault the logic of Scruton’s argument, I think the premises upon which it is based are debatable, as are some of the assumptions that lie behind it. First, he does not offer a definition of human rights as such, but at best a definition of their function. Secondly, he argues on the basis of individualism, which is an ideological stance not shared across all cultures, nor indeed wholly shared within the Western academic tradition. As such, the approach of Scruton and others of a similar philosophical outlook is predisposed to find that human rights in themselves are meaningless and nonsense outside of protection of the individual and their privacy from the encroachments of the state. I propose to start from the assumption that in asserting a right of whatever nature or ‘generation’ a person is doing something that is meaningful to them and explore what that meaning is.

There can be little doubt that when a person claims a right they are asserting something about their own identity and also their worth as seen through others’ eyes. Anthropologically speaking, while humans have individuality in their physical being and in their experience of the world, we are also clearly throughout our lives, from birth to death, social beings. If we do not live in human society, relating to others, we are clearly diminished in our humanity. At the same time throughout our lives, in different ways at different times in our development through the life course, we negotiate space for our individuality to flourish. Therefore, in our full humanity both freedom and belonging are essential aspects of what we are and, I suspect, of what the discourse of human rights sets out to achieve. While I have great respect for the British empiricist tradition out of which philosophers like Scruton argue, I believe that their overemphasis on freedom, while clearly important, ultimately leads to a distorted view of human actuality and potentiality.

Rights, of course, have no ontological reality outside of human discourse, but within human society – as opposed to the state of nature – the discourse of rights is, stripped down, one of power: the power to negotiate with power a compromise between freedom and belonging; freedom from the intrusive or abusive power of a collective other, such as a state, a religion, institution or mob, but also to establish an acceptance of belonging, even against the sometime exclusionary force of the other. I think that one of the errors of the individualist position is to assume that there are legitimate and illegitimate forms of power and that the claims of the individual based on religious conviction, conscience, intuition or revelation – or even reason for that matter – take precedence over that of the collective, such as the community or the state. But I find such a view lacking justification. All power is ultimately arbitrary (Bourdieu and Passeron, 1977); no state, institution, social group or individual have ultimate legitimacy, but all have differential power, and while the state may have a virtual monopoly of physical violence, useful in waging war and keeping order, the discourse of rights is a coercive weapon in addressing the balance of power in an attempt to establish the optimal balance between freedom and belonging.

I agree with Scruton’s point that asserting a right, rather than entailing a set of responsibilities – which obviously he, amongst many others, feels would be fair and just – imposes a duty on others, with whom one does not necessary have any relationship, to respect the right. But I would argue that this is just the point of a right; it forces the recognition of a relationship in which there is acceptance of both a degree of belonging and a degree of freedom. Society is an interlocking complex of such obligations, to the extent that they tend towards de facto reciprocity, despite there being no logical entailment for such. For example, the rights to free association and free speech for citizens creates a duty for a government to uphold those rights, against those who would deny them to others with whom they disagree, even if, under provocation, that be the government (or branch of) itself. Conversely, the government asserts the right to collect taxes and the citizenry therefore has a duty to pay them, notwithstanding the fact that taxes are probably the last remnant of the state’s exercise of arbitrary power. Both these rights bind through obligation, but the rights themselves are two mere facts between which there is no causal or other relationship. One could argue, though, that it is the sum of such brute facts that hold societies together. Such a view, it seems to me, is not that different from those empiricists who advocate the self-regulation of the commons through ties of obligation (Ridley, 1996).

For this reason, I do not accept the objection of Scruton and others to the role of the state as a matter of principle, though I accept many of the criticisms of states’ practices around the world, including those of democratic states. Modern life would be impossible without the existence of a well-developed state, which marshals capabilities and resources beyond the capacities of individuals and organisations. This seems to me aptly demonstrated by attempts to diminish the role of the state, which not only reduce its effectiveness, but also, paradoxically, result in an extension of its powers in certain areas. I think this prejudice arises from two sources: one is the idyll of the past, the belief that somehow things were better in ages gone by when the state was smaller and less powerful, an idyll to which we all succumb at some time or other, although a study of history should soon disabuse us of that idea; the other is the belief that there are both legitimate and illegitimate forms of power, whereas all power is arbitrary. The discourse of rights is one that seeks to redress imbalances in power, and one which is likely to continue indefinitely.

The problem lies, ultimately I believe, in a diminished idea of the individual and of individualism, a type of individualism defined in opposition to the collective, where the collective is antagonistic to the individual and the individual’s interests. In reality, the individual and the collective are interdependent, and the type of freedoms and independence we pursue today can only be guaranteed by a powerful state. At the same time demands made upon the state throughout history have reshaped the state, and continue to do so. The fact that many of our demands are incompatible with each other virtually ensures the expansion of the state, as Scruton asserts; but, for example, claims for – and responses to – more autonomy for cities and regions, suggest that states are capable of adaptability as well as continuity. Rather than the diminution of the state, I suggest that what we require is it becoming more benevolent, and to that extent more distant and less visible, with power residing more locally and individually and more equitably distributed. But this absolutely requires an interlocking complex of rights and duties, even if they are sometimes incompatible.

Twiss (1998), in fact, argues that the three generations of rights are not just compatible, but reinforce each other, and that the privileging of one, over time, jeopardises the entire social fabric that accommodates it. The reaction to some of the recent court decisions, of the sort that Scruton among others refer to, shows that there is an awareness, to which governments are not entirely immune, that when rights become unbalanced this threatens the social fabric. There is even growing disquiet among some leading gay rights campaigners that some court decisions that have favoured gay customers refused services by those who claim to be acting out of conscience may have resulted in an injustice (Phillips, 2016). Concerning the Assange case, my first reaction was disbelief. But looked at from a more dispassionate distance, one begins to see that there may be some validity to the perspective of the panel. Regarding the panel’s report, a UK government official made the point that Britain does not accept the principle of diplomatic asylum (Bowcott and Crouch, 2016). I am in no position to assess the validity of this principle, except to note that the fact that the UK government does not accept it does not of itself invalidate it as a potential principle of justice in the complex world of interactions between states.

Both individuality and sociality are hard-wired into our nature and, therefore, the aspiration for both freedom and belonging. Different societies, peoples and national cultures at different times favour one over the other and this drives forward social evolution. There is no doubt that belonging forces obligations on us that can become burdensome and that we need sometimes to retreat into the privacy of the individual ‘sphere of sovereignty’; and indeed such a place is constantly on the agenda of the human rights discourse. But, equally, so is our inborn sociality and our obligations to others, particularly the alienated, excluded and persecuted, and the acceptance of this burden – whether willingly or not – is a mark of our humanity. In the end we must weigh this against the genuine inconvenience placed upon us and sometimes fabricated outrage inspired in us when these obligations are given legal bite.

References

Owen Bowcott and David Crouch (2016), UN panel calls on UK and Sweden to end Julian Assange’s ‘deprivation of liberty’, The Guardian (online, 5th February 2016, para 9) available at: The Guardian

Pierre Bourdieu and Jean-Claude Passeron (1977). Reproduction in Education, Society and Culture. London: Sage.

Melanie Phillips (2016), Gay activists want to have their cake and eat it, The Times (online, February 5th 2016), available at: The Times

Matt Ridley (1996). The Origins of Virtue. London: Penguin.

Philip Schofield (2003), Jeremy Bentham’s ‘Nonsense upon Stilts’, Utilitas, Volume 15, Issue 01 (March 2003), pp 1-26.

Roger Scruton (2011), Nonsense on Stilts (Prepared for a Conference on Human Rights, Lincoln’s Inn, London, 2011), available at: Morec.com

George H. Smith (2012), Jeremy Bentham’s Attack on Natural Rights, Libertarianism (online, June 26, 2012, para 7), available at: libertarianism.org

Sumner B. Twiss (1998), Moral Grounds and Plural Cultures: Interpreting Human Rights in the International Community, The Journal of Religious Ethics, volume 26 (2), pp 271-282.

Karel Vasak (1979), Pour le troisième génération de droits de l’homme: les droits de solidarité [For the Third Generation of Human Rights: the Rights of Solidarity (Inaugural lecture to the tenth study session of the International Institute of Human Rights, Strasbourg)], Revue de Droits de l’Homme, 1979, 3.