Natural law and critical theory: Bringing rights back in

Abstract

This paper re-assesses the significance of the idea of ‘right’ in the tradition of critical theory. Focusing on the work of Hannah Arendt and Theodor Adorno, especially their confrontation with totalitarianism, it addresses their conceptualization of rights, their engagement with the philosophies of right created by Kant and Hegel, and the ambivalent place of Marx in their thinking about rights. My argument is that critical theory turned to natural rights in response to the perceived difficulties positive sociology had in confronting the barbarities of fascism and Stalinism. Critical theory steered a path between philosophies of right that acknowledged the idea of right within an unacceptably naturalistic frame of reference, and a sociological consciousness that de-natured the idea of right at the cost of its devaluation. Arendt and Adorno both confronted the contradictions of an age in which the rights of the individual were elevated as a supreme value while individuality was subjected to the forces of technological and economic determination. Both understood the barbarism of their times in terms of the disintegration of mediations between freedom and determination. Both recognized the gulf that separates the concept of rights from the material interests, inequalities and prejudices concealed behind them. And both drew on the critical substance of natural right theory to distinguish between the critique of rights, which has as its end their revaluation, and the trashing of rights, which serves to reinforce their devaluation. I argue that there is much to be gained, in terms of our understanding both of rights and of critique, from critical theory’s engagement with the natural law tradition.