Winter 2011

Editorial: The Repressive Logic of Liberal Rights: Religious Freedom, Contraceptives, and the “Phony” Argument of the New York Times

David L. Schindler

I begin by citing a striking claim by Pierre Manent, the contemporary French scholar and historian of liberalism, who, after clearly acknowledging the influence of Christianity on the liberal tradition, states the following:

The logic to which liberalism tends is to dismiss [the] moral content [of its Christian roots] and replace [the] “objective” morality, held as valid by the different Christian churches, by a formal morality of “reciprocity” or “respect” by all of the “individuality” of all. To choose a crucial illustration, it is impossible for a society claiming to be in the Christian tradition to admit that the right to abortion be written into law, and it is impossible for a liberal society to refuse members this right.2

Manent does not explain fully why he makes this judgment, but it does not seem to me difficult to show that it is well-founded. My concern here is not directly with the claim to a right to abortion on its own terms, but with the claim to a right to abortifacients, contraceptives, sterilization, and the like, insofar as such claims conflict with the claims to rights, for example, of members of religious faiths involved in the administration of health institutions serving the general public. My question concerns the idea of rights that is affirmed by liberalism, and the anthropological-moral criterion yielded by this idea for adjudicating between exercises of rights (or would-be rights) that come into conflict in such situations. For my discussion, I will focus first on the work of John Locke, whose work provides a “classical” liberal view of rights.
(1) First of all, Locke defines the human person in terms of the property of rationality, ascribing rights in the full and proper sense to those who are capable of rational discourse, thus to adults. Locke includes children insofar as they possess this capacity in a rudimentary way, or are on their way to fully exercising such a capacity, while (apparently) excluding “changelings,” or those children who, due to some grave physical deformity, will never manifest reason.3 The original state of nature for Locke, then, is a state of perfect freedom wherein, by virtue of reason, all can “dispose of their possessions and persons as they think fit, within the bounds of the law of nature without asking leave or depending upon the will of any other man.”4 This state is exemplified above all in Adam, who, on account of his not having a father, “was able, from the first instant of his coming into existence, to provide for his own support and preservation, and to govern his actions.”5 The origin of a man’s rights thus lies here, in the capacity to provide for his own support and preservation, and to govern his actions, within the bounds of nature.

2. Pierre Manent, “Michael Novak on Liberalism,” chap. 14 in Liberty/Liberté: The American and French Experiences, ed. Joseph Klaits and Michael H. Haltzel (Washington, D.C.: Woodrow Wilson Center Press, 1991), 209. Manent goes on: “Instead of hoping for a reconciliation between the two traditions, perhaps we could limit ourselves to asking those who are more Christian than liberal not to make themselves unbearable to liberal opinion, and those who are more liberal than Christian not to render liberal society unbearable for religious people” (210).

3. Cf. Anthony Krupp, Reason’s Children: Childhood in Early Modern Philosophy (Lewisburg, Pa.: Bucknell University Press, 2009), 102–03; but see also Locke’s qualifiers, discussed by Krupp on p. 100.

4. John Locke, Second Treatise on Government, ed. Thomas P. Peardon (New York: The Bobbs-Merrill Company, 1952), ch. 2, n. 4, p. 4.

5. Ibid., ch. 6, n. 56, p. 32.