A Critical Legal Examination of Liberalism and Liberal Rights (Palgrave Studies in Classical Liberalism)

This book has two aims. First, to provide a critical legal examination of the liberal state and liberal rights in the law, and secondly, to present a systematic alternative to liberal approaches to both the law and rights, grounded in a left wing conception of human dignity. At the opening of the 21st century a remarkable thing happened. Liberalism, once considered the only doctrine left standing at the end of history, began to face renewed competition from both the political left and the post-modern conservative right. This book argues that the way forward is not to abandon, but to radicalize, the potential of the liberal project. Analysing major theoretical positions in order to build a critical genealogy of liberal rights, McManus lucidly develops a left wing alternative to the classic liberal approach to rights drawing on the traditions of liberal egalitarians and deliberative democracy theory. Societies, he argues, should be committed to advancing the human dignity of all through the enshrinement of certain rights into positive state law, the expansion of democracy and a resolute commitment to economic equality. Matthew McManus is a Professor of Politics at Whitman College and the author of Making Human Dignity Central to International Human Rights Law and The Rise of Post-Modern Conservatism , amongst other books. Product DescriptionThis book has two aims. First, to provide a critical legal examination of the liberal state and liberal rights in the law, and secondly, to present a systematic alternative to liberal approaches to both the law and rights, grounded in a left wing conception of human dignity. At the opening of the 21st century a remarkable thing happened. Liberalism, once considered the only doctrine left standing at the end of history, began to face renewed competition from both the political left and the post-modern conservative right. This book argues that the way forward is not to abandon, but to radicalize, the potential of the liberal project. Analysing major theoretical positions in order to build a critical genealogy of liberal rights, McManus lucidly develops a left wing alternative to the classic liberal approach to rights drawing on the traditions of liberal egalitarians and deliberative democracy theory. Societies, he argues, should be committed to advancing the human dignity of all through the enshrinement of certain rights into positive state law, the expansion of democracy and a resolute commitment to economic equality. About the AuthorMatthew McManus is a Professor of Politics at Whitman College and the author of Making Human Dignity Central to International Human Rights Law and The Rise of Post-Modern Conservatism , amongst other books. Acknowledgements 7 Contents 10 Introduction by Victor Bruzzone: Liberalism and Its Discontents 11 Liberal Neutrality and Culture 12 The Liberal Zero-Sum Dilemma 14 Toward Dignified Self-Authorship 17 Civic Culture and the Duty to Participate 19 Part I: Liberalism and Its Critics 21 1: Liberal Rights and Their Critics 22 Theorizing on Liberalism and Liberal Rights 22 The Global Origins of Rights Discourse 24 Rights Discourse in Natural Law and the Renaissance 27 The Emergence of Liberal Rights in Hobbes 32 Classical Liberal Rights Through Locke to Madison 41 The Kantian Innovation 51 The Utilitarian Turn from Bentham to Mill and Hart 61 Universal Liberal Rights, Cosmopolitanism, and the Neoliberal State 70 The Constraints of Neoliberal Society 74 Conclusion 82 2: Critics of Liberal Rights 85 Arguments Against Liberal Rights from the Left and the Right: Origins in Rousseau and Burke 85 The Marxist Critique: From “On the Jewish Question” to Slavoj Zizek 96 The “Right to Have Rights” in the Long Twentieth Century 106 Liberal Rights and the Critical Legal Tradition 115 Liberal Rights and Militant Particularism 125 Liberal Rights and Post-Modern Conservatism 136 Conclusion 151 3: The Limitations of Liberalism and Liberal Rights 154 The Limits of Classical Liberalism and the Egalitarian Reorientation 154 A Critical Legal Argument Against Liberal Property Rights 163 The Argument for Greater Democracy in Jurgen Habermas, Axel Honneth, and Seyla Benhabib 171 The Argument Against Liberalism Summarized 178 Part II: A Critical Legal Approach to Dignity, Law, and Rights 183 4: Dignified Self-Authorship and a Critical Legal Model of Rights 184 Human Dignity as the Moral Foundation of Rights 184 Roberto Unger on Overcoming False Necessity 188 A Critical Legal Conception of Dignified Self-Authorship 191 Arguing for a Twinned Model of Two Basic Rights 195 The Right to Self and Democratic Authorship 201 The Right to an Equality of Expressive Capabilities 215 The Good of Dignified Self-Authorship 229 Conclusion: The Twinned Rights, Human Dignity, and the Creative Evolution of a Good Society through Law 235 5: Rethinking the Ontology of Law and Rights on Critical Legal Lines 238 Establishing the Rule of Law 238 Liberal Legalism in Montesquieu 242 The Birth of Modern Legal Positivism with John Austin 248 Positive Law and Rights in H.L.A Hart 252 Law, Freedom and Equality in Ronald Dworkin and Richard Posner 257 The Critical Legal Rejoinder 263 A Dynamic Ontological Reconstruction of Law Part I: Philosophical Foundations in Henri Bergson, Gilles Deleuze, and Roberto Unger 265 A Dynamic Ontological Reconstruction of Law Part II: Rethinking Legal Realist and Critical Legal Approaches to Law 269 A Dynamic Ontological Reconstruction of Law Part III: Framing Rights as Jurisgenerative Powers to Achieve Dignified Self-Authorship Through the Law 272 Conclusion: A Society of Dynamic Change 274 Bibliography 277 Index 301 Front Matter ....Pages i-xxii Front Matter ....Pages 1-1 Liberal Rights and Their Critics (Matthew McManus)....Pages 3-65 Critics of Liberal Rights (Matthew McManus)....Pages 67-135 The Limitations of Liberalism and Liberal Rights (Matthew McManus)....Pages 137-165 Front Matter ....Pages 167-167 Dignified Self-Authorship and a Critical Legal Model of Rights (Matthew McManus)....Pages 169-222 Rethinking the Ontology of Law and Rights on Critical Legal Lines (Matthew McManus)....Pages 223-261 Back Matter ....Pages 263-289