Foundations of Authoritarian Inclusivism

A few days ago I posted Inclusion and Authority. Among my observations was this:

Remedies for a sense of exclusion vary. Actual inclusion is not, however, one of them. After all, those who feel excluded in a program of higher education have been included in that program. The remedy must include something more. But what? The purported givenness and the necessary subjectivity of the inchoate sense of exclusion makes it impossible to respond in a rule-like way. Thus, those charged with exercising institutional authority are bargaining against themselves when dealing with the marginalized. Justice, in the sense of rendering each her due, is irrelevant because there is no criterion of what is due. (Emphasis added.)

I would like to elaborate briefly on the final sentence. Those who identify as marginalized within an enterprise (say, a university or school) no longer suffer silently. They are frequently asserting a right to redress for any state of affairs that does not ameliorate their feeling of exclusion. Such states of affairs might include an event in which another member of the enterprise fails to participate, failure to use a preferred pronoun or display a supportive sticker, observe a new holy day (or month), avoiding certain food vendors, or silence (as violence) when yet another member of the enterprise fails in any of these situations. 

But a right to redress depends on a primary right. In other words, I cannot assert a claim against another unless the other has interfered with an interest to which I already have a right. This can be seen in my academic field, contracts. I can sue for damages for breach only if there is a contract that created a right to performance in me. Tort law reveals a similar bilateral relationship: I can't sue you for negligently damaging property belonging to someone else. While rights of redress are important, they are also secondary.

But whence these primary rights? The classical liberal tradition founded itself in a philosophy of natural rights. The heroes in the tradition of natural rights include Hobbes, Locke, Rousseau, and Kant. Whether conservative or radical--the American Revolution or the French--natural rights are grounded in human needs and human powers. That we want to live but have the capacity to kill pretty much sums up the foundation for civil society and circumscribe the limited goals of civil government .

Many who profess loyalty to the longer tradition of pollical thinking in the West have strongly criticized this natural-rights foundation for civil government. Think Alasdair MacIntyre, Oliver O'Donovan, John Milbank, and Adrian Vermuele. For such, natural rights are a fiction of the social imaginary sustained by the forms of living in political and economic liberalism. Natural rights are the stories liberalism tells itself. Exactly where matters went off the track is disputed but it is natural law, not natural rights, that these political philosophers believe provides justification for social and political life. In turn, natural law is framed in terms of duties with rights functioning as necessary but subordinate appendages. And natural law is grounded in an objective moral order.

One can, as I have, disagree with both. Check here, here, here, and here or read Looking for Bedrock. Accounting for Human Rights in Classical Liberalism, Secular Progressivism, and the Christian Tradition (here). Yet it is difficult to find in either point of view a basis for affirmative rights to feeling included in an enterprise. After all, we have an unalienable right to pursue happiness; we do not have a right to happiness. Nonetheless, we have been presented with a growing plethora of subjective rights

that are asserted more or less independently of any theory of objective natural rights. They function as an unchecked wish-list, in which these rights increasingly seem to contradict each other, sow seeds of distrust and disregard ... and get used as tools of manipulation by various interest groups ... to accomplish their own particular political and legal ends. (Dan Browning, The UN Convention of the Rights of the Child, 20 Emory Internat'l L. Rev. 157, 172-73 (2006).)

Only if rights are no more than exercises of power dressed in the cloak of legality does a right to feel included make sense. Hobbes has won.

But if there is a right to feel included, there cannot help but be a right not to include. Neither can be more basic than the other. And so we have a manifestation of "rights cannibalism." Without an objective moral order, and without natural law to refract that moral order, rights and rights-bearers will continue to consume each other.

As Nigel Biggar puts it,

Rights-talk does not embarrass us, while talk about what is morally right does. .. This is very curious; it is also very troubling. For a liberal society needs more than legal rights to freedom; it also needs citizens who are capable of using their own freedom well and of respecting that of others. ... Liberal society cannot live on rights alone.