justice:

“Bob and weave”: A response to Wolterstorff

posted by James K.A. Smith

 

<br />Nicholas Wolterstorff’s calm, careful, humble response to my posts might make me look like an overly pugilistic polemicist.  But I think he’s just from a different school of pugilism.  (As a Canadian and long-time hockey player, I think pugilism is a great way to spend a Friday night, with beers afterward.) Wolterstorff is a careful student of the “bob and weave” school of philosophical polemics, turning ill-advised haymakers into merely glancing blows. I, on the other hand, tend to be a student of the George Foreman school of philosophical polemics (and frequent user of his grills to boot!): I’m easily sucked in by rope-a-dopes.  Why stop now?

While much of Wolterstorff’s response amounts to bob-and-weave, his reply helps to clarify some points.  But on other points, it feels like Wolterstorff has a slick cornerman who has applied copious amounts of Vaseline to help criticisms slip off his argument, deflecting them elsewhere.  In Foreman-like form, let me continue to flail on just two points.

First, with respect to my charge of a covert “individualism”: Wolterstorff hears this as if I was charging him with solipsism.  Thus, he makes the charge seem ludicrous by rightly pointing out that, in his account, rights are a “species of normative social relationships,” indeed, that “sociality is of the essence of rights.”  In short, an utterly lone entity would not bear any rights precisely because rights are a social property.  But the charge of “individualism” is not synonymous with solipsism.  What’s at issue is not whether rights are social, but how.  Or, perhaps less clumsily, my concern is not that Wolterstorff lacks a robust sense of sociality but rather that rights talk assumes a kind of sociality that is problematic.  At stake here, we might say, is the shape of his “social ontology.”

So the operative term in my critique is not just “individualism,” but the qualifier, “atomistic.”  The social ontology of rights talk generally assumes that, at bottom, the kind of relation between social entities is conflictual or competitive.  In short, if rights are taken to be the basic building block in our account of justice, Hobbes will never be far off.  I find this fundamentally conflictual or agonistic ontology to be implicit in the very way that Wolterstorff defines rights: X bears a right “against” Y.  Now, Wolterstorff might think it an over-reading to hear this “against” as anything other than a semantic formulation.  But many of the right order theorists he criticizes think there’s more at stake than that.  Such a semantic formulation bubbles up from the social ontology that rights talk assumes.  (And, incidentally, though I won’t further insist on these terms, I think this is what’s at stake in debates between individualists and communitarians.  An “individualist” is not guilty of solipsism, but of construing intersubjective relations as derivative, secondary, or artificial [and usually conflictual], whereas communitarians begin from an “organic” picture of intersubjective relations that doesn’t see conflict or competition as basic to these relations.  I continue to find John Ruskin and William Morris to be eloquent on these matters.)

This difference at the level of social ontology might explain why Wolterstorff and right order theorists sometimes seem to be talking past one another. I think Wolterstorff is correct that “right order” theories generally tell a declining narrative about the emergence of inherent-rights-talk.  But I think he misdiagnoses what concerns them about this.  It’s not just that rights are guilty by association with things like individualism and secularism; rather, right order theorists who are wary of making rights talk fundamental are concerned about the matrix of commitments that undergird such a picture of justice, viz., a Hobbesian construal of intersubjectivity which sees human relationships as, at bottom (or “naturally,” in Hobbes’ language), competitive and conflictual.  Thus rights-talk is consistently accompanied by “against-ness” (see Justice, pp. 7, 54, 94, 108, 176, and passim).

So it is true that the “disagreement between right order theorists and inherent rights theorists has to do with the deep structure of the moral order.”  But the right order theorist also thinks there’s an even deeper disagreement at the level of what I’m calling “social ontology.”  I don’t think you can make inherent rights the fulcrum of your account of justice without buying into a social ontology that makes “against-ness” essential to sociality.  (There are theological issues in the ballpark here, too, but I’ll bracket those here.  We should also attend to the core issues concerning the shape of the “normative context” for rights.  But that requires a level of technical, philosophical precision that I think is best pursued elsewhere.)

Second, with respect to Wolterstorff’s (lack of) direct engagement with MacIntyre and Hauerwas: Wolterstorff contends that he does not charge MacIntyre and Hauerwas with “hostility to justice and rights.”  Further, he “does not charge MacIntyre with hostility to justice,” nor does he charge Hauerwas with hostility to justice.  In terms of explicit criticisms, this is clearly the case.  But I invite other readers of the book to judge whether or not my suspicions are misplaced.  I’m not ready to relinquish my claims in this regard.  (I might note that a forthcoming review of the book by Daniel Bell in Pro Ecclesia will articulate similar concerns.)

It’s on this point that I think Wolterstorff’s bob-and-weave is most evident.  Let me note two bobs and a weave:

(a) Wolterstorff’s response claims that MacIntyre and Hauerwas were not his targets when he articulates concern about those who exhibit “hostility to justice and rights.”  Then who are the targets of this criticism?  Sometimes it feels as if Justice is battling some phantom menace.  Furthermore, if the upshot of the book is that, ultimately, only inherent rights can properly secure justice, and if MacIntyre and Hauerwas reject inherent rights (as they clearly do), then wouldn’t it follow that they don’t adequately or properly affirm justice?  Or let me put this another way: doesn’t Wolterstorff really think, at the end of the day, that right order theories of justice are unjust?

(b) I think Wolterstorff is being coy about the invocation of Hauerwas in the Nygren chapter.  If he doesn’t think there’s some connection between Hauerwas and Nygren—or at least some connection between Hauerwas and the errors of “agapism”—then why does the chapter open with this brief cameo by Hauerwas?  I’m not the one making the connection between Nygren and Hauerwas; it’s Wolterstorff’s opening of the chapter that seems to be making some connection.  So the burden is not on me to show that Hauerwas has significant things to say about love and justice; the burden is on Wolterstorff to explain why Hauerwas even appears in this chapter.  (There’s the additional issue of why one would be engaging Nygren now, since I can’t think of anyone signing up for his dichotomous paradigm. But again, I think Wolterstorff suspects some connections here that he doesn’t make explicit.)

(c) Finally, Wolterstorff extends an invitation: “If some present-day eudaimonist, MacIntyre included, has developed a version of eudaimonism that provides the conceptual resources for an account of justice as inherent rights, I invite Smith to point me toward that.”  No thank you, is my reply.  This generous invitation is covertly colonizing; it misses my point and MacIntyre’s disagreement.  I’m not at all suggesting that MacIntyre can, as a eudaimonist, provide the conceptual resources for justice as inherent rights.  The point is that he doesn’t want to.  For reasons, I think, not unlike the “social ontology” argument above, MacIntyre, Hauerwas, Milbank, and others refuse to see inherent rights as the basic building blocks of justice.  So I’m not disagreeing that MacIntyre is rightly associated with eudaimonism; nor am I disagreeing that eudaimonism cannot generate the conceptual resources for a theory of justice as inherent rights.  Rather, I’m arguing that the eudaimonist doesn’t want to frame justice in terms of rights.  So to fault the eudaimonist for not being able to generate an account of justice as inherent rights is not even a glancing blow; it misses MacIntyre altogether.

Wolterstorff’s way of framing the debate has loaded the deck in such a way that one has to play with “rights” cards.  At that point, the MacIntyrean eudaimonist will just refuse to play.  He won’t feel defeated (as Wolterstorff would interpret it) because he sees Wolterstorff as playing an entirely different game.

Alas, the bell.

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15 Responses to ““Bob and weave”: A response to Wolterstorff”

  1. The social ontology move is heymaker anyone can throw. Of course it constitues anything but good pugilism and is often reverted to out of pure desperation. It does not matter what your rank or class is because with it you can KO anyone (except maybe yourself).

  2. Hmmm, I’m not sure what to make of your point, Daniel. How is the point re: “social ontology” a haymaker? I’m not making some general claim “that” Wolterstorff “has” a social ontology. I think every account of justice assumes some picture of human intersubjectivity. I have then suggested two points: (1) what “right order” theorists often find fundamentally problematic with rights talk is that it assumes a social ontology that is agonistic; and (2) that the “against” language in Wolterstorff’s Justice seems to be a surface level indicator of the same.

  3. avatar Christopher Eberle says:

    “I have then suggested two points: (1) what “right order” theorists often find fundamentally problematic with rights talk is that it assumes a social ontology that is agonistic; and (2) that the “against” language in Wolterstorff’s Justice seems to be a surface level indicator of the same.”

    I doubt that Wolterstorff’s conception of inherent rights assumes an agonistic social ontology and thus I doubt that his “against” language indicates that he does. (I only ‘doubt’ because I’m really not sure what you mean by an agonistic social ontology!) In fact, it seems to me that all Wolterstorff’s conception of justice as inherent rights assumes regarding human sociality is that (1) there are distinct human beings and (2) that those human beings can deprive one another of certain life goods. For example, Alf and I are distinct human beings, I have the wherewithal to kill him, I could conceivably come to believe that doing so is in my interest, or is conducive to the common good, or whatever, and so I might actually kill him. This is just the human condition. I guess we could say that it’s potentially agonistic—we normally find ourselves so circumstanced that we have the ability, and might come to believe that we have good reason, to violate other human beings. But in many cases, we should not do so. We need some language to describe that moral prohibition. Hence the “against” language that you take as a surface indicator of an “agonistic” social ontology—Alf has a right as against me that I not deprive him of the good of life.

    I have to say that this all seems very unremarkable. What’s nefarious or otherwise objectionable in the area?

  4. avatar Jack Marsh says:

    I admire the irony of rhetorically framing a rejection of a ‘conflictual social ontology’ in a metaphorics of pugilism.

  5. avatar Samuel Meyers says:

    “And note that Smith skips over the fact, demonstrated incontrovertibly by Brian Tierney and Charles Reid, that in the canon laws of the twelfth century there was already a full-blown conceptual recognition of natural rights. Had those canon lawyers “absorbed the atomistic individualism of modern liberalism”?” -Wolterstorff’s (unanswered) response to Smith

  6. I read Smith as saying that it is something of a capitulation to engage Wolterstorff on his own terms. That the historical and analytic arguments he puts forward can best be confronted by simply discrediting them at the social- ontological level (or as you say, “my concern is not that Wolterstorff lacks a robust sense of sociality but rather that rights talk assumes a kind of sociality that is problematic.”).

    It appears to me that due to what Smith perceives to be Wolterstorff’s problematic social ontology he refuses to truly engage him on the historical and analytic terms by which Wolterstorff makes his case. However, there does not seem to be any incompatibility to me between specifically engaging Wolterstorff’s historical arguments (“And note that Smith skips over the fact, demonstrated incontrovertibly by Brian Tierney and Charles Reid, that in the canon laws of the twelfth century there was already a full-blown conceptual recognition of natural rights”) and rejecting what is problematic in his social ontology.

    What concerns me about the social ontology argument, at least as it is presented here, is that it appears to release Smith from being intellectually accountable to the specifics of Wolterstorff’s arguments. Of course, how much a reviewer should know about a given book’s sources is debatable, but it begs the question why someone would want to use it as a platform to drive it into a topic that it entirely was not intended for. This is unsurprising, though, since this is the way academic theology is now often carried out in the English speaking world (this is a distinctive of the Radical Orthodoxy movement to which Smith to some degree belongs).

  7. 1. I hope we can all concede that this conversation is difficult because we are dealing with differences at a very fundamental level—the level which is the very basis for having arguments (think of Wittgenstein’s “bedrock” [PI, sect. 217]). If our differences and disagreements are at the level of fundamental commitments, then it is difficult to find common criteria to even determine what counts as “evidence” in the debate. Furthermore, we’re dealing with disciplinary differences between theology and philosophy, and even within philosophy, we’re working with very different lexicons.

    So things are much more difficult and complicated than Steinmetz seems to suggest. He reads my “refusal-to-play” as an evasion of “intellectual accountability.” That is, he takes this to be an end-run around the specifics of Wolterstorff’s argument. That perception has always been my worry. But I beg to differ, on two levels:

    (a) Steinmetz claims that I fail to “truly engage [Wolterstorff] on the historical and analytic terms by which Wolterstorff makes his case.” But I’m contesting those terms! So I’m not sure how to do that in a way that doesn’t look like evasion.

    Imagine that the NFL’s Buffalo Bills invite the CFL’s Toronto Argonauts to play a game, but stipulate that they play “American” football (4 downs, 100 yard field, 10 yard end zones, 11 players a side). The Argonauts have constructed a very different sort of team on entirely different terms (3 downs, 110 yard field, 20 yard end zones, 12 players a side) and thus refuse to play. Are they “evading” the Bills? I can imagine the swagger of the Bills, taunting them, “C’mon you pansies! It’s not that different! You’re just scared!”

    So I grant that when disagreements are at the “paradigm-level,” so to speak, the shape of the engagement might look like evasion. But I think that’s a take on the situation from the perspective of those who take themselves to just be “playing by the rules.” I’m suggesting that the disagreement is about what count as “rules” in this case.

    (b) I think the “historical and analytic terms” of Wolterstorff’s argument are already “loaded” in this sense; while they might be presented as a dispassionate, objective recounting of “THE history,” in fact they’re a take on the history. But let me say just a bit more on that score.

    2. For instance, it has been suggested that I’m evading Wolterstorff’s alleged trump card (“But you’re ignoring the canon lawyers!”). Permit just a few brief points in reply:

    (a) I claim exactly zero expertise here, and since others [including an earlier commenter here] have suggested to me that this history is complicated, I didn’t think I should weigh in. I simply don’t know this literature.

    (b) Wolterstorff calls on the right order theorist to concede that very “pre-modern” canon lawyers in the twelfth century exhibited a “full-blown conceptual recognition of natural rights.” Now, I may be mistaken here, but it seems to me that the right order theorist has little trouble conceding NATURAL rights. Indeed, it’s not like there’s no place for rights in a right order account (as Wolterstorff himself recognizes). I thought the bone of contention was INHERENT rights (see pp. 34-36). The right order theorist has room to recognize “natural rights,” but those rights will be ultimately “conferred;” whereas Wolterstorff is arguing for basic, subjective, inherent rights which are “non-conferred rights” (36). Am I mistaken in thinking that the right order theorist can concede “natural” rights in the 12th century without conceding “inherent” rights? Furthermore, the right order theorists concern is not ultimately historical, it’s normative. As I’ve said in earlier posts, the right order theorist does not reject inherent rights just because of their association with some modern provenance.

    (c) In the ballpark here is another issue or “specific” of Wolterstroff’s argument regarding rights in the biblical narrative: it seems to me that a lot hinges on the distinction between natural (conferred) rights and inherent (non-conferred) rights. The right order theorist has room for the former but not the latter; Wolterstorff thinks the latter is necessary to actually secure “justice.” So a lot hinges on this distinction. But then it feels to me that this distinction gets blurred in Wolterstorff’s narrative. Or, to put it otherwise, it seems to me that in his reading of Scripture, wherever Wolterstorff sees something like “rights” he sees them AS “inherent” rights. All of the Scriptural passages that Wolterstorff invokes as, ultimately, evidence of “inherent” rights in Scripture (p. 129) are significantly “underdetermined”; that is, they can be read very differently, but still coherently and cogently, by the right order theorist. The right order theorist can even recognize, I would think, “natural” rights at work here. But Wolterstorff tends to think his case is made just by finding something like rights and “respect for worth;” but it seems to me that this is insufficient to warrant his claim that this is evidence for inherent rights in the Hebrew Scriptures.

    3. Finally, just a word about “agonism” (ad Eberle). I concede that we’re dealing with lexical differences here, and I’ve invoked a discourse that is not the native language of analytic philosophy. By an “agonistic” social ontology I mean a picture of human sociality which assumes that conflict and competition is essential to human intersubjective relationships. The alternative—say, a “peaceable” social ontology of cooperation—does not preclude a recognition of real conflict. So the issue isn’t whether someone “can” kill me. (And, I would add, my point is that one can’t just claim [as Eberle does], “This is just the human condition.” I would think Wolterstorff’s “Anselmian” methodology would preclude him from making such claims to just be describing “the way things are.”)

    I wish I had more time to spend on this, but quickly: My point is that by thinking of “justice” fundamentally in terms of rights, and seeing rights as something we bear “against” others, is—to me—symptomatic of an assumed picture of human sociality. Let me try putting the concern in a different, slightly more theological way: On p. 293, Wolterstorff claims that “wronging…is the source of rights.” Does that mean that “justice” is occasioned by “wronging?” Or that it is wronging which “calls for” justice? Does that mean there is only “justice” AFTER there’s been wronging? Is justice—even so-called “primary” justice—thus construed as essentially post-lapsarian?

  8. avatar Samuel Meyers says:

    All sporting aside, ontology has everything to do with history. If we neglect history, then we are in Bultmann’s bottle: everywhere we look we see ourselves (i.e., quid videre volumus).

  9. avatar Mike Dagle says:

    “Does that mean that “justice” is occasioned by “wronging?” Or that it is wronging which “calls for” justice? Does that mean there is only “justice” AFTER there’s been wronging? Is justice—even so-called “primary” justice—thus construed as essentially post-lapsarian?”

    Since Wolterstorff has argued for a conception of primary justice as being found within the Trinity, I think its safe to say that he would answer this question in the negative.

  10. avatar Jon Rowe says:

    Mr. Meyers wrote:

    “And note that Smith skips over the fact, demonstrated incontrovertibly by Brian Tierney and Charles Reid, that in the canon laws of the twelfth century there was already a full-blown conceptual recognition of natural rights. Had those canon lawyers ‘absorbed the atomistic individualism of modern liberalism’?” -Wolterstorff’s (unanswered) response to Smith”

    Wolterstorff simply appealed to the authority of Tierney and Reid. I am familiar with Tierney’s argument and can attest his thesis of full blown natural rights in twelfth century canon law has not been “demonstrated incontrovertibly.” It’s actually quite the disputed claim. And I’ll appeal to my authority—Robert Kraynak of Colgate University—who knows as much about these matters as Wolterstorff and Tierney.

    You can hear Tierney and Kraynak debate at Georgetown here.

  11. To Mike Dagle: My question is internal to the new book, Justice. I completely agree that Wolterstorff has been clear elsewhere (the piece you note, but also in his earlier book, Until Justice and Peace Embrace) that justice is not just a negative, remedial matter—that it is not just ‘rectifying,’ but indicates positive flourishing. But I find the discussion in Justice is very much tied to wrongs/wronging which makes me wonder whether there’s something of a shift in Wolterstorff’s thinking on this point, or whether something about the specific project of Justice leads to this emphasis.

  12. avatar D. Stephen Long says:

    Mr. Dagle wrote, “Since Wolterstorff has argued for a conception of primary justice as being found within the Trinity, I think its safe to say that he would answer this question in the negative,” where the question is Smith’s to my mind convincing claim that Wolterstorff assumes an agonistic ontology where we must first of all be victims who are then granted rights against each other. But I’m not confident this appeal to the Trinity works. The argument in Wolterstorff’s Justice with respect to God’s inherent justice assumes that creatures can do an “injustice” to God (which would certainly be an odd claim in the Christian tradition)—that God (in his divinity I take it but it is not clear)—can be a victim as well as us and this is why God also has inherent rights. This develops a claim in Wolterstorff’s Divine Discourse where he asks: “Could God fit into the texture of moral rights and duties in the way necessary for speaking?” and he answers, “yes.” In both cases, it seems to me, we have not escaped a “right order” account, we have only made it greater than God and then “fit” God within it. Then it is applied, univocally, to God and creatures. I don’t see how it is possible to make these common moves Wolterstorff makes and in any sense claim to be “Anselmian.”

  13. avatar Mike Dagle says:

    To James Smith: I just wanted to point out that Wolterstorff’s global understanding of justice certainly doesn’t presuppose an agonistic social ontology. We might just move on to the motivations that Wolterstorff has for undertaking his articulation of justice which (I think) you touched on in an earlier post. Wolterstorff’s interest (it seems to me) starts out with the wronging; with the breakdown of primary justice. I don’t think he need to be seen as making a strong ontological claim in doing this; rather just an empirical one. Primary justice is broken in our post-lapsarian state. Whether or not that is “just the way things are” necessarily, for my part I’m comfortable with the saying “that’s just the way things are” now. I think Eberle was saying something similar to this as well.

    To Mr. Long: I don’t think Wolterstorff means Anselmian in the way that you’re taking him in your last sentence at all. He doesn’t mean his thought is consonant with Anselm in any dominant way (even if he thinks it is). Rather he might just as well have said “perspectival” or “Augustinian” or just point out the tenets of so called reformed epistemology when he mentions his Anselmian methodology.

  14. avatar Valorie McKenzie says:

    Stephen Long comments:

    “In both cases, it seems to me, we have not escaped a ‘right order’ account, we have only made it greater than God and then ‘fit’ God within it. Then it is applied, univocally, to God and creatures. I don’t see how it is possible to make these common moves Wolterstorff makes and in any sense claim to be ‘Anselmian.’”

    Somehow I would be very doubtful that Wolterstorff, as a Calvinist, would see God as “subject” to something else “greater than God”. This sounds more like a straw-man than Wolterstorff.

  15. avatar Thaddeus Kozinski says:

    Jacques Maritain, like, I think, Wolterstorff, insists that the origin of those rights that governments are obliged to recognize and enforce is antecedent to those governments; they are inherent, prior to the establishment of any political order, as they originate in a realm that transcends politics. Human rights, for Maritain, are founded in natural law and inhere in man by virtue of human nature, period. Although God is the only being with absolute intrinsic value, man is an end in himself, not merely a means, and since man is obliged to fulfill his nature through moral activity, he must be given the right to do this, and it should be guaranteed by the power of the state.

    Now, no Thomist or Catholic disputes the existence of the natural law, its universality and transcendence, and its superiority to the human positive law, the latter being its particular application. The state’s support and protection of human beings’ ontological dignity and moral freedom in the form of government-protected rights is an unquestionable and non-negotiable obligation, explicitly and manifestly taught by the magisterium of the Catholic Church since Leo XIII’s Rerum Novarum, and found, at least implicitly, in the thought of medievals such as St. Thomas. Rights indeed have a supra-political basis in the nature of man as zoon politikon. But what can be disputed, as Dr. Smith is suggesting, is the purported locus of these rights, as they exist in concreto, that is, outside and in abstraction from a particular social and political order. In other words, human rights certainly have an extra-political origin and justification, but the practical existence and exercise of these human rights is not extra-political. William Cavanaugh describes the problem:

    “Even if there are universally necessary goods, the claim that one has a right to such goods presupposes socially established rules and institutions which are not universal, but come about in very particular times and places. Rights may be locally conferred by custom or positive law, but universal human rights do not exist precisely because there is no such thing as a human being as such, that is, a human being prescinded from all historical and cultural context.”

    The problem that Cavanaugh sees in the idea of universal human rights is similar to the problem of the separation of theory and practice that I discuss in my recent post, “Must Secular Rights Fail?” Just as the universal moral values that constitute Maritain’s democratic charter are inevitably viewed through particular conceptual and linguistic lenses causing a prismatic effect by which there are as many differing sets of values as there are lenses, so too are universal rights. However universal one’s abstract grasp of rights might be, rights only exist in concreto, in a particularized form through their legislative or customary articulation and practical application in the social and political life of this or that city. Thus, abstract, “inherent,” or universal natural rights are never actually encountered in the reality of political life as abstract, inherent, or universal, but only as particularized, customary, and historical institutions and practices, always within the context of a particular and concrete social and political experience. Frederick Crossen writes:

    “Perhaps one may speak of primordial political rights, but these are “due bills” only in the measure of the community’s ability to pay. Justice is not to be defined in terms of prior natural rights, but vice versa. You have a right to what is justly due to you as a member of political society. There is no place in Thomas Aquinas’s conception of man and political society for pre-political natural rights.”

    Although for St. Thomas the justice of a particular political order, including the justice of legislatively authorized human rights, must be measured by its conformity to the divine law, justice is always the ideal of this or that political order, meaning that whatever rights one may understand to possess are both understood and possessed only by and as a participating member of a politically organized society. Both the intelligibility of an abstract ideal of justice as well as its concrete application in law in the political order as a whole is only made possible in virtue of the standards of justice learned and made manifest in some previously existing political order. This is MacIntyre’s irrefutable insight.

    In short, if, as Thomas clearly teaches, living in a political community is essential to an authentically human existence, and if possessing politically recognized human rights is also essential to an authentic human existence, then the origin and ultimate locus of the latter must somehow be intrinsically related to and dependent upon the former; thus an extra or pre-political notion of human rights as “inherent” in each individual qua individual and not qua member of a political community seems incoherent, at least from a Thomistic point of view, which is the view of Alasdair MacIntyre and, I think, the one that James Smith is defending.

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