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Psychology and the political On the psychology of natural right and the political origins of modern psychology Paul H.D. Stenner

his special issue on Psychology and the Political seeks to interrogate the relations between psychology and the contemporary geo-culture in which North-Atlantic liberalism has achieved a certain global domination. My contribution to this task takes the form of an historical and theoretical analysis of one of the key figures of North Atlantic modernity: natural rights. Natural rights are fundamental to the emergence of the modern nation-state, since, in their manifestation as the ‘Rights of Man and the Citizen’, they form the core of modern state constitutions. Whilst much attention has been given in recent years to the legal and political history of rights, few have addressed the relationship between modern rights and subjectivity. I will argue that it was precisely the articulation of a modern conception of natural rights that marked the emergence of a new domain of problems, or a new subject matter, that could be considered psychological in the modern sense of that word. If so, the ‘Rights of Man’ represented a new juridico-political development with profound implications for an understanding of the historical formation of both the discipline and subject matter of psychology.

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Keywords: Rights. Natural rights. Subjectivity. Hobbes. 14 critical psychology

The temporary permanence of natural right The ideas of natural right and natural law have, needless to say, a long and highly contested history.1 Bringing together the concept of nature and the concept of right, justice or law2 has an obvious power and appeal since it permits a distinction to be drawn between a social order that is naturally right and a social order that is not. Existing social order can then be judged from the vantage-point and standard of natural right, yielding the possibility of the critique or preservation of actually existing practices of law and morality. Natural right, that is, provides an ideal foundation, either for the eminently practical and worldly enterprise of ‘subjecting human conduct to the governance of rules’ (Fuller, 1964, p. 96) in all of its mundane and violent manifestations, or for the resistance of this enterprise in the name of a higher right. At stake, in short, is nothing less than the possibility of individuals and collectives acting and existing in the name of the right. As a vehicle for the passionate inclusion of human beings into potential and actual social orders, natural right – in its various manifestations – has been a central figure in the mobilisation of collective sentiments and actions, the motivation of social movements and revolutions, the generation of consent, and the legitimation of existing regimes of social order. Indeed, in an important sense the theme of natural right can be paradoxically asserted to be both a more or less continuous feature of western culture, and distinctly historically specific. Namely, whilst historical scrutiny makes it patent that the content of all specific proposals for natural right is limited to the time and place of enunciation (Topitsch, 1971), what appears constant is the ever- renewed attempt to articulate such proposals.3 It is as if so much were at stake in the articulation of natural right that, through constant challenge, the category is constantly provoked into being re-articulated into new and more complex and inclusive forms of expression. As a previous articulation loses plausibility, and hence its capacity to persuade, motivate and impassion human beings, a new one emerges to take its place like a phoenix from the flames.4 This historical dynamic of perpetuation through transformation, as I have suggested, has a dialectical quality to it. That is, the combined transcendental vantage point and mundane motivational possibilities offered by a conception of right and justice grounded in nature can be and have been used both to transform and to reinforce social orders.5 This

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distinction is important since it is missed in most accounts, which remain bedazzled by either the conservative or the revolutionary potentials6 (cf. Breuer, 1983). Existing articulations of natural right are constantly provoked into new and more complex articulations, not just as a function of changing social, political and scientific circumstances, but also as a result of power struggles internal to any given social order. In order not to lose sight of this difference between creative and preservative ‘moments’ of natural right it is instructive to recall Walter Benjamin’s (1969) distinction between a form of violence that makes law (‘law making violence’) and what he called law preserving violence. Benjamin reminds us that constitutive power is violent (war, revolution, coup d’état), that violence is constitutive of new order, and that, once constituted, violence is then controlled and deployed by the constituted order (the police, the prison service, the legal system, the military, the psychiatric system).

A rapid survey of the evolution of prominent historical articulations of natural right The articulation of natural right has been crucial to the legitimation of, and the motivation for, both forms of violence identified by Benjamin. This becomes clear if we rapidly survey some of the prominent historical articulations of natural right in broad evolutionary sequence. Greek philosophy of the classical age, for instance, was born as a challenge to ancestral authority (Strauss, 1965, p. 91). For Strauss, it was a challenge grounded precisely in an account of nature that served to uproot and over-ride ancestral claims to authority. The claim that right, justness or the good is identifiable with the ancestral is countered with the notion of the naturally and intrinsically right. Nature thus enters the Greek political debate as an essentially critical concept (Douzinas, 2000, p. 27). Hence the predominantly young and wealthy Sophists set physis (nature) against nomos (law and convention) in order to challenge the customs of the old Athenian order. This challenge was made in the name of establishing a new order that would flow naturally (physei or from nature), rather than by the say-so of ancestral tradition (Breuer, 1987). Employing Benjamin’s terminology, we might say that the Sophists challenged the legitimacy of the ancestral as the principle of law preserving violence. Plato’s famous challenge to the law making violence of the Sophists turns their argument on its head by making the critical concept of 16 critical psychology

nature play the role of the source and legitimation of existing law (Plato, 1988). Here we have a first example of the provocation of natural right to a new and more complex level of articulation. Plato’s Socrates thus replied by articulating another version of nature (a thoroughly paradoxical version which truly and permanently exists only because of its ideal form) that could support law preserving violence. Aristotle’s subsequent articulation of natural law as the telos proper to the nature of each thing further inscribes the concept of right into that of nature by defining physis as the teleological striving of matter (hyle) towards the idea (eidos). Indeed it is with Aristotle that the distinction between justice or right that is natural, and justice or right which is merely conventional, is first explicitly articulated (Stapleton, 1944). If the theme of natural right was provoked to emerge even more explicitly in the work of the Stoics, then this is because their political concern was no longer with the city-state, but with the Alexandrian empire. Articulating natural ideals appropriate and plausible to the city-state is one thing, convincing and uniting the different ‘nations’ of an empire, quite another. When Cicero rationalised Roman law he inaugurated a powerful new version of natural right grounded in the Stoic idea of a divine and transcendent nature as the supreme source of worldly law. As a legitimating and motivating principle of law preserving violence, this account can be seen to have functioned, at least temporarily, to settle the raging disputes over the true nature of nature. This was a valuable contribution at a time when city-states were dissolving (Douzinas, 2000, p. 49), and the need for a law common to all imperial subjects was recognised.7 With the subsequent Christianisation of the Roman Empire it was a small step from Stoic Universal brotherhood to a Christian doctrine of natural law in which the Latin ius was interpreted in relation to divine command and the morality of the Decalogue (Finnis, 1980). Nevertheless, this was, at first at least, not simply a matter of the continuation of a well-functioning basis for law preserving violence. Whilst the Roman Empire was still a hostile force to be reckoned with, Christian morality was pitted against pagan law. Hence for Augustine, the basis of justice and right is a love of God. Without this individual relation to the Creator, no justice is possible. No matter how ‘fairly’ a pagan may act, if s/he does not love God s/he cannot be just and has no claim to right (Bigongiari, 1962). Any residual law preserving authority left to the pagan order is thus undermined a priori by Augustine, who


turns the divine right of Christian morality against the earthly institutionalised legal right of pagan law: it is the individual’s avowed relation to God that now guarantees right.8 In more stable conditions of Christian domination, Thomas Aquinas inscribed Christian justice and right as the preservative basis of the medieval social order. By reintroducing (via Arab intermediaries) an Aristotelian conception of justice, he was able to present the medieval order as the earthly and flawed servant of the perfect celestial order (Lisska, 1996). Once again natural right is re-articulated such that it can justify the preservation of an existing social order in the name of the natural law of the Universal Church. The most radical transformational challenge to the scholastic medieval Christian order came with the protestant reformation. At the heart of the reformation,9 the success of which was a surprise even to Luther himself, we find Luther’s symbolic challenge to the natural authority and right of the papacy, for which lex naturalis had migrated into lex divina (Luhmann, 1981). Whether or not the historical Martin Luther nailed his 95 theses to the church door in Wittenburg, it is well established that he publicly burned the books of canon law10 in December 1520, along with the papal bull that formally excommunicated him (Outler, 1955). From the ashes of the discredited divine natural law of the Pope emerged the protestant phoenix of a newly articulated ‘revolutionary’11 basis for natural right.12

The rise of modern science and the wars of religion The collapse of the ‘age of Natural Law’ (Harding, 1955) in the sixteenth century took the form of a protracted period of revolution and counter-revolution that culminated in the Wars of Religion (1618 to 1648) that decimated European society and weakened the influence of Christianity on European culture. Any new conception of natural right to emerge from these ruins had to find a way to short-circuit the escalating failure of religious authority to claim access to natural law. For this reason, the new basis for natural right was to be articulated in the semantics of modern science or ‘natural philosophy’, not Roman theology. The seventeenth century saw both the flowering of the scientific revolution and the invention of rationalist natural law and the related doctrines of natural rights in the strictly modern sense. Science and Law, we might say, enter a new compact. The central thesis of this paper is that the discipline and subject matter of what will later come to be called psychology emerge as an inex18 critical psychology

tricable aspect of this modern rebirth of natural right. Although it is correct that a formal scientific discipline of psychology did not fully emerge until the second half of the nineteenth century, its subject matter was established in a fundamentally political role at least two centuries earlier.13 It was not the taking of a reflexive stance on questions of human nature that was new. The natural law of the Scholastics had been derived from reflection on the passions, basic needs and natural inclinations of human beings. But in Thomist philosophy the reflexive vantage-point from which human nature is studied is always that of the divine perspective. I wish to suggest that it is when the nature of human nature is scrutinised from the perspective of modern science that this subject matter becomes psychological in the modern sense, even if a discipline bearing that name has not yet emerged.14 When Spinoza, Descartes and Hobbes study human passions, affects, desires, appetites, imaginings and wiliness they do so in a manner that is selfconsciously ‘scientific’, even if they do not use that modern word. But it is crucial to recognise that this scientific scrutiny of human nature ‘as such’ always takes place alongside a political project of founding and legitimating a social order. More specifically, the answers to these psychological questions provide the very ground for the political proposals. This grounding is most obvious in Descartes’s articulation of the cogito as subjectum. But it applies equally to the discussions of passions, appetites, desires, reason etc. in Part I of Hobbes’s Leviathan (1651), which, as will be discussed later, ground the proposals for the Commonwealth in Part II. Typically the psychology and the politics appear in separate works, the former preceding and grounding the latter. Hence, Spinoza’s Tractatus de Deo et Homine Ejusque Felicitate (Treatise on God and Man and His Happiness) precedes and grounds the political proposals in his Tractatus Theologico-Politicus (1670). Locke’s Essay Concerning Human Understanding (1689) appears the year before his Two Treatises of Government. The same applies to the classics of the eighteenth century. Hume’s Treatise of Human Nature (1739 to 1740) is swiftly followed by the essays on political economy and ethics. Smith’s Theory of Moral Sentiments (1759) provided the ‘psychological’ ground for the later Wealth of Nations. Rousseau’s ‘psychology’ (a detailed scrutiny of private and domestic relations and of pedagogy) occurs in his novels. Julie (1761) precedes the Social Contract by one year, and Emile is published in the same year. If psychology is the scientific study of human nature, then the psychology of these authors was the new source


of their politics, and the matrix of the ever-unfolding modern articulation of natural right. The new compact between science, law and politics inescapably gave rise to this new epistemological discourse in which issues of methodology assumed increasing importance and according to which scientific disciplines would come to individuate and specialise. If science replaced religion as the recognised authority on nature and right this should not imply that religion somehow ceased to exist, or was overthrown. On the contrary, many of the key authors, including scientists, were profoundly religious. What is decisive is that the direct influence of theological doctrines on conceptions of natural right declined and that this occurred in part by way of arguments that were themselves theological. One could even talk of theological developments that led to a double disappearance of God from this domain in the seventeenth century. With Spinoza, He disappeared into the immanent and, as Natura Naturans, became indistinguishable from nature. In Deism, which denies revelation, the possibility of miracles, and the validity of religious claims based on the teachings of any Church, He disappeared into the transcendent. In both cases He is not capable of directly interfering with natural order, since in the one case He is identified with it, and in the other, excluded from it since creation. Depending upon perspective, we either become God or are abandoned by Him to our own godforsaken destiny. Sensitivity to this paradox concerning the withdrawal of ecclesiastical influence from the domain of natural right is crucial. When, for example, Grotius (1583 to 1645) made the argument that the law of nature is one of those unchangeable ‘things over which His power does not extend’, he was writing as a devout believer to restrict the authority of religion in the face of what he called ‘the hideous spectacle’ of religious warfare (cited in Outler, 1955, p. 14). Natural right still exits, but it is no longer necessary to go via God to discover it.15 In a discourse with roots in Franciscan Nominalism, and refined in the early seventeenth century by the likes of Suárez and Grotius, natural right came to be conceived in terms of natural rights: as discoverable phenomena that have real existence in each individual prior to and outside of their involvement in any specific community or society. In migrating from a divinely ordained objective position in the social order, to a subjective power of the individual, natural rights would become discoverable ‘psychological’ properties whose existence must be rationally and 20 critical psychology

empirically argued-out. For the Spanish Jesuit, as for the Dutch humanist, the ‘true, strict and proper meaning’ of ius is, ‘a kind of moral power facultas which every man has, either over his own property or with respect to that which is due to him’ (De Legibus, 1612, cited in Douzinas, 2000, p. 63). Right, in other words, is a natural and universal property of the individual.16 In this account, it is not the social order (legitimated by the divine order) that determines our rights, but our rights that determine and legitimate social order. As creations in the image of the Creator we too are naturally endowed with a creative will distinct from the mere materiality of our world, and which, as a natural moral power, is the guide to universal moral obligation. Only via the freedom of will granted by God can we truly find our inescapable obligations. We have a natural right to will what is right, and that includes a natural right to freedom from the dictations of specific theological systems. Such freedom is the sole condition of true obligation. Here are the theological origins of the withdrawal of theology. The vanished God shows Himself in the human form of a self-conscious will, conscious of its human nature.17 Here too are the theological origins of the modern preoccupation with free consent as the basis for political subjection.18 Natural rights in their incarnation as willed subjective freedom become the grounds of modern political power. Theology implodes and is concentrated into the figure of the willing agent or self-referential subject whose subjectivity ‘is a will to knowledge of the knowledge of one’s own social position’ (Papadopoulos, 2003, p. 79). Subjectivity, or ‘self-conscious will’ – what Hegel (1967, p. 75) would later call ‘the ground in which freedom is now set’ – assumes the role, as we shall see, of the modern incarnation natural right. Since the foundation of the polity and its positive law were at stake in such arguments, we see in modern natural rights the site of fusion of the psychological and the political, or a zone of indistinction between the political and the psychological. It is in this sense that natural rights are distinctly modern.19 In medieval Europe human beings were conceived of as fundamentally social beings. As Aristotle’s ‘zoon politikon’, human beings were seen to ‘rely on the social framework of a political community for the realisation of their inner nature’ (Honneth, 1996, p. 7). In this context, it would have made little sense to argue that rights have a ‘real existence’ in an individual outside of society.20 The modern nation state, by contrast, grounds itself in a constitution based on the universal rights of the individual qua human being. Our essence


is first defined outside of society, and positive law is that before which we are all, in principle, equal.

consequently, of doing any thing, which in his own judgement, and reason, he shall conceive to be the aptest means thereunto … (Hobbes, 1946: Part I, chapter 14).

Modernity 1 and 2 To lend substance to the thesis I have been developing, the remainder of the paper will examine some key moments in the articulation of modern natural rights, beginning with Thomas Hobbes, the ‘founder of the modern tradition of individual rights’ (Douzinas, 2000, p. 69). The turn to ‘subjective rights’ described above prepared the ground for this ultimate thinker of law preserving violence. Given his importance to my theme, I will look in some detail at the way in which politics and psychology are mixed in a new articulation of natural right in Hobbes’s work and at how this takes a form that will be subsequently articulated into the modern concept of subjectivity. The creative complement to Hobbes’s law preserving articulation of natural right, I will go on to show, finds its purest expression in the work of Rousseau. Finally, I will briefly examine Hegel’s attempt to neutralise the revolutionary potential of natural right in his ‘state philosophy’ in which right and subjectivity are explicitly combined.

Modernity I: Hobbes Hobbes taught mathematics to the Prince of Wales and future Charles II, son of Charles I (who was executed during the overthrow of the English Monarchy in 1649). His opposition to the use of natural right to motivate and justify revolt and disobedience was implacable. He was acutely aware of the power of conceptions of natural right to, as he succinctly put it, ‘animate’ people to revolt21 and his articulation of an alternative was explicitly designed to support and justify lawpreserving violence. Hobbes identified natural right with human nature in a pre-social state. In doing so, he identified natural right with liberty from law, and ultimately freedom from all external social convention and regulation. The source and problem of right thus no longer concerns an inspired judgement concerning the justice of an objective social order. The source is now a state of nature, and the problem is one of balancing freedom (now grounded in natural right) and obligation (now identified with law): The RIGHT OF NATURE, which writers commonly call Jus Naturale, is the Liberty each man hath, to use his own power, as he will himself, for the preservation of his own nature; that is to say, of his own life; and

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As with Grotius, we are naturally endowed by God with a power to will which resembles that of the Creator. Each of us, in our natural state, is made in His Sovereign Image, and we are stirred into autonomous selfgovernance by a ‘perpetual and restless desire of power after power’ (Part I, chapter 11). From this point on, the right of self-governance in the name of self-preservation is established as a basic property of the human individual regardless of social order. The state of nature is hence conceived as a state outside of social order in which the natural self-preserving will of each individual has free reign. But, paradoxically, this newly discovered natural right must be immediately renounced and placed in the hands of the sovereign. Otherwise, Hobbes argues, the natural right of self-preservation leads to a chaotic state of war: ‘as long as this natural right of every man to everything endureth, there can be no security to any man’. Consequently, in line with his definition of natural law,22 laws of nature dictate the curtailment of natural right. Specifically, each individual must transfer (or alienate) their natural right to a third figure who, possessed of the powers of the natural rights of all, becomes an absolute and unchallengeable sovereign power. The conflicting multiplicity of wills characteristic of the chaotic state of nature is reduced ‘unto one will’ by a hypothetical process of covenant making: I authorise and give up my right of governing myself, to this man, or to this assembly of men, on this condition, that thou give up thy right to him, and authorise all his actions in like manner… This is the generation of that great LEVIATHAN, or rather, to speak more reverently, of that mortal god, to which we owe under the immortal God, our peace and defence’ (Part II, chapter 17).

After creating us in His image, the immortal God disappears into the transcendent only to be replaced by a mortal god of our own making. Hobbes thus articulates a basic paradox: Through the exclusion of their supposed basic nature, individuals are included in the sovereign state. This is more complex than first appears: rights are derived from a state of nature only to warrant the necessity of a social order that excludes that nature, transforming the noise of multiplicity into the


signal of singularity in the process. In this harmonising exclusion, rights are preserved in translated form. Specifically, in the process of transfer, natural rights bifurcate into, on the one hand, those rights which are ‘annexed to the sovereignty’23 and, on the other, those rights (also described as liberties) that can never be abandoned by the individual or transferred to another.24 The shift from immortal to mortal god is simultaneously the shift from the state of nature to the state. Both are achieved by the shift from the unconstrained natural right of individuals to the annexed rights of the sovereign and the residual and preserved liberties of the subject. Hence, the whole rationale for the exclusion of the natural (the state of nature) from the artificial (the State) is so that the latter can protect and defend the former, in the name of which it is established.25 We are free to do as we please only on condition of total and unconditional obedience to Leviathan, born of our free will: ‘For in the act of our submission, consisteth both our obligation and our liberty’ (Part II, chapter 21). The free individual is thus born along with the absolutist state. At the basis of social order are natural rights, but these must be recognised as impossible rights, and thus they retain their position at the foundation of order only as a perpetually recalled and freely willed excluded possibility. Hobbes’s modern articulation of natural right transforms both terms. The radically individualistic transformation of the concept of right is grounded in an equally radical shift in the meaning of nature. The natural order described in Aristotelian and Scholastic thought, for instance is effectively the just hierarchical order of the entire universe: the living nexus of all modes of substance. When Hobbes – informed by seventeenth-century natural philosophy – talks of nature, he means human nature stripped of social influence. Hobbes’s new science was, of course, politics, but in turning his scientific gaze to a pre-social human nature, he illustrates well my claim that it is psychology that is also here at issue, or rather, the creation of a zone of indistinction between politics and psychology that grounds the new articulation of natural right. Three broad classes of psychologisation are combined in Hobbes’s articulation of the new psycho-political construct of natural right. The first class is more psychological than political, and stems from the scientific assumption that the human being is entirely a force of nature: a physical organism undergoing bodily motion guided by a will that in turn is newly defined as ‘the last appetite in deliberating’ (Part I, chapter 6). Human motivation is psychologised, in this manner. In place of lofty spiritual aims we find a being motivated by desire and 24 critical psychology

aversion to maximise pleasure and minimise displeasure. Morality is psychologised. In a radical gesture that removes morality from its transcendental pedestal and diffuses its critical potential, good and evil are defined merely as ‘names that signify our appetites and aversions’ (Part I, chapter 15). Definitions of it are observed to vary with culture. Reason is psychologised as the worldly calculations of a desire-machine. The second class is more political than psychological, since it concerns the establishment of psychological justifications for social systems. Politics itself is psychologised in this sense, since subjects are no longer simply conceived as existing for the sake of a polity which itself exists in the name of a higher principle. Rather the state is conceived as existing for the sake of protecting, in preserved form, the natural rights of subjects. The state is made in the image of the sovereign subject who thereby governs himself in the name of himself. Law is psychologised. In the absence of virtue and justice as its transcendent ends, law can serve only to preserve the rights of self-preservation of the subjects, whose motivations have already been clarified. Positive law simply mirrors and amplifies the laws of nature. The use of state sanctioned violence is psychologised. Wolfish human nature will always require the threat of the sword to force obedience to covenants. The third class concerns what could be called the establishment of subjectivity as the basis of political inclusion. This theme is implicit in Hobbes – who does not use this word – but he makes it clear that the establishment of a legitimate polity is contingent, not just upon the sword, but also upon individuals adopting a reflexive stance that makes them observers of their own nature. It is only by recognising one’s flawed and self-interested nature that one can overcome its destructive limitations and learn to establish what is in fact in one’s own best interests. Individuals must become conscious of the rational basis of the covenants that hypothetically transfer their natural rights to the sovereign. We must will our subjection and the subjection of others. Only through a reflexive recognition of our ‘perpetual and restless desire of power after power’ can we be brought to recognise that such subjection is essential if we are to procure and secure the contented and convenient life that our desire for power strives after. We lose little and gain much from a willed subjection that can ‘assure for ever, the way of [our] future desire’. Such willed subjection hence follows from such natural passions as ‘desire of such things as are necessary to commodious living… and a hope by their industry to obtain them’ (Part I, chapter 13). Should such positive passions be insufficient to generate the neces-


sary motivational state, one can and must always rely upon the ultimate power of the fear of death. The bloody sword of the sovereign serves both as a reminder to those whose will is faltering, and as a means of forcing those who disobey: The condition of man in this life shall never be without inconvenience; but there happeneth in no commonwealth any great inconvenience, but what proceeds from the subjects’ disobedience, and breach of those covenants, from which the commonwealth hath its being (Part II, chapter 10).

Again, the encouragement of a reflexive stance on human nature is not something new. The Christian injunction to ‘do unto others as you would have them do unto you’ encourages just this ethical reflection, for instance. But such reflection is thoroughly mediated by spiritual authority, and can by no means occupy the position of natural right itself. It is an observation of man by way of Christ. By contrast, when Hobbes instructs the modern citizen to ‘be contented with so much liberty against other men, as he would allow other men against himself’ (Part I, chapter 14), this is a thoroughly self-referential position based on a human self-observation of self-observing human nature: subjectivity. Again, the point is not to stress a radical departure from theology, since, as I have argued, the withdrawal of theology from natural right was itself theological. Nevertheless, when Christian conscience dictates that moral worth depend less on the mere fulfilment of the law than on its willing acceptance, then what is at stake is a willed subjection to the way of Christ. When, by contrast, John Locke grounded the legitimacy of government in the consent of the citizens, at stake is a willed subjection to a sovereignty that resides only in the people and for the people.26 It is the law of nature, disclosed by reason, which teaches the purpose of government (which is to make secure the inherent value in the human personality). As in Hobbes, for Locke positive law simply mirrors and amplifies natural law, since the end of the law is to preserve and enlarge freedom, and not to abolish or restrain it (Locke, 1956). Post-Hobbes, the oscillations between natural right as justification for law preserving violence, and natural right as justification for law making violence, revolve around a new pole: the subjectivity which grounds freedom. Hence Locke famously develops Hobbes’s argument in the direction of enabling a challenge to the law preserving violence of the constituted order of the sovereign. For Locke, a continuing exercise 26 critical psychology

of consent is required to ensure right. Despite the (relatively) creative as opposed to preservative application, Locke develops precisely the theme of grounding politics in a free reflexivity that makes a rational commitment to the ‘laws of nature’ possible. Furthermore, this political theme is paralleled by the central psychological role given to consciousness in Locke’s Essay Concerning Human Understanding. ‘Consciousness’ literally means ‘knowing together’ and had previously been used to refer to shared-knowledge within a group (Still, 1998, p. 23). For Locke (1975, p. 115), by contrast: ‘Consciousness is the perception of what passes in a Man’s own mind’. A politics grounded in the recognition of the rights of others as the basis for one’s own freedom requires a human subject with a reflexive consciousness of its own nature and interests. Hence Locke’s Psychological concept of consciousness plays a pivotal, though unacknowledged, role in his articulation of a ‘law of nature’ at the basis of a politics organised by the conjunction of justice, freedom and consent. Tyranny now contradicts (rather than guarantees) natural right, and Legislative power ‘is a power that hath no other end but preservation, and therefore can never have a right to destroy, enslave, or designedly to impoverish the subjects… Thus the law of Nature stands as an eternal rule to all men, legislators as well as others’. (Locke, 1956: Chapter XI, section 135).

Modernity II: Rousseau Locke is credited with influencing the American Declaration of Independence (1776) and the drafting of the American Bill of Rights (1791), at which point modern natural rights became established at the very centre of the modern north Atlantic liberal polity. When the American colonists broke from England, the ideas of natural right and natural law played a pivotal and dynamic motivational role. This was precisely because they were universal in scope and hence not limited to what Burke called the ‘rights of Englishmen’. Meanwhile, in Europe, Rousseau articulated a revolutionary account of natural right. This was to provide an intellectual basis for the Déclaration des Droits de l’Homme et du Citoyen (1789) at the basis of the French revolutionary constitution. When the revolutionaries broke with the ancient regime, the idea of natural right played an equally pivotal role in articulating a radical break with the past in the name of universal humanity. These two great declarations of natural rights – each serving to bridge a profound rupture – mark the birth of political modernity.


As with Locke, Rousseau’s Social Contract (1762/1999) critically engages with the ideas of Hobbes. Hobbes’s Immortal God disappeared into the transcendent, leaving the constituted power of mortal Leviathan as the sole worldly concern. Human nature is hence construed as in need of the sword of Leviathan, since it is self-interested, greedy and violent. Rousseau, by contrast, appears to follow the tradition in which God disappeared into the immanence of nature. Consequently, when Rousseau (1998) talks of the ‘state of nature’ he implies, not a ‘war of all against all’, but something altogether more tranquil and benign. Despite these radically different ethical construals of human nature, for both the source of right is a state of nature. In both it is a question of making a case for the intelligence of preserving ‘original rights’ and ‘natural liberties’ by translating them into ‘conventional rights’ or ‘civil liberties’. In both the key political problem is the balancing of freedom and obligation: Hobbes could have said ‘L’homme est né libre’. When Rousseau begins the Social Contract (1999) by asking the question of the legitimacy of social order he is talking of nothing but right. This is made clear in Book 1, chapter iii where it is argued that strength must be transformed into right (and obedience into duty) if the ‘right of the strongest’ is to outlast the mere strength of the leader. If might is to be distinct from right, then right must be associated only with ‘legitimate powers’. The question of right is here explicitly the question of how to make power legitimate. Rousseau’s answer develops precisely the nexus of subjectivity and will discussed above. Namely, power is legitimate if it follows from the general will: ‘…the general will is always in the right, and always tends to the public welfare’ (Rousseau, 1999, p. 66). The general will is a social, collective will, and as such it is often presented as a corrective to the thoroughgoing individualism of Hobbes. But for both the problem is the reduction of a multiplicity of wills to a singularity. For Hobbes and Locke, this reduction depends on a consciousness of one’s own nature, combined with what could be called a consciousness of the (rights of the) other. For Rousseau, what appears to be at issue is not consciousness of the other but what we might risk to call, returning to the original etymology discussed above, ‘consciousness with others’. Consciousness with others generates the singularity of a general will that need never solidify into a fixed institutional form or a sovereign figure who might, once constituted by it, dispense with it in the name of preserving actualised power. General 28 critical psychology

will is a hypothetical socio-psychological reality that, once generated, would be the continual source of right and a principle for the perpetual ‘rectification’ of actual power. It generates a sovereign people, not a sovereign who then acts for (or against) the people. If Hobbes justified the right of law preserving violence, Rousseau justified the law making violence of the French revolutions. It is no accident that this violence was always exercised in the name of ‘the right’ by the citizens of the ‘Republic of Virtue’ (Arendt, 1990). Both Rousseau and Hobbes thus equally require, at the basis of the polity, the work of subjectivity on itself in the name of guaranteeing the natural right of its own freedom. On the basis of this shared premise, two radically distinct versions emerge and enter into a kind of double-act. This double-act of hawk and dove has supplied the twin rhetorical pillars of North Atlantic liberalism, and is still discernible today in the speeches of a Bush or a Blair. ‘Modernity 1’ (Hobbes) is the authoritative voice of a self-interest generalised into the ‘national interest’. ‘Modernity 2’ (Rousseau) is the compassionate voice of concern for the exploited and disenfranchised other generalised into the common interest. The identification of natural right with general will explain why the problem of the generation of the latter is so important to Rousseau. In Book 2, chapter iii of the Social Contract he distinguishes the ‘will of everyone’ from the ‘general will’ arguing that the former is merely the sum total of private interests, while the latter is ‘concerned only with the common interest’. The difference between the two is the ‘excesses and insufficiencies’ of individual desires. Rousseau makes a case that the pure general will can only be formed in opposition to a third that is excluded. But instead of relying upon the traditional excluded third of an external enemy, Rousseau suggests that what should be excluded is the common enemy of particular, private, individual interests that exists within each citizen. The sacred union of a nation in the form of a general will is thus achieved via exclusion of the ‘enemy within’ of private self-interest. That is why each of us must transfer all our rights ‘completely’ and ‘unreservedly’ in the social contract, since any residual self-interest would pollute the purity of the general will with the mere ‘will of everyone’, and the state of nature would not be transcended: ‘Each of us puts his person and all his power in common under the supreme direction of the general will; and we as a body receive each member as an indivisible part of the whole’ (Rousseau, 1999, p.55).


Taming the double-act: natural right becomes abstract right It is with Hegel’s Philosophy of Right (1821) that the theme of free will as the basis of abstract right – implicit in the modern tradition of natural right – is fully articulated as subjectivity.27 This articulation of right, building upon and sublating Kant28 is the law preserving answer to Rousseau’s justification for law making violence.29 For Hegel (1967, p. 75), subjectivity is ‘the ground in which freedom is now set’. The self-reflection of subjectivity is the basis of moral right: ‘The standpoint of morality is the standpoint of the will which is infinite not merely in itself but for itself… this reflection of the will into itself and its explicit awareness of its identity makes the person into the subject’. For Hegel, of course, this outcome is the result of an enormous historical labour during which the spirit gradually comes to liberate itself from the matter of the state of nature. Only when liberated can spirit create a law and a state appropriate to its level of development. Subjectivity becomes the new basis and guarantor of a natural right that, as freedom from nature, can no longer be called natural:30 ‘The basis of right is, in general, mind; its precise place and point of origin is the will. The will is free, so that freedom is both the substance of right and its goal, while the system of right is the realm of freedom made actual, the world of mind brought forth out of itself like a second nature’ (Hegel, 1967, p.20). The famous law preserving power of Hegel’s account thus stems from the argument that criticism in the name of a transcendent natural right is henceforth redundant. ‘Abstract right’ and positive law correspond perfectly in the modern state, which is now itself identified as ‘reason as it actualises itself in the element of selfconsciousness’ (Hegel, 1967, p.4). Hegel, we might say, legitimates the ‘top down’ approach of Hobbes by way of Rousseau’s ‘genuine communal spirit’31 whilst disqualifying the underlying empirical-anthropological rationale for both (i.e. self-interest and common interest).32 He does so by historicising an immanent God, who is now considered to gradually reveal Himself in the world of nature and history as a loving and self-revealing spirit. In replacing theology (piety in relation to spirit) with philosophy (knowledge of spirit), Hegel is thus able to defend and justify the right of state law with his ‘state philosophy’ (p. 7): ‘Man must therefore venerate the state as a secular deity’ (p. 285).


Conclusion I have developed an argument in which the history of natural right is a story of its continual transformation into increasingly complex forms characterised by a bifurcation into preservative and creative moments. This historical escalation, I have suggested, is provoked by the fact that social order itself hangs in the balance of the forms of legitimation and motivation natural right has traditionally supplied. The modern period is marked by the articulation of new conceptions of nature and of right, and by new ways of combining them. These allocate a fundamental role to psychology in the double sense of a scientific scrutiny of human nature and a form of lived subjectivity appropriate to the modern polity. Naturally, this history does not end with Hegel’s substitution of nature with subjectivity, nor with the routine repudiations of natural law typical of the legal scholarship of that period. On the contrary, such repudiations are typical of every new attempt to legitimate or de-legitimate existing worldly power. Our story could therefore continue with the great nineteenth-century developmental materialisms of Darwin and Marx in the context of major transformations both in science and law,33 and with the twentieth-century efforts of a Rawls, a Cassin, or a Habermas. The chief aim of this paper, however, is less to invent a history of natural right than to illustrate the profoundly political origins of both the discipline and the subject matter of psychology. Psychology, since its inception, has been anchored in, and has anchored, North Atlantic liberal policy. Recognition of this fact is surely relevant to the invention of new political interventions, and new forms of psychology, which hope to speak and act in the name of the right.

Acknowledgements 1. This paper was written whilst the author was based in the Department of Law at the University of Frankfurt, thanks to an Alexander von Humboldt Fellowship and a Leverhulme Study Abroad Fellowship. 2. There are three groups in Germany that I would like to thank for helpful discussions regarding my research in Frankfurt. First the participants in Gunther Teubner’s Juristisches Seminar in Frankfurt, especially Gunther Teubner, Lucian Goga, Andreas Abegg and Brunela Vincenzi. Second the participants in the seminar at the Institut für Sozialforschung, especially Axel Honneth, Manuela Bojadzijev and Ellen Bareis. Third the critical psychology group at the Free University of Berlin, especially Ute Osterkamp


and Dimitris Papadopoulos. Thanks also to Andrew Norris and Graeme Gillock for helpful comments.

Notes 1. The problem of the difference between natural right and natural law is a question to which much legal and philosophical scholarship has been devoted, but which I can not address here. Harding (1955), Finnis (1980), Douzinas (2000), Strauss (1965) and Breuer (1986) provide interesting discussions and definitions. 2. Regarding the lack of specificity of the terms right, law and justice, it is notable that the words for right and for law are identical in several European languages (Recht, droit, diritto, derecho). The Greek and Latin words are comparably polysemic. The Greek dike yields a cluster of terms (dikaion – the right and the just; dikaios – a rightful person) connoting the rightful, lawful or just. According to Douzinas (2000), the nomoi of physikos nomos (natural law) were, in archaic thought, customs and norms that were part of the primordial order of dike. Likewise, the Latin ius substituted for dikaion in connoting the lawful, rightful and just, whilst iusticia, like dikaiosyne, meant justice. Ius naturale thus connotes in equal measure natural justness and natural right, and implies natural law. For a fascinating debate about the significance of Aquinas’ use of ius and lex consult Villey (1961). 3. By the early twentieth century this was so apparent that certain neoKantian theories of natural law/right set about re-entering this paradox into their arguments, either by restricting the proposed universality to logical form (del Vecchio, 1914), or by insisting that the empirical content of natural law/right, like that of natural history or the philosophy of history, inevitably changes over time (Stammler, 1925). 4. This sense in which natural right dies so that it may live longer has been noted by several commentators (Harding, 1955, Gierke, 1934, Breuer, 1986). 5. Consider in this light the following comment from the preface of Hegel’s Philosophy of Right from 1820 (1967, p. 4): At the present time, the idea that freedom of thought, and of mind generally, evinces itself only in divergence from, indeed hostility to, what is publicly recognised, might seem to be most firmly rooted in connexion with the state, and it is chiefly for this reason that a philosophy of the state might seem essentially to have the task of discovering and promulgating still another theory, and a special and original one at that.

6. Usually the revolutionary potential is emphasised. Hence for Weber, ius naturale represents the ‘specific legitimation-form of revolutionarily-created orders’ (1978, p.867); for Luhmann (1981) ‘a thoroughly progressive orientation which is critical vis-à-vis traditional law’ (cited in Breuer, 1983); and for Pollock (1922, p.20) ‘the Law of Nature never ceased to be essentially rationalist and progressive’.


7. This law was associated with the ius gentium (Jolowizc, 1932) which the Romans had developed to regulate commercial dealings with foreigners and which was thus common to all nations. 8. ‘For the unjust inventions of men are neither to be considered nor spoken of as rights’ (Augustine, cited in Douzinas, 2000, p.54). 9. This statement does not deny the manifold social, cultural, scientific, economic and technological changes that influenced the reformation. 10. The symbolism of this attack on existing law is the archetypical gesture of revolutionary natural right. Not only did Luther burn Gratian’s Decretum, the Summa Angelica, the Sextus Clementinae Extravagantes, the pseudIsidorean Decretals and the Corpus Iuris Canonici, but he also stated that ‘The canon law has arisen in the devil’s name; let it now fall in the name of God – and let there be no more doctores decretum in the world’ (cited in Outler, 1955:1). ‘Hatred of the law’ is what Hegel (1967, p.7) would call ‘the special mark which it carries on its brow’. It is visible in Rousseau’s (1998) cynical attacks on the legal foundations of civil society and in Marx & Engel’s attacks on jurisprudence in the Manifesto (cf. Stenner, in press). 11. Although Luther’s work was used to legitimate and motivate the revolutionary violence of the Great Peasant’s War (1524-26), he was uncomfortable being positioned as the legitimator of a new wave of law making violence. Instead, he turned against the ‘murdering and thieving hordes of peasants’, legitimating in turn a repressive counter-wave of law preserving violence. The publication in 1525 of Luther’s Wider die Mördischen und Räubischen Rotten der Bauern was a key factor in the bloody defeat of the peasants that same year (Outler, 1955). 12. With Luther, the figures of the individual and the nation state, which are so central to political modernity, are clearly in evidence. On the one hand, the religious authority of the Pope as mediator and translator of divine law is challenged by the genuinely Christian conscience of the individual believer. On the other, since Christians are ‘rare birds’: ‘the world needs a strict, hard temporal government that will compel and constrain the wicked not to steal and rob.’ (Luther, 1524, cited in Outler, 1955, p.4). 13. It should also be noted that, according to Still (1998, p.21) the first book with the title ‘Psychology’ was written by a protestant theologian (Rudolph Goclenius) in 1590. 14. This is, needless to say, a highly controversial statement. The question of Psychology’s ‘long past’ has troubled many a worthy author, amongst whom I particularly recommend Danziger (2002), Richards (1987), Smith (1988). 15. The natural right of Grotius ‘would have a degree of validity even if we should concede that which cannot be conceded without the utmost wickedness, that there is no God, or that the affairs of men are of no concern to him’ (De Jure et Pacic Libre Tres, cited in Scott-Craig, 1955, p.40) 16. For Suárez individuality was defined in relation to self-reference: ‘a substantial modus, too, which is simple and indivisible in its way, gets its individuation out of itself, and not out of any principle that is distinguished from it as a matter of fact.’ (see Luhmann, 1995, p.257).


17. The full philosophical recognition of this theological process comes with Hegel: ‘The will’s immanent actualisation in accordance with its concept is the process whereby it supersedes its implicit stage… and which is the shape it assumes in abstract right’ (1967, p.74). 18. This position is perfectly clear in Luther’s Treatise on Christian Liberty, as summed up in the two formulae: ‘A Christian man is a perfectly free lord of all, subject to no one else. A Christian man is a perfectly free servant of all, subject to everyone’ (cited in Outler, 1955, p.2). 19. Legal rights in the pre-modern feudal order did not belong to individuals as such. Rather, in the middle-ages, as in antiquity, rights always referred to an objectively given social order. Legal rights were legitimated in relation to a higher justice which involved taking into account the different standing and contributions of differently located actors to the social good (Verschraegen, 2002). The legal order of medieval Europe thus reflected the social order: it was hierarchical, made clear distinctions according to rank and position, and was legitimated by the divine order (Luhmann, 1981). 20. When occasionally the rights of an individual were mentioned (as in res iusta), this referred only to the ‘objective part one was entitled to on the ground of a certain social position’ (Verschraegen, 2002, p.264). 21.

Another infirmity of a Commonwealth is the immoderate greatness of a town, [...] To which may be added, liberty of disputing against absolute power by pretenders to political prudence; which though bred for the most part in the lees of the people, yet animated by false doctrines are perpetually meddling with the fundamental laws, to the molestation of the Commonwealth, like the little worms which physicians call ascarides. (Hobbes, 1946: Part II chapter 29).

22. In Leviathan, Part I, chapter 14, jus naturale is clearly distinguished from lex naturalis. The first law of nature is to seek peace. 23. These are discussed in Part II, chapter 18, and include: the right to be justly put to death; to judge the means and occasions of peace, war and defence; to judge which opinions and doctrines are acceptable; the right to prescribe laws and to judge and punish. 24. These are described in Part II, chapter 21 ‘on the liberties of subjects’ as: the right to defend one’s own body; to disobey orders to self-harm; to avoid accusing oneself in confession; to send a substitute soldier to fight in one’s place; and other liberties which ‘depend on the silence of the law’. 25.

For by art is created that great LEVIATHAN called a COMMONWEALTH, or STATE, (in Latin CIVITAS) which is but an artificial man; though of greater stature and strength than the natural, for whose protection and defence it was intended. (Hobbes, 1946: Introduction)

26. Hence his criticism of the divine right theory of Robert Filmer in the Second Treatise of Government (1690/1956).


27. Hegel recognised the theological origins of subjectivity: in the ‘Lutheran faith, it is this specific individual who is related to God. A man’s piety, his hope of salvation, etc., all demand that his heart, his subjectivity, should be present in them. His feelings, his faith, in short all that belongs to him is claimed, Man must repent from the heart and be filled with the Holy Ghost. Thus here the principle of subjectivity, i.e. freedom, is recognised.’ (Hegel, 1892: iii. 149). 28. Kant, it could be said, deifies reason, identifying it as the power that enables man to transcend, as a freely willing being, the empirical laws that determine beasts. Reason is the basis of freedom, and right can prevail only when subjectivity identifies itself therein. 29. Hegel (1967, p.30) shows particular disdain for Rousseau-style romantic arguments for natural right, which he identifies with slavery: ‘Philosophical utterances about right, morality, and ethical life from those who would banish thought and have recourse instead to feeling, enthusiasm, the heart and the breast, are expressive of the utterly contemptible position into which thought and philosophic science have fallen…’ 30. ‘The unification of freedom and necessity is not produced by nature, but by freedom. Natural things remain as they are, they have not freed themselves from the law in order to make laws for themselves. This spirit, however, tears itself free from nature and produces its own nature, its own laws. Thus nature is not the life of law’ (Hegel’s lecture on natural and state law, 1818, cited in Breuer, 1986, p.99). 31. This ‘bottom up’ aspect of Hegel’s philosophy is equally clear: ‘In the people ruled by a genuine communal spirit, life for the discharge of all public business would come from below, from the people itself; living associations, indissolubly united by the holy chain of friendship, would be dedicated to every single project of popular education and popular service’ (Hegel, 1967, p.6). 32. This disqualification had also been prepared by Kant (1998) who insisted that the obligation to leave the state of nature is a moral obligation based on a priori reasons, not an actual historical event based on empirical ends such as maximising self-interest or the communal good. 33. Namely, the great positivisations of science and law that took place simultaneously in the second half of the nineteenth century, during which modern scientific Psychology was born. These two positivisations are, in many ways, directly comparable. For instance, as Fuller (1963, p.119) observes, Holmes’ definition of law in relation to its cutting edge is directly comparable to Bridgeman’s operational theory of scientific concepts. And where Kelsen excludes questions of making and interpreting law from positive law and includes them in the ‘meta-juristic’, Reichenbach excludes the act of discovery from the philosophy of positive science on the grounds that it ‘escapes logical analysis’. Legal positivism excluded transcendent law just as surely as scientific positivism excluded transcendent nature. Both became self-referential.


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