Is it possible to arrive at a concept of society (let alone a fair society) having a Hobbesian individualism as starting point? That is, starting with the notion that society is an aggregate of individuals who by nature have “a right to every thing, even to one another’s body” and then try to figure out how to come together forming a commonwealth? Hobbes’ solution was drastic: A commonwealth is possible only if individuals forfeit not just the right to everything but also all their rights. This was considered his weak point because the absolutism he was proposing was not only unattractive, but also in essence incompatible with the individualism he had as starting point. What is the use of having a right if it only serves to license its forfeiture?
Hobbes’ absolutism never became popular; still his scheme seems to have prevailed in public discourse with one basic adjustment. If a peaceful social organization is possible without forfeiting every right, then such forfeiture is unnecessary. Individuals need only forfeit those rights, the exercise of which is incompatible with peaceful political coexistence; but they may hold on to the rest of them. The scheme becomes clearer if it is recast in terms of freedom. Individuals have an immense amount of freedom; they 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 under the auspices of a commonwealth.
The modified Hobbesian scheme is the basis of what could be called an “individualistic liberalism”. Its motto is the following: ‘the less freedom we cede, the better off society and individuals are. On this view, the idea of a minimal state becomes not a merely efficient social organization, but something valuable, a realization of freedom.
The collapse of communism lent additional support to the idea that what distinguishes a “minimal” from an “expansive” state is not efficiency but freedom. Indeed, it was freedom and not welfare that was offered to individuals in exchange for the misery that followed the end of communism.
Some political ideas have the tendency to recur with slight adjustments in a variety of contexts. Individualistic liberalism is one of them. I am especially interested in the way its emphasis on total freedom has been reflected in contemporary human rights theory and practice, notably adjudication. In this domain, individualistic liberalism takes the form of a doctrine, which combines 1) the old Hobbesian idea that everyone has a prima facie right to everything and 2) a methodology for the resolution of conflicts between competing rights and interests. The methodology, encapsulated in what has come to be known the proportionality test, evaluates restrictions of that total freedom on the basis of what is appropriate, adequate, intensive, or far reaching, and seeks to achieve the optimal realization of competing rights and interests. The methodology does not condemn all losses of total freedom. Some losses, in the form of limitations of rights, will come out as a necessary evil that individuals must endure if they want to optimize the mutual realization of freedom.
I want to argue that the idea that individuals have a right, even a prima facie right, to everything, which (right) ought to be optimally realized, is a methodologically flawed abstraction. Worse, it makes social justice incomprehensible. By contrast, I wholeheartedly share Aristotle’s view that man is a social being and cannot be conceived outside society. Ontologically and methodologically, it is society that comes first, not the individual. This means that practices of sharing and accomplishing things with others are prior to the individual pursuing his self-interest, and in this sense communitarians are right to criticize the notion of the unencumbered self. Consequently, we cannot start from the notion of total freedom, since social beings constitutively lack and would not value such a freedom. Neither can we base social justice on the notion of maximizing total freedom. What good is there in protecting something that we don’t value? Instead, social justice should be seen as the set of rules for distributing what we –constitutively- share, including the same space for living out our conceptions of the good life.
What the communitarians have, of course, missed is that our social practices –as they stand at any given time- are not sacrosanct but are open to moral criticism. Importantly, for those practices to be just, we must ensure that the rules governing them grant individual participants certain rights. But, again, which rights those are will be determined by a notion of fairness in different social contexts. My favourite example is that of an intimate relationship. Couples, we often say, are unions that are supposed to strive for the fullest integration towards the achievement of many shared goals. At the same time, though, we insist that persons remain distinct and independent even in intimate relationships –an intimate relationship is not some kind of super-person that merges the two partners. From this we draw more concrete conclusions. We contend, for instance, that one’s private correspondence does not belong to the other, or that it is inappropriate for one to spy on the other, even if it is for the purpose of knowing them better.
I interpret Rawls’ project in the same way. Theories of justice are theories about our legitimate demands against our fellow-participants in a system of social cooperation. In turn, these demands cannot be properly articulated unless we conceive everyone as a separate person whose life is of special importance. Thus, we come to a notion of individuality that derives from and relates to a notion of fair sociability. Basic liberties that grant individuals rights are a cardinal element of a fair society; they are indispensable social arrangements that enable all persons to conduct the plan of life that they deem valuable. Although in its original formulation Rawls’ liberalism argued for the protection of the most extensive set of basic liberties that is compatible with an equal set for everyone, his aim was not to affirm a species of individualistic liberalism. For Rawls, the maximization of liberty is not in itself valuable, because it is always premised on a notion of fair sociability. 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 sorts 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 prides itself for never succumbing to the extreme individualism that underpinned laissez faire economic arrangements. But it may still be susceptible to individualism, if it allows the ascendancy of a philosophy, whose hallmark is the prima facie right to everything. If it does, it will expose itself to a much graver risk than those associated with a free market. It is the risk of having the concepts of justice and solidarity seriously undermined.
Draft of a paper in progress