Presented at: Evangelical Theological Society, Denver, CO, November 16, 2022
Originally titled: Why Human Dignity and Rights Need Essences: Rawls, Critical Race Theory, and the “New Dignity” Jurisprudence
Abstract
America’s founders appealed to rights grounded in a transcendent source, and law was to be grounded on such rights and moral principles. Today, however, that view largely has been replaced by ones that maintain that rights and human equality are nothing but human constructs based in power. Given that, a different justification for the American legal system has been needed. One major alternative has been given by John Rawls, who finds a basis for a democracy and law in principles of procedural justice. Yet, critical race theory (CRT) and the new dignity jurisprudence (NDJ) reject Rawls’s view, and they seemingly appeal to substantive moral principles as their bases for law and rights. However, I will argue that CRT and NDJ, as well as Rawls’s view, will be unable to sustain the equality of humans, as well as moral principles of dignity and justice, due to their metaphysical and epistemological stances. Instead, what the law truly needs is what they reject – the intrinsic moral equality of all humans, and the intrinsic validity of justice and human dignity, both of which require essences.
Introduction
"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” In the Declaration of Independence, the American republic’s founders thought that all “men” are equal and enjoy these rights due to their transcendent source. Today, however, those views largely have disappeared from political philosophy and jurisprudence. In their place, many today hold that, metaphysically, human rights and moral principles are human products. Moreover, many think that we could not know such principles even if they were objectively real, for we cannot access reality as it is in itself, but only from our particular, historically situated, interpretive standpoints. Given the rejection of transcendent, universal morals for these kinds of reasons, alternative justification for the American political system and law has been needed. Of course, John Rawls has supplied a major such view. He argues that we cannot appeal anymore (if we ever could) to substantive moral theories and principles as the basis for a united polity, for there is an irreducible plurality of competing “doctrines.” Moreover, what justifies each competing doctrine’s substantive morals is internal to that paradigm. Rawls rejects any metaphysical discussion of the nature of moral principles, including justice, equality, dignity, and more, effectively rejecting any claims (at least in these areas) to know how reality is in itself. Instead, he proposes that we still can form a democracy on the basis of two principles of procedural justice, ones that can insure fair treatment of all people. As Steven Smith contends, even though American jurisprudence has not officially endorsed Rawls’s theory, still his views are the most influential therein.[1} According to Smith, American constitutional law “effectively accomplishes much the same thing [as Rawls] in cruder fashion– by insisting that only ‘secular’ purposes can count in the justification of laws and that ‘religious’ perspectives are for that purpose out of bounds.”[2] Yet, Rawls’s kind of views are under much fire today from many quarters, including supporters of critical race theory (CRT), or “Crits.” For instance, Crits explain that the American legal system largely attempts to safeguard fair procedures for all. However, they criticize the various societal institutions for systemically perpetuating racism, which undermines fairness of procedures. Moreover, on Rawls’s views, law needs to apply to everyone and so must be based on public reason, which must be conducted on the basis of “neutral,” secular reasons to which all people, regardless of their group identities, could assent. However, by appealing to neutral, universalizable reasons, Crits argue that Rawlsian jurisprudence can overlook the particular mistreatments of people of color. Thus, the Rawlsian kind of paradigm for a democratic society is failing to uphold justice and fairness for all. Instead, CRT, as well as the “new dignity” jurisprudence (NDJ), appeals to several key, apparently substantive moral principles, including dignity, autonomy, equality, justice, and, arguably, the intrinsic value of all humans. To achieve these, Crits argue that we must liberate the oppressed from their oppression by the majority and its ideology. NDJ proponents reason similarly, that humans should be free to self-define themselves, and the law should function to keep them free from humiliation and “dignitary wounds” inflicted by society. However, like Rawls, CRT and NDJ reject any metaphysical basis for personhood and moral principles. Moreover, CRT and NDJ embrace the same epistemological point as Rawls, that all our knowledge comes from our situated standpoints, and therefore there are no foundational beliefs that are grounded in reality itself. Based on these points, I will argue that, like Rawls’s view, CRT, and NDJ will be unable to sustain their moral claims. Instead, I will argue that what they truly need is what they reject – the intrinsic moral equality of all humans, and the intrinsic validity of justice and human dignity, all of which require essences. Thus, the law also will need to be grounded in an essentialist metaphysics, not mere power.
A Survey of Rawls, CRT, and NDJ
In Political Liberalism, Rawls argues that the various comprehensive “doctrines” provide the theoretical bases for their substantive moral claims. However, in a day and age of a seemingly irreducible plurality of moral viewpoints, no one doctrine’s moral, religious, or philosophical views can provide the basis for a social contract. Instead, Rawls thinks that we still can find an overlapping consensus of principles upon which members of the different doctrines can agree. Yet, because of the plurality of such views, he thinks we cannot use a particular doctrine’s metaphysical views of the nature of morals. To do so would be to impose one doctrine’s “private” views onto the public. In effect, their metaphysical status is irrelevant for his purpose. Instead, he thinks a consensus can be achieved by appealing to two principles that aim to insure procedural fairness. These principles form the basis of a “public” rationale for a democracy. The first principles is the equality principle: Each person has an equal claim to a fully adequate scheme of equal basic rights and liberties, which scheme is compatible with the same scheme for all; and in this scheme the equal political liberties, and only those liberties, are to be guaranteed their fair value.[3] The second is the difference principle: Social and economic inequalities are to satisfy two conditions: first, they are to be attached to positions and offices open to all under conditions of fair equality of opportunity; and second, they are to be to the greatest benefit of the least advantaged members of society.[4] Now, Rawls privileges a view of personhood that he takes from philosophy and law. Personhood is a “concept of someone who can take part in, or who can play a role in, social life, and hence exercise and respect its various rights and duties. Thus, we say that a person is someone who can be a citizen, that is, a normal and fully cooperating member of society over a complete life.”[5] While he attempts to give a metaphysically neutral view of personhood, nonetheless his view is not neutral, and it therefore needs philosophical justification. As such, it must be grounded in a particular doctrine, which he has rejected as a basis for pubic reason. Moreover, Rawls rejects foundationalism in epistemology. Instead, he embraces the theory-ladenness of beliefs within a coherentist form of justification. What justifies the beliefs in a particular doctrine is not the way reality is apart from its theories and interpretations; rather, it is their internal coherence within that doctrine. Here we can begin to put Rawls in dialogue with some of CRT’s key positions. Like Rawls, CRT has no place for essences to do any work; indeed, it is antiessentialist.[6] Yet, unlike his explicit positions, Crits do adopt a particular ontology, namely, materialism. Fittingly, then, Crits embrace nominalism, rejecting the objective reality of any transcendent, immaterial, objectively real universals. If there was an essence to a moral quality like justice, then there would be an identical, universal quality present in each instance thereof. However, without any essences, each instance would be particular, or nominal. That is, it would be what it is in name only, which we would define. This is like Rawls at least in that he has no place for universals to do any work, such as in his views of morals as belonging to particular doctrines. Moreover, the two principles of justice that he utilizes are human constructs which we devise, such that they do not have an essence. Thus they are not intrinsically valid. Yet, Crits seem to differ, for they seem to appeal to some principles as being intrinsically valid. They argue, for instance, that due to their “common humanity,” people of color simply should be treated with justice, dignity, and equality.[7] As such, they seem to presuppose that all humans are intrinsically valuable. As such, these might seem to be universals, yet ontologically they cannot be. Instead, like Rawls, these principles seem to be our constructs. Crits also bear a strong similarity to Rawls in their epistemology. Like him, they are standpoint epistemologists: all our knowledge comes from our particular, historically situated standpoints, and no one can transcend them to access reality as it truly is apart from a given standpoint. For example, Özlem Sensoy and Robin DiAngelo assert that our knowledge is not “outside of human interests, perspectives, and values,” but it “reflects the social hierarchies of a given society.”[8] Like Rawls, Crits also reject foundationalism, the belief that at least some of our beliefs can be grounded in reality itself, and knowably so. Instead, they too seem to require a coherentist view of justification, with the theory-ladenness of all beliefs. Accordingly, they lack a way to access reality as it is apart from our particular epistemic standpoints. Thus, CRT results in the stance that everything is interpretation. NDJ follows similar patterns of thought. Like CRT, NDJ roots law in power, and not in substantive, universal morals. This general move follows the lead of Justice Oliver Wendell Holmes, who claimed that “[a] law should be called good if it reflects the will of the dominant forces of the community even if it will take us to hell.”[9] Under the assumption that law just is power, on both CRT and NDJ, the oppressed should be liberated from their oppression by seizing power. Moreover, whereas the “old” view of human dignity was understood to be a universal, intrinsic quality that all humans, due to their nature, share in, NDJ draws “a deep connection between dignity and the autonomy of the inner self that seeks to realize its potential through a preferred lifestyle.”[10] Angus Menuge describes the development of the new dignity in American jurisprudence through the lens of two Supreme Court cases. First, in Planned Parenthood v. Casey, the Court ruled that “at the heart of liberty is the right to define one’s own concept of existence, of meaning ….”[11] Here, dignity is not intrinsic to all humans, but varies to “the degree to which the state allows people to make their own choices,” thereby making dignity “an entitlement of our liberty.” That is, using the language of CRT, we have a right to define our “true selves,”[12] lest we be harmed. Furthermore, the Court developed in Obergefell v. Hodges the idea that “the state’s constitutional obligation to uphold equal protection under the law means that it must strike down any laws that humiliate or demean people by denying them the recognition and benefits available to other citizens, because of their chosen lifestyle.”[13] According to the majority opinion, denying same-sex couples the right to marry “would disparage their choices and diminish their personhood to deny them this right.”[14] This means that personhood, as well as dignity, is not intrinsic to humans. Now, NDJ includes five key principles which map closely onto CRT. First is autonomy, which maintains that “all people have the right to choose [without limitation or interference] a preferred lifestyle provided it does not infringe on the autonomy of others.”[15] Second is self-definition, the idea that “certain fundamental choices about how we live our lives are definitive of our identity.”[16] Together, these are like CRT’s principle of autonomy to become our “true selves.” Third is privacy, which is presupposed by CRT: society has “no right to interfere with one’s personal choices about how to live and who one is.”[17] Fourth is the principle of anti-humiliation, which is that society should not infringe on “one’s fundamental rights of autonomy and self-definition”; to do so humiliates that person and inflicts “dignitary wounds.”[18] Last is legal constructivism, on which the law can, and should, construct human dignity by “creating a private sphere in which autonomy and self-definition can operate without the humiliation of social intrusion.”[19] These last two principles seem to align closely with CRT’s fundamental moral principle that there are oppressed groups, and they must be liberated from their oppression by the dominant, majority group, which imposes its ideology on society and thereby restricts the range of permissible self-definitions. In summary, both CRT and NDJ reject the Rawlsian form of jurisprudence, which attempts to base justice and a democracy on procedural fairness. Instead, they both apparently argue for substantive moral claims, such as dignity, to which humans are entitled. Yet, they follow Rawls in a couple key ways, namely in their metaphysical and epistemological positions. The question now is: can they (and even Rawls) sustain their moral claims on these philosophical positions?
The Rejection of Essences for Humans and Morals
Crits and NDJ proponents rightly presuppose that human persons are intrinsically valuable and should be treated with dignity and justice. If justice is giving to each according to one’s due, then not doing that undermines a person’s dignity, for a person should be treated justly. However, that would not be so if that person’s dignity was not intrinsic. Additionally, Crits and NDJ advocates believe that humans should be free to become their true selves, and that belief presupposes their intrinsic worth.[20] Yet, if there are no essences, then there is no intrinsic value to humans. In that case, can humans’ self-conceptualizations from under a moral aspect preserve their intrinsic value? Importantly, notice that this view presupposes that humans are not intrinsically valuable. The respective stories and self-conceptions are what makes them valuable. Therefore, merely being a member of a common humanity is not sufficient to be valuable, let alone intrinsically so. Moreover, several humans, such as the unborn, infants, elderly people suffering from dementia, and people with severe mental illnesses, may not have self-concepts and thus would not be valuable. If so, it seems they could be mistreated, and perhaps even be killed. Furthermore, on CRT and NDJ, people need to construct their true selves according to the concepts and categories that Crits and NDJ proponents have approved. Nevertheless, suppose a group decides to embrace a concept contrary to those views, such as being a white supremacist. Clearly, Crits will not approve of that identity. Or, consider cases of people who identify across identity boundaries, such as white women who identify as black, as in the case of Rachel Dolezal, who has been deeply criticized.[21] In such cases, where people identify in ways that run counter to CRT or NDJ, it seems they may not be regarded as valuable. Moreover, even if such a scenario was not so, nonetheless their value would be dependent upon human constructs which are not intrinsically valuable, for they can be adjusted or eliminated. Furthermore, if there are no essences, there are no “deeper facts” beyond interpretation that define something as what kind of thing it is. As Daniel Dennett explains regarding verbal and nonverbal behaviors, “if [those] things had real, intrinsic essences, they could have real, intrinsic meanings.”[22] However, like CRT and NDJ, Dennett rejects any essences, including intrinsically mental features, in reality. Still, one feature that seems intrinsic to almost all mental states is intentionality, i.e., their ofness or aboutness.[23] Except for perhaps some feeling states, such as the state of being in pain, it seems all other mental states have this representational quality of intentionality. For instance, it seems we cannot have a thought that is not about anything. Yet, following Dennett’s insight, without any essences, there are no thoughts, beliefs, concepts, or other representations that are intrinsically about anything. Nonetheless, Dennett thinks we can draw interpretations of behavior by using the “intentional stance,” a tactic in which we observe the behavior of things such as chess-playing computers, people, and frogs as “intentional systems.” Then we attribute to them intentionality simply to help predict behavior. For instance, suppose Star Trek’s Mr. Spock® and the starship Enterprise’s computer are playing chess. Though for Dennett there are no real mental states with intentionality, nonetheless we can predict efficiently their behavior (here, movements of certain chess pieces) by attributing to them beliefs about their desire to put their opponent’s king in checkmate. Nevertheless, interpretations also seem to be of or about things. However, without any essences to them, there are no “deeper facts” as to what they are about. Therefore, it seems that Dennett, as well as Crits and NDJ advocates, are left only with “takings,” or interpretations, in which we take some input as something else.[24] Since no interpretation can intrinsically be of or about something, any interpretation must be taken to be of something else, and on to infinity, without a way to get started with these interpretations. Therefore, on CRT and NDJ, it becomes impossible to get started and even begin to have the beliefs that humans are intrinsically valuable, and that they should be treated with justice, equality, and dignity. At best, then, their many claims are just their interpretations drawn from their particular standpoints. However, a particular group could define these morals in ways that actually undermine them. As we have seen, a group could define humans without the ability to form self-conceptualizations as unworthy of moral protection. Moreover, minority groups could define morals such as dignity, justice, and the value of humans in ways that differ from those of the majority group. Yet, that would undermine the cogency of claims of injustice minorities make against the majority, for why should the majority accept the minorities’ definition of a moral when it conflicts with its own?[25] At worst, they cannot even begin to have their many beliefs.[26]
What We Truly Need for Human Dignity and Equality
While we have been taught for many years, at least since Holmes, that law is all about power and should not be based on morals, nonetheless I have argued that we actually need objectively real morals with essential natures to preserve human dignity, equality, justice, and the intrinsic value of humans. I have given several lines of evidence to support such essences. These include the obvious fact that we engage in making many interpretations, which should count as evidence that essences exist. Moreover, as I have argued, these theories presuppose what we simply seem to know, including the intrinsic value of humans, as well as the validity of core morals such as human dignity, equality, and justice. Yet, without essences, there is no intrinsic value, and, these morals can be defined by humans in ways that can undermine clear cases thereof. Finally, as we have seen from Dennett, without essences, there is not even a way to get started in constructing these morals. Therefore, without resort to essences, CRT and NDJ, as well as Rawls’s own views, will be unable to preserve human dignity, justice, equality, and humans’ intrinsic value. Instead, the law needs to be based upon an essentialist metaphysical grounding for these moral principles, without which we surely will see them eroded.
1 Steven D. Smith, “Law, Discursive Distortions, and the Loss of “Moral Knowledge,” presentation at the Symposium on Dallas Willard’s The Disappearance of Moral Knowledge (La Mirada: Biola University, May 15, 2019), 6. 2 Ibid. (bracketed insert mine). 3 John Rawls, Political Liberalism (New York: Columbia University Press, 1993), 5. 4 Ibid., 6. 5 Ibid., 18. 6 Richard Delgado and Jean Stefancic, Critical Race Theory: An Introduction, 3rd ed. (New York: New York University Press, 2017), 10-11. 7 Compare Ibram X. Kendi, How to be an Antiracist (New York: One World, 2019), 54, 198. While Kendi prefers the label “antiracist,” nonetheless I think his views draw deeply from CRT. 8 Özlem Sensoy and Robin DiAngelo, Is Everyone Really Equal? 2nd ed., in Multicultural Education Series, ed. James A. Banks (New York: Teachers College Press, 2017), 31. For Theodor Adorno, a major player in critical theory at the Frankfurt School, the shaping influences of our historical, material conditions are so pervasive that we cannot shed them. See Lambert Zuidervaart, “Theodor Adorno,” Stanford Encyclopedia of Philosophy, https://plato.stanford.edu/entries/adorno/, Oct. 26, 2015, accessed March 9, 2022. 9 Letter from Holmes to Felix Frankfurter, 1914, in Albert Alschuler, Law Without Values: The Life, Work, and Legacy of Justice Holmes (Chicago: The University of Chicago Press, 2000), 59. 10 Angus Menuge, “The New Dignity Jurisprudence: A Critique,” in Barry W. Bussey and Angus J. L. Menuge, eds., The Inherence of Human Dignity: Law and Religious Liberty Vol. 2 (London: Anthem Press, 2021), 75. 11 Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992), § 851. 12 Menuge, 76. 13 Ibid., 77. 14 Anthony Kennedy, majority opinion, Obergefell v. Hodges (2015) 14-556 U. S. Supreme Court. https://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf, 19 (italics added). 15 Menuge, 78-79. 16 Menuge, 79. 17 Ibid. 18 Ibid. 19 Ibid. 20 Also, Stuart Hackett argues that “in aiming at significant goals, a person implicitly accepts his own intrinsic worth and that of other persons as the rational basis of the worth of his choice” of goals to pursue. We make value judgments about the worth of pursuing goals such as having a good education, adequate financial resources, good housing, and so on. However, these goals are means to an end, which seems to be the fulfillment of the intrinsic worth of persons. If so, humans’ worth cannot be given or abrogated by others, including the state. See his “The Value Dimension of the Cosmos: A Moral Argument,” in William Lane Craig, ed., Philosophy of Religion: A Reader and Guide (New Brunswick: Rutgers University Press, 2002), 150 (emphasis mine). Compare Justice Clarence Thomas’s dissenting opinion in Obergefell v. Hodges, 576 U. S., https://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf (June 26, 2015), accessed March 10, 2022. 21 See the Netflix documentary, “The Rachel Divide” (2018). 22 Daniel C. Dennett, The Intentional Stance, 3rd printing (Cambridge: MIT Press, 1990), 319, note 8 (bracketed insert mine). 23 This seems true regardless of how particular philosophers try to account for intentionality, whether it is something irreducibly mental (e.g., Edmund Husserl), reducible to token brains states (e.g., Michael Tye), or just a tactic we use to predict behavior (Dennett’s “intentional stance”). 24 Dallas Willard, “Knowledge and naturalism,” in Naturalism: A Critical Analysis, ed. J.P. Moreland and William Lane Craig (New York: Routledge, 1999), 40. 25 Also, I have argued elsewhere that we can, and often do, have knowledge directly of reality itself. E.g., see my Naturalism and Our Knowledge of Reality (London: Routledge, 2012), ch. 9, and “Finitude, Fallenness, and Immediacy: Husserlian Replies to Westphal and Smith,” Philosophia Christi 13:1 (2011): 105-26. 26 Notice too that the same fate seems to befall Rawls’s view, for he eschews any metaphysical basis in reality for morals or persons.