Winter 2011

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

David L. Schindler

But what is meant by “within the bounds of nature,” and how does this help clarify the criterion in terms of which we can adjudicate in a principled way conflicts that arise between different claims of rights? The heart of Locke’s answer to this question is expressed as follows: “Every one, as he is bound to preserve himself. . . , so by the like reason, when his own preservation comes not into competition, ought he, as much as he can, to preserve the rest of mankind, and may not, unless it be to do justice to an offender, take away or impair the life, or what tends to the preservation of the life, the liberty, health, limb, or goods of another.”6 Basic to human action is thus the unfettered capacity to choose and to exercise power. Human action in its original state, as witnessed to above all by Adam, is a matter of in-dependence. The individual properly conceived is entirely in control of his actions and able to dispose of his person and his possessions. Freedom is not originally-intrinsically conditioned by anything beyond the self; it consists in an act of choice that is, a priori, unbounded. It follows that all men are in principle equal in their claims of rights, because and insofar as they are subjects of freedom in this (would-be) purely formal sense,7 and hence in principle fully in control of their possessions and their persons. Locke does indeed imply a principled kind of order or limit when he refers to “bounds of nature,” and again when he says that each man should seek to preserve all other human beings who, like him, also seek to preserve themselves. But Locke adds the crucial qualifier: so long as one’s own preservation comes not into competition with others’ self-preservation. The neuralgic question thus concerns what Locke means here by “competition” as a criterion for determining each one’s rights and duties with respect to others, and how he thus conceives the proper nature of those rights and duties.

The crucial elements of his position are four. First, my duty to preserve the rest of mankind springs first from and is defined in terms of my right to my own self-preservation. Second, my duty to preserve others is in the first instance “negative” in nature, a matter of toleration: I must not take away or impair either the life or that which tends to the self-preservation of others. Third, this duty of mine toward the other holds only insofar as the other, in the exercise of his right to self-preservation, does not enter into competition with my right to self-preservation. To summarize these three points in the contemporary parlance: my rightful claim on the other is first one of immunity from coercion by the other; my duty with respect to the other is to refrain from coercion in his regard; and, in the case of competition between my self and others, my right to immunity and the other’s duty to respect my immunity take priority over the other’s right to immunity and my duty to respect his immunity.Fourth, we must keep in mind that, in all of the above, the subject of rights for Locke, properly speaking, is the autonomous adult individual of whom we can say that he is fully able to dispose of his own possessions and person, and who is thus independent.

Given this law of nature—mutual self-preservation coincident with priority to one’s own self-preservation—and the idea of man as formal-independent agent that undergirds it, it follows that competition as a criterion for just and unjust actions between the self and others is inherently open-ended. My right to self-preservation, understood as preservation most basically of my autonomy, sets the primary context and terms for my duty to preserve others in their rights to self-preservation. The competition that would suffice as a moral warrant for not exercising my duty to observe the other’s right to self-preservation and immunity from coercion is thus present as a matter of principle whenever, and insofar as, the other’s action limits my independence, or unfettered freedom of choice. It seems to me not difficult to see the pernicious ambiguity here, for example, with respect to cases like abortion. On what principled grounds, given Locke’s conception of the human being as subject of rights only qua originally independent agent, can we claim unequivocally and as a matter of principle that an embryo has not in a given instance (say, when the embryo has a grave disease likely to demand intensive care after birth) entered into competition with its mother, who may thereby judge that she has the right to abort the embryo and no duty to avoid coercive activity in its regard? On what reasonable-objective grounds could we insist that a mother does not have such a right, that is, without appealing to some criterion other than a formalistically-conceived right to preserve herself qua independent, in the face of the competitive burden placed on that independence by the embryo? What is it in such a case that, given Locke’s formalistic and logically self-centered assumptions, could possibly warrant my duty to recognize the embryo’s right in principle, always and everywhere, to exist?

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6. Ibid., ch. 2, n. 6, p. 6.

7. What I mean by “formal” will be explained more fully in what follows. For now it is sufficient to say that formal freedom is a freedom conceived in abstraction from naturally-originally given relations to God and others, and taken so far to be logically empty of any metaphysical content that derives from such relations. The burden of my argument is that no such thing as a purely formal freedom in this sense actually exists. But to avoid repetition of the clumsy phrase “would-be purely formal freedom,” I will use the terms “formal freedom,” “formalistic freedom,” “putatively formal freedom,” and the like synonymously, unless the context clearly indicates otherwise.