Rights and Strong Voluntarism in the Works of Richard Flathman

To have no interest except in one’s formal right may be pure obstinacy, often a fitting accompaniment of a cold heart and restricted sympathies. It is uncultured people who insist most on their rights, while noble minds look on other aspects of the thing.

Hegel, Philosophy of Right

It is with some irony that I begin with a quotation from Hegel, not one of Dick Flathman’s favorite thinkers. Nevertheless, Hegel’s suspicion that there is something unseemly, perhaps illiberal, about a person’s insistence upon receiving their due rights captures the spirit of Flathman’s conclusions about rights in and around liberalism. His most significant contribution to the literature of liberal rights remains The Practice of Rights (1976), a groundbreaking configuration of rights in liberal theory and practice. Flathman would later show a reluctance to directly interrogate, much less sponsor, the practice of asserting one’s rights. Concluding Pluralism and Liberal Democracy (2005), he ruminates on how none of the thinkers that concerned him in that work – Arendt, Oakeshott, James nor Hampshire – had much to say (or much positive to say) about rights. Notably, he does not suggest how the ambivalence of his interlocutors might reflect on his own understanding of liberal democracy’s uses of rights, choosing only to conclude that the framework provided by William James and others “do, or could, accord rights a non-negligible place in political and moral theory.”¹

By the time of Willful Liberalism, Flathman’s comments are notably brief, allusive, and generally unflattering toward rights as an aspect of liberalism. He places the main trends in liberal rights discourse into the camp of virtue liberalism, which stresses the imperatival character of rights, and its association with a particular type of liberal personality.² By no means did Flathman repudiate rights as an institutional practice, despite his attraction to antinomian tendencies. The reticence against endorsing a politics of rights, however, or of elaborating fully on his disengagement suggests several questions. To what degree are conventional liberal practices of rights uncompanionable to the strong, as opposed to the weak, voluntarist? What specifically led Flathman to deepen his skepticism toward invoking legal aspects of liberal discourse? As a public philosophy, what are the contours of a willfully unjural liberalism? And how might Flathman’s tacit invocation to liberals to rethink their commitments to rights spur us, as Hegel implores, to “look on other aspects of the thing”?

These were, at least, my questions, first formulated while I was Dick’s student. They were initiated as I grappled with the long arch of his scholarship in the liberal tradition, and they remain for me active problems. They were especially animated for me by Dick’s generous investment in my early attempts to grapple with these questions of jurisprudence. At the time when his own work was moving away from the jural dimensions of liberalism, he actively encouraged my own work in this direction, including returning to reengage literatures with which I know now that he was ready to be done.

Throughout the 1970s and 1980s, rights, along with the rules, behaviors, traditions, and institutions that accompany rights, were a central conceptual element of Flathman’s elaboration of the Liberal Principle, “it is a prima facie good for individuals to have and be in a position to act upon and satisfy their interests and desires, objectives and purposes.”³ Crucial to Flathman’s understanding of rights as a means toward satisfaction is the concept of social practices, as understood broadly through Wittgenstein and Peter Winch. Rights are embedded in social and political institutions, revealing their own traditions, conventions, and rules. Participants of these legal practices hold ideas, beliefs, attributes and values, which underlay the assertions of a right, or as the case may be, the choice of not asserting a right. Conflicts and contestations occur within the legalistic discourses, which has weaved itself into such a large swath of liberal theory.

One underappreciated aspect of Flathman’s long engagement with the subject of rights as practices has been the influence of the legal analyst W.H. Hohfeld’s Fundamental Legal Conceptions...