The Relational Self and Human Rights

Paul Ricoeur’s Hermeneutics of Suspicion

Tatiana Hansbury

• Publisher: Birkbeck Law Press
• Year: 2022
• ISBN:
  9781000583434
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This book takes up Paul Ricoeur's relational idea of the self in order to rethink the basis of human rights.

Many schools of critical theory argue that the idea of human rights is based on a problematic conception of the human subject and the legal person. For liberals, the human is a possessive and self-interested individual, such that others are either tools or hurdles in their projects. This book offers a novel reading of subjectivity and rights based on Paul Ricœur's re-interpretation of human subjectivity as a relational concept. Taking up Ricoeur's idea of recognition as a 'reciprocal gift', it argues that gift exchange is the relation upon which authentic, non-abstract, human subjectivity is based. Seen in this context, human rights can be understood as tokens of mutual recognition, securing a genuinely human life for all. The conception of human rights as gift effectively counters their moral individualism and possessiveness, as the philosophical anthropology of an isolated ego is replaced by that of a related, dependent and embedded self.

This original reinterpretation of human rights will appeal to scholars of legal theory, jurisprudence, politics and philosophy.

Chapter 1

Conditions and limits of a relational reinterpretation of human rights

DOI: 10.4324/9781003280675-2

The purpose of this chapter is twofold: first, to address the dual obstacles to a relational reinvention of human rights and, second, to situate ourselves with respect to the tradition and concepts under interpretation, by getting to grips with both the possibilities and limits of such a reinvention. The main targets of critique referred to in this chapter are ‘liberalism, the ‘liberal’ subject and ‘liberal’ rights. While complex realities in their own right, our treatment of them inevitably had to be simplified as we concern ourselves primarily with the complex of ideas around ‘the postulation of an extensionless subject, epistemologically a tabula rasa and politically a presuppositionless bearer of rights’.¹

The challenge of the entrenchment of the atomistic subject and the related idea of individual rights is first addressed by way of a brief excursion into the development of these ideas alongside the critiques levelled at them, in particular by communitarian thinkers and representatives of the broadly feminist school of ‘relational autonomy’. This helps to loosen their entrenchment by pointing out the historically bounded, fluid and reinterpretable content of the central concepts of the inquiry. The entrenchment in question is supported by a degree of indeterminacy regarding the meaning of human rights, which makes the task of reinterpretation difficult. Nevertheless, it is reinterpretation rather than abandonment of rights that is needed – even though our reinterpretative capabilities are both conditioned and enabled by our situation within the tradition of rights and the peculiarity of our critical orientation towards an authentic human relationality.

The evolution and critique of liberal subjectivity and rights

There are few better ways to question an idea’s entrenchment than to confront it with its history, or multiple histories. Without aiming at comprehensiveness,² merely by reminding ourselves that the idea has a genealogy, we succeed in stripping it and the underlying assumptions about human nature of their seeming ahistoricity from which they derive much of their staying and persuasive power. At the same time, another extreme, i.e. presenting it as nothing but a fruit of a particular time, place, economic conditions and political objectives, should be avoided. If this were the case, it would not have been re-emerging, with vengeance, after periods of oblivion, in new incarnations, and surviving its most dismissive opponents.

1 Taylor, ‘Atomism’ 210.

2 The evolution of the subject and the emergence of individual rights is treated and critiqued, e.g. in: Villey, Le droit and les droits de l’homme; Strauss, Natural Right and History; Tuck, Natural Rights Theories; Tierney, The Idea of Natural Rights; Reid, ‘The Canonistic Contribution to the Western Rights Tradition’; Milbank, ‘Against Human Rights’.

While the conjunction of the atomistic self and of the idea of rights as inalienable entitlements rooted in human nature may seem a modern phenomenon, the evolution of the entire complex of ideas centred around this conjunction is rather spread out in time. Competing historiographies of rights and subjectivity find their origins either at different points in the Middle Ages (the exact timing is a matter of debate) or in the 17^th century’s intellectual, political and economic revolutions.³ Attempts to look for precursors of rights in earlier eras are, strictly speaking, anachronistic, however should either be read as a kind of human rights apologetics seeking to reinforce their timeless character (e.g. by appealing to the early ideas of natural law, the development of democracy, the Christian message on the equal dignity of humans) or as a reflection of the convergence between the conceptual carcass of individual rights and the broader field of moral concepts to which rights are expected to give force.

The idea of human subjectivity underpinning rights derives support from a number of ontological and epistemological positions setting out the idea of human subjects as separate entities. Shapiro collectively calls them ‘Cartesian’, encompassing a range of views according to which ‘the individual’s will is a cause of his actions and that every individual has decisive authority over his will because he has privileged access to the content of his own mind’.⁴ The Kantian ethical rationalism finds the grounding for rights in the rational will through the exercise of which an individual, liberated from the precepts of a heteronomous authority, enjoys the freedom to be an autonomous, self-directing rational agent. Alongside with these, the idea of a liberal subject was cemented in the English political philosophy and the political philosophy of the Enlightenment more generally. Their rational, acquisitive, self-interested subject, a bearer of inalienable rights in the state of nature, offered a justification for the political project of justifying the state’s power by circumscribing it. The line from Hobbes through Locke to Rousseau puts the exercise of natural liberty and rights under the condition of voluntary collective subjection to the sovereign state as a guarantor of natural rights. Thus rights were adopted to justify the liberal political order, which requires an individual to enter an exclusive relationship of subjection to the state authority and to conform as much as possible to the atomistic fiction of the theory, on the promise that he would not have to subject himself to anything or anybody else.

3 Reid, ‘The Canonistic Contribution’ 37–38.

4 Shapiro, The Evolution of Rights in Liberal Theory 144–145.

The birth of individual, or subjective, rights would seem to precede the full development of modern man, their owner, by some centuries. The origins of these rights are commonly traced to the late Middle Ages, when the objective understanding of right, or ius, gave way to its currently entrenched subjective understanding. This historical evolution towards subjectivisation and the disappearance of a relational context, essential to the objective meaning of ius, tore it away from the concepts of underlying law, duty and its situatedness in human relationships. The objective, Thomistic understanding linked right to an idea of a natural law that provided an objective grounding to the exercise of right, but also connected this understanding to a duty to act in such a way as to conform to the ends of truly human life in accordance with the precepts of the same natural law. According to this view, what made a right was the duty to follow the law. This relationship is particularly problematic (or, rather, non-existent) for the modern subjective understanding of a right founded on an individual will. Another aspect of thus understood objective ius is reflected in its distributive character. Villey, who traced the origin of subsequent conversion towards the modern understanding of rights, stated that ‘objective right’ was something that happened between people in the framework of an orderly relation. Therefore, determination of rights inevitably involved decisions about the right proportion, juste partage, fair sharing, not on the basis of an individual will but on the basis of an objective law. That version of right, unlike the modern one which takes a person’s solitude as a starting point, ‘presupposes plurality of persons sharing in external things and thereby an aspect of distributive justice’.⁵

The evolution was made possible by the conflation of the meanings of ius and dominium, originally a Roman legal term meaning ownership or control of property.⁶ The meaning of the latter expanded to denote the inherent quality of mastery and control over one’s environment as well as over oneself (the notion of dominium sui which, centuries later, Locke reinterpreted in a more radically concrete sense of self-proprietorship), enabling one to acquire and establish control over things. Whether this natural power could be equated to ius, was hotly debated in the Middle Ages, however, the merging of the two terms prevailed.

Some find the seeds of a subjective understanding of rights in the works of the 12^th century canonists,⁷ who knew the distinction between rights as possessions (ability to freely use and dispose of things) and rights as claims (in the absence of the actual power over the thing, a claim against someone else under duty to provide it). Scholastic philosophers and theologians also contributed to the development of the doctrine, sometimes coming up with highly original versions. Gerson, for example, extended the concept of individual right to living beings and even inanimate objects, speaking for example of the right of the sun to rise above the horizon and move along the sky.⁸ However, generally the evolution of rights demonstrates the unbroken link between the distinctiveness of the human condition (and in the atmosphere of the Middle Ages this understanding was compounded by the doctrine of creation in the image of God, from which the dignity of man was derived) and the ends towards which human life should be directed.

5 Villey, Le droit et les droits de l’homme 48.

6 See particularly Tuck, Natural Rights Theories 5ff.

7 For this view see generally Tierney, The Idea of Natural Rights.

8 Tuck, Natural Rights Theories 30; Tierney, The Idea of Natural Rights 207–217.

The turning point in the story of a right as personal power, according to Villey, came in the 14^th century, when the understanding of right as personal power found a consistent philosophical basis in the nominalist philosophy, with Ockham named as the first philosopher consistently to identify right as ‘licit power’ (licita potestas). Villey, who is critical both of the Occamist nominalism and the idea of subjective rights, holds Ockham and his philosophy responsible for all the ‘excesses’ he links to the concept of individual natural right, believing that the Franciscan singlehandedly destroyed the correct, objective meaning of right as pertaining to the domain of objective justice and natural order.

Thus, there are two distinct, yet fairly diffuse historical points at which the concept of rights was gradually individualised and de-relationalised. The first consisted in the concept’s very grounding in the sovereign human will. Hobbes takes the voluntarist evolution of rights to its logical end by divorcing the idea of rights from the idea of ‘primary law’,⁹ putting their sources and their ontological purport into stark opposition between liberty and bondage, thus tearing rights from their objective grounding in the universally binding commands of natural law. One result of this tearing away is the equation of a right with personal power and desire, with freedom meaning simply the ability to satisfy the maximum of these individual desires. The other is the intractable difficulty with a legitimation and justification of human rights which would not contradict everything they purport to be; in terms of relation the only important one is the artificial relationship between the individual and the abstraction of the state. Meanwhile, the idea of the self has also since gradually evolved from its early beginnings; rather than speaking about a liberal man, we can speak about the modern human condition. Among some of such symptoms of modernity is inwardness, involving radical disengagement from the world;¹⁰ a curious echo of the idea of homo incurvatus in se as the expression of the condition of humanity damaged by sin which becomes the ultimate sign of self-seeking modernity and a precondition of humanity itself. This portrait of a modern human that the liberal philosophy portrays is ambiguous. As Iris Murdoch eloquently put it:

How recognizable, how familiar to us, is the man so beautifully portrayed in [Kant’s] Groundwork, who confronted even with Christ turns away to consider the judgment of his own conscience and to hear the voice of his own reason … This man is with us still: free, independent, lonely, powerful, rational, responsible, brave, the hero of so many novels and books of moral philosophy. The ‘raison d’être’ of this attractive but misleading creature is not far to seek. He is the offspring of the age of science, confidently rational, and yet increasingly aware of his alienation from the material universe which his discoveries reveal … his alienation is without cure … He is the ideal citizen of the liberal state, a warning held up to tyrants … his proper name is Lucifer.¹¹

9 Tuck, Natural Rights Theories 131.

10 Cf. Taylor, Sources of the Self.

11 Murdoch, The Sovereignty of Good 78.

With time, this tradition evolved away from the belief in the ‘natural’ normative order, which allowed for an objective grounding of the requirements of human nature as ‘rights’, to the principled impossibility of relying on any such order. Human rights thus are increasingly perceived as foundation-free, peculiarly problematic in the ways in which they defeat any attempts to provide justifications for them which would not, in the same stroke, undermine their ethical thrust...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Acknowledgements
• List of acronyms and abbreviations
• Prologue
• Introduction
• 1. Conditions and limits of a relational reinterpretation of human rights
• 2. Configuring a relation: Elements of a relational theory of human rights
• 3. Life unfolding, life recounted: Relational subject in the first-person perspective
• 4. Neighbourly dwelling: Subjectivity as a dialogue and an institution
• 5. Human rights as gifts between strangers
• Conclusion
• Bibliography
• Index