A Critical Legal Examination of Liberalism and Liberal Rights

303 Pages·2020·2.708 MB·English

by  Matthew McManus

PALGRAVE STUDIES IN CLASSICAL LIBERALISM
SERIES EDITORS: DAVID F. HARDWICK · LESLIE MARSH
A Critical Legal
Examination of
Liberalism and
Liberal Rights
Matthew McManus
Palgrave Studies in Classical Liberalism
Series Editors
David F. Hardwick
Department of Pathology and Laboratory Medicine
The University of British Columbia
Vancouver, BC, Canada
Leslie Marsh
Department of Pathology and Laboratory Medicine
The University of British Columbia
Vancouver, BC, Canada
This series offers a forum to writers concerned that the central presup-
positions of the liberal tradition have been severely corroded, neglected,
or misappropriated by overly rationalistic and constructivist approaches.
The hardest-won achievement of the liberal tradition has been the
wrestling of epistemic independence from overwhelming concentrations
of power, monopolies and capricious zealotries. The very precondition of
knowledge is the exploitation of the epistemic virtues accorded by soci-
ety’s situated and distributed manifold of spontaneous orders, the DNA
of the modern civil condition.
With the confluence of interest in situated and distributed liberalism
emanating from the Scottish tradition, Austrian and behavioral econom-
ics, non-Cartesian philosophy and moral psychology, the editors are
soliciting proposals that speak to this multidisciplinary constituency. Sole
or joint authorship submissions are welcome as are edited collections,
broadly theoretical or topical in nature.
More information about this series at
http://www.palgrave.com/gp/series/15722
Matthew McManus
A Critical Legal
Examination of
Liberalism and
Liberal Rights
Matthew McManus
Political Science
Monterrey Institute of Technology and Hi
Mexico, Estado de México, Mexico
ISSN 2662-6470 ISSN 2662-6489 (electronic)
Palgrave Studies in Classical Liberalism
ISBN 978-3-030-61024-1 ISBN 978-3-030-61025-8 (eBook)
https://doi.org/10.1007/978-3-030-61025-8
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Dedicated to my parents Jean and John with a great deal of love
and appreciation
Acknowledgements
This book had been planned and conceived for some time before the
opportunity came to write it. Unlike my earlier monographs on post-
modern conservatism, A Critical Legal Examination of Liberalism and
Liberal Rights didn’t emerge from an effort to understand a shocking and
vividly historical development in the early twenty-first century. My
engagement with human rights goes back decades, to when I first attended
the Canadian Council of International Law conference with my father as
a teenager. Since then I’ve been engaged in human rights activism with
Amnesty International and NGOS such as the Committee for
International Justice and Accountability, completed degrees with “human
rights” in the name, all while writing and talking about rights. This fasci-
nation with rights discourse juxtaposed sharply with my ambitions to be
a critical legal scholar, given the long history of that profession’s hostility
towards rights which goes back at least to Karl Marx.
My interest in critical legal theory and analysis began during an under-
graduate degree at Carleton University, where I was fortunate to have
several very good teachers who fostered my eclectic array of interests
while helping to give them focus. This book aspires to make a small con-
tribution to rejuvenating the classical critical legal tradition, which since
the 1980s has splintered into a number of different traditions which ana-
lyze liberal rights and legalism from the standpoint of what David Harvey
vii
viii Acknowledgements
would call “militant particularism.” Many of these traditions are highly
interesting and valuable from a progressive standpoint. But each is lim-
ited by its reliance on philosophical positions which exclusively empha-
size critique while being hesitant to accept what Rawls would call the
burdens of moral judgement entailed by normative theorizing. A Critical
Legal Examination of Liberalism and Liberal Rights seeks to avoid these
problems by not only engaging in critique, but showcasing how rights
can be reconceived along more emancipatory lines by conceptually dis-
sociating them from limits of the liberal tradition. If successful it will
help reconcile rights with critical legal theory in a manner one does not
see / no longer sees in the classical Crit tradition.
Any book is the product of more debts than an author can possibly
pay. I’d like to start by thanking my undergraduate professors at Carleton
University, Ottawa: Dr. Trevor Purvis, Dr. Amy Bartholomew, Dr. Ratna
Balasubramaniam, and Margie McDougall for their inspiration. I’d also
like to thank Dr. Kathleen Cavanaugh Lecturer of International Law at
the Irish Centre for Human Rights, Galway for her insights and support
while I was engaged in my LL,M. studies there, and for her invaluable
ongoing mentorship. Many people at York University helped me think
through the issue of rights and critical legal theory during my Ph.D. stud-
ies. These include my supervisor Dr. Lesley Jacobs, and Dr. Annie Bunting
and Dr. Amanda Glasbeek, Dr. Jay Goulding for his friendship, and my
committee members Dr. Allan Hutchinson and Dr. Willem Maas. I
would also like to thank all my friends at York, many of whom have col-
laborated with me in publications, webinars and on-line lectures over the
years. This includes Dylan De Jong, Heather Tasker, Ali Malik, Emily
Lockheart, Mark Terry, Erik Tate, Chris Satoor, Daniel Huizenga, and
Victor Hainagiu. Thank you to the Committee for International Justice
and Accountability and Tec de Monterrey for their support after gradua-
tion. Special thanks to our Department Director at Tec, Dr. Juan Cruz,
for his unflagging patience and kindness. And of course to all the stu-
dents in our Department who I’ve learnt from over my time in Mexico at
Tec de Monterrey. Special thanks to Whitman College for hiring me as I
finished writing the book.
Friends and colleagues were always important while writing this.
Shefali Sarna and Stacey Freeman are old friends who’ve always tolerated
Acknowledgements ix
many ups and downs throughout the academic process with good advice
and humor. Grant Dingwall, Nicholas Young, James Bowden, Aaron
Frankruyter, Jeffrey Farncombe and I go way back and have always been
a reliable presence. Thank you to Taewook Kim and Nolan Belleville for
their friendship since childhood. And thank you to Andrew Thorndyke,
David Hollands, Justin Unsworth, William Norman and Hilary Buchan-
Terrell, Tristan Bradley, Lee Doucet, Jack Poldrugovac, Brendan Nickels,
and Lorne Williams for many incredible memories. Of course Victor
Bruzzone deserves many thanks for his work on the Introduction to this
book, which added greatly to the text and challenged my own interpreta-
tion of its essential points. My colleagues and collaborators at Zero Books
have been a constant source of helpful critique and self-examination.
Thank you to Douglas Lain, Ben Burgis, Conrad Hamilton, and Greg
Tallion for their help. Much admiration for Helen Pluckrose, Erich
Prince, and other editors who have published my work along the way.
Short sections of this book were published early on in these venues, pro-
viding useful feedback for the final product. And of course thank you to
Leslie Marsh and Brendan George at Palgrave Macmillan for the profes-
sional advice and ceaseless drive to make sure the book was up to stan-
dards. Lastly, thank you to Connor O’Callaghan, who passed away several
years ago but remains very missed by those who loved him.
Lastly thank you very much to my extended family; both the
McManuses and McLeods in Canada and abroad. The Trejo family in
Mexico have been a source of companionship and insight while living
there. Loki, Meaghan, Emily, Adam, Chris, Matt, Kayla, Nick and
Finnegan all deserve warm appreciation. I would never have completed
the text without assistance from my wife Marion Trejo, who was always
patient in dealing with the absent mindedness and frustrations that come
with undertaking any large-scale project. Finally thank you to my par-
ents, to whom this is dedicated. There is no doubt I would never have
written anything had it not been for their help from the beginning.
Contents
Part I Liberalism and Its Critics 1
1 Liberal Rights and Their Critics 3
2 Critics of Liberal Rights 67
3 The Limitations of Liberalism and Liberal Rights 137
Part II A Critical Legal Approach to Dignity, Law, and Rights 167
4 Dignified Self-Authorship and a Critical Legal Model
of Rights 169
5 Rethinking the Ontology of Law and Rights on Critical
Legal Lines 223
Bibliography 263
Index 287
xi