Andy Blunden October 2007
In Democracy and Difference. Contesting the boundaries of the political (ed. Seyla Benhabib, 1996) Jean L. Cohen has a very astute article on the right of privacy, “Democracy, Difference, and the Right of Privacy” in which she points out that:
“There is no obvious connection between either the atomist or the voluntarist conception of the self ... and the general notion of the rights-bearing individual. ... there is no conceptual connection between privacy rights that secure personal decisional autonomy in certain domains and the ideological version of the self ...
“... category error: abstract concepts such as legal personality, fundamental individual rights, privacy, and decisional autonomy are not equivalent to an ontological description of the self or a particular concept of agency. The principle that individual privacy rights protect decisional autonomy (choice) regarding certain personal or intimate concerns can go quite well with a recognition of the intersubjective character of processes of personal identity formation, and awareness of the historical, contextual sources of our values. Indeed, decisional autonomy could be said to presuppose the communicatively mediated processes or moral and ethical development that make reflection and reasoning possible.” (p. 197-8.)
Kant defined the individual person as a moral subject:
“a person is a subject whose actions can be imputed to him. ... subject to no other laws than those he gives to himself, either alone or at least along with others.” (The Metaphysics of Morals, p. 10)
This Kantian concept of the individual person as a moral subject is the foundation of modern, secular ethics. It is inescapable that not only the right of privacy, but all rights fundamentally accrue exclusively to individual human beings. So do duties. Even those duties which implicate corporate personalities, still adhere to an individual via their social position.
But this individuality of the bearer of rights and duties coexists with the irrefutable evidence of all social science which teaches that, whether from the point of view of agency, belief or identity, an individual person is not a sovereign subject. Everything an individual person does they do in direct or indirect cooperation with other people, the consciousness of an individual person is entirely constructed in the use of material culture in collaborative activity with other people, and an individual person’s identity and self-consciousness reflects their participation in a multiplicity of social relations. And what is entailed goes further than Cohen foreshadows. It is not just a question of the social basis for an individual’s ‘personal identity formation’ or ‘moral and ethical development’. The moral consciousness and self-consciousness of an individual is itself a social relation, not simply a property of an individual which owes its genesis to social relations.
Cohen’s observations are very astute, but her aim in the quoted article is limited to demonstrating the validity of the right of privacy, whatever ontological or sociological conception of the person it may be joined with. My concern here is to demonstrate how a social theory and an ethics which is based on an Hegelian concept of sociological and ontological subjectivity generates a conception of right which is consistent with the inherent individuality of the bearer of rights and duties.
Right by its very nature adheres to individuals. The very idea of a right adhering to a group separately from the individuals making up the group is nonsense. The group is simply a particularity mediating between individual persons and universal rights (such as when a person enjoys a right to vote by virtue of being a resident of a certain electorate), just as in certain instances an individual may mediate between a universal right and the enjoyment of that right by a group (such is the case when the spokesperson for a group enjoys the right to free speech) or a right mediates between a group and individuals (such as the way in which the right to receive a pension constitutes the group on which a pensioners’ association bases itself). But in general, the package of rights which accrue to a person are culturally, historically and socially constructed and adhere to a given person as a consequence of the person’s social position. Universal human rights are an historical product and insofar as they accrue to most individuals, while their content is real, they can be extremely abstract. Universal human rights flow from membership of the world human ‘community’ and constitute a limiting case, not an exception to rights which are generated through a person’s membership of a real community, but nonetheless accrue to them as an individual. The same is true of duties.
For Hegel, the concept of Right (in German, Rechts, also = the law) is the foundation for his theory of society and history, summed up as ‘objective spirit’. Hegel bases his theory of society, not on social action as such, but on ‘abstract right’. The archetype of abstract right (i.e., right as yet undeveloped by cultivation in society) is private property: to be a person is to have the right to own property (including one’s own body), i.e., to have one’s (particular) possession recognised as (universal) property.
So if the individual is the bearer of rights, but not an autonomous subject, not really the author of the laws to which they are subject, how do we avoid either importing methodological individualism into social theory, or creating an unbridgeable gulf between a social theory in which subjectivity is a social relation, with no place for individuals as autonomous cognitive and moral agents, and an ethics in which the individual is the bearer of rights and duties. And in our modern world, right still trumps good in most circumstances.
The point is that individuals bear rights and duties in just the same way that individuals have intentions, ideas and interests, use language, create science and so on. Only individual human beings can do any of these things, and individuals can only do any of these things in and through their relations with other human beings. Conversely, groups can only know and want and speak and have rights through individuals.
By its very nature, rights are never attached to a concretely specific individual; there are no rights in this world which are unique to Tina Smith of Tasmania (or whatever). This particular individual may have the right to enter this particular home, because it is hers, but it is only so because of a series of relations which entail rights which accrue to that individual only through general relations. No right is ‘coined’ in the name of an individual. All rights which accrue to an individual, accrue to that individual by virtue of particular social relations in which they participate. ‘Human rights’, which are deemed to extend to all human beings, alive today or in the future, constitute the limiting case of a right. What such a right means to a refugee in Dafur, harassed by mercenaries and abandoned by the world, is of course extremely abstract. But by virtue of being a citizen of the world, they have claim to an entitlement to better.
But in general, one has rights through being a citizen of this of that country, through a definite social station within a certain community or family. In other words, having-rights, is mediated by particularity in the same way as are all aspects of individuality.
If an individual is injured, then others who have a particular relation to the injured person are also injured, but in their particularity. For example, if the person dies of an incurable genetic disorder, their family and friends will grieve for them. But no right has been violated. If however it is found that the injury is the result of an infringement of their right, for example, that the person was injured as a result of food provided carelessly by a restaurant, then the entire community is injured, because right is universal.
Jean Cohen is entirely right to insist on the importance of the right of privacy, and its independence of any theory of the person.