Individual
Rights, Communitarianism and British Idealism[i]
William
Sweet, St Francis Xavier University
Antigonish,
NS B2G 1C0 CANADA
Does
the discourse of rights presuppose a liberal individualist paradigm of
political philosophy? Some - notably contemporary so-called
"communitarians"[ii] - would say yes, and a
survey of modern political thought seems to confirm this. In the 19th century,
both natural rights theory (e.g., Herbert Spencer) and utilitarianism (e.g.,
J.S. Mill) made use of the discourse of rights and both could be fairly
described as operating from individualist assumptions.[iii] Recent work by John
Rawls and by Robert Nozick continues to employ the idea of natural rights and
does so, their critics claim, precisely because each is committed to liberal
individualism.[iv]
More recently still, Tibor Machan[v] argues that a theory of
natural rights must be based on an individualist view - specifically,
that suggested by Ayn Rand.
But
if a concern for rights rests on liberal individualist presuppositions, and if
communitarians are justified in claiming that these presuppositions are
inadequate,[vi] it seems that there is
little good, and much harm, to be done in continuing to use the discourse of
rights.
There
are, however, a number of authors who would deny that the existence of rights
requires a commitment to liberal individualism. Jacques Maritain, one of the
participants in the drafting of the Universal Declaration of Human Rights (adopted
by the United Nations in 1948), saw natural rights as the product of a common
good and a natural law.[vii] H.L.A. Hart has argued
in favour of a natural right to freedom, independent of any general rights
theory or any particular "metaphysical" view of the nature of the
individual.[viii] And in the late 19th
and early 20th centuries, a number of philosophers in the English speaking
world - specifically those associated with the "idealist" tradition -
expressed many of the concerns that communitarians now have about liberal
individualism, but without abandoning the discourse of rights. Not only did
they reject the claim that rights necessarily presuppose individualism, they
held that individualism can never provide the foundations for an adequate
theory of rights.
The
political philosophy of the British idealists has been the object of much
misunderstanding and prejudice. It is often regarded as being little more than
a transplanted Hegelianism, but its major proponents came to it through the
study of Plato and Aristotle[ix], and some studies
maintain that it is continuous with the British tradition.[x] Again, the idealist school
is often taken to be conservative, but many of its adherents were involved in
Liberal politics and social reform and, in some cases, in the British Labour
Party.[xi] In fact, with its focus
on public service, British idealist political philosophy extended and attempted
to ground the social ideals of the liberalisms of its time, such as that of
J.S. Mill. Thus, many would claim that the political thought of the British
idealists lies within the liberal tradition and that idealism can provide a
liberal, albeit non-individualist, theory of rights.
The
most developed statement of this current of political thought is arguably that
of the English philosopher and social reformer, Bernard Bosanquet (1848-1923).
The theory of rights that Bosanquet provides is particularly interesting
because it attempts to respond to views that have had a major influence on
contemporary political philosophy - that is, the work of Jeremy Bentham, J.S.
Mill and Herbert Spencer. Admittedly, Bosanquet's analysis has met with a
number of criticisms, and the idealist position is now rarely discussed. Still,
if some of these criticisms can be shown to fail, perhaps a case can begin to
be made for Bosanquet's analysis, and one will have a basis from which to hold
to the existence of rights without having to adopt a liberal individualist
paradigm of political philosophy.
I: Bosanquet's account of rights
1.
The nature and source of rights
Bosanquet's
most systematic treatment of the nature of rights occurs in Chapter VIII of The
Philosophical Theory of the State[xii], where he discusses the
purpose of the state and the limit of state action. Here, Bosanquet focuses on
what he calls a right "in the fullest sense" (181, n. 1). Such a
right is a morally imperative claim which both is, and ought to be, recognized
as enforced by law (188). By definition, then, a right is a claim which is both
legally and morally binding.
How
is a right morally imperative? Bosanquet says that the collection of rights
that exist in a society may be regarded as a set of conditions necessary to
attaining an end - what he calls "the best life" (173). Rights,
therefore, are teleological, and it is by reference to this end that they
"derive their imperative authority" (195) and have their moral weight.
Thus, rights, in principle, always have a moral character.
How
is the legal authority, represented by the state, relevant to the existence of
rights? Bosanquet observes that, in fulfilling their responsibilities in
society, individuals may encounter obstacles. The distinctive action and
purpose of the state is the removal of these obstacles - the "hindrance of
hindrances" (185). One's claim, recognized in law, to the removal of
obstacles constitutes one's rights. In other words, the state is that agency
which secures one's rights.
Yet
the role of the state goes far beyond this. In addition to securing rights, the
state defines and distributes them. It defines them in that, through the medium
of the law, it explicitly declares what each right involves and what the
obligations of others are in relation to them. It distributes rights by
acknowledging through statute or public practice that certain powers are
necessary to activities that are part of the positions or functions of its
members, and by being the authority that officially recognizes individuals as
having these positions. Finally, the state protects rights by providing the
legal and administrative machinery that permits their legitimate exercise and
by employing sanctions against those who interfere with them. Consequently,
rights "in the fullest sense" have a legal character because they
simply cannot exist without the state.
This
description of the legal side of rights reflects the teleological character
noted above in the account of the moral side. Specifically, the moral and legal
sides of a right are brought into relation because rights are assigned to
positions and positions can exist only in an order that is determined by an
end. (Bosanquet describes this end variously as "the perfection of human
personality" (189) or - as noted earlier - "the best life", but
it is also identical, he believes, with individual self-realization.) Rights,
then, are "claims, recognized by the state, i.e., by Society acting as
ultimate authority, to the maintenance of conditions favourable to the best
life" (188).[xiii]
Given this essential connexion between the legal and moral in the definition of
"right", Bosanquet can - unlike many liberal individualists - explain
why a moral right must have legal force and how a legal right will be morally
binding.
Two
questions come to mind at this point: First, how and in virtue of what
characteristics, do individuals acquire rights? Second, why does Bosanquet
insist that rights be recognized only by the state?
2.
The ascription of rights
While
Bosanquet favourably alludes to a Greco-Roman concept of a "law of
life" in human beings that must be respected (10),[xiv] he denies that rights
are natural to persons or that they exist in any way independent of society.
Many communitarians would agree. It is, as MacIntyre points out, "a little
odd that there should be such rights attaching to human beings simply qua
human beings".[xv] Instead, Bosanquet holds
that a person has a function or position in society dependent upon the nature
of the common good or end and one's capacity to make a contribution to that end
(191).[xvi] Rights are the powers
required by that person to fulfill such a position or function (196). The state
secures these positions and enforces these rights by recognizing them in law
and by protecting them. Thus, it is on the basis of one's position, and not
because of something inherent in the individual, that a person has certain
powers or rights.
It
follows, then, that one's rights are not absolutely inalienable. Individuals
acquire and lose rights depending on how their positions or responsibilities
change (cf. 216). Nevertheless, Bosanquet believes that individuals will have
all the rights they need and he speaks of rights as being fitted to a person as
a suit is tailored to a person's physique (190).
3.
The recognition of rights
Bosanquet's
insistence that rights must be recognized by the state has been the object of
much controversy. Still, he would hold that such a view should not be difficult
to accept. To have a position and its corresponding rights supposes a relation
to a system (194) and, therefore, a relation to other positions with their
respective rights. Rights must be recognized, then, just as the positions to
which they are ascribed themselves require recognition. But to understand why
Bosanquet says this, some background must be given.
For
Bosanquet, society is fundamentally a "structure of intelligences",
and social positions are "the attitudes of minds towards one another"
(196). The "recognition" of rights that Bosanquet refers to is simply
this attitude of other minds, reflected in law. It would be impossible for
there to be a right which was not recognized, for it would mean that there was
a position - that is, an 'attitude of minds' - of which the minds that
constitute society were not conscious. Certainly, it is difficult to see how
society could be called on to secure such an "unrecognized right".
Moreover, recognition is implied in the definition of "right" itself.
Rights exist only where there is a system of rights. Thus, a person's claim to
a right entails a recognition by that person of the existence and the
legitimacy of the rights of others, and vice versa. In fact, unless
rights were recognized, it would make no sense at all to appeal to them.
II: Some objections
Not
surprisingly, several objections have been raised against this account of the
nature and source of rights. For example, it has been claimed that Bosanquet
ignores that rights can exist independently of any recognition by society or
the state. L.T. Hobhouse, the British sociologist and author of the
"classic" critique of Bosanquet's political thought, argues that
"[i]f anyone can prove that some specific condition is in fact requisite
to the realization of a good life, then that condition is scientifically
demonstrated to be a right, though it may never have been recognized from the
beginning of time to the present day, and though society may refuse to
recognize it now".[xvii] Thus, rights do not
need to be recognized in order to exist.
A
related criticism is that, even if rights must be recognized, they do not need
to be recognized in law. Bosanquet's view suggests that, if one lives in a
state or a society where certain basic rights are not explicitly present in law
(e.g., in those states in which slavery or apartheid is practiced and legal),
then that person can apparently make no legitimate claim to liberty or demand
that society respect such rights. Moreover, if rights must be recognized by the
state, there could never be a right to rebel or even engage in civil
disobedience against a tyrant. And again, might there not be times when the
state does not do that which society requires of it, and specifically refuses
to recognize that which individuals and institutions claim to be rights? Thus,
the critic will say, if the notion of "rights" is to have any value
at all, it is precisely because we need to be able to appeal to it in just
these situations. Is not Bosanquet's insistence on the legal recognition of
rights refuted by the fact that the law is not always what it ought to be?[xviii]
Yet
another line of attack has been that Bosanquet's view fails to distinguish
between legal and non-legal rights. Nalini Pant, for example, accuses Bosanquet
of an "inconsistency in uniting social, legal and moral aspects of
rights".[xix]
Hobhouse would add that this occurs because Bosanquet misconstrues the relation
between society and the state and, therefore, the origin and function of
rights. Rights do not depend on the state; rather, "the moral authority of
the state rests on the validity of the rights which it asserts".[xx] Indeed, unless there are
rights which are not based in the law, the state cannot be subject to
individual scrutiny.[xxi]
Bosanquet's
theory of rights has also been accused of disregarding the value of the
individual. If rights are essentially features of positions, it would seem that
one is an individual and has rights only so far as one has a function or
position. This, some would argue, is not only too narrow a view of what the
individual is, but would annihilate the value of the human person altogether.
After all, if one had no specific position or function in society, could not
society employ the 'principle of social surgery' suggested by Plato and simply
remove the "useless" entity?[xxii]
Finally,
it has been charged that Bosanquet's account of the nature of rights has
relativistic implications. Since Bosanquet says that rights are determined by
the nation state and since he ostensibly holds that there is no moral community
greater than it, there could in principle be as many systems of rights as there
are states. Such a view, however, is inconsistent with the idea of
international law and permits "total machiavellianism in foreign
policy".[xxiii]
Thus, Bosanquet's apparent inability to conceive of a moral community - such as
"humanity" - greater than any nation state and which could guarantee
the 'universal' character of basic rights, gives one sufficient grounds for
suggesting that his analysis of rights is inadequate.
III: The 'social ontology' of rights
In
response, Bosanquet would no doubt argue that these criticisms do not take into
account the metaphysical foundation or 'social ontology' that underlies his
theory of rights. Many of the objections noted above rely for their force on
certain assumptions concerning the nature of society, the state and the
individual. Since Bosanquet believes he has good grounds to reject such
assumptions, the criticisms which depend on them may well miss the mark.
Consider,
for example, Bosanquet's view of society, which underlies his insistence upon
the recognition of rights. He claims that, when we think of a social
institution (such as the family, the neighbourhood or the social class)[xxiv] or of society as a
whole, we have in mind more than its physical location, the existence in space
and time of a number of human beings and the activities they engage in.
Similarly, when we speak of a community, it is not simply a matter of
geography, but the common goals or sentiments of persons that constitute it and
form its boundaries. Communities, social institutions and societies exist only
so far as there are certain 'dominant ideas' present in and common to the lives
of human beings. To illustrate
this, Bosanquet uses the example of a school. A school, he says, is more than
bricks and mortar with a certain number of teachers and pupils. Its functioning
and its reality lie "in the fact that certain living minds are connected
in a certain way" (159). Each person has a particular position or function
- an activity that serves to contribute to and, hence, modify the institution
as a whole. And these activities, which define who or what that individual is
within the school, imply a relation to, and a recognition of, the positions or
functions held by others. Thus, to be a pupil requires a recognition of someone
as having the function of being a teacher, and vice versa. Moreover,
these positions and activities are determined by certain ideas which reflect
the nature and aims of the institution. These ideas are present throughout the
institution as a whole, and each pupil and teacher is under their guidance in
at least this one aspect of his or her life. Of course, the physical
environment is also part of what is involved in talking about a school, but
this is important only to the extent that it has an effect on the recognitions
or the ideas present in the minds of the persons concerned. Therefore,
Bosanquet would describe the school as an institution that exists on the level
of mind.
Bosanquet
believes that we can extend this analysis, by analogy, to society. He holds
that "every social group or institution is the aspect in space and time of
a set of corresponding mental systems in individual minds" (161).
Positions within a social group are, as noted earlier, simply "the
attitudes of minds towards one another" (196). Since, as we have seen, the
existence of a position involves a mutual recognition, Bosanquet finds it
difficult to understand how someone could be said to be a member of a society
and have a certain position and yet not be recognized as such by the community.
"'[P]ositions' and the recognition of them are one and the same
thing" (196).
Now,
for one to claim a right, Bosanquet has argued, it must attach to a position. A
right could not go unrecognized, because this would entail that society was
unaware of a power that is part and parcel of a position which, by definition,
society recognizes. The recognition of a position means the recognition of what
that position involves. The point is, Bosanquet maintains, purely a logical
one. As a result, a recognition of rights does not (necessarily) require some
supplementary act, over and above what already is the case.
Of
course, societies are not always what they ought to be. Bosanquet admits that a
society can be inconsistent with itself (198) and that there is always a
movement within society or within social institutions towards greater
consistency and coherence. But even when society is 'inconsistent', this does
not mean that claims which it does not recognize are unrecognized rights.
Moreover, Bosanquet notes that recognition need not be "reflective",
that is, something of which members of society are explicitly conscious (197).
Recognition may be implicit in the structure, rules, laws and institutions of
society. Recall Bosanquet's comment that it is in our daily activities that
"the social system of rights... has our habitual recognition" (201).
All recognition requires is that we be "aware of and respect the
imperative on which [the social order] rests" (201). Thus, paradoxically
perhaps, Bosanquet seems to allow that a right could exist without it existing
clearly in individual consciousness.
Why
is it, then, that Bosanquet insists that rights be recognized by the state? A
first response would be that, without this, such a claim would be indistinct
from - and would amount to nothing more than - a wish that there be such a
right. Moreover, without a definitive recognition, it would be difficult to
identify the nature, the role, and the limits of such claims in organized
social life. Clearly, a recognition independent of the state could not
guarantee sanctions that could enforce and ensure the respect of these non-legal
"rights".[xxv] Besides, the idea of a
purely legal or a purely moral right is itself problematic, if not altogether
dangerous. A purely legal right, independent of a moral end, provides no bar to
pernicious but properly legislated statutes, and a purely moral right,
independent of legal recognition, could be so subjective that each person's
conscience might come to take the place of law.
There
is, however, a more fundamental reason why Bosanquet insists on the state
recognition of rights, which has to do with the 'ontological' character of the
state itself. For, while society and the state are distinct, there is a close
relation between the two. Bosanquet holds that the justification of the state
and society is the same, that they have the same origin and, in the final
analysis, have roughly the same end[xxvi] - "the best
life". And both are best understood as existing on the level of mind.
Although
Bosanquet refers to the state as one among several types of institutions within
society, its relation to the others is unique and fundamental. As an
illustration of how he understands this, consider the relation between the
skeleton and the rest of the body of a human being. Although the skeleton is
part of the body and does not exist prior to it, the body as a whole is
dependent upon it. Similarly, even though the state does not exist prior to
society, and develops with it, social institutions and society are dependent
upon the state. Hence, the 'institution' of the family depends, for example, on
the existence of the legal recognition of property rights and on laws
concerning marriage and inheritances. It is precisely because of this
fundamental character that the state has, as one of its functions, the
resolution of conflicts which may arise among social institutions.
To
appreciate better the nature of the connexion between society and the state,
one should keep in mind that, for Bosanquet, the state is not simply the
"political fabric" (140) of a society - it includes the plethora of
governmental agencies, the legislature, the civil service, the police, etc.[xxvii] Consequently, if the
state is closely related to society in its justification, origin and end, and
if it is essential to society as its 'enforcement arm', then it is difficult to
imagine that there could be a recognition of rights within a society which would
not imply or include a recognition by the state. There can, therefore, be no
social or moral right that is not a state-recognized right.
It
may be objected, however, that this account of the state glosses over a number
of problems and ignores the actual realities of practical politics. Doesn't the
state enjoy a dangerous monopoly in determining rights? Does this not allow the
state to impose its own conception of the good, and to reinforce some
"dominant ideas" but not others? Are not rights important just
because they enable individuals to impose limits on the state? Surely one of
the features of a liberal political philosophy is that it argues for rights and
freedoms necessary to self-respect and personal development - rights that must
be "politically effective".[xxviii] How, a critic may
ask, can rights be effective if they depend on the state?
In
response, Bosanquet would note that, since the whole point of the existence of
the state is to achieve a moral end, any "right" or power required by
morality must also be one that the state - if it is to be true to what it is -
must secure. Second, Bosanquet maintains that the aim of state action is "coincident
with the maintenance of rights" (189) and, thus, the activity of the state
must include the respect of rights. In fact, he says that one can weigh the
value of a social order in terms of the extent to which rights exist and enable
"life to be lived, and a determinate, if limited, common good to be
realized" (189). This shows, therefore, how a state can be subject to
moral scrutiny and to criticism. Still, while state action is, in a sense,
subordinate to the system of rights, rights are not fundamental. Rather, both
the state and rights acquire their moral weight from their relation to the
moral end. And even if the state is not subject to individual scrutiny, a
"guilty State" can, at least, be "judged before the tribunal of
humanity and of history" (304, n.1).
Much
of this resistance to Bosanquet's account of rights seems to reflect a
radically different understanding of the nature of, and the relation between,
the individual, society and the state. In the individualist tradition of Locke
and Spencer, for example, there is a concern, if not an underlying fear, about
allowing the state to have a role in people's lives. To protect and preserve
the value of the individual, then, this tradition asserts that human beings
have certain natural rights and that society is based on, and must respect,
these rights. Furthermore, social life can be distinguished from life in the
state and, thus, individuals can consent to and can enjoy the benefits of
society without giving up their power to challenge or alter the state in which
they live.
As we
have seen, however, Bosanquet would hold that this reflects too narrow a view
of the state and that the distinction between it and society cannot be
maintained. In fact, he appears to believe, like Hobbes, that where there is no
state, there can be no social order. Bosanquet also denies the individualist
presumption that there is an almost a priori antagonism between the
individual and the state, for it ignores the fundamental social character of
human beings. As communitarians note, it is in society that human beings grow
and develop: "[a]ll individuals are continually reinforced and carried
on... by the knowledge, resources, and energy which surrounds them" (142).[xxix] But not only is social
life necessary for their development; apart from society, there can be no
complete description of what an individual is. Bosanquet recognizes that each
person has distinctive roles to play and responsibilities to fulfill that are
part and parcel of what that person is within the broader life of a culture or
a society.[xxx]
Furthermore, the dominant ideas present in society are implied in one's very
character. Thus, he maintains that "each individual mind... is an
expression or reflection of society as a whole" (163).
But
does Bosanquet's claim that rights are, strictly speaking, properties of
positions and not of persons distort or annihilate the value of the individual
altogether? Admittedly, he states that one cannot separate individuals from
their roles in society: "Man does not exist as man without some station
and duties" (KG 340).[xxxi] Yet he also says that
"[a] man's station is not merely his trade. His family and his neighbours
and the commonwealth are part of it" (KG 344). What does this mean
concretely?
Consider
the case of an adult citizen in a democratic state. This person has, for
example, the right to vote in the election of representatives and this right is
related to the particular "position" of being a citizen. But this
position is obviously not the only one this person may have. She might be a
parent, a spouse, a teacher, a neighbour, and so on, and would therefore have
the rights and responsibilities that accrue to these "positions".
Were she to run for public office and be elected, she would have a new
"position". Thus, she would have not only the additional
responsibility of representing her constituents, but the additional right of
participating actively in the making of law. This understanding of the social
character of the individual suggests to Bosanquet that "[t]he Position,
then, is the real fact - the vocation, place, or function, which is simply one
reading of the person's actual self and relations in the world in which he
lives" (191). Consequently, not only do one's rights and responsibilities
change according to the positions one fills within in the social order, but who
or what a person is, is determined by the functions or positions that that
person has.
Bosanquet
believes that this analysis of rights and of human individuality constitutes no
threat to what a person is. It is when one sees an individual as part of a
larger whole and not in her particularity, he says, that one sees that person
at her best. And while the individual is a "reflection of society",
it is "from a point of view that is distinctive and unique" (163).
Furthermore, the common good that Bosanquet identifies as underlying society
and the state reflects each person's own best interests and its dominant ideas
reflect each person's real will.[xxxii]
Nor
does this focus on "position" entail any 'annihilation of the
individual' or of one's value. Would a description of an individual in terms of
her positions and functions make her any less a person? Bosanquet thinks not.
Besides, "[f]unctions - even all a man's functions taken one by one - do
not exhaust a man's nature without remainder" (lvii, see 292). Moreover,
while rights are ascribed to positions, they "can only be real in an
individual" (66) and it is only as a human being that one can fulfill the
requirements of a position. Still, a person's value is not simply a product of
her distinctiveness from others. Her individuality and, hence, her value draws
on the fact that she has a position in an order that extends beyond her
particular self and that she is capable of participating in a common good.
Bosanquet's
view, then, is not that individuals are 'only' a set of positions but, rather,
that in fulfilling the responsibilities of our positions, we are more human
than we could otherwise be. "Such places and functions... are the fuller
self in the particular person" (191). In doing our duty, or on acting on
our rights, we make ourselves more human - "we take hold of our humanity
and bring it home to our particular selves" (KG 343). In fact, being a
person seems to be, itself, a function: "our station is, above all things,
to be men" (KG 342). Thus, persons and their value are not compromised,
but only added to, Bosanquet believes, by the ascription of rights to positions
and by the principle of the state recognition of rights.
One
may argue, however, that regardless of the plausibility of Bosanquet's account
of the nature of rights, his analysis fails because it has relativistic
implications. If rights and obligations are determined only within nation
states, does this not make international relations, law and justice impossible?
Several
points should be noted here. First, Bosanquet could allow that there can be a
'relativism' - by which he would mean a legitimate variation from state to state
- in rights. But this is simply to describe the way things are in the world.
For even where there is some agreement among nations concerning the existence
of a right (such as a freedom of association), its nature and limits may be
understood in different ways. Nevertheless, Bosanquet claims that there is a
tendency among states towards the recognition of certain basic rights, and he
believes that in democracies certain rights necessary to self-government must
exist. There is, however, no point in insisting on a specific right in those
states or regimes where there is neither the social order in general, nor the
social positions in particular, in which such a right would have a place. To
insist, for example, upon a right to general liberty (and hence against
slavery) in the ancient world would be to demand something that would be
scarcely intelligible, let alone possible.
Second,
the reason why Bosanquet says that rights are determined by the state is not
because of some intrinsic character of the nation state, but because there is
no other existing authority outside of or beyond it (such as a world state)
which could define or protect them. In his later work, Bosanquet does seem to
hold out some hope for an international political organisation or a League of
Nations (lix)[xxxiii],
and he would allow that, once there is a recognized common authority, there is
a ground for objective, international rights. Yet for such an organisation to
exist, there would first have to be shared experience and common ideas among
its members. Until then, "the widest organization which has the common
experience necessary to found a common life" (298) is the "nation
state".
Third,
even if there are no "universal" rights, this does not mean that
states may do whatever they wish, internationally or domestically. According to
Bosanquet, each state is founded on and reflects a common good. By reference to
this, one can determine what the state ought to do, and the common good is the
gauge by which the success or failure of the state is ultimately assessed. In
short, the activity of the state, in national and in foreign affairs, is
subject to 'internal criticism'. Moreover, to the extent that there is a common
good existing between or among nations, there is a basis for international
relations - even if there is no international organization to enforce rights.
Bosanquet says that "where there are two or three gathered together...
there is pro tanto a general will" (xxix) - and so far as this
exists on a global level, there is a foundation for an international state.
Perhaps it is just this that Bosanquet has in mind when he discusses the
possibility of "mankind as a single community" (306).
IV: Conclusion
So
does the discourse of rights depend on a liberal individualist paradigm of
political philosophy? In this paper, I have taken the work of Bernard Bosanquet
as an instance of a theory that rejects a number of the presuppositions of the
liberal individualist view, while explicitly employing the notion of 'rights'.
No claim has been made about whether Bosanquet's analysis is ultimately
satisfactory, but it is important to realize that it can reply to a number of
objections that have been raised against it. This is of particular interest,
since it also defends many concerns expressed in recent
"communitarian" thought.
Like
communitarianism, Bosanquet acknowledges the social and historical character of
the individual and the importance of a common good. But, rather than leading
him to abandon rights-talk, he maintains that it is only on such a basis that
one can have a coherent theory of rights. Specifically, he believes that this
leads one to seeing rights as tied to the positions or functions of human beings,
rather than to humans in abstracto and, consequently, to the necessity
of the recognition of positions and of rights by the state.
What
is distinctive about the contribution of the political thought of the British
idealists is the metaphysical background or "social ontology" that
underlies it. Many criticisms lose sight of this and, thus, there has been a
tendency to misunderstand or ignore their theory of rights. Bosanquet, however,
would say that it is only once we come to understand the nature of society, the
state and the individual that we can see what "liberty" means, what
rights are, and how genuine self-government is possible.
ENDNOTES:
[i].
I wish to thank Richard Hart and several other participants at the VIIth
International Congress of the North American Society for Social Philosophy for
their helpful comments on an earlier version of this paper.
[ii].
By "communitarians" I have in mind the work of, inter alii,
Michael J. Sandel, Liberalism and the Limits of Justice (Cambridge:
Cambridge University Press, 1982) and Alasdair MacIntyre, After Virtue,
2nd. ed. (Notre Dame: University of Notre Dame Press, 1984).
[iii].
See J.S. Mill, Utilitarianism, ch. V and On Liberty; Herbert
Spencer, "The Great Political Superstition" in The Man versus the
State (1884) (Caldwell, ID: The Caxton Printers, 1960).
[iv].
John Rawls, A Theory of Justice. (Cambridge, MA: The Belknap Press,
1971), especially section 77; Robert Nozick, Anarchy, State, and Utopia.
(New York: Basic Books, 1974). For some criticisms of the relation between
individualism and rights, see Sandel (1982), p. 67.
[v].
See his Individuals and their Rights, La Salle: Open Court, 1989.
[vi].
See, for example, Sandel's discussion of Rawls's view of the person in Sandel
(1982), pp. 78-79.
[vii].
See his La personne et le bien commun, (Paris, 1947); Les droits de
l'homme et la loi naturelle, (New York, 1942); Man and the State
(Chicago, 1951).
[viii].
H.L.A. Hart, "Are there any natural rights?," in Philosophical
Review, LXIV (1955), pp. 175-191.
[ix].
See, for example, J.H. Muirhead, The Platonic Tradition in Anglo-Saxon
Philosophy, (London: Allen & Unwin, 1931) and Frank M. Turner, The
Greek Heritage in Victorian Britain, (New Haven: Yale University Press,
1981).
[x].
See, for example, Frederick Philip Harris, The Neo-Idealist Political
Theory: Its Continuity with the British Tradition. [Ph.D. thesis, Columbia
University] (New York: King's Crown Press, 1944).
[xi].
See, for example, Adam B. Ulam, Philosophical Foundations of English
Socialism (Cambridge: Harvard University Press, 1951), chapter 2. See also
Peter P. Nicholson, "Bradley as a Political Philosopher," in The
Philosophy of F.H. Bradley, edited by Anthony Manser and Guy Stock (Oxford:
Clarendon Press, 1984), pp. 117-130, p. 118.
[xii].
London: Macmillan, 1899; 4th ed 1923. (Unless otherwise noted, all
further references in the body of this essay will be to this volume and are
included in parentheses in the text.) This question is discussed, as well,
though only briefly, in Bosanquet's essays "The Kingdom of God on
Earth," (In Essays and Addresses, (London, 1889), reprinted in Science
and Philosophy, (New York, 1927)) and "The Function of the State in
Promoting the Unity of Mankind" (In Social and International Ideals,
(London, 1917) (reprinted, New York, 1967)). I shall refer to these texts in
the body of this study as KG and FS, respectively, followed by the page number
of the edition cited.
[xiii].
If rights are claims, must a person claim his rights for them to have legal or
moral effect? Even though Bosanquet says that a right is a claim, it is a claim
"thoroughly transformed by social recognition and adjustment" (99)
and one has a right even if he is "indifferent to the end" (192) or
to the position in terms of which it is defined. (In such a case, Bosanquet
says, they tend to become obligations (192).) Thus, rights need not be claimed
in order to be effective.
[xiv].
Compare T.H. Green, Lectures on the Principles of Political Obligation
(published posthumously in Volume II of his Works, 1888; reprinted
separately in London, 1917), sections 9 and 39.
[xv].
MacIntyre (1984), p. 69.
[xvi].
There is a certain similarity to MacIntyre's view here that my
"roles" in society "constitute the given of my life, my moral
starting point." MacIntyre (1984), p. 220.
[xvii].
Leonard T. Hobhouse, The Metaphysical Theory of the State. (London,
1918), p. 120. See also A.J.M. Milne, The Social Philosophy of English
Idealism. (London, 1962) pp. 271-275.
[xviii].
See Bertil Pfannenstill, Bernard Bosanquet's Philosophy of the State.
(Lund, 1936), p. 270.
[xix].
Nalini Pant, Theory of Rights: Green, Bosanquet, Spencer, and Laski.
(Varanasi, Vishwavidyalaya Prakashan, 1977), p. 92. See also Hobhouse (1917),
pp. 75-80; Stefan Collini, "Hobhouse, Bosanquet and State," Past
and Present, 72 (1976), pp. 86-111, pp. 105-6.
[xx].
Hobhouse (1917), p. 104
[xxi].
Harold Laski cited in George Sabine, "Review of [Laski's] Authority and
the Modern State, (London, 1919), in Philosophical Review, XXIX
(1920), pp. 276-282, at pp. 277-278; also G.D.H. Cole, "Loyalties," Proceedings
of the Aristotelian Society, XXVI (1925-6), pp. 151-170, at p. 160.
[xxii].
See Republic 407e. This view also seems to be suggested by the idealist
F.H. Bradley in "Some Remarks on Punishment," in his Collected
Essays (Oxford, 1935), p. 164.
[xxiii].
See Collini (1976), pp. 103 and 101; Milne (1962), p. 258.
[xxiv].
See Bosanquet's discussion in chapters X and XI of PTS. Interestingly, this
resembles some aspects of MacIntyre's and Sandel's account of communities. See
MacIntyre (1984), pp. 220-221 and Sandel (1982), p. 172.
[xxv].
MacIntyre makes a similar criticism of Gewirth's natural rights view (See
MacIntyre (1984), p. 67).
[xxvi].
Though Bosanquet maintains that there is still a difference between them. See
Bosanquet's letters to R.M. MacIver, cited in Harris (1944), pp. 68 - 70.
[xxvii].
It is important to realise that Bosanquet is speaking about what he takes to be
a general typology of the state as it exists, and not any "ideal
State". Still, there have been a number of criticisms of the account he
provides. These cannot be explored here, but I discuss some of them in
"'Society' and 'State' in Bernard Bosanquet" (forthcoming).
[xxviii].
See Steven M. DeLue, Political Obligation in a Liberal State, Albany:
SUNY Press, 1989, p. xiii
[xxix].
In a similar vein, MacIntyre writes that "the self has to find its moral
identity in and through its membership in communities such as those of the
family, the neighbourhood, the city and the tribe" (MacIntyre (1984), p.
221). Sandel points out that Rawls does not "show that the
["plurality or differentiation... essential to an account of the human
subject]... must correspond to the number of individual human beings in the
world". (Sandel (1982), p. 80).
[xxx].
Compare here, and below, MacIntyre (1984), pp. 220-221.
[xxxi].
A similar view is found in Bradley and in Green. In fact, Green traces this
notion back to Plato and Aristotle (see his Lectures on the Principles of
Political Obligation, section 39).
[xxxii].
As this context shows, a central role in Bosanquet's justification of the state
and, hence, of the nature of rights is played by what he calls the
"general" or "real will". I discuss this controversial
notion in "Bernard Bosanquet and the Development of Rousseau's Idea of the
General Will," in The Individual and Institutions / Individu et
collectivités, ed. M. Cartwright and W. Kinsley [Man and Nature /
L'homme et la nature, X (1991)] Edmonton, AB: Academic Printing and
Publishing, 1991. See also Peter P. Nicholson, The Political Philosophy of
The British Idealists: Selected Studies, Cambridge: Cambridge University
Press, 1990, pp. 198 - 230.
[xxxiii].
Despite Bosanquet's scepticism in FS concerning international political
organizations, in Some Suggestions in Ethics (London, 1918), p. 77, and
in the third and fourth editions of PTS, he suggests that some organization
might be possible at the level of "humanity". This question is also
discussed by Peter P. Nicholson, in "Philosophical Idealism and
International Politics: A Reply to Dr. Savigear," British Journal of
International Studies, 2 (1976), pp. 76 - 83.