When talking about human rights, many theorists in Europe and elsewhere prefer the term individual rights. I always considered this terminology unfortunate but contemporary human rights theory and practice, notably adjudication, makes it seem more apt. Indeed, the underlying philosophy of the proportionality test, which has become the predominant method for resolution of conflicts between competing rights and interests, has as its starting point the individualistic idea that everyone has a prima facie right to everything. This method then proceeds to achieve the optimal realization of these rights and interests by means of a balancing exercise.
This “prima facie right to every thing” is a sophisticated reformulation of the Hobbesian “right to every thing, even to one another’s body”. Being prima facie, it leaves open the possibility that it may be restricted whenever this is necessary for maintaining the social union. We can cast the same idea in terms of freedom. Individuals prima facie enjoy total freedom. In a society they are enjoined to sacrifice not their total freedom but just the amount that is necessary to secure the mutual enjoyment of the remaining portion of their freedom.
Very crudely, the above represents the basis of the old individualistic liberalism that seeks to maximize freedom: the less freedom we cede the better off society and individuals are. Freedom is the basic social value and justice takes the back seat since the front seat is occupied by individuals and their interests.
I find the reemergence of individualistic liberalism problematic for both methodological and substantive reasons. Individualism is a methodologically flawed abstraction because there is no such thing as the unencumbered self; there never has been and it is not an appropriate starting point for establishing civil society. Aristotle’s assertion that man is a social being and cannot be conceived outside society is true. This means that practices of sharing and accomplishing things with others are prior to the individual pursuing his self interest.
Does starting from the sociability of human beings lead to an erosion of individuality? Not at all, on the contrary we come to an attractive notion of individuality, if we derive it from and relate it to a notion of a fair sociability.
We tend to think that in order for a society to be just, it should provide for social arrangements that enable all persons to conduct the plan of life they deem valuable. A just society requires equal respect and concern for each one of its members. Citizens are properly afforded rights, only insofar as these rights affirm their status as free and equal participants of a political society that they enter by birth and exit upon death. This approach does not lose sight of the distinctiveness of every human being; on the contrary, it fits well with the Kant-inspired idea of persons being moral agents to whom organized society owes unconditional respect. But it differs from individualistic liberalism since it is the notion of a fair society that supports the idea of ‘human worth’, or ‘human dignity’, or ‘human inviolability’, or ‘equal concern and respect’. We could call such an approach that reconciles the affirmation of individual rights and the primacy of the social liberal sociability.
The thrust of liberal sociability, then, is that individual rights are derived from a conception of a fair society (one in which everyone has the status of free and equal), rather than from a doctrine that gives methodological priority to the individual and his total freedom. Under liberal sociability, justice and solidarity find their proper place. We care for justice and solidarity because we are the sort of being that participates in collective endeavours, which constitutively constrain our liberty and implicate our interests and the interests of others. By contrast, in the individualistic view justice gets a bad name and solidarity is all but eliminated.
Europe soon dismissed the extreme individualism that underpinned
laissez faire economics, if it ever succumbed to it in the first
place. But, it may fall prey to individualism after all, if it allows
the ascendancy of a philosophy, whose hallmark is the prima facie
right to every thing. Especially in a period of economic crisis we
must be prepared to view ourselves and others, first and foremost, as
partners engaged in a joint project of great importance rather than as
monads with a single minded interest to hold on to as much freedom as
we can. Accordingly, we must view the burdens we assume in the name of justice and solidarity as a constitutive element of our identity
rather than as an externally imposed evil, however necessary.
Intervention in the Colloquium ‘Europe’s Justice Deficit? Beyond Good Governance’ London, September 22-23 2012