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Fr. 602

March 16, 2015

Our criticisms of legal subjectivity here should not give reason to think that this formation of self is without its merits nor that it is entirely unsuited for contemporary politics and society. Indeed, legal subjectivity has had and still has important work to do in the field of justice, particularly as regards equality, to which the evolving status of women is a stark testament. Consider a quotation from an 1892 Elizabeth Cady Stanton speech before the American congress, recently highlighted elsewhere:

To deny political equality is to rob the ostracised of all self-respect; of credit in the market place; of recompense in the world of work; of a voice among those who make and administer the law; a choice in the jury before whom they are tried, and in the judge who decides their punishment.

It is difficult to see how arguments advanced from the perspective of the historical, concrete individual alone might secure this equality. For the individual perspective serves better to guarantee or take back individual or group protections against parochialism, monoculture, group erosion, and overreaching universals. To secure rights which are, in principle, the same for all concerned, we need rather precisely the kind of overreaching universal to which the individual perspective acts as a limiting consideration.

For this reason, we should take seriously and at face value Stout’s claim that all forms of reasoning are tools when the time comes for justifying a system or set of beliefs or practices. As regards the justification of specific forms of justice such as equality, the Rawlsian legal subject as well as the common basis have thus an important role to play therein. If all forms of reasoning and conceptual apparatuses can serve in such justification, then it is worth considering whether a priori transcendentalizing (of the kind diagnosed by Stout) can be entirely avoided. Indeed, the case of women’s rights would prove a stark reminder of this fact.

Insofar as the legal subject is a formation of our times, part of our intellectual inheritance or baggage, we cannot simply do without the substantive content and rhetorical moves that the notion affords. Even if the need exists to limit its applicability to the conceptual structure of all rational agents and, hence, temper its judgments “from the position of eternity”, it is a question of mending or, more weakly, amending this notion. Far from throwing this intellectual legacy out with the bathwater, we should recognize to what extent subject and individual exist in relation to one another as that which cannot be separated, an idea to which neither Rawls nor Stout gives full expression. In much the same way that there can be no meaningful separation in judgment between descriptive content and normative or explanatory scheme, there is perhaps no strong distinction to be drawn in emergence and apprehension of the self between legal subject and concrete individual.

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